Editor’s Note: It is just a few days since Hillary Clinton was defeated in her bid to be elected President. To most pundits, this was shocking, as she had the entire Democratic Election Machine at her back, was supported by a purported insurmountable ground game, and was viewed as unstoppable. The American people disagreed, however, and sent her packing. One of the key moments leading up to the election was her dogged devotion to Moloch, as manifested in her support for abortion. In the third debate with Donald Trump, Clinton stood firmly behind even such abominations as partial-birth abortion. We at Men of the West are convinced that it was her position on this issue that helped lead to her defeat. With that in mind, we present to you this article that addresses this topic. 

 

I’d like the reader to consider the following very simple question from a purely legal and logical perspective:

“Is abortion homicide?”

First, let us look at the generally accepted legal definition of “homicide” taken from Black’s Law Dictionary, 6th Edition:

“The killing of one human being by the act, procurement, or omission of another.”[1]

That’s a simple enough concept, isn’t it?  If you cause the death of a human being ‑ intentionally or unintentionally ‑ then you have committed homicide.  Note that not all homicides are considered crimes.  For example, killing another human being in self defense is not considered a crime if the killer meets the necessary legal requirements for the killing to be considered self defense.  Such homicides are known as “justifiable” homicides.  Therefore, the answer to the question, “Is abortion homicide?” could be in the affirmative and, at the same time, not be a crime.

baby-2The argument typically raised by those who are “pro‑choice” is that a fetus is not a human being because the fetus is not “viable”.  Indeed, that argument was used by the United States Supreme Court in Roe v. Wade.  The Supreme Court defined viability as:

“… potentially able to live outside the mother’s womb, albeit with artificial aid.”[2]

To the Supreme Court, the fact that a fetus (of a certain age) cannot live outside the mother’s womb means that the fetus is not yet a human being.

I’ll come back to a serious problem with the Supreme Court’s definition.  First, I’d ask the reader to consider the following which the Supreme Court did not consider in its 47 page opinion in Roe v. Wade:

“Currently, at least 38 states have fetal homicide laws… At least 23 states have fetal homicide laws that apply to the earliest stages of pregnancy (“any state of gestation,” “conception,” “fertilization” or “post‑fertilization”)…”.[3]

Those laws are logically and legally inconsistent with federal abortion law, are they not?  One could argue that a federal court case should be filed challenging all of those state laws as inconsistent with the Supreme Court’s holding in Roe v. Wade.

If a fetus is not, in fact, a human being, then causing its death cannot meet the requirements of the generally accepted definition of homicide.  However, if we find that a fetus is not, in fact, a human being, then how can we logically and fairly charge people with committing homicide for causing the death of something that is not, in fact, a human being?  We do not charge people with homicide for killing an animal ‑ which is generally considered to be of less value/importance than a human being.

And there we have the legal conundrum.  Nevertheless, allow me to expound further with three hypothetical situations which are similar to questions that might appear on a bar exam:

1:  A pregnant woman decides she wants an abortion and goes to the abortion clinic to have a legal abortion.  She goes in the doctor’s office, checks in, is taken to a room and is prepped for the abortion.  Mere minutes before the doctor comes in to do the legal abortion procedure, a nurse ‑ who is very angry at the pregnant woman because the pregnancy was the result of an affair between the pregnant woman and the nurse’s husband  ‑ comes in the room and in a rage hits the pregnant woman several times.  The pregnant woman suffers no injuries beyond bruises, but the fetus dies as a result of the nurse’s actions.

Under the laws of at least 23 states (and possibly 38 states), the nurse who assaulted the woman is guilty of BOTH assault/battery of the pregnant woman and homicide due to killing the fetus.  This would be the case even though the pregnant woman did not want to “keep” the baby.

If we change the hypothetical situation slightly, the logical inconsistency becomes more apparent:

2:  The angry nurse still hits the pregnant woman who is awaiting an abortion, but the fetus does not die as a result of the assault.  Minutes later, the doctor comes in, performs the abortion, thereby killing the fetus.

With that slight change in the hypothetical, neither the doctor performing the abortion nor the pregnant woman are guilty of any crime in relation to killing the fetus.  The nurse remains guilty of assault/battery.

Can you see the problem?

On the one hand, if we are to consider the fetus a human being, then we have to make it homicide to cause the death of the fetus.  This would result in laws being changed so that abortion is again considered homicide.

On the other hand, if we are to consider the fetus as something less than a human being, then it is hardly logical (or fair) to charge people with homicide for causing the death of a fetus.  This is true whether or not the pregnant woman wants to “keep” the baby.

But then what would we do with the hypothetical situation where a pregnant woman wants to “keep” the baby but is assaulted and the fetus is killed?  How should we compensate her loss?  Should we punish the person who assaulted her and caused the death of the fetus?

I now come back to a serious problem with the Supreme Court’s definition of “viability” in Roe v. Wade.  Again, the Supreme Court defined viability as (here’s the entire sentence):

“Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother’s womb, albeit with artificial aid.”

The problem is two‑fold.  First, what does the term “potentially” mean?  Second, what is “artificial aid”?

What is “artificial aid”?  The Supremes obviously mean something like a ventilator which allows a prematurely born baby to live outside the womb.  However, that concept causes the application of the law to change depending on the current technology.  For example, 100s of years ago, ventilators did not exist.  Thus, under Roe v. Wade, a fetus would be legally abortable much later in the pregnancy after ventilators were invented than before they were invented.  Further, consider the future, with the possibility of advances in technology.  Those advances could theoretically result in the development of devices which allow the development of fetuses outside the mother’s womb from conception and thereafter.  If such devices were, in fact, developed, then it would become illegal to abort a fetus at ANY stage of pregnancy because any fetus would become “potentially” able to live outside the mother’s womb with artificial aid.

Even further, why should the definition of “artificial aid” be limited to medical devices.  Presumably, the first children ever born were delivered without the “artificial” aid of nurses, doctors and hospitals.  Indeed, some babies today are delivered without such “artificial” aid.  In fact, my wife and all three of her siblings were born at home with the only “artificial aid” being in the form of a midwife.

Let’s take it a bit further.  The Supreme Court’s definition of “viability” essentially holds that because an unborn fetus of a certain age is unable to live outside the mother’s womb, the fetus is entirely dependent upon another human being (in the form of its mother) and is thus not a human being.

The entire idea is, frankly, ridiculous.  Here’s why:

A fetus that is carried to full term and which then comes out of its mother’s womb through the birthing process (with or without other “artificial aid”) remains entirely dependent upon one or more other human beings to live.

I ran a Google search for the terms: “human babies completely helpless at birth”.  It returned 1,130,000 results.  The first result[4] states, in part:

“Human babies enter the world utterly dependent on caregivers to tend to their every need. Although newborns of other primate species rely on caregivers, too, human infants are especially helpless because their brains are comparatively underdeveloped. Indeed, by one estimation a human fetus would have to undergo a gestation period of 18 to 21 months instead of the usual nine to be born at a neurological and cognitive development stage comparable to that of a chimpanzee newborn.”

The FACT that human babies ‑ even the ones carried to full term ‑ are utterly dependent on caregivers is not scientifically disputed.  If the baby is born and no one feeds it, changes it, clothes it, etc…, then that baby will die.  Quickly.  A baby being deprived of food can die in as soon as 3 days.[5]  I’d say that’s pretty dependent.

As such, the entire concept of “viability” being based on the idea that a fetus cannot survive outside the womb is ridiculous.  Even a two (2)  year old toddler cannot reasonably survive without the care of at least one other human being.

People should decide whether or not a fetus is a human being.  If the fetus is a human being, then anyone causing the death of the fetus ‑ for whatever reason ‑  should be guilty of homicide.  If the fetus is not a human being, then people should not be criminally punished for causing the death of the fetus ‑ for whatever reason.  I hold the position that any person who causes the death of a fetus by assaulting the mother has committed homicide – even if the mother doesn’t want to “keep” the baby.  To reasonably hold that position, I must believe that the fetus is, in fact, a human being.  As such, logic requires that I also take the position that any person who causes the death of a fetus – even if the mother doesn’t want to “keep” the baby – has committed homicide.  And that includes physicians who perform abortion procedures.

But, as noted, not all homicides are crimes.  Some homicides are “justifiable”.  You should decide for yourself whether abortion is justifiable.

 

[1]  https://archive.org/stream/BlacksLaw6th/Blacks%20Law%206th_djvu.txt

[2]  http://caselaw.findlaw.com/us‑supreme‑court/410/113.html

[3]  http://www.ncsl.org/research/health/fetal‑homicide‑state‑laws.aspx

[4]   http://blogs.scientificamerican.com/observations/why‑humans‑give‑birth‑to‑helpless‑babies/

[5]  http://www.bioedge.org/bioethics/bioethics_article/how_long_does_it_take_to_starve_a_baby