Understanding Life of the Mother Provisions in Prenatal Equal Protection Legislation

Introduction

Suppose that a sailor were high in the mast of a sailing ship securing the sails during a storm at sea, when high winds snap the mast and send the sailor, the rigging, and the mast itself into the ocean.

The ropes from the rigging are still connected to the ship, and the mast now acts as a sea anchor that threatens to capsize the entire vessel. To make matters more complicated, the very ropes imperiling the ship could also serve as the only potential lifeline for the sailor to climb back into the ship, should he survive the onslaught of strong winds and massive waves long enough to reach them.

The captain waits as long as he can, but the loss of the ship seems imminent if he does not cut the ropes soon. This places the captain in a predicament. Should he continue waiting to allow the sailor every chance to climb aboard, no matter how remote, or should he cut the ropes to save the remainder of the crew? More to the point, if the captain were to cut the ropes, should he be considered a criminal under the law?

In the same way, there are sometimes occasions in which the life of a pregnant mother is placed at serious risk of death if something is not done, like the situation of an active ectopic pregnancy. While pregnancy and childbirth are generally safe experiences, circumstances may arise where, to avert the death of the mother, doctors sometimes perform medical triage that may unintentionally place the life of the child at increased risk, even while working to the best of their ability to save both lives.

When these actions fail or are no longer feasible, doctors may perform an early delivery of the child. Sometimes the baby is old enough to survive. Sometimes the baby is not.

Is the doctor a criminal when these interventions unintentionally result in the death of a child? Is the mother a criminal for authorizing the interventions? If the mother was unconscious, is her medical agent who approved the interventions a criminal?

When drafting legislation to provide equal protection of the laws to preborn children, the Foundation to Abolish Abortion seeks to carefully consider these issues.

What are our premises?

Because of how much we love human life made in the image of God, which is equally true for both the life of the child and the life of the mother, this discussion is by no means easy. We fundamentally desire that both lives be saved every single time.

In reaching our position at the Foundation to Abolish Abortion, we operate on several premises that could change, in which case our position could also change. But we believe these premises to be true for the moment in which we live.

We operate from the premises that ectopic pregnancies, especially tubal, entail an extremely low possibility of survivability for the child, that there is a relatively high possibility of death for the mother, and that there is nothing that can be done with medical technology today to move and reattach that child who has attached elsewhere into the uterus, where the child could continue developing.

On the latter point, the few historical claims of such procedures—including one from 1917, another from 1980, and recent unverified assertions from Beijing Antai Hospital—lack credible verification.

We hope that one day these premises will not be true due to an increase in the medical knowledge, skill, and technology needed to aid in the discovery of methods, if possible, to move the child from a place where the pregnancy endangers the life of both to a place where the pregnancy does not.

To our knowledge, such methods are not available today. So in the meantime, we must write laws that consider such situations and inform parties of the legal boundaries of their actions.

This article is ultimately not about the morality of what decision each person should make in those circumstances. While the law deals with moral issues, the law does not deal with all moral issues. While the law deals with sin, the law does not deal with all sins or even most sins, which is appropriate.

Instead the law only deals with those moral issues that rise to the level of crime. That is what we are considering: after taking all reasonable and available steps to save the life of the child, should procedures to save the life of the mother that unintentionally result in the death of the child be a crime?

Our position is that the answer should be no.

What is the legal doctrine of necessity?

There are some situations in which violating the letter of the law is recognized as a lawful action. There are times in which our laws do not subject a person to criminal liability even when they perform an action that would otherwise be technically illegal. Most relevant here is the legal doctrine of necessity.

For instance, breaking and entering into a home is considered trespassing and destruction of property, and touching someone without their consent is considered assault or battery. But what if a stranger tries to rescue an unconscious elderly woman stuck in an upstairs bedroom while her home is on fire? The stranger trespasses by entering her property, destroys her property by breaking into her home, and commits assault or battery by lifting her without her consent in order to remove her from a situation of great danger.

Though the elements of these crimes were technically committed, the legal doctrine of necessity justifies or excuses them because they were necessary to prevent a much greater harm.

The justification exists in this scenario because of the risk to innocent life, but also because of the ultimate intent.

In this case, the stranger certainly did intend to enter property not his own, break into a house, and lift someone without their consent, but his ultimate intent was not what would be considered criminal in nature. All of these actions were for beneficial purposes, not nefarious purposes.

The doctrine of necessity says that such actions, though technically meeting the definitions of crimes, are justified or excused and so may not be prosecuted by law.

Is this a denial of equal protection?

This doctrine of necessity is already current law in every state, either by statute or by case law. This has been true since the founding of this country because the doctrine is inherited through the broader Western legal tradition.

Consequently, whether or not an application of this legal doctrine were written into legislation or not, it would still be the law because such law already exists for born people. To deny any possible application of the necessity defense would actually result in unequal protection of the laws.

Because the doctrine of necessity is already the law, we chose in some earlier abolition bills not to draft explicit provisions applying it. The situation of the life of the mother would automatically be handled under the existing doctrine of necessity in each state, so the bills did not need to handle such questions. However, we realized that if the bills we drafted were silent on this issue, then the courts would create their own applications of the necessity defense to these matters. This could, and very likely would, result in applications of the doctrine which were too broad and did not equally value the life of the child.

To address that, we began writing language specifying application of the doctrine of necessity to ensure the doctrine was not applied more loosely than it ought and to neutralize baseless attacks from opponents of equal protection.

Some may object to language that, in a life-saving situation for the mother, doctors are required only to take available steps to save the life of the preborn child that are “reasonable.” Some may argue that such language is subjective and could be abused to allow for abortions. However, overly regulating the vast number of scenarios under which medical triage can be performed to save both mother and baby risks criminalizing what would be beneficial conduct in some cases.

The requirement that steps be reasonable is admittedly somewhat subjective, but this is a feature, not a flaw, of the clause.

First, the standard of reasonableness is ubiquitous throughout criminal law because the law often needs to distinguish between acceptable and unacceptable conduct based on what ordinary people would consider appropriate under the circumstances. In fact, this is one of the most frequently applied concepts in criminal law.

Secondly, the standard of reasonableness allows the law to automatically adjust over time. In this case, the law would automatically adjust to the advancement of medical knowledge, skills, and technology. As medicine advances, a procedure that was once considered unreasonable would become reasonable, which would require doctors to employ it.

Because the doctrine of necessity would apply regardless of whether we addressed it in the bill or not, the principle of equal protection is by no means violated when acknowledging these realities.

Is this an abortion “exception”?

An abortion is an act of prenatal murder: the intentional killing of a preborn person. That is not what happens when dealing with an ectopic pregnancy under the language we draft. No one wants the baby to die. No one is intentionally killing the baby. Everyone is taking all reasonable and available steps to save the life of both.

The Dublin Declaration, signed by numerous doctors, nurses, and other professionals agree that an abortion is not performed in this scenario.

Some may say that this is an abortion under medical definitions because the pregnancy is terminated. But if we use that line of reasoning, then an ordinary miscarriage must be considered an abortion as well, because “spontaneous abortion” is likewise a term used medically for the natural or accidental termination of a pregnancy. That is not what we are discussing, as ending a pregnancy to save the life of a mother is not an abortion in the common vernacular and legal ways of using the term.

As a result, the language we draft regarding the life of the mother is not, and should not be described as, an “exception.”

Conclusion

The situation of the life of the mother is a difficult subject. The law cannot solve every problem.

Just as we believe that neither the captain of the ship who cut the rope nor the stranger who rescued the elderly woman were criminals, we do not believe that a doctor who takes actions to save as many lives as possible in a situation of medical triage, though he knows such actions may result in the unintended death of the child, should be considered a criminal for his actions, nor should the mother who consents.