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Saturday, March 16, 2013


Senate Bill 2303, passed in the Senate and soon to be voted on in the House, simply places in North Dakota criminal code the definition of a human being as:   

“any member of the species of Homo Sapiens at any stage of development.”

The bill specifically exempts contraception before diagnosable pregnancy, and allows for in vitro fertilization, provided viable human embryos are not created and deliberately killed.  It also exempts procedures necessary to save the life of the mother in the case of pregnancy, or accidental deaths caused in medical treatments attempting to save the life of a person.  Yet, opponents continue to argue against the bill, predicting unacceptable consequences.  In the final analysis, the only plausible consequences that they have proposed are potential increases in the cost of in vitro fertilization for some cases wherein implantation of the first fertilized embryos is not successful; and costs of litigation to defend the new laws against court challenges. 

There are some situations, however, wherein cost-benefit analysis alone simply fails. 

To put this in perspective, consider the historical example of the Dred Scott case. in 1859 The U.S. Supreme Court ruled that Dred Scott, a slave who had been abiding in  a free territory (Fort Snelling, Minnesota) did not have standing as a citizen, under Congress’s Missouri Compromise, to appeal his freedom before U.S. Courts. The Dred Scott decision was based partially and rhetorically on a congressional apportionment provision in Section 3 of the U.S. Constitution, which allowed states a weight of 3/5 representation for each slave.  The court, absurdly, construed this provision as defining black people as 3/5 human.  Among  the many justifications for the decision was what some have termed a “parade of horrors,” enumerating the “terrible impacts” that allowing black people to have citizen standing in free states would have on the nation. In other words, it was a pragmatic argument.  Slaves could not be accorded full human dignity because there would be cost involved.

The history of this horrific institution and its final elimination in our nation, and the agonies of a hundred years of subsequent struggles in implementing true racial equality in the twentieth century, even to our own time, are well known.  The pragmatic argument revolved around the cost of human dignity in terms of economic dislocation.  But looking back, how can anyone argue that the need and the accomplishment were not worth the cost?  There are principles, not many, but some that simply defy the limitations of pragmatic balance.  The first two of these listed in the U.S. Declaration of Independence are those of Life and Liberty.

It is ironic, therefore, that it was as this nation first began to emerge from segregation and complete its defense of the principle of Liberty in the 1970s,  that it simultaneously slid backward, for the first time in history, into a rationalization that denied the lives of millions of defenseless unborn children - sometimes by measures as heinous as any torture chamber the world has ever devised.

There is not a single point, after conception, in which the beginning of human life can be rationally defined, as all stages are merely a succession of a determined developmental pattern.  Certainly the mere passage through the cervix at birth is an absurd boundary   to define the humanity of a fully developed baby.  But earlier and earlier survival, and indeed the advent of in vitro fertilization, have confirmed that it is really a matter of protecting and nurturing that unborn child.  And the existence of dependency for survival extends far beyond the womb into the post natal development of the child.  Only the nature of dependency changes.

The language of SB 2303 does not explicitly forbid anything.  It merely places in the State criminal code a definition of human being that corresponds to the realities of child development. As one retired physician testified in the House Human Services Committee two sessions ago (to paraphrase) “I have no position on this bill, but I’ve delivered a lot of babies in my life, and that’s a baby in there.”

 It would be disingenuous, however, to pretend that the bill has no implications for abortion.  What it does is place in criminal code a clear acknowledgement that human life is being extinguished when a child is destroyed in its mothers womb.  And it exposes the fact that all arguments to the contrary are based on the “parade of horrors” argument - the cost to others in terms of support; the responsibility of the mother, the father, and of society at large to nurture and respect the human dignity of that child; the legal costs of defending the principle of human life - the inconvenience of it all.

The language of Senate Bill 2303 exposes the hollow pragmatic justification of abortion, and forces us to weigh it, in thought and in law, against the principle of human dignity enumerated in the ideals of our own Nation’s Declaration of Independence.  As with race and Liberty, the pre-born child and Life poses a principle that overweighs the pragmatic arguments and places them in the proper light.  If this State is going to allow killing, let it do so facing it square if it dares and if it can.  But lets stop hiding what we’re doing.  




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