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by Nicolo F. Bernardo
Lifeguard
HERE and in the United States, the debate on the so-called “reproductive right” and “right to choose” regarding pregnancy rages once more—whether such rights are absolute over and above the right to life, children’s protection, and the marital or parental right to secure the partner’s or guardian’s consent on reproductive decisions.
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The story of this supposed right goes back to the landmark US case of Roe vs. Wade that legalized abortion in the US and in many countries that followed its jurisprudence.
Although non-binding, US Supreme Court decisions are considered persuasive in Philippine law. It was, however, a decision that the framers of our Constitution sought to prevent via a provision on “equal protection of the life of the mother and the unborn.” There is a proposal to move this clause from the articles of the Declaration of State Principles and Policies to the Bill of Rights, and I agree. Considering our political clime, the fatal lessons of the Roe story need to be retold if to be avoided.
Jane Roe, purported to be pregnant from rape, filed a class suit against a Texas law prohibiting abortion except to save the mother’s life (the same exception in the Philippines).
Roe’s lawyers argued that State intervention on what a woman should do to her body violates her “liberty” and “right to privacy” without due process. The State lawyer, on the other side, misfired from the start so there had to be a change of counsel. (It was an
example of how unskilled lawyers can lose a good cause). Unsurprisingly, the Supreme Court favored Roe 7-2. The ratio was that the State must have “compelling” interest before it can intervene on a pregnancy, and this interest only “grows” relative to the stage of the pregnancy. Otherwise is an unnecessary exercise of police power.
Accordingly, State interest is minimal or nil on the first trimester of the pregnancy. On the second trimester when abortion is risky, the State can intervene for the mother’s health. It is only on the third trimester when the State must protect the “potentiality” of viable human life.
Roe, in the dissent of Justice Rehnquist, is a classic case of a judicial legislation where justices not only interpret, but in effect enact new laws which should be the legislature’s job. The abortion laws of 46 of 50 US States were invalidated.
Anyone reading the decision will have the idea that human life in the womb is treated as “potential” only, versus the actual condition of the mother. In its opinion, life begins at viability or survivability of the child in the incubator (isn’t that infanticide already?).
The problem here, and why the issue crops again, is that modern incubators now allow babies from the second trimester to survive and the justices did not foresee this forthcoming. In the future, survivability from the moment of conception could be possible with the available technology from assisted reproduction.
The least Roe justices could have done is to grant as mitigating circumstance, not exempting or justifying, the termination of pregnancy resulting from sexual violence. There is no justification to speak of when the baby is not the unlawful aggressor. Further, abortion’s effects harm the woman more; that was why abortion in some US States then (like in ours) was a crime against the person of the mother, if not the baby.
The UN Declaration of the Rights of the Child says that children need “adequate legal protection before as well as after birth.” This is a recognition of the value of the unborn in international law, although it is for the specific states to determine when the unborn’s life begins.
Sec. 12, Article 2 of our Constitution was a reaction to Roe, recognizing the right to life when science says new life begins—at fertilization. In the Records of the 1987 Constitutional Commission, Harvard alumnus Bernardo Villegas explains that from this moment, a new individual is conceived with determined genetic personality distinct
from that of the mother or father (therefore, not part of the woman’s body and not subject to her choice). It is living, and is human (with 46 chromosomes).
Incidentally, before our Constitution was enshrined, our civil laws (and even international laws) offer child protection, legitimacy, inheritance rights, and citizenship to a child already conceived or born. Former Pres. Ferdinand Marcos had some humanity in him in issuing a presidential decree known as the Child and Youth Welfare Code, providing that civil personality commences from the time of conception (not
anymore birth), for all purposes favorable to him. And lately in Oposa v. Factoran, our Court even gave legal standing to an environmental class suit representing “generations yet unborn” (as inclusive as that may mean).
Malevolently, abortionists argue that the unborn, if unwelcome, is in a state of unlawful trespassing. If only to satisfy their legalese, Art. 280 of our Revised Penal Code makes trespassing an absolutory causenot applicable when the trespasser seeks to prevent harm for himself. In People v. Apolinar, it was also held that defense of property is not as important as the right to life.
Still, to go around the law, there are these legal counsels of the Reproductive Health Advocacy Network who want to redefine “conception” as the moment of implantation in the uterus (bahay bata) instead of fertilization. Because as you see, hormonal contraceptives (pills, injectables, implants) and IUDs prevent both fertilization and implantation of an already fertilized egg.
Well, tell that to Henry Campbell Black! His authoritative Black’s Law Dictionary defines conception as “the fecundation of the female ovum by the male spermatozoon resulting in human life.”
Obstetricians would also tell you that not all pregnancies begin from implantation, but all begin from fertilization. There is no uterine implantation in ectopic pregnancies, just like in the recent successful ectopic pregnancy in Australia. The child was delivered normal and the mother was healthy. Would the proponents say that there was no pregnancy, or there was no baby, because there was no implantation?
Now some are working for abortion exceptions here like in Roe, for cases of rape or reasons of health. But hard cases make bad laws. Rape now includes “marital rape,” so any pregnant wife can invoke it for cause. Besides, as Villegas presented with complete statistics in the Commission, pregnancy from rape occurs less that one percent of the time due to the woman’s decreased fertility under stress and duress.
As regards the proposed health exception other than life-threatening illnesses, it can cover just about anything. Is it not that pregnancy is itself a health risk? Just as pro-abortion Hillary Clinton said, “mental health is health.” So if a woman is mentally
depressed due to pregnancy, out goes the baby. At the heart of this debate is the philosophy imported from US policies which give value to “freedom” and property more than life. It is life, liberty and property in reverse order. In the words of US Justice Jackson: “Of the three fundamental principles which underlie government…the protection of life, liberty, and property, the chief of these is PROPERTY.” Later Roe justices only have to extend this thinking to the pro-abortion mantra: “My body, my property, my choice.”
The real Roe today (Norma McCorvey) already had a change of heart and joined the pro-life movement. In 2004, she filed a case with the US Supreme Court that her story was all lie and she was used by her feminist lawyers. She was not raped, neither did she abort. But the case was dropped as moot. Now she is appearing in a TV commercial, explaining what really happened, and hoping that Americans would reverse a tragedy as they vote in the elections.
Ironically, presidential hopeful Obama approve of abortion when most babies being aborted in the US are Blacks. Considering the pro-life persuasions of the present US Supreme Court (their latest jurisprudence in Gonzales v. Carhart prohibiting partialbirth
abortion refers to a fetus as an “unborn child” and already a “baby,” labels the abortion provider as “abortion doctor” instead of obstetrician, and only assumes for the moment Roe’s holding), it is only one pro-life appointee away before Roe could be overturned.
Thus, the Democrats are swearing to appoint justices who will uphold Roe and to use precious taxpayers’ money to fund abortions globally, in return for campaign funds they received from abortion clinics. Since American presidents can be reelected and their judicial appointees rule for a lifetime, it would take decades to reverse things if Obama, a.k.a. the Abortion President, wins. Take it from his words: his first act as president would not concern economics or the war but to push for and approve a bill turning down all abortion restrictions in the US, then appoint pro-abortion justices.
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