Tuesday, March 7, 2006

Not So Absolute

The South Dakota law signed yesterday that basically bans abortion in that state sounds pretty draconian, according to William Saletan in Slate:

According to Section 1 of the law, “life begins at the time of conception,” and “each human being is totally unique immediately at fertilization.” Accordingly, Section 2 bans the administration “to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being.” Section 5 defines “unborn human being” as “the unborn child from fertilization to full gestation.”

In short, if you terminate life after fertilization, you’ve killed a human being, and you’re going to jail.

Section 3, however, tells a different story: “Nothing in section 2 of this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing.”

Look at that language carefully. It doesn’t just say you can take a contraceptive drug before sex. It says you can take such a drug after sex, as long as it’s before conventional tests can detect a pregnancy.

Conventional tests can’t detect a pregnancy at fertilization. They detect hormonal changes at implantation, which begins around the fifth day after fertilization and can take another week to complete.

In other words, South Dakota gives you five days to kill what it calls your unborn child.

How? By taking a morning-after pill such as Plan B. According to the Food and Drug Administration, Plan B “acts primarily by stopping the release of an egg from the ovary (ovulation). It may prevent the union of sperm and egg (fertilization). If fertilization does occur, Plan B may prevent a fertilized egg from attaching to the womb (implantation).” Fertilized egg, in South Dakotan, means human being. And prevention of implantation means death.


But now you’ve got a scientific, moral, and legal problem. The South Dakota law purports to supersede Roe because “scientific advances since the 1973 decision” show that “life begins at the time of conception.” It concludes that unborn children, “from fertilization to full gestation,” have an “inalienable right to life.” Nobody who seriously believed these things would give you five days to kill an embryo, any more than they’d give you five days to kill a baby. The loophole discredits the law’s rationale.

Welcome to world of ambiguity, pro-lifers. Out of compassion for women in tragic but medically non-threatening circumstances, you agree that unborn life, up to a certain stage of development, may be aborted. Now we’re just quibbling over the details.

It also brings up one of the basic questions presented by laws such as this that attempt to convey rights to a fetus. The United States Constitution defines citizenship and certain rights as being obtained based on someone being born: you can vote when you become eighteen, and that’s proven by the presentation of a birth certificate. The Constitution does not grant rights before birth: a fetus can’t get a passport, for example, because there’s no proof of citizenship. A birth is a recordable event and medical history can point with an absolute certaintude when it occurred. (And any woman who’s given birth can verify that.) Not so with conception. No one can detect when conception occurs: it’s not like a bell goes off on the oven timer.

I am sure that the legislators in South Dakota who passed this law did it for one reason only: to hand the Supreme Court the opportunity to overturn Roe v. Wade. But in doing so, they have also taken a step away from the simple absolutes that have, so far, been the hallmark of their beliefs, and they’re going to find that it takes more than a bumpersticker to prove their case.