In “The Conservation of Nature and the Preservation of Humanity,” author Wendell Berry observes that life is sacred, including the lives of the unborn: “If we cannot justify violence to unborn human beings, then how can we justify violence to those who are born, or to the world that they are born into?…. The issue ultimately turns on one question: Is a human fetus a human being? I believe that it is. Anybody who believes that it is not must say what else on earth it might be.” (Another Turn of the Crank, 1995)
Vermont’s recent House Bill 57 (H.57) which passed 105 to 37, seeks to secure an expansive “protection” for women’s “rights” to abort children even in the third trimester of pregnancy. More, Vermont’s Senate recently voted 28-2 to amend the Vermont Constitution to similarly enshrine existing, completely unrestricted abortion access.Only China is more abortion-friendly than Vermont (late term abortions are illegal in North Korea, Russia, and most nations of the world). The number of abortion clinics in Vermont has doubled in recent years, from three in 2011 to six in 2014.
H.57 presents the perfect opportunity for our new U.S. Supreme Court to answer the question posed by Wendell Berry in 1995, and left unanswered by Roe v. Wade: at what point does a human fetus become a human being? The Left wishes to avoid this question at all costs, but Vermont’s H.57 now compels the asking. And it’s companion question is: how can you care about border children, Sandy Hook children, or Haitian children, and ignore babies murdered in the third trimester? Are they not children?
Worried about Roe v Wade, Vermont’s bully Democrats figure they have carte blanche to cement its “protections” in state law, and thus preempt any Kavanaugh/Gorsuch intrusions into their judicially-fabricated “right to commit infanticide.” Normally such “state law protection” is effective — Vermont has extended greater protections to its citizens regarding, e.g., helicopter searches (State v Bryant, 2008) or vehicle stops (Zullo v State, 2019). The states can grant more expansive shields against government intrusion than the federal government, but not fewer rights than those protected by federal statutory or common law (federal preemption).
Here’s the rub for those who praise infanticide: Roe is irrelevant, for it did not resolve that pesky question of when a fetus becomes human. The Roe Court held that the State has a legitimate interest to protect the health of both the pregnant woman and also “the potentiality of human life.” The Court went on to rule that “These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.” ”
The new federal Supreme Court will likely address that viability question more directly. And for those who are pro-life, the ideal test case is not the heartbeat statutes of states such as Georgia, Mississippi, or Tennessee. The ideal test case would arise from extremist Vermont, where third-trimester babies are legally dismembered and there is no date recognized for viability.
Vermont’s laws are the opposite of states like Georgia, or Alabama — there are no protections for the unborn, and existing Vermont law shields offenders from murder charges if they kill a baby in the womb, at any stage of development. (State v Oliver, 151 Vt 626, (1989)) H. 57 even bolsters that protection of killers.
The Roe decision included what is often dubbed “the collapse clause,” in which Justice Blackmun wrote “The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.” (emphasis added).
For decades the focus has been on proving when life begins in order to proscribe an abortion procedure. Vermont offers an opportunity with its brash new laws to reverse that burden — once fetal personhood is recognized at some stage, those who wish to terminate a pregnancy must show that that fetus is not a human being. Perhaps Georgia’s statute will be struck down as too intrusive on a mother’s rights, defining fetal personhood as early as six weeks. Yet Vermont’s statute invites being struck down for the opposite extreme, in that it barbarically seeks to deny that a baby just weeks from delivery is a human being meriting government (and constitutional) protection.
The recent film Gosnell is a true-crime retelling of the unthinkable conditions in a slaughterhouse-like abortion clinic in Philadelphia. “Oh,” we might say, “that was a mere aberration. That was just one doctor who abused patients and fetuses.” But it is clear that for many years there was no government oversight of the Gosnell Clinic, where women and their babies were so unthinkably desecrated by this doctor, his unqualified staff, and the agencies that were supposed to protect the health and safety of these (mostly black) women.
The inconvenient truth revealed by the Gosnell trial is that third-trimester abortions are commonplace, and are unconscionable in any setting. Yes, the babies feel pain. Yes, they are often still alive. Yes, they are then killed, most often by snipping the spine at the base of the neck with a pair of scissors, but often only after limbs have been severed, among other mutilations.
This is the “normal” third-trimester abortion. No wonder only seven nations in the world permit elective abortions after twenty weeks of pregnancy.
In the Gosnell case, the pivotal evidence related to “Baby Boy A,” who was near full-term and was troublesome because he didn’t die quickly. One of these babies is going to make it to the Supreme Court, which will answer that troublesome date question about when they became a human “being.”
In Shakespeare, MacBeth is warned by witches to “Beware MacDuff” who was “…from his mother’s womb, untimely ripped.” That third-trimester Baby MacDuff is destined for the US Supreme Court, and when that happens “Birnam Wood shall move to Dunsinane.” A tectonic shift in American jurisprudence will leave Roe intact but acknowledge the personhood — the humanity — of the fetus at some point prior to delivery. All the scientific evidence, and common sense, and humanity, is with Baby MacDuff — that child in utero, perhaps mere days away from delivery.
Vermont’s H.57 seeks to statutorily ensconce the right to kill up until the very moment of birth, for any reason. The outrage over Baby MacDuff will arise from the horrors of third-term “terminations” in Vermont and elsewhere, and the question will no longer be put off. Ironically, Vermont’s extremist zeal will accomplish the opposite of its intention, and the entire nation will cry out for the federal courts to please put a stop to such madness.
Those who wish to allow murder up until minutes before that newborn opens its gentle, trusting eyes, must answer Wendell Berry’s question, and “…say what else on earth it might be…” if not a human being. The moment personhood is acknowledged, there is no right to “choose” to terminate.
Then there’s that future, second-trimester, Baby MacDuff….
(Previously published at Liberty Nation).