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32 Val. U. L. Rev. 361 (1997-1998)


Every society, liberal or illiberal, takes a public stand on the question whether abortion is or is not a form of criminal activity. If that question were left to private judgment, people who judge it homicide would be entitled to use force to prevent their fellow citizens engaging in it.

The need for the law and public policy to take a stand has become more and more obvious for two reasons. The first has to do with the standard purpose of abortion, as that term is commonly used: to end the life of a fetus/unborn child. As Jeffrey Reiman argues in his new book, Critical Moral Liberalism: Theory and Practice, the right to abortion which he is interested in defending, and which many others are interested in having, is a right which would be negated if it were reduced to "[a woman's] right to expel an unwelcome fetus from her body, and only to end its life if necessary for the expulsion." The right which Reiman and so many others defend is the right precisely to kill the unwelcome fetus. The significance of this is made clear by the second reason: unborn children who are welcome, and who are thought to be in danger, can nowadays be the beneficiaries of elaborate therapeutic attentions. From a month or so after conception, their condition, their individual appearance and characteristics, their every movement, can be clearly seen and followed on the ultrasound screen; their medical problems can be and very frequently are attended to in much the same way as after their birth. Medical practitioners engaged in such activities routinely say and think that they have two patients. And it is obvious to everyone that any medical practitioners who took advantage of this sort of opportunity to kill an unborn child (without the request of the mother), pursuant to some private policy of (say) killing Jews or the children of atheists, would be ethically and should be legally liable to some plausible charge of homicide or something savoring of homicide (say, the "great misprision" of abortion—as the seventeenth and eighteenth century textbooks of English and therefore American criminal law put it). Minimally, any society, liberal or not, in which the difference between the unborn, the partially born, and the newborn is, for practical purposes, no more (and no less!) than the difference between being (wholly or partly) inside and outside the mother's body must, and will, publicly regulate the ways in which medical practitioners and others deal with the unborn (or partially born), and particularly those dealings which by intention or negligence result in the death of the unborn (or partially unborn).

Interestingly, much the same conclusion must be reached (I shall argue) about proposals to engage in initiating the life of an unborn person by cloning.


Reprinted with permission of Valparaiso University Law Review.



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