This essay is one of the editor’s picks on abortion and infanticide. Read related articles here. 

Virginia Governor Ralph Northam offered a qualified defense of infanticide when commenting recently on a proposed bill that would loosen restrictions on late-term abortion in his state. If a mother were in labor and nonetheless elected abortion, Northam said,

I can tell you exactly what would happen. The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired. And then a discussion would ensue between the physicians and the mother.

As the public conversation focused in on Northam’s comments, before they were quickly overshadowed by the discovery of a shockingly racist photo from his medical school yearbook page, the Governor’s office released a statement that third-trimester abortions always arise in

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tragic or difficult circumstances, such as a nonviable pregnancy or in the event of severe fetal abnormalities, and the governor’s comments were limited to the actions physicians would take in the event that a woman in those circumstances went into labor.

The Governor’s clarifying statement inadvertently brought to the table this clarifying question: is an infant, marked for abortion but delivered alive, even in tragic circumstances, a person whom the law ought to protect? Grappling seriously with this question takes us very quickly to the heart of the debate over Roe v. Wade and its legacy today.

In Roe, the Supreme Court invalidated Texas’s century-old abortion statute (which had allowed abortion only if a mother’s life was threatened by continued pregnancy). When coupled with a companion holding in Doe v. Bolton, decided the same day, the court’s new jurisprudence allowed abortion at any time during pregnancy if a physician deemed it necessary to preserve a woman’s health, understood “in light of all factors—physical, emotional, psychological, familial, and the woman’s age.” Doe’s broad health exception served to unravel any meaningful categorical gestational limits on abortion in state law.

Personhood and Constitutional Rights

Critical to the decision in Roe was the premise that unborn children are not constitutional persons. If it “were established that an unborn fetus is a person within the protection of the Fourteenth Amendment,” Justice Potter Stewart commented during oral arguments, then the challenge to Texas’s law would be “almost an impossible case.” As a preliminary issue, then, the Court insisted early in its Roe opinion that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Roe’s attorney, Sarah Weddington, put the matter more pointedly during oral arguments. Prior to birth, she claimed, children in the womb are left “unprotected by any kind of federal constitutional rights.”

Of course, many judicial conservatives, such as the late Antonin Scalia, have also held that the federal constitution offers no protection to unborn human beings and would therefore leave the matter of abortion entirely to the discretion and judgment of state legislatures. Yet the Roe Court took that same beginning premise far in the other direction by insisting that the Fourteenth Amendment secures a fundamental constitutional right to abortion that cannot be abrogated by state legislation. The dual assertions that constitutional personhood begins only at birth and that abortion is a fundamental constitutional right caused some to question, even in 1973, the moral and legal significance of birth and whether the decision would open the door to legal infanticide.

What Distinguishes Abortion from Fetal Homicide?

Reflecting on the state of the academic debate during the decade preceding Roe, Michael Tooley observed in a 1972 article in the journal Philosophy & Public Affairs that it “seems very difficult to formulate a completely satisfactory liberal position on abortion without coming to grips with infanticide.” Tooley’s position, shared today by several other prominent philosophers and ethicists such as Peter Singer and Francesca Minerva, is that there is no morally relevant fact that would distinguish abortion from infanticide. Tooley and others, therefore, defend infanticide as a principled corollary to the acceptance of abortion. Pro-life philosophers agree, of course, but insist that both abortion and infanticide are equally instances of the unjust taking of human life, actions that violate what Sen. Josh Hawley recently called our “founding belief in the equal worth and equal dignity of all.”

Consistency does not make the same demands in politics as it does in philosophy, however, and the political and legal debate about abortion has lagged for many years behind the philosophical debate. When the case of Roe v. Wade was being litigated, Texas law specifically provided:

Whoever shall during parturition of the mother destroy the vitality of life in a child in a state of being born before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.

During oral arguments in Roe, Justice Thurgood Marshall asked specifically about the parturition provision in Texas’s criminal abortion code, which led to the following exchange with Texas Attorney General Robert Flowers:

JUSTICE MARSHALL: What does that statute mean?
JUSTICE MARSHALL: What does it mean?
FLOWERS: I would think that –
JUSTICE STEWART: That it is an offense to kill a child in the process of childbirth?
FLOWERS: Yes sir. It would be immediately before childbirth, or right in the proximity of the child being born.
JUSTICE MARSHALL: Which is not an abortion.
FLOWERS: Which is not—would not be an abortion, yes, sir. You’re correct, sir. It would be homicide.

The discussion between Justices Marshall and Stewart and Attorney General Flowers indicates that abortion during the process of, and immediately after, birth would be a species of homicide rather than constitutionally protected abortion.

Although Marshall and Stewart’s comments were certainly politic for the occasion, many of the debates about abortion over the last forty-five years have been about the logical implications and outer limits of the jurisprudence undergirding Roe v. Wade. Twelve years after the decision, for example, a Texas physician was sentenced to fifteen years in prison for delivering an infant girl by hysterectomy and then drowning her in a bucket of water. In the Texas case of Showery v. State (1985), attorneys for the doctor argued that according to the logic of Roe an infant marked for abortion but born alive was “a non-individual” left unprotected by the state’s criminal prohibition of homicide.

The Texas district court sustained the doctor’s conviction, but other prominent examples of so-called live-birth abortion came to light across the country, and the public was confronted with a serious question: Did a right to abortion include a right to “abort” a child after she was born?

“Born Alive” Legislation

Roe’s opponents soon focused their attention on what Hadley Arkes—the primary architect of the federal Born-Alive Infants Protection Act (2002)—called a “modest first step”: the legal protection of a child who was inadvertently born alive during an attempted abortion procedure. The effort to protect in federal law infants born alive had a broad pedagogical purpose. To say “why the child bears an intrinsic dignity,” Arkes later explained in his memoir, is “to put in place the premise that would finally undercut, or dissolve, the ‘right to abortion’ and all of the jurisprudence built upon that slogan.” After Governor Northam’s comments, Senator Ben Sasse has recently renewed calls to pass a bill with similar pedagogical aims. The Born-Alive Abortion Survivors Protection Act would require medical professionals to “exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child” as one would for “any other child born alive at the same gestational age.”

Bills like the Born-Alive Infants Protection Act and the Born-Alive Abortion Survivors Protection Act put proponents of legal abortion in an awkward position. Although few politicians would readily go on record supporting a right to infanticide, the principles implicit in the born-alive legislation clearly threatened the logic of abortion rights. While serving in the Illinois Senate, Barack Obama responded to a state-level born-alive act by protesting any bill that would “fully recognize as a human person” a baby born during a failed abortion procedure. Obama worried that protecting “a fetus or child—as some might describe it” who was “still temporarily alive outside the womb” would imply that “they are persons entitled to the kinds of protections that would be provided to a—a child, a nine-month-old—child that was delivered to term.” Senator Obama perceived the danger this principle would pose to the abortion regime built upon Roe. When the bill came up for debate again the following year, Obama declared flatly that the “issue ultimately is about abortion and not live births.”

So it is. Or, at least, the two issues are not easily disentangled. The modern controversies about abortion and infanticide were born together in an inauspicious hour, and the protection in law of a child immediately after birth sits uneasily and uncomfortably by the premises undergirding the right to abortion. Taking such a modest step at this moment as ensuring the care of an infant born alive would continue to establish premises aimed first to contain and then to roll back the logic set in motion in Roe v. Wade.