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Photograph of 26-week-old baby in womb. Lennart Nilsson
Gualberto Garcia Jones, Esq.

Opinion

Why Georgia heartbeat bill is morally flawed and shouldn’t be supported

Gualberto Garcia Jones, Esq.

ANALYSIS

March 20, 2019 (LifeSiteNews) – This is the third article in a series of opinion pieces warning the pro-life movement of the dangers of compromising with abortion. 

My first article, published in 2015 summarized the logical errors involved in the most common exceptions included in pro-life bills.  These are exceptions which permit abortion in certain situations and at certain points in the baby's development.  The second article, published in 2017 delved deeper into the political strategic miscalculation involved in pro-life legislation that includes these exceptions.  In this article I will deal in more detail with the moral reasons why pro-lifers cannot support bills, like Georgia's "Heartbeat" bill, that include exceptions permitting the killing of babies conceived in rape, when the vaguely defined "health" of the mother is at risk, and when the child in the womb is disabled.

So that there is no confusion, these are the three troubling sections in question with the Georgia Heartbeat bill:

No abortion is authorized or shall be performed ... except when:

1.  A physician determines, in reasonable medical judgment, that a medical emergency exists*

2.  A physician determines, in reasonable medical judgment, that the pregnancy is medically futile**

3.  The pregnancy is the result of rape or incest 

* The Georgia heartbeat bill defines "medical emergency" to mean serious bodily harm or death of the mother.  The problem here is that intentionally killing the child is never medically necessary.  Instead, the bill should allow treatment for the mother that may indirectly harm the child in the process of providing necessary care to the mother.  

** The Georgia heartbeat bill defines "medically futile" to mean that, in reasonable medical judgment, an unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.  The problem here is that the life and death judgment is left up to the abortion-minded doctors who almost always consider genetic disabilities as "incompatible" with life.  For more context, see this short video about Personhood Michigan's own family story dealing with an "incompatible with life" diagnosis.

I would like to begin this moral analysis, by stating that my disagreement on the Georgia "heartbeat" bill is not a condemnation of the motives of the proponents of the bills.  I too have fallen to the temptation to compromise on a fundamental principle in order to increase the chances of winning, or as we tell ourselves "to save even a few children, when we can't save them all."

In 2006, I was a recent law school graduate working for Judie Brown at American Life League, when I quit that job to go to South Dakota to volunteer full time on a campaign to defend the nation's first no-exceptions abortion ban.  The result of years of hard work by activists in South Dakota, HB 1215 had passed the legislature and been signed by the governor only to be referred to the general election ballot by a pro-abortion signature campaign.  I, along with a large team of pro-life volunteers and campaign staff poured our hearts and souls into the effort and came up tantalizingly short by a vote of 55.5% - 44.4%.  Planned Parenthood, under the facade of the South Dakota Campaign for Healthy Families, poured millions of dollars into saturating the state with ads.  Those ads focused specifically on the fact that the bill did not permit abortion, even in the cases of rape and health of the mother.   

Having come so close in 2006, the organizers of the first effort tried again to ban abortion in 2008, and I was recruited by them to lead a part of the new campaign.  I had just married my wife when I was called to South Dakota to meet the team and start the early stages of the campaign.  I remember thinking that while I didn't much like the fact that the new proposed law allowed abortions in the cases of rape, incest and health of the mother, at least it would be a good first step in the right direction.  Given that the first complete ban had been less than 6% away from passing, we were all sure that this one would pass with flying colors.  

As fate would have it, I never ended up working on the 2008 campaign, as I fell gravely ill right after agreeing to work on the campaign and was out of commission for several months.  In retrospect, I am convinced that God had sent me a message, Gualberto, don't even think about compromising with evil.

In the end, the result of the campaign in favor of this morally compromised law was almost exactly the same as the first one: 55.2% - 44.7 %. We had gained a whopping 0.3% of the vote by abandoning the most defenseless and allowing abortions in the cases of rape and health of the mother.  

The words of Jesus about how to act toward the most defenseless among us are appropriate to bring to mind. 

"Amen, I say to you, whatever you did for one of these least brothers of mine, you did for me."

"Amen, I say to you, what you did not do for one of these least ones, you did not do for me." Matthew 25

The principle of the Imago Dei — man being created in the "image" of God — (Genesis 1:27) is at the heart of the Judeo-Christian understanding of justice.  It means that human beings have inherent and inalienable dignity merely because we are humans created by God in His image and likeness.  Our dignity doesn't come from the government, so the law cannot take it away.  Our worth does not come from society, therefore society is not in a position to determine our intrinsic worth.  The Imago Dei is the basis for universal human rights as well as universal brotherhood and it is at the core of the passage in Matthew 25 quoted above regarding the Judgement of the Nations.

The alternative to the Judeo-Christian understanding of justice is necessarily based on some form of utilitarianism, which defines what is right by what is useful or for the benefit of a majority.  We often think of utilitarianism as the cold inhumane policies of the social Darwinists and eugenicists whereby the weak and powerless are to be eliminated for the benefit of the fit and healthy; certainly, this is the end result of a rejection of the Imago Dei.  But more importantly to the case at hand, utilitarianism can also creep into the political decisions of well-intentioned people, and it is most often disguised as a distorted form of prudence.  

How many times have we heard, or have we ourselves made the argument, that if we are not able to save all the innocent babies, we should at least try to save as many as we can?  I know I made that argument to myself when I agreed to work for the morally compromised South Dakota law in 2008.  Yet, when made in reference to legislation that specifically identifies vulnerable groups of people to be left out of the protection of the law, what is this argument but another form of utilitarianism, of accepting doing evil to a few that good may come to the rest?

It must be noted also that there is a false premise at the heart of this argument for morally compromised legislation.  It is simply not true that rejecting the exceptions for the "difficult" cases means that we do nothing.  Those of us who reject exception-laden legislation are often described as cutting off our nose to spite our face, tilting at windmills, making the perfect the enemy of the possible, etc.  However, legislative agendas are never binary choices.  We don't have to choose between cooperating with evil and our ultimate goal of the complete abolition of abortion.

Recently, there was a great exchange between a pro-abortion author, Patrick Tomlinson and Ben Shapiro dealing with the following thought experiment:

You're in a fertility clinic. Why isn't important. The fire alarm goes off. You run for the exit. As you run down this hallway, you hear a child screaming from behind a door. You throw open the door and find a five-year-old child crying for help.  They're in one corner of the room. In the other corner, you spot a frozen container labeled "1000 Viable Human Embryos." The smoke is rising. You start to choke. You know you can grab one or the other, but not both before you succumb to smoke inhalation and die, saving no one. Do you A) save the child, or B) save the thousand embryos? There is no "C." "C" means you all die.

The point of the "thought experiment" is to get the reader to admit that one-thousand embryos are worth less than one five-year-old.  However, Mr. Shapiro proves through a clever set of alternative scenarios that moral instincts do not necessarily point to the correct moral decision.  For example, if in the same scenario described above you substitute the five-year-old with your own child, and the 1,000 viable embryos with 1,000 healthy adults, would choosing to save your child mean that the 1,000 healthy adults are less valuable in any way?

Pro-lifers who are in favor of including the exceptions as a necessary evil often refer to the same thought experiment.  They mean to show that by choosing to save one group, they are only doing the best they can in the midst of our legal culture of death.  However, there is a very important distinction between the choice posited by the thought experiment and the support of morally compromised legislation like Georgia's heartbeat law.  In the case of Georgia's law, yes, many children would hypothetically (emphasis added) be saved, but saving them requires the active approval and support for the direct killing of the other children.  The actual thought experiment that reflects the moral choice involved in supporting Georgia's flawed heartbeat bill is also discussed by Ben Shapiro in his response to the first thought experiment.  

"You’re standing above a single track on a bridge. Five people are tied to the track. Conveniently enough, there is a single fat woman standing atop the bridge with you. If you throw her in front of the train, you can stop the trolley before it hits the five people.  Most people say they wouldn’t do it."

Mr. Shapiro's conclusion is correct that our instinctual moral choices are not always the correct moral choice.  But something else can be drawn from these two scenarios, and that is that while our moral choices cannot possibly determine the moral worth of another human being, there is something in our moral instinct that recoils from being the immediate and intentional cause of an innocent person's death.  Pushing a person in front of a train to save another is different than throwing a switch to guide the train away from and save a large group of people, even if we know that it is probable that it the train will run over and kill a smaller group of people on the other track.  

These scenarios are very similar to situations contemplated by the principle of double effect as applied to complications during pregnancy.  The principle of double effect states that an indirect abortion that is the result of the attempt to save the life of the mother is not morally wrong.  However a direct abortion is always evil.  As in all questions of conscience, intent matters.

A quick comparison with criminal law gives us one further detail to complete the moral analysis, and that is that when determining the culpability of an action we have to consider the actus reus and the mens rea; that is the physical act and the mental state that leads to the commission of a crime.  In the case of Georgia's morally compromised heartbeat law, while the intent of the drafters surely is to save as many children as they think they can, the exception itself allows for the direct (actus reus) intentional (mens rea) taking of human life, and as such is intrinsically evil and should be unacceptable as a violation of the commandment against murder.

St. Paul has encouraging words about taking a principled stand for what is right. 

"Finally, be strong in the Lord and in his mighty power. Put on the full armor of God, so that you can take your stand against the devil’s schemes. For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms."  Ephesians 6:10-12

One of the great tragedies of this morally compromised Georgia heartbeat bill is that Georgia has consistently been one of the most active and legislatively successful pro-life states in the country.  Under Georgia Right to Life's leadership, pro-lifers had managed to prevent even a single pro-life law from including rape, incest and vague health of the mother exceptions.  This was not a coincidence or a result of Georgia's conservative legislature, but of a concerted effort by organizations like Georgia Right to Life to refuse to endorse any legislator who supported such exceptions. 

Georgia Right to Life proved that being opposed to exceptions and immoral compromises with abortion was not a rejection gaining ground incrementally.  To read more about the history of Georgia's no exceptions pro-life activism read Dan Becker's excellent book on principle and legislative pragmatism.  

To begin with, anything short of an Amendment to the United Sates Constitution, is necessarily an incremental step in the national abolition of abortion.  Even a complete state ban on abortion, like the 2006 South Dakota Law, was not going to change the fact that other states would continue to allow the killing of children by abortion.  But other smaller steps can be taken in the light of Truth without cooperating with evil.  Legislation can be local, like municipal ordinances and resolutions.  Legitimate legislation can deal with the broader implications of the culture of death such as state laws dealing with the ethical issues with emerging tech, end of life issues related to euthanasia, and positive measures that favor childbirth over abortion.  Other acceptable legislation can target the public funding of abortion and the elimination of abortion mandates.  It is simply not true that rejecting exceptions and other direct cooperation with abortion is dooming the movement to passive acceptance of abortion.

Unfortunately, unless pro-lifers are willing to demand a higher standard from their legislators, it appears that as soon as tomorrow, the amazing track record that Georgia Right to Life compiled in their state could come to an end.  And we all know that once the bar of what is expected from legislators is lowered, it is almost impossible to raise it again. 

Unfortunately, every single pro-life organization in the state of Georgia with the exception of Georgia Right to Life has embraced Georgia's morally compromised heartbeat law, and none of them except for Georgia Right to Life has spoken out against the exceptions in the bill.

NRLC's Georgia Life Alliance, The Archdiocese of Atlanta, the Georgia Baptist Mission Board, the Family Policy Alliance, Faith and Freedom Coalition of Georgia, and Concerned Women for America of Georgia all support the bill and have made no public effort to remove the exceptions.

It should come as no surprise to us that the countless hours of legal talent that have been spent in trying to find clever loopholes to chip away at Roe v. Wade have not given fruit to any real advancement in the fight against the culture of death.  That is not to say that pro-life efforts haven't done anything.  At a minimum the efforts of pro-lifers have kept the issue alive in a way that other Western nations have not been able to do.  However, unless we have supernatural faith and recognize that we are not fighting merely against the courts and pro-abortion politicians, but against spiritual forces that require us to hold fast to God's precepts, we will never abolish abortion.

Pro-life organizations are dancing with the devil by quietly supporting this morally flawed bill.  They are abandoning the least of God's own image bearers in the hopes of a political win and this will inevitably result in losing the blessings of God.

We all know how this dance with the devil ends, for the devil doesn't change, he only knows how to lead us to death.  

Gualberto Garcia Jones, Esq. is an attorney licensed to practice law in the Commonwealth of Virginia and is the President of the Personhood Alliance, a confederation of pro-life organizations and leaders who pursue personhood as the essential strategy for restoring legal protections to every human being, from biological beginning to natural death, and who, through God’s power and grace, endeavor to uphold the biblical worldview in 21st-century politics and culture.

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