The James Wilson Foundation on Natural Rights and the American Founding

“What’s the Difference Between Abortion and Infanticide?”- Professor Justin Dyer in Public Discourse

In an essay for Public Discourse titled “What’s the Difference Between Abortion and Infanticide?”, JWI Affiliated Scholar Prof. Justin Dyer evaluates the legally problematic link between the so called “right to abortion” and infanticide. This connection, he states, has allowed advocates of abortion to use legally muddled precedent in Roe v. Wade and Doe v. Bolton to justify abortion up to and after birth. To curtail the expansion of the definition of abortion, Dyer makes an urgent call to immediately take the most basic steps in protecting the survivors of failed abortions through the enforcement of legislation, such as Prof. Hadley Arkes’s “Born-Alive Infants’ Protection Act of 2002,” and Sen. Ben Sasse’s recently proposed “Born-Alive Abortion Survivors Protection Act.” Prof. Dyer reinforces that these first steps are the most basic ones we can pursue to uphold the dignity of human life, eliminate clear cases of infanticide, and ultimately help unravel the legal decision making behind abortion.

Excerpts from the piece:


“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.

“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.”

“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.”

“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 dignity of all”

“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.”

“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.”

Read the whole essay here.


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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790