Saturday, June 13, 2009


Abraham Lincoln called him ‘a misguided fanatic.’ He has been described as ‘a monomaniacal zealot’ and ‘the father of American terrorism.’

He has also been hailed as ‘one of the most perceptive human beings of his generation’, the man who ‘killed slavery’, and ‘an American who gave his life that millions of other Americans might be free.’

When John Brown was hanged for treason on December 2, 1859, church bells rang throughout the northern states. Revered American poets, Ralph Waldo Emerson and Henry David Thoreau, joined in heaping praise on the man who believed that slavery could only be abolished by bloodshed.

The soul-stirring words and music we know as The Battle Hymn of the Republic descended from a Union soldiers’ marching chant that proclaimed “John Brown’s body lies mouldering in the grave; but his soul goes marching on”

The verdict of history needs long and arduous deliberation.

On Sunday, May 31, 2009, in the foyer of Reformation Lutheran Church in Wichita, Kansas – the state where John Brown emerged as a militant abolitionist –George Tiller, a licensed physician, whose Women’s Health Care Services clinic is one of only a few in the nation which perform abortions after the 21st week of pregnancy, was shot to death by an unknown assailant.

No doubt in the days and months ahead someone will be arrested, and charged with Doctor Tiller’s murder. In the course of bringing the killer to justice, America will be plunged into the most emotional debate of the century.

Some will demand that the accused be tried for a hate crime, ratcheting up the punishment if not diminishing the presumption of innocence. If the accused turns out to be someone who has made anti abortion statements or participated in anti abortion demonstrations, those facts will be introduced in evidence as tending to prove that the accused is guilty of murder.

Others will lionize the accused, calling him a courageous hero who acted to save the lives of countless unborn children.

I am, I believe, among a majority of Americans who will view the event with heart wrenching ambivalence. On the one hand no one can or should condone the murder of Doctor Tiller. No one in this country, not even the most avid pro life activists, will advocate for leniency or clemency for Doctor Tiller’s killer. On the other hand, most Americans do not approve of late term abortions, and even the Supreme Court, in Roe v Wade, held that abortions could be restricted in the third trimester, that is, after 24 weeks of gestation.

So there is a recognition, albeit an ill defined acknowledgement, by most people, that, at some point in time, an unborn child begins to acquire civil rights. The right to be compensated for injuries caused by the negligence of a third party, for example, has long been recognized by our courts. The unborn can inherit property. They can be trust beneficiaries. They can be the subject of custody orders in divorce actions.

The abortion debate is visceral and emotional. It is cast in terms of women’s rights, of religious convictions, of moral judgments, and of personal privacy. It is hard to imagine that there is much common ground or room for compromise between the shrill advocates on both sides.

Still there is a simple constitutional question that must be answered, and answered authoritatively, clearly and finally if there is to be an end to this war of words.
That question is simply this: When does a human being become a “person” within the meaning of the Bill of Rights?

The Fifth Amendment, part of the Bill of Rights, expressly provides that “No person shall … be deprived of life liberty or property without due process of law…”

Clearly a state law which permitted a mother or father or both of them to kill their new born child for a month, a day, or even a minute would violate the civil rights of the baby. Even if the child were a burden. Even if the child were deformed. A person is a person. The Bill of Rights protects us all.

The question is, when does it start protecting us? Is there any basis in reason or human experience to distinguish between a new born infant and a fully developed fetus?

If a new born infant is a person within the meaning of the Bill of Rights; if even a prematurely delivered new born, surviving only on mechanical life support is a person protected by the Fifth Amendment; how can it be said that a viable fetus is not a person, even during labor, even after he or she has, through natural biological changes triggered the mother’s involuntary muscular response and initiated the birthing process.

The judgment of history is impossible to predict. John Brown is now revered as a prophet of civil rights and the provocateur of the Civil War.

Perhaps in the twenty second century it will be said that the murder of Doctor Tiller and the trial of his killer became the catalysts of a national debate which ultimately resolved the gut wrenching issue of abortion in America.

I hope so.

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