Abortion and the Death Penalty _ Different Subjects, Shared Sentence by Rita Joseph

The Holy See has enjoined this year an urgent global campaign to institute a United Nations moratorium on abortion. Columbian Cardinal Alfonso López Trujillo, President of the Pontifical Council for the Family, has embarked on an epic journey, going directly to heads of national governments as well as organizations throughout Latin America, and then on to the United States, Canada, Africa, the Middle East, and Europe. His aim is to persuade them to sign a petition to the United Nations to halt abortions worldwide.

In January this year, Cardinal López Trujillo, with characteristic decisiveness and intellectual courage, adopted the campaign proposed only the month before in Italy by Giuliano Ferrara, a non-Christian journalist and former head of the Italian Communist Party in Turin. Ferrara put forward the strong logical case that the United Nations, in calling for a moratorium on the death penalty, should also be calling for a moratorium on abortion, given that the fundamental argument (based on the dignity of human life) advanced against the death penalty can be applied also, and even more so, to abortion.

Indeed, Cardinal López Trujillo understands the universality and full gravity of his mission to halt abortion: “We aren’t talking about an Italian law but rather a drama that reaches the consciences of everyone: the death of an innocent person in the womb of his mother.”1

Amnesty International — inconsistent ethics
It is significant that Cardinal López Trujillo’s bold move comes on the tail of Amnesty International’s shocking apostasy of human rights protection for children at risk of abortion. Caving in last April to a massive campaign by extreme feminist ideologues, Amnesty International now endorses “decriminalization of abortion and access to secure abortions”, especially for “pregnancies resulting from sexual violence”.

The contorted wording of Amnesty’s endorsement of abortion testifies to the difficulty encountered in their attempt to reconcile two logically incompatible positions, namely: defending the right to life of condemned criminals and abandoning defense of the right to life of innocent children at risk of being executed for their fathers’ crimes.

Given the deadly violence perpetrated against every child being aborted, it is an appalling breach of ethical reasoning that Amnesty’s international executive claims to have adopted its pro-abortion policy as part of their “campaign to curb violence against women”.

This is nonsense. How can Amnesty curb violence by advocating further violence against the person of the mother in the killing of her unborn child?

Amnesty’s international director of policy, Widney Brown, argues:

No, not so.

If a woman is raped, that’s cruel and degrading treatment.

If a woman is raped and doesn’t have access to adequate and compassionate pre-natal and post-natal care from her community and the health care professionals in that community, that’s cruel and degrading treatment.

If a woman is raped and then ostracized and stigmatized by her community, that also is cruel and degrading treatment.

The solution to such treatment is not to subject such a mother to the further violence of aborting her child, but rather to offer these mothers and their children love, acceptance and continuing care. The real need is not to eliminate these innocent children but to eliminate both the despicable act of rape as well as the despicable prejudices that are allowed to operate against the victims of rape and their unborn children.3

Anything else is cruel and degrading treatment.

Abortion and the Universal Declaration of Human Rights Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The wording of this article came verbatim from Article 5 of the Universal Declaration of Human Rights adopted by the UN General Assembly on December 10, 1948.

A child at risk of abortion is a child at risk of an act of cruel, inhuman or degrading treatment or punishment, and the fact that such an act is perpetrated in medical or quasi-medical settings by abortion “providers” does not condone the violation of this right.

In all four Geneva Conventions of 1949, this same right is enunciated in Article 3 which in peacetime as well as situations of armed conflict, prohibits “mutilation, cruel treatment and torture … humiliating and degrading treatment”. The crime of “mutilation” has particular relevance to some second-term abortions and to many late-term abortions where the child may be dismembered and the head crushed in order to facilitate “delivery”. Anyone who has seen the remains of such abortions could deny neither the humanity of the unborn child nor that the child’s tiny body had been most cruelly “mutilated”.

“… cruel, inhuman or degrading … punishment”
In regard to cruel inhuman or degrading punishment — tragically there has developed a relatively widespread cultural practice of using abortion as a vicarious capital punishment for the crimes of rape and incest. However, since the child before birth is innocent of any crime, the child conceived in rape or incest is not to be subjected to “legal” execution — to deliberate state-sanctioned termination of the child’s life because of the crimes of the child’s father. Such unjust punishment of one of these smallest and most palpably innocent members of the human family is incompatible with the opening premise of the Universal Declaration:

Indeed, abortion violence, though it is perpetrated in medical or quasi-medical settings, still amounts to subjecting the child before birth to cruel, inhuman or degrading treatment or punishment. It is a heinous form of treachery that health care clinics for mothers and children, reproductive health centers and accredited hospitals offer abortion violence as a “treatment” or “service” for expectant mothers and their children. The use of despicable euphemisms like “safe abortion” cannot disguise or excuse medicalized killing of children before birth.

Same reasons for abolishing death penalty and abortion
Amnesty International in its Fair Trials Manual (1998) “opposes the death penalty in all cases, on grounds that it is the ultimate cruel, inhuman or degrading punishment and violates the right to life”.4 To be logically consistent, the same grounds must support opposition to abortion also in all cases.

The Amnesty International Manual continues: “The right to life is fundamental and absolute.”5 “It may never be suspended”.6

The manual is absolutely right on this human rights principle and it applies equally and without discrimination to all members of the human family, including children at risk of abortion.

Legal scrutiny of death penalty and abortion decisions
It is further argued in the Amnesty International Manual that in view of “the irreversible nature of the death penalty”, courts must scrupulously observe all the international and regional standards and safeguards protecting human rights.7 In view of the “the irreversible nature” of an abortion, the same can be said for the need for courts to scrupulously observe the international human rights obligation to provide appropriate legal protection for the child before birth who is at risk of being aborted.

Pro-life advocates believe that all abortions constitute violations of the right to life and that although this view is not universally accepted, we can cite international human rights bodies and experts who agree that it would be a violation of the right to life to abort a child without a careful legal examination of the arguments regarding the “necessity” of executing this evil and the “proportionality” of the good supposedly to be achieved by the child’s execution.

Amnesty International believes that all executions constitute violations of the right to life. Although this view is not universally accepted, international human rights bodies and experts agree that it would be a violation of the right to life to execute a person after an unfair trial.

No one may be deprived of their life arbitrarily....8 The Human Rights Committee has explained that the prohibition on the arbitrary deprivation of life in Article 6(1) of the ICCPR [International Covenant on Civil and Political Rights] requires that the law must strictly control and limit the circumstances in which a person may be deprived of life by the state.9

And yet now Amnesty International, in collusion with this same UN Human Rights Committee, is demanding that states remove all laws controlling and limiting the circumstances in which a child before birth may be deprived of life by the abortionist.

For the child before birth as for the child after birth and as for all adults, the right to life proclaimed in the Universal Declaration is equally valid. Indeed, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.10

Codification of this right to life in the ICCPR has meant that the right to life is protected by international human rights law which means, inter alia, that states must at no time engage in, or condone, arbitrary or extrajudicial killings of children before or after birth; and that the states have a strict legal duty to prevent, investigate, prosecute, punish and redress violations of the right to life. The legal duty to take positive steps effectively to protect the right to life is equally valid in times and states of public emergency, in war time, for example, or in national disasters, or in refugee camps.

Decriminalization of abortion represents a betrayal of the state’s legal duty to prevent, investigate, prosecute, punish and redress violations of the right to life.

Conflicting policies on the death penalty and abortion
Indeed, this growing disjunction between rational valid arguments being put forward against the death penalty and the irrational invalid arguments fueling support for decriminalizing abortion is particularly manifest in the muddled agenda of the European Union (and its courts).

European Union support for decriminalization of abortion is particularly shameful in view of the fact the European Convention for the Protection of Human Rights (1950) permits only one exception to the state’s obligation to observe the right to life in Article 2:

There is immense significance in the disjunction between the European Union’s very different approaches to the death penalty and to abortion. The European Union successfully sponsored the UN General Assembly resolution (November 15, 2007) condemning the death penalty, a singular exception to the right to life specifically allowed for in the European Convention for the Protection of Human Rights.

Lawful abortion replaces “conviction of a crime” exception
Ironically, it is this same European Union that is now leading the push to have the lawful death penalty exception replaced by a lawful abortion exception to the human rights obligation to protect by law everyone’s right to life. Indeed, a profound irony lies in the fact that the human dignity and rights basis of arguments opposing the death penalty are logically also the basis for opposing abortion.

In a recent meeting of the UN Third Committee, the European Union argued strongly and well to recognize the right to life of criminals but in a shameful abrogation of the same basic logic and morality, refused to endorse an additional proposal urging UN member states “to take all necessary measures to protect the lives of unborn children”.

The European Union rejected right to life protection for unborn children with the weak argument that such protection was “not in keeping with the main focus of the text” and followed up with the accusation that the proposal for such protection measures was made only “to sow confusion and division”.12 The Egyptian delegate denied this and pointed to the fact that the resolution was aimed at respecting life and so it was appropriate to widen the scope to include protection of innocent human life. US Ambassador Rees expressed agreement that the lives of the unborn deserve the strongest protection “and we also agree that countries that advocate the abolition of the death penalty should be at least equally scrupulous in showing concern for innocent life”.13

It seems incongruous that previous to this the Delegation of the European Commission to the United States should have issued a memorandum to the United States stating that the EU and its member states base their opposition to the death penalty on the inherent dignity of all human beings and on the inviolability of the human person.

Offenders are human beings who committed a crime but who also enjoy an inherent and inalienable dignity, the very same dignity claimed by rationalist philosophy, all relevant religions and by law, the death penalty being a denial of human dignity.14

How much more so do these arguments apply to innocent children threatened with abortion?

History of saving unborn children from capital punishment
The European Union delegates cannot be ignorant of the fact that there is a long history of association between the death penalty and its non-application to pregnant women. The maternal reprieve was an ancient rule of common law and recognized that the child in the womb had a right to life even when the child’s mother had forfeited through a capital offense her own right to life. It was not until the Sentence of Death (Expectant Mothers) Act 1931 that pregnant women were no longer to be hanged after giving birth, though in actual fact the last execution of a new mother was on March 24, 1873 when Mary Ann Cotton was executed at Durham Castle, her baby being taken from her before execution.

Both the International Covenant on Civil and Political Rights Article 6(5) and the American Convention Article 4(5) made explicit the very important connection between protecting unborn children and capital punishment. Sentence of death shall not be carried out on pregnant women.

Additionally, the Geneva Conventions have established and maintained a fundamental concern for the right to life of the unborn child:

Prohibition on executing children and pregnant women
Furthermore, the UN Human Rights Committee has expressed the opinion that the prohibition on the execution of children and pregnant women represents a norm of customary international law. On this basis, the Human Rights Committee has stated that states parties may not reserve the right to execute children or pregnant women.19

And what is decriminalized abortion other than the state-condoned execution of the child of a pregnant woman? Every unborn child’s right to life is protected under Article 6(5) of the ICCPR. The ICCPR recognizes in this article that the pregnant woman does indeed carry within her womb another human being who is entitled, by virtue of the child’s immaturity, to special protection from the death sentence. This article, prohibiting execution of pregnant women, acknowledges that the child, from the state’s first knowledge of that child’s existence, is to be protected.

The travaux preparatoires (explanatory notes written at the time the Covenant was negotiated) stated this explicitly: “The principal reason for providing in paragraph 4 [now Article 6(5)] of the original text that the death sentence should not be carried out on pregnant women was to save the life of an unborn child.” The state, in order to protect the child’s inherent right to life, must prohibit and prevent the death penalty for the unborn child’s mother. Just so, the logical imperative of the corollary of this directive requires that the state, also in order “to save the life of an unborn child”, must prohibit and prevent use of abortion or use of any other form of death penalty imposed on an unborn child.

Prohibition of death penalty to prohibition of abortion — a logical extension
Regarding the death penalty, many writers have propounded a feminist perspective on the violence of killing. For example:

Since it is the woman who goes through the major part of the reproductive activities and child raising, she understands the value of life. Had the criminal justice system thought from the feminine point of view, it would not have ignored the fact that there are women who have given birth to those who shall be killed; and every time a person dies on the death row, his or her mother also dies. Death penalty is a devaluation of motherhood as reproductive work and life sustaining activity. It also confers on the state the same right as that of the patria potestas of the Roman law who had the right over his children’s life.20

If executing an adult criminal devalues motherhood, wouldn’t it be logical to extend the prohibition of death sentences to children at risk of abortion?

The criminal violence of abortion is perpetrated each year against more than forty million utterly defenseless innocents in their mothers’ wombs. To continue to promote and endorse decriminalization of the cruelty, inhumanity and violence of abortion is to abandon reason, duty and love and to plunge back into the illogic of moral lawlessness and the barbarism of anarchy.

Notes:

1 Quoted in an interview with La Repubblica cited in Matthew Cullinan Hoffman: “Vatican Announces Global Campaign for a ‘Moratorium’ on Abortion” January 25, 2007 (www.lifesite.net/ldn/2008/jan/ 08012518.html).

2 Quoted in Barney Zwartz: “Amnesty in hot water on abortion” The Age May 28, 2007.

3 See my earlier Voices article (Michaelmas 2006): “Out of the Greatest Evils...” by Rita Joseph.

4 Amnesty International Fair Trials Manual (1998) para 28.1.

5 Amnesty cites Article 3 of the Universal Declaration, Article 6 of the ICCPR, Article 6 of the Convention on the Rights of the Child, Article 4 of the African Charter, Article 1 of the American Declaration, Article 4 of the American Convention, Article 2 of the European Convention.

6 Amnesty cites Article 4(2) of the ICCPR, Article 27(2) of the American Convention.

7 Amnesty International Fair Trials Manual (1998) Chapter 28, Death penalty cases.

8 ibid (Re: arbitrary deprivation of life, Amnesty International cites Article 6(1) of the ICCPR, Article 4 of the African Convention, Article 4(1) of the American Convention.)

9 ibid (Reference here is to UN Human Rights Committee’s General Comment 6, para. 3).

10 A general misconception identifies the “special safeguards … before as well as after birth” language as the newly coined invention of the Preamble to the Declaration on the Rights of the Child 1959. A more careful reading of this Preamble reveals that on November 20, 1959, the UN General Assembly agreed in this Preamble that the Universal Declaration of Human Rights (1948) had already “recognized” the human rights of the child before birth. Significantly, this General Assembly of November 1959, among whom were a considerable number of the original drafters of the Universal Declaration of 1948, provided incontrovertible evidence that the Universal Declaration was understood to have recognized the child before birth as a juridical personality entitled to legal protection. This recognition remains of immense importance since the 1948 Universal Declaration is the foundation document of modern international human rights law.

11 Third draft of the preamble of the Universal Declaration of Human Rights held at McGill University Archives.

12 Samantha Singson: “Right to Life of Unborn is Debated in UN Third Committee; Proposition Loses”, New York C-Fam November 16, 2007.

13 European Life Network News, November 16, 2007.

14 EU Memorandum on the Death Penalty. European Union - Delegation of the European Commission to the United States www.eurunion.org/legislat/deathpenalty/eumemorandum.htm.

15 Article 6(4) of the 1977 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

16 Articles 14, 38(5), and 50 of the 1949 Geneva Conventions relative to the Protection of Civilian Persons in Time of War.

17 UN Commission on Human Rights Resolution 2004/67 on Question of the death penalty 4(b).

18 Safeguards guaranteeing protection of the rights of those facing the death penalty (ECOSOC) 1984 para 3.

19 See General Comment No. 24, adopted at the 52nd session of the Human Rights Committee, 1994.

20 Tarunabh Khaitan and Vasuman Khandelwal: “Abolition of the Death Penalty”.

Rita Joseph has represented family concerns at UN conferences, and writes and lectures on social issues especially concerning women and families, and has made a special study of the Holy Father's writings on family and on women. She has previously lectured at the John Paul II Institute for Marriage and Family Studies in Melbourne. Rita and her husband live in Canberra, Australia.

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