Out of the Greatest Evils... by Rita Joseph

by Rita Joseph

There are two sets of reasons that militate against aborting children who are conceived through rape or incest. One set is secular and based on fundamental principles of international human rights law. The other set of reasons is faith-based, relying on our understanding that God’s great power and mercy are able to bring good even out of evil.

In every premeditated abortion, deprivation of life is the intended outcome. Despite the current massive ideologically driven campaign to decriminalize abortion around the world, arbitrary deprivation of life, under modern international human rights law, is still strictly prohibited. “No one may be deprived of their life arbitrarily”, says Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR). This means that the law must strictly control and limit the circumstances in which the State may condone deprivation of life.

Under international human rights law, the sovereign state’s legislature remains the primary defender of the human rights of unborn children. Politicians must conform to universal human rights obligations to provide protective laws against abortion which constitutes arbitrary deprivation of life in breach of international human rights law, as established via the Nuremberg principles and judgments [UN Resolution 95(1)]1 and their codification in the International Bill of Rights.

It is part of the Nuremberg record of the trial testimony (RuSHA/Greifelt Case 1947-8) that from this very foundation of modern international human rights law, unborn children are considered to be human beings entitled to the protection of the law: “… protection of the law was denied to unborn children.…” Nuremberg prosecutor James McHaney called abortion an “inhumane act” and an “act of extermination” and established that even if a woman’s request for abortion was “voluntary”, abortion is still “a crime against humanity”.2

The 1948 Universal Declaration of Human Rights (UDHR) recognizes that the child “by reason of his physical and mental immaturity” is entitled to “special safeguards and care including appropriate legal protection before as well as after birth”.3 This immaturity is not to be allowed to diminish in any way their inherent humanity. The right to life, as protected under Article 3 of the Universal Declaration, is equally valid for the child before birth as for the child after birth, “without any discrimination whatsoever”.4

States that have ratified the ICCPR5 must at all times take positive steps to effectively protect the right to life, a legal duty that is equally applicable to the child before birth as to the child after birth. The right to life, as protected by international human rights law, means, inter alia, that States have a strict legal duty that is non-derogable, a duty at all times to prevent, investigate, prosecute, punish and redress violations of the right to life wherever such violations occur, both in private and in public, and even in public emergencies threatening the life of the nation (Article 4(2) ICCPR). That the right to life is non-derogable means, inter alia, that at no time are States permitted to engage in or condone the arbitrary or extrajudicial taking of a human life, including the life of a child conceived through rape or incest.

The unborn child’s right to life is also protected under Article 6(5) of the ICCPR. 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.

The ICCPR recognizes in Article 6(5) 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.6

Thus, arbitrary exceptions such as rape and incest, which purport to justify “lawful abortion”, are not valid. The child before birth, being innocent of any crime, may not be deprived lawfully of his or her life, for “the inherent right to life ... shall be protected by law [and] (n)o one shall be arbitrarily deprived of his life”. Liberal abortion laws are bad laws, impermissible under international human rights law because they are not in accord with at least one of the founding provisions, aims and objectives of the Covenant, viz. “to save the life of an unborn child”.

If it is agreed that, in order “to save the life of an unborn child”, the child’s mother is not to be executed even though the mother is guilty of a most serious crime punishable by death, then it must be agreed also on those same grounds, that the life of the unborn child must be saved irrespective of the serious crime committed by the father (i.e., by either parent). Logic dictates that if the unborn child is not to be executed for the crimes of his/her mother than neither should he or she be executed for the crimes of his/her father.

In the face of this irrefutable logic, radical feminists have responded by fabricating a devious concept they call “forced pregnancy”. This concept is a false construct imposed on a natural process -- it is deliberately misleading and vexatious, without merit or truth. Their purpose is to represent pregnancy as an unjust imposition, as an ordeal of such physical and psychological severity that no woman should ever be “forced” to carry her child to full term.

Radical feminism rejects “… the male view of reproduction as a natural process”.7 Quite erroneously, the morally repugnant force used in rape and incest is equated with and transferred conceptually to allowing the mother’s pregnancy to run its natural (unforced) course.

The term “forced pregnancy” has been coined to “describe the violation of women’s integrity by forcing her to become and remain pregnant”.8 Although the term “forced pregnancy” was rejected in preparatory UN meetings for establishing the International Criminal Court, the concept continues to be popularized and used to deadly purpose in the curia amici briefs written by abortion advocacy groups such as the New York-based Center for Reproductive Rights and submitted to various South American Courts in cases where the so-called right to abortion in case of rape and incest is in question.9

An “unwanted” pregnancy, they are told, endangers women and girls’ health and lives. Regrettably, many health education programs for girls and women around the world peddle misinformation designed to inculcate irrational fear of pregnancy. Such misinformation, when deliberately imparted to women and girls who have been victims of rape and incest, is especially poignant and cruel.

Denial of access to “safe” abortion services, they are told, entails that the victim must undergo the “terrible” health risks of pregnancy: “According to the World Health Organization (WHO) estimates, more than 585,000 women die each year as a result of pregnancy. At least 7 million women suffer serious health problems, and as many as 50 million suffer some health consequences after childbirth”.10 The UN’s Reproductive Health in Refugee Situations: An Inter-Agency Field Manual runs the same line under “Some General Facts About Reproductive Health”: “585,000 women die each year -- one every minute -- from pregnancy-related causes…. Girls aged 15-19 are twice as likely to die from childbirth as women in their twenties”.

The deceitful implication of these claims is that women and girls are unavoidably at risk of dying in childbirth. The truth is that they are not being provided with first-world standards of obstetric and medical care, adequate clean water, sanitation and good nutrition. The false implications of these statistics also ignore the mother’s often desperate need for social support, as well as protection from further violence.

And so we have a world where genuine human rights such as the right to special care and protection for abused pregnant women and their unborn children are being distorted by the invention and promotion of a psuedo-right, the so-called right to abortion in cases of rape and incest.

Thus do abortion advocates around the world continue to misuse cases of pregnant women who have been abused by rape or incest to argue their case for legalizing abortion. But since these children have committed no wrong, legal deprivation of their lives by an abortion provider should not be tolerated by the State. In terms of the human rights of the unborn child, abortion is lethal punishment of the innocent.

Indeed, one of the most fundamental and consistently proclaimed rights of the child (before as well as after birth) is the right to protection from punishment on the basis of the activities or crimes of the child’s father. As Article 5 (3) of the American Convention on Human Rights11 states: “Punishment shall not be extended to any person other than the criminal”.

And for those abortion advocates who argue that the unborn child is not a person, the American Convention on Human Rights Article 1( 2) says: “For the purposes of this Convention, ‘person’ means every human being”.

And Article 4(1) declares: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception….”

State-condoned execution of any child for the crimes of the child’s parents is prohibited -- the child’s right to life is to be protected by law in general from the moment of conception.12

Yet jurisdictions around the world are caving in to irrational demands that abortion be legalized on the grounds that the child in the womb threatens the mother’s life or her physical or psychological health. Increasingly, such grounds are being recognized to have little or no medical validity in view of the rapid advances that have been made in holistic pre-natal health care for mothers and babies, and the phenomenal progress in obstetrics, in fetal medicine and in pre-natal and post-natal psychological care for mothers.

The rational response to life-threatening pregnancy these days is to improve the availability and delivery of optimum pre-natal and post-natal healthcare. Moreover, growing recognition of post-abortion depression and post-abortion suicide further discredits abortion of the child as a life-saving, health-giving procedure for the mother.13 The right to life, the well-being, of both the mother and the child must be pursued with equal vigor by the medical profession and by all those in positions of authority in public health and law. Abortion remains an intentionally lethal, pseudo-medical procedure. Genuine medicine, as agreed by all civilized human societies since the time of the Hippocratic Oath, does no deliberate harm to an unborn child. The original noble aims and purposes of the medical fraternity to protect the health of all mothers, and all children, including children in utero,14 are being profaned when they are put in the service of promoting abortion.

The common law method of legal interpretation, now routinely adopted by many jurisdictions around the world, should everywhere be applied to laws that protect the unborn. Under this method, all public officials and public and private abortion providers, when the intended outcome of their intervention is to result in arbitrary deprivation of the life of an unborn child, must justify their actions by reference to both principles of necessity and proportionality.

Abortion should never be misrepresented as an “option” that must always be “offered” to the mothers of children conceived through rape or incest. Legally speaking, pre-meditated abortion of an unborn child is never a “choice”: always it must be “a necessity” that is conceptually and substantially different to a mere choice. Deprivation of life on legal grounds of necessity is invoked only after all other measures and remedies have been genuinely explored, tried and exhausted -- it means that there is no other option.

The objective “necessity” test that every doctor should apply is this: “If this baby were a desperately wanted baby, what could I do ‘to save the life of the unborn child’ as well as the life of the mother?” If the answer is absolutely nothing, then the involuntary loss of the baby’s life while trying to save the mother’s life might be, in some sense, considered “necessary”. Necessity is what remains when all “choices” have been eliminated. State-condoned deprivation of life, whether capital punishment or abortion, is a very, very serious matter -- it should never be trivialized as “a choice”.

The fundamental legal principle of proportionalism should also be applied. Anything less than the saving of the mother’s life is not strictly proportional to the irreparable and lethal harm done to the unborn child, and is open to the charge of being arbitrary and unjust. If the life of the unborn child is destroyed in the process of saving the life of the mother -- that is justified. If the unborn child is deprived of the whole of his or her life for any lesser reason, it should certainly be investigated.

Many media reports have lamented the “failure” of the recent South Dakota anti-abortion legislation to provide for “exceptions for rape and incest”.15 It is a measure of the intellectual and moral confusion that surrounds this issue that even generally pro-life US President George Bush appears to be exhibiting some ambivalence on this politically sensitive matter.

Clear logical and ethical imperatives to protect the unborn child tend to be overwhelmed by emotionally driven public sympathy and heightened public sensitivities relating exclusively to the grief, hurt and shame being experienced by a woman, especially a very young woman, who finds herself pregnant through rape or incest. It only compounds the tragedy when at the same time, public sympathy toward her tiny innocent baby are suppressed -- all the concern is focused on the child’s mother and provision of a “choice” to abort the child becomes in itself an insidious pressure.

This pressure on mothers to consider abortion takes on the imperative of an obligation. She is told (quite wrongly) that by aborting her child she is exercising her obligation to protect her own mental and physical health. More subtly and insidiously, she is made aware of an obligation to save her family and friends the anguish of public exposure of her searing experience and to spare them a life-time and living reminder of that experience.

Radical feminists insist that the correct response to the announcement of a pregnancy is a firm affirmation that it is “your choice” and “we will go along with whatever you decide”, i.e., to have the baby or to abort the baby. All too often, the problem with this response is that it carries with it an inbuilt bias that tips women -- struggling with the normal ambivalence and emotional vulnerability of being newly pregnant -- into having an abortion.

When a woman tells the news that she is going to have a baby, what she really wants and needs (and is entitled to receive) is an immediate and whole-hearted welcome for her baby. She needs a firm promise that help will be there for her and her child, a comforting reassurance that all will be fine in the long run. The last thing any woman wants to hear is that “it’s your choice” -- that she alone is to have the responsibility of choosing life or death for her baby. Such a choice implicitly reinforces her deepest fear that she is alone, that the formidable responsibility is hers alone, and so inclines her inexorably toward abortion.

Thus to offer abortions to pregnant victims of rape and incest is not a fair, honest or genuine “choice”. The very offer of an abortion carries with it a subliminal message that the baby is not positively wanted, is not going to be warmly welcomed by family, friends and the wider community. Implicit is the concept of mere toleration: the baby’s death will be tolerated just as easily as the baby’s birth. This is horrible. Even an accompanying offer of assistance “should she decide to keep the baby” cannot suffice to undo the damage done by the offer of an abortion at a time when she needs an unqualified affirmation, a straightforward loving acceptance of her child. As the most vulnerable of all pregnant women, the victims of rape or incest need non-ambivalent reassurance, more so than other women.

We need to deal with this appalling social climate in which vestiges of public censure of acts of rape or incest spill over quite irrationally to the pregnancies that result from these acts. It is a cruel folly that the injustice and evil of acts of rape and incest are transferred to the pregnancies so that the unborn babies themselves begin to be treated as unjust and evil. The pregnancies are portrayed as a continuation of the same terrible imposition, of the same terrible injustice. For this is the tone of much of the recent national and international pro-abortion advocacy that seeks to pressure governments into providing abortion for these mothers as a public duty.16

The flawed reasons for condoning the abortion of the lives of these children need to be examined publicly. There seems to be a regrettable reluctance to uncover and condemn the largely hidden prejudice held by the general public toward these children and their mothers. It is precisely this prejudice that subtly pressures these mothers to abort their children. The core of the prejudice, as far as I can judge, is a facile erroneous judgment that rape and incest victims should not carry their children to full term because it will be “too painful” for these women -- that the children will be “an unbearable reminder” of the crime perpetrated against them in the conception of these children.

Often, I believe, society is just not prepared to experience the discomfort of responding responsibly and generously to the needs of these mothers and their children. Recall how in many euthanasia debates, the caregivers’ argument that to continue living is too painful for their patient often masks a deeper and less-than-honorable concern for the caregivers’ own comfort. Just so there is something deeper and less honorable lurking behind society’s insistence that it is too painful for mothers to bring these children to birth.

An honest examination will reveal that public attitudes (with an underlay of censure) toward these children (and their mothers who have “chosen” to bring them to birth) are unjust and must change. It is one of the few remaining vestiges of an earlier barbarism that society will not recognize the vulnerability of both the mother and her child before and after birth and the State and community obligation to protect and provide for them.

It is absolutely critical that these victim mothers be protected from further abuse. This has long been one of the hidden tragedies behind the facile practice of quietly aborting the children of rape and incest: women and girls are sent back into the same situation where further abuse leads to further abortions.

It is good that more and more countries are putting serious effort into the pursuit of justice in the courts for women victims of rape and incest. Of course, it is right and proper to convict and sentence the men who have committed these crimes. But while courts of law appear to be making significant progress in bringing to justice the perpetrators of the crimes of rape and incest, and in exercising a pragmatic justice in awarding compensation in some cases, there are very few judiciaries around the world who are ready to protect from abortion the unborn victims of rape and incest. How little they are prepared to understand that the advent of a child into an abused mother’s life is not an extension of the tragedy but the coming of hope, the coming of new purpose and the pure and purifying gift of a compelling new reason to live.

And so for each of these mothers, forgiveness may be more important than justice. The healing necessary for her return to joy in life is contingent ultimately on her being able to forgive the child’s father and all those who have hurt, humiliated and abused her. For all human beings, forgiveness is problematic. That is why it is one of the core petitions in the “Our Father” that Jesus taught us. “Forgive us our trespasses as we forgive those who trespass against us….” From the secular world’s point of view, forgiving these most grievous offenses, rape and incest, would seem impossible, but “all things are possible with God”.

In no way should we ever seek to underestimate or trivialize the excruciating pain, both psychological and physical, that is endured by the victims of rape and incest. But neither should we ever consent to compound that pain by encouraging these victims to abort their innocent children who have an inimitable potential to bring true love and healing back into their mothers’ lives.

These children are the priceless gifts of Divine Providence, not retribution. They are sent to show their mothers a way forward out of the valley of darkness, away from despair and hate. Led by a little child, each of these sad mothers may be drawn on to love and to be loved, to reclaim the heart of life. For here, by God’s grace, by God’s gift, is someone to love her, to bring to her life new and deep ties of kinship and meaning, a new someone who will come to know this mother and come to love her forever.

Cardinal Tonini, following the terrible ethnic cleansing in Croatia, went to the heart of the matter:

Here is the Church’s beautiful confident philosophy: God gives us “the extreme liberty” of free will. To guide our will, He writes His law on our hearts. He calls our hearts to an heroic love for this tiny, fragile new life within the womb, a new life, a new beginning. A new life, a new hope, a new good. All new life is good, the Church says. This is the first principle of natural law, “the law we carry within ourselves”: life is good, and to be supported and favored, and all that threatens it is to be avoided.

What the secular world refuses to acknowledge is that not one of these children is ever conceived and made ready to come into this world without God’s “yes”. At the moment of conception, God Himself infuses His love into a new soul and that eternal soul is His direct creation. Irrespective of the circumstances of a child’s conception, God the Father confers on each of His new children an earthly mission and an eternal destiny. First and last, at that moment and forever, these children belong to Him.

Even before they were knitted into their mothers’ wombs, God knew these children. Saint Augustine says: “Not one of them could possibly seem new and unexpected to Him, nor would He foresee them merely, as it were at the last moment, but by His foreknowledge He would have them before Him throughout all eternity”.

Given that God has willed these children into existence, no earthly power has the authority to abort them. If it is not the case that all human life is sacred, then no human life is sacred. If there is not an inviolable right to life for everyone, then there is an inviolable right to life for no one. All God’s children, however and wherever they are conceived, have a right to be here.

Endnotes
1 Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunal. Resolution 95 (1) of the United Nations General Assembly, December 11, 1946. The UN committee on the codification of international law was directed to establish a general codification of “the principles recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal”.

2 See the recent series of research papers by John Hunt that include: “Out of Respect For Life: Nazi Abortion Policy in the Eastern Occupied Territories”, Journal of Genocide Research 1 (3):379-385 (1997); and “Abortion and The Nuremberg Prosecutors: A Deeper Analysis, Life and Learning VII”, Proceedings of the Seventh University Faculty for Life Conference, June 1997.

3 The UN General Assembly, November 20, 1959, reaffirmed unanimously and explicitly the UDHR’s “recognition” of the rights of the child before birth. The concept of formal universal recognition of the child before birth as a legitimate subject of inherent and inalienable human rights including entitlement to legal protection is critical for it is the nature of inherent and inalienable human rights that they can never be de-recognized by courts of law or legislatures.

4 UN Declaration on the Rights of the Child Principle 1: “Every child without any exception whatsoever is entitled to these rights.…”

5 The US ratified the ICCPR June 8, 1992. Reservation No. 2 (with the notable exception of pregnant women) reads: “The United States reserves the right, subject to its constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age”. US Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 102d Congress, 2d Sess in 138 Cong Rec S 4781 (April 2, 1992).

6 Additional recognition of the State’s responsibility for legal protection for the child before birth as well as after birth is found in the Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) Article 6 (4). The Geneva Conventions are explicit in the kind of special protection and assistance that must be provided to expectant mothers in all situations. Completely absent from the Geneva Conventions is the modern concept being pushed by the current UN Secretariat that expectant mothers in war and refugee situations should be provided with abortion services. In Articles 14, 33(5), and 50 of the 1949 Geneva Conventions relative to the Protection of Civilian Persons in Time of War (ratified by the US in 1955), special protection measures are enumerated specifically for “children under fifteen, expectant mothers and mothers of children under seven”. The mother of a child before birth is to be given equal and the same protection for herself and her child as the mothers of children under seven and children of expectant mothers are to be given the same protections as children under 15.

7 Olsen F.: “Do (Only) Women Have Bodies?”, Cheah P, Fraser D and Grbich J (eds) Thinking Through the Body of the Law (Allen and Unwin, St. Leonards, 1996).

8 Women’s Linkage Caucus Advocacy Chart, Beijing, August 30 1995, p. 7.

9 These arguments were used this year, for example, in Colombia to legalize abortion on these grounds; and in Argentina, to win permission to obtain abortions for two mentally handicapped women who conceived through rape.

10 Sadik, Nafis, (at time of publication Executive Director, UNFPA) “Progress in Protecting Reproductive Rights and Promoting Reproductive Health: Five Years Since Cairo”, Health and Human Rights Vol. 4 2000, p. 15.

11 President Jimmy Carter signed this Convention in 1977, and although it has not yet been ratified by the US Congress, the US is still understood to be in honor-bound to abide by these fundamental human rights principles. Under international law, a country is expected to abide by a treaty it has signed, even as it awaits final ratification. See International Commission of Jurists, Administration of the Death Penalty in the United States 33 (June 1996).

12 In the 1980 Baby Boy case, the Inter-American Commission on Human Rights (resolution 23/81) tried to discredit this clear provision for legal protection for the child “in general from the moment of conception” by a very shoddy reading of the travaux preparatoires regarding the alleged meaning of the phrase “in general”. The majority opinion justices completely misread the drafting history of the concept of the right to life that prevailed at the negotiating sessions in Bogota for the 1948 American Declaration. They ignored the original 1947 draft Declaration, which established the concept of the right to life as being understood to apply from conception, and failed to trace the demonstrable continuity of this same concept to the Inter-American Council of Jurists’ Draft Convention of 1959 and to the final Convention in 1968. The introduction in this 1980-1 judgment of an alleged rejection of the concept of a right to life from the moment of conception is fanciful fabrication and bears no relation to the historical facts. As the dissenting justices pointed out, the drafting history of the clause does not indicate any such rejection. Regrettably, this misleading judgment has been used in subsequent cases in other jurisdictions to imply that the addition of “in general” totally nullifies the right to life of the child from the moment of conception to the moment of birth.

13 New Zealand’s Professor David Fergusson’s large long-term study reported in the Journal of Child Psychiatry and Psychology (Jan. 2006) linked those having abortions with elevated levels of subsequent mental health problems, including depression, anxiety, suicidal behaviors and substance use disorders. Researchers found that at age 25, 42% of women in the study group who had had an abortion also experienced major depression at some stage during the past four years. This was 35% higher than those who had continued the pregnancy. Despite Professor Fergusson’s own beliefs (“I’m pro-choice but I’ve produced results which … favor a pro-life viewpoint”), he has concluded: “It verges on scandalous that a surgical procedure that is performed on one in ten women has been so poorly researched and evaluated given the debates about the psychological consequences of abortion.” In a letter to the Abortion Supervisory Committee, he wrote that his reading of the literature on abortion suggested that it was “one of the most methodologically flawed and illiterate research areas” he had ever encountered. Professor Fergusson went on to say that the idea behind the law that abortion was a mental health issue was “based on conjecture”. No one, he said, had examined the costs and benefits: “If the legislation was based on health grounds, you would naturally think this would lead to monitoring of people who had had abortions” but, he said, “the health aspect is always secondary to personal choice.” New Zealand Sun-Herald: “Abortion researcher confounded by study” 5/1/06 by Ruth Hill.

14 The Declaration of Geneva (1948) vowed: “… the utmost respect for human life from the time of conception”. This was reaffirmed by the World Medical Association ad verbatim in the Declaration of Geneva (1968). International Code of Medical Ethics (1949) asserted specifically the importance of “… preserving human life from the time of conception”.

15 A referendum on the Women’s Health and Human Life Protection Act is planned in North Dakota for November 7, 2006.

16 Consider, for example, the attitude reported in Maja Kirilova Eriksson’s Reproductive Freedom in the Context of International Human Rights and Humanitarian Law (1999), “… children born as a product of violence were despised…” (pp. 389-90). It is reported that of 3000 rapes during the ethnic cleansing in Croatia, there were 119 pregnancies, of which 88 were aborted (p. 505).

17 Ethnic Rape: Heavy Weight on Conscience: Cardinal Tonini on Church’s Position Regarding Abortive Pill. Zenit, April 15, 1999.

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.