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:
Our researchers found that in armed conflict, in places like the Congo and Darfur, the pregnancies were not only unwanted but led to ostracism…. Women were further stigmatized if they had a child from a combatant from the other side. If a woman is raped and doesn’t have access to abortion, that’s cruel and degrading treatment.2
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:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world….
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 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:
… save in the execution of a sentence of a court following his conviction of a crime
This single exception to the state’s duty to defend the right to life of every human being goes back to the Third Draft of the Preamble of the Universal Declaration of Human Rights.
Everyone has the right to life. This right can be denied only to persons who have been convicted under general law of some crime against society to which the death penalty is attached.11
Today many European Union countries like the UK have ratified the Sixth Protocol to the European Convention for the Protection of Human Rights, which prohibits capital punishment within the European Union. So it is ironic as well as tragic that this same progressive enlightenment has not extended to the prohibition of abortion, which is an intentional deprivation and an entirely undeserved punishment every bit as lethal as the death penalty against adults and children after birth.
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
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:
The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offense and shall not be carried out on pregnant women or mothers of young children.15
The common focal point here is children. The object and purpose is to provide special safeguards and care including legal protection for all children before as well as after birth, and protection for mothers who are a critically essential conduit for the provision of special safeguards and care to the child before birth and to “very young children”.
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, the European Union and now Amnesty International that expectant mothers in war and refugee situations should be provided with abortion services.
In the Geneva Conventions, special protection measures are enumerated specifically for “children under fifteen, expectant mothers and mothers of children under seven”.16 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 fifteen.
This prohibition on the execution of pregnant women has been reaffirmed more recently by a number of UN Human Rights Commission resolutions, for example, Resolution 2004/67 on Question of the death penalty urges all States that still maintain the death penalty:
To exclude pregnant women and mothers with dependent infants from capital punishment 17
The UN’s 1984 ECOSOC Guidelines also reaffirm prohibition on the execution of pregnant women:
Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers… 18
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.
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).
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.
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.
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.
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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