U.S. law is, unfortunately, filled with contradictions. As soon as you start studying the law, you’ll find this to be true. One area where contradictions are readily apparent is the laws on unborn children.
Consider these scenarios:
Under federal law, it is illegal to execute a pregnant woman.
A sentence of death shall not be carried out upon a woman while she is pregnant.
Period. End of story. No exceptions allowed. The only reason to ban the death penalty while a woman is pregnant – only to execute the woman after the baby is born – is to save the life of the baby. The entire goal of this law is to protect the unborn child’s right to life and ensure that she does not die for the crimes of her mother. Don’t take my word for it. The U.S. Supreme Court recognized this goal in Union Pacific Railway v. Botsford.
Yet despite this law and the goal behind it, the Hyde Amendment often allows the federal government to use our tax dollars to abort babies who were conceived in rape. Why does the federal government ban executing children for the crimes of their mothers but pay for their execution based on the crimes of their fathers?
States have similar laws banning execution until after a woman has given birth to her baby. You can read more about our nation’s prohibition against executing pregnant women in this old post on my personal blog.
Tennessee law states that a father can abandon his child before birth.
For purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, abandonment means that: …
A biological or legal father has either willfully failed to visit or willfully failed to make reasonable payments toward the support of the child’s mother during the four (4) months immediately preceding the birth of the child…
Oh, wait. Did we just see the word “child” used in that sentence? Indeed, the state recognizes that an unborn child is a child and that her father can abandon her even before she is born. Her father can begin to give up his parental rights before his child is born. You are not a parent, with parental rights, unless you have a child. And yet, like so many other states, Tennessee allows these same children to be aborted at the mother’s will. If the father were to assert his parental rights in objection to an abortion, he would have no say.
Colorado law declares that a child can be abused and neglected before birth.
‘Abuse’ or ‘child abuse or neglect’, as used in part 3 of article 3 of this title, means an act or omission in one of the following categories that threatens the health or welfare of a child: …
Any case in which a child tests positive at birth for either a schedule I controlled substance…or a schedule II controlled substance…unless the child tests positive for a schedule II controlled substance as a result of the mother’s lawful intake of such substance as prescribed.
Clearly, the only way a child would test positive for illegal or abused substances at birth is if her mother took these substances while pregnant. In other words, a mother can be charged with abuse or neglect based on what she did to her baby while her baby was still in the womb. How can it be illegal to poison your child through drugs before she is born, but legal to kill this same child?
These three scenarios only touch the tip of the iceberg on legal contradictions concerning the unborn child. If you’re interested in learning more, Aristotle, Abortion, and Fetal Rights – an easy-to-read law review article – provides further examples.