The U.S. Supreme Court’s Dobbs decision, which overruled Roe v. Wade last month and returned authority to the states to protect preborn human life, has opened a new pathway for us in pro-life states like Nebraska. Cleared of the monstrous tangle of legal obstacles that had built up since 1973, this pathway is nevertheless still full of snags and hazards. One of the most noxious is rampant mis- and disinformation about consequences of pro-life bills for mothers and the medical profession.
First, a word about mis- and disinformation. “Misinformation” refers to falsities spoken out of ignorance and without intent to deceive. Most people who speak untruly about pro-life laws, I believe, are in this category. “Disinformation,” on the other hand, is false speech by those who know better, telling lies with the intent to deceive and to undermine confidence in the truth. The abortion industry and its allies in high places are the worst perpetrators. Our culture is rife with falsehoods of both categories.
The thing to do when something sounds like mis- or disinformation is to read the language of the law or bill at issue. Let’s take Nebraska’s bill from last spring, LB933, as a case in point. Several claims were made about the bill: that it would prevent doctors from giving necessary, even lifesaving treatment (specifically treating miscarriages and ectopic pregnancies), and that it would ban the practice of in vitro fertilization (IVF). Let us examine each of these claims in turn.
LB933 defined “unborn child” as “an individual living member of the species homo sapiens, throughout the embryonic and fetal stages of development from fertilization to full gestation and childbirth.”
That said, what kind of conduct with relation to the unborn child would LB933 have prohibited? Here is the language:
(1) “to administer, prescribe, sell, or otherwise provide any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn child”; or (2) “to use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn child.”
Now, let us examine the claims. First: when a miscarriage has occurred, the baby has already died. A person cannot cause the termination of the life of a person already deceased.
Second, as to ectopic pregnancy: the principle of double effect applies here. When an ectopic pregnancy is treated, the doctor does not specifically intend to kill the child, which is the conduct prohibited by LB933. Rather, the child’s death is a foreseen but unintended result of the treatment of the mother. It is not an abortion, despite the fact that abortionists and their allies intentionally conflate these concepts.
However, there’s more—LB933’s language also provided that in such situations, including but not limited to ectopic pregnancy, physicians could proceed—even with an abortion—and claim as an absolute defense that the procedure was:
“[N]ecessary in reasonable medical judgment . . . to prevent the death of (or a “substantial risk of death” to) the pregnant woman,” or to “prevent the serious, permanent impairment of a life-sustaining organ” of the pregnant woman.
Third, as to IVF: what we heard on the floor of the Legislature—and since that time on TV and radio—is that because LB933 defines the unborn child as existing from fertilization, and since IVF in practice always or nearly always involves the (immediate or eventual) destruction of embryos that are not implanted in the mother, LB933 would have criminalized IVF in practice.
While we as Catholics have a very firm teaching against the practice of IVF, it is flatly false that LB933 would have criminalized it. To see why, let’s return to the language. What kind of conduct did LB933 prohibit? As we saw above, first is the provision of drugs to kill an unborn child. This is inapplicable to the context of IVF. The second form of prohibited conduct is the use of an instrument or procedure upon a pregnant woman to kill her unborn child. IVF begins in vitro—in laboratory glass—not in a woman’s body. Where embryos are destroyed prior to implantation in the woman’s body, LB933 is not applicable, because until those embryos in the lab are implanted in the mother’s womb, the bill’s language does not make their termination a crime.
This examination of language is not easy work, which is why, I suspect, so many people fall prey to mis- and disinformation about it. When in doubt, read. And if you do not have the time, or you feel lacking in expertise, that’s OK. But don’t take the word of opponents at face value. There are lessons for all of us here: language in new pro-life bills must be even clearer than before to make understanding the law as easy as possible. No matter how clear it is, however, you can count on mis- and disinformation. Be prepared.