Keep Your Religious Doctrine Out of My State's Laws

A few days ago, I wrote about Indiana Senate Bill 3. As troubling as SB3 may be, it pales in comparison to Senate Bill 146. As originally introduced SB146, provided for several additions to the law of the State of Indiana:

1. Before a woman can consent to an abortion, she must be told that the fetus "might feel pain";
2. "Human physical life begins when a human ovum is fertilized by a human sperm"; and
3. A physician who performs an abortion must have privileges at a hospital in the county or an adjacent county to the where the abortion is performed.

Several amendments have apparently been adopted to "soften" some of the original language. After adoption of these amendment, provisions 1 and 2 have been modified so that they now provide:

1. Before a woman can consent to an abortion, she must be told that "there is differing medical evidence concerning when a fetus feels pain"; and
2. An "embryo formed by the fertilization of a human ovum by a human sperm immediately begins to divide and grow as human physical life".

Again, let's take these components of SB146 in order:

Fetal pain

I'm not a doctor. Biology isn't my strong suit. Nor, for that matter, is science. So, I don't claim to have any answers on the subject. But... According to numerous sources that I was able to find online, according to all available scientific evidence, a fetus cannot feel pain, at least not until substantially late in the gestation process. (See, e.g., Wikipedia [I know, I know...but it does have a nice introductory discussion and some links], "Can a embryo or fetus feel pain? Various opinions and studies", and "The Facts Speak Louder than 'The Silent Scream'"). I understand that this is a very emotional subject. But I have a hard time requiring a doctor to tell women facts that are not scientifically valid or widely accepted by the medical and scientific community. There is nothing wrong with telling the truth, but when the State of Indiana inserts itself into the world of science, all in the name of scaring women out of having an abortion, then I see a major problem.

So what's wrong with telling women that there is "differing medical evidence"? First, there doesn't appear to actually be any evidence suggesting that a fetus might feel pain early in pregnancy; rather, there appears to be speculation. And we don't require doctors to provide detailed information to patients regarding all other areas where there is "differing medical evidence". Many conservatives want to rely upon abstinence only sex education curricula, and oppose noting that there might be different evidence as to the efficacy of abstinence-only programs. Similarly, there are numerous other medical procedures where we expect that doctors will provide sufficient information for the patient to make an informed decision without the necessity of the state intruding and requiring the doctor to provide certain additional information. There is no medical evidence linking autism to childhood vaccines, yet there appears to be plenty of anecdotal evidence of unfounded concern; yet we don't require doctors to warn parents, prior to vaccinating a child, that there is "differing medical evidence". That some people might want it to be a fact does not create a difference in evidence any more than the existence of The Flat Earth Society provides evidence that Earth is flat.

It is also worth noting that the embryo does not become a "fetus" until the eighth week following conception:

Fetus: The unborn offspring from the end of the 8th week after conception (when the major structures have formed) until birth. Up until the eighth week, the developing offspring is called an embryo.

(Taken from MedicineNet.com; other online dictionaries have similar definitions.) Yet, SB146 doesn't appear to recognize this distinction, so a woman seeking an abortion very early in her pregnancy is almost certainly getting scientifically unsound (or at least irrelevant) information.

And I'm curious: Before helping a woman give birth naturally and without anaesthesia, must a doctor or midwife tell the woman that there is differing medical evidence as to whether the fetus might feel pain (and thus recommend anaesthesia or a C-section to avoid the pain)? Before performing any other invasive procedure on a pregnant woman, must she be warned that the fetus might feel pain? Before allowing a woman to eat a bowl of spicy chili, must a waitress tell a woman that the hot peppers might cause the fetus pain (after all, the fetus is being fed whatever the mother ingests). And what about a woman having an abortion to terminate a pregnancy caused by rape, incest, or to protect the woman's life. Isn't she in a difficult enough situation, without having this additional burden placed upon her?

I have lots of issues with some of the abortion "consent" requirements. Let's not add to the burden by requiring doctors to provide scientifically unsound information.

Hospital Privileges

On its face, this part of SB146 seems relatively innocuous. Yet, much like SB3, it all depends upon your frame of reference. This provision is probably not much of an issue in large cities. But consider the smaller cities and towns around Indiana. Most do not have a full time abortion clinic. Women often have to drive to a neighboring town to have an abortion performed. A number of the clinics around the state that do perform abortions don't have a full-time physician; instead, one or two physicians may make the rounds of the clinics and perform abortions one day a week or every other week. And therein lies the problem with the bill.

I have no idea which counties have clinics or full time physicians in those clinics (I've read that only 5 out of 92 counties have full time abortion clinics, but I don't know this to be true). But just consider the case of rural counties without a full time physician (assuming that they even have a clinic). That physician might have his or her full time practice in Indianapolis, Fort Wayne, or Evansville, but travel to the small town every so often. If SB146 were to pass, that physician would have to be granted privileges at hospitals in numerous counties around the state, just so that the physician could perform abortions at the clinic. But this could be expensive and/or time consuming for the physician as many hospitals require physicians with privileges to be on call a certain number of hours or days each month. Thus, in order for the Indianapolis-based doctor to perform an abortion in a rural county, that doctor might have to be on call in the rural county, even on days when the doctor is not at the county's clinic. The net result of this requirement (and the underlying intent of the bill) would be to dissuade physicians from going to those rural clinics to perform abortions.

With regard to this requirement, it is worth asking whether doctors performing other types of surgical or semi-surgical procedures at out-patient clinics around the state have a similar requirement. If a plastic surgeon performs liposuction at a rural clinic, must that surgeon have privileges at the county's hospital? If a opthamologist performs a LASIK procedure, must he also have privileges at the county's hospital? What about an oral surgeon performing a root canal? The list of procedures performed at out-patient clinics around the state goes on and on. Yet, so far as I am aware, in none of those other instances must the doctor have hospital privileges. Only in the case of abortions would the law add this requirement. And just to be clear, by comparison, abortions are not the most dangerous of procedures (at least when done in clinics and not the back alleys of the towns and cities where it is virtually impossible to find a doctor to perform an abortion). Many more dangerous procedures are performed in out-patient clinics without the state getting involved.

In essence, this provision of SB146 is yet another thinly disguised attempt to keep abortions legal while making them impossible to obtain.

Beginning of human physical life

First, what exactly does "human physical life" mean? I think that it is supposed to mean human life as opposed to the mere potential for human life found in either a sperm or an egg. Thus, if SB146 were to pass, it would be the law of the State of Indiana that life begins at conception (however carefully or obliquely worded the statute may be). I have several problems with this statement, one of which is far, far more important than the others: While some religions may hold to this belief, others do not. More specifically, Jewish theology, developed over thousands of years (beginning long before the birth of Christ), holds an absolutely contradictory viewpoint! According to Jewish law and tradition, a fetus is not a person. According to the Talmud, the fetus is deemed to be a component of the pregnant woman's body, no different from her thigh. Moreover, Jewish rabbis and scholars have been debating, literally for millennia, when "ensoulment" occurs. Even after this millennia of debate, no firm answer or opinion has emerged; thus, this is one of those issues of faith that is viewed as one of the "secrets of G-d". Yet, apparently, Senator Miller and Senator Drozda know this answer and are willing to tell Jewish scholars that their belief is wrong while the religious belief espoused by Senator Miller and Senator Drozda is right.

It is also absolutely critical to understand that according to Jewish law, the life of the mother takes precedence over the life of the fetus until birth. Allow me to quote, in part, some of the testimony offered in the Indiana House of Representatives in 2006 by Rabbi Dennis C. Sasso (with regard to another abortion-related bill):

Writing into state law what is essentially the doctrinal view of a particular segment of the faith community would impair the freedom of religion of Hoosier citizens whose religious traditions and ethical stances call them to a different understanding of when does human personhood begin. It is regrettable use of political and religious ideology to trump science, threaten pluralism, assault tolerance and encroach on the privacy of citizens.

The issue is not "When does life begin?" Life exists even before conception. The sperm is life. The ovum is life. Every cell and organism is a living entity. Adherents of the Eastern faith, Jainism, gently sweep the path in front of them as they walk in order to avoid stepping on living creatures.

The issue is not "when does life begin", but when is human personhood, that intangible moral and legal category upon which hinge so many privileges and responsibilities of identity and citizenship, established. And on this issue, science offers no answers and theologians and ethicists have and will continue to differ.

While some people of faith may choose to affirm that human personhood begins at conception, at the moment when the ovum and sperm meet, Judaism affirms that personhood begins at birth. In a contest between the fetus and the mother, the Jewish moral tradition will not only permit, but require, that preference be given to the mother.

Until birth, while the fetus is certainly to be cherished and protected, it is not considered an independent legal entity. Judaism honors and protects the fetus. Ours is a tradition that celebrates parenthood and family, but in a contest between the embryo or the fetus and the mother, Judaism preeminently protects the rights of the mother as a viable human person. Both her physiological and psychological needs are to be given preferential status over the rights of the developing fetus.

I want to be clear that on this matter there is universal consensus among all Jewish denominations, from the most liberal Reform to the Conservative, Reconstructionist and most traditional Orthodox.

The Rabbinate of the Orthodox Movement, has spoken as follows:

Judaism ... rejects the Catholic or fundamentalist view of abortion, particularly in those cases in which the life, physical or even mental well being of the mother is threatened.... When the life of the mother is threatened, Jewish law unambiguously prefers the life of the mother. Even when the health of the mother is threatened most authorities would permit an abortion before the onset of labor because the fetus has not yet reached an independent status.

We are fearful, therefore, of government interference with the freedom of the Jewish community to apply its time venerated Torah standards to the question of abortion. The intrusion of government into an issue which so often can be determined only by religious consciousness would involve a grave violation of the first amendment.

Thus, if SB146 were to pass, the religious viewpoint of one particular group of faiths would be enshrined as the law, while other longstanding, honestly held, and deeply personal religious viewpoints would be, by legal definition, wrong.

Let me be absolutely clear on this point: The State of Indiana has no business whatsoever telling me that what I believe, what my rabbi believes, and what Jews have come to believe after millennia of study and prayer, is wrong. Just as the State of Indiana has no right to tell Christians that the virgin birth is a fallacy, to tell Muslims that Mohammad was not a prophet, to tell Catholics that the sip of wine is not the blood of Christ, to tell Hindus that they will not be reincarnated, to tell Native Americans that their spirit ancestors don't exist, the State of Indiana has absolutely no right to tell me what to believe about when life begins. Few things are as central to religious faith and doctrine as questions concerning life and death. No government, especially not a government that is supposed to respect and cherish diversity of religious views, should be in the business of legislating core religious understandings. If we start down that road, we are no different from medieval Europe where scientists were burned for saying that the earth orbited the sun or modern fundamentalist Islamic states where religious police impose their fundamentalist view on all segments of society.

An additional point worth making, is that SB146 likely contradicts the protections and prohibitions of the Indiana Constitution. Yes, I said the Indiana Constitution. While most people are familiar with the United States Constitution (and, in particular, the First Amendment), few people (including, sadly, many of our own legislators) are familiar with the provisions of the Indiana Constitution. Allow me to quote several operative provisions From Article I (the Bill of Rights):

Section 3. No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.

Section 4. No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.

As should be obvious from reading these provisions (and take a look at Section 2, Section 6, and Section 7), Indiana's Constitution is even more protective of the freedom of religion than the United State Constitution. Consider how SB146 fares when faced with the constitutional prohibition on laws that interfere with the "rights of conscience". And, how does SB146 reconcile the prohibition of Section 4 that "[n]o preference be given, by law, to any creed, religious society, or mode of worship"? SB146's pronouncement regarding the beginning of human life gives preference to those religious traditions that believe one thing, while telling others that they are wrong, thereby interfering with the rights of conscience of those who believe differently.

One more point to consider: If SB146 passes and it becomes the law of the State of Indiana that human physical life begins at conception, what protections will be available to that human physical life? Might an embryo or fetus have a cause of action against a mother who smokes or drinks or doesn't wear her seat belt or forgets to take her prenatal vitamins? Is the fetus entitled to health care benefits from the State? Is the mother entitled to a tax credit similar to that for her children? And is a doctor who performs or a mother who receives a legal abortion guilty of murder? While I'm sure that Senator Drozda and Senator Miller would answer this last question in the affirmative, so long as Roe v. Wade is the law of the land, Indiana cannot make illegal that which the Constitution of the United States says is legal.

Senator Miller and Senator Drozda seem to care very much about the well-being of an embryo or fetus, but I wonder whether that same concern is evident for all children after birth. Recall that Indiana continues to defeat bills that are designed to protect children from second-hand smoke from their parents. Perhaps we should take time to be sure that all of Indiana's children are properly fed, housed, clothed, schooled, and receive timely and competent medical care before we spend more of our time, energy, and resources worrying about embryos and fetuses.

America was founded, in part, to protect religious freedoms and liberty. Yet here we are, more than 330 years after the signing of the Declaration of Independence, and some senators in Indiana still believe that they have the moral authority to codify their religious viewpoint in the law. Small-minded bigotry and hatred are rarely so evident. Don't let SB146 become law; don't let the State of Indiana adopt one religious tradition at the expense of others; don't let millennia of theological debate be thrown away in the name of one group's cause. Call your legislator and tell them to oppose SB146; call Senator Miller and Senator Drozda and tell them that you don't appreciate their efforts to enforce their religious viewpoint through the auspices of the law.