The Unz Review • An Alternative Media Selection
A Collection of Interesting, Important, and Controversial Perspectives Largely Excluded from the American Mainstream Media
 BlogviewAndrew Napolitano Archive
Abortion and the Right to Stay Alive
Email This Page to Someone

 Remember My Information


Bookmark Toggle AllToCAdd to LibraryRemove from Library • BShow CommentNext New CommentNext New ReplyRead More
ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
These buttons register your public Agreement, Disagreement, Thanks, LOL, or Troll with the selected comment. They are ONLY available to recent, frequent commenters who have saved their Name+Email using the 'Remember My Information' checkbox, and may also ONLY be used three times during any eight hour period.
Ignore Commenter Follow Commenter
Search Text Case Sensitive  Exact Words  Include Comments
List of Bookmarks

Much has been made lately of language in a recently enacted New York state statute that permits abortion up to the time of birth if necessary to preserve the life or health of the mother. New Jersey has had the same provision for two generations via a regulation of the Board of Medical Examiners.

Sadly, when New York Gov. Andrew Cuomo signed the new legislation into law two weeks ago, he did so in a joyful and celebratory atmosphere. What moral person could find joy in this?

The joyless debate over the issue of how late in a pregnancy is morally or legally too late for abortion was crystalized when the Virginia General Assembly was prepared to vote last week on legislation nearly identical to New York’s, only to have that legislation inadvertently sabotaged by one of its most ardent supporters, Gov. Ralph Northam, a pediatric neurologist.

When Gov. Northam was asked on a Richmond radio show how the law would address a baby’s surviving an abortion procedure in the ninth month of pregnancy and his cold and startling answer was that the proposed legislation would permit the mother and the physician to let the unwanted baby passively die, outrage ensued, and the legislation was defeated by one vote.

That outrage was soon diverted to Gov. Northam’s fitness for office, not over his abortion comment but because his medical school yearbook page showed a photo with a person in blackface and another in Ku Klux Klan garb — together depicting horrid, hateful, hurtful imagery reminiscent of an awful white supremacist-dominated time in American history that took bloodshed to erase. This shocking revelation and the defeat of the proposed Virginia legislation changed the public debate from letting babies who survive abortion procedures die to ridding the Virginia government of a potential, likely or former white supremacist.

Gov. Northam at first apologized, not for supporting legislation that would permit the passive deaths of unwanted babies but for his youthful blackface-posed photo. Then, on second thought, he denied that the photo was of him. Then political hell broke loose among Democrats who want him out of office.

But the issue remains and cannot be buried by the firestorm over the governor’s 35-year-old yearbook page: What is the legal status of a baby who survives a late-term abortion procedure? Here is the back story.

In January 1973, the Supreme Court issued two abortion decisions on the same day. The better known of the two, Roe v. Wade, has been the fulcrum for political, legal, moral and religious debate as fierce as any this country has seen since the abolitionist movement challenged slavery in the era before the War Between the States.


Roe established that the fetus in the womb, notwithstanding human parentage and the possession of all the genomic material needed to develop into a full postnatal human, is legally not a person. This echoed another Supreme Court decision, Dred Scott v. Sandford, which was in the abolitionist era and effectively denied the personhood of African-Americans.

The personhood of a human fetus is not a mere academic question. If the fetus is a person, then it is protected from abortion by the Fifth and 14th amendments to the Constitution, which command the government to protect equally the lives of all people. But Roe did not stop with the personhood issue. It also decreed that the states may not regulate abortions in the first trimester of a woman’s pregnancy, may regulate in the second trimester only for the health of the mother and may prohibit or permit abortions in the third trimester.

Yet here is the kicker, which has been below the Roe radar screen while 55 million babies have had their lives snuffed out in the past 46 years. Roe decreed that all states must permit abortions at any time in the pregnancy if necessary to save the life or preserve the health of the mother. Pregnancies that threaten the life of the mother are extremely rare, thanks to modern medicine. However, thanks to Roe’s little-known companion case, Doe v. Bolton, the phrase “the health of the mother” can mean the physical, mental, psychological or emotional health of and (inexplicably) the age of the mother.

Stated differently, under Roe v. Wade and Doe v. Bolton, if a mother satisfies a physician that she would suffer emotionally if she were to carry her baby to term or is too old to be a mother, in all states in the union, she can have an abortion at any time in her pregnancy — even at the end of the ninth month.

Now, back to the question put to Gov. Northam. Suppose the baby is not butchered in the womb but survives and is delivered alive. When the Philadelphia abortionist Kermit Gosnell was confronted with this, he used his scalpel to stab babies to death. At his murder trial, at which he was convicted, the prosecution presented evidence to show that if he had passively allowed the born-alive babies to choke or starve to death, he would not have committed a crime.

Physicians are taught from day one, “First, do no harm.” What physician could let a baby die?

The dirty secret of abortion law is that mothers and abortion physicians may legally let unwanted babies born alive suffer and die with impunity. What about personhood? Isn’t a living baby a person entitled to the equal protection of the laws? Under the natural law, yes. Under the Constitution, yes. Under Roe v. Wade and Doe v. Bolton, no.

No society that permits the active or passive killing of people because they are unwanted can long survive. No society that defines away personhood has any claim to knowing right from wrong. Whose personhood will the government define away next?

Copyright 2019 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Abortion 
Hide 22 CommentsLeave a Comment
Commenters to FollowEndorsed Only
Trim Comments?
  1. anonymous[340] • Disclaimer says:

    ” … photo with a person in blackface and another in Ku Klux Klan garb — together depicting horrid, hateful, hurtful imagery reminiscent of an awful white supremacist-dominated time in American history that took bloodshed to erase. This shocking revelation …”

    How many times did Mr. Napolitano faint before he could bring himself to describe such a thing? And didn’t the Klan come about after 1865?

    Clutching pearls with both hands to protect his Establishment perch.

    • Replies: @Reg Cæsar
  2. @anonymous

    Sounds more like Janet than Andrew Napolitano.

    But then, a Neapolitan is black, white, and red all under.

  3. “This shocking revelation and the defeat of the proposed Virginia legislation changed the public debate from letting babies who survive abortion procedures die to ridding the Virginia government of a potential, likely or former white supremacist.”

    Kind of a rush to Judgment there, Mr. Napolitano; how can you infer he is a racist much less a white supremacist merely by the wearing of blackface or a KKK hood in what is clearly a humorous albeit tasteless context?

    • Replies: @Liberty Mike
  4. When the Philadelphia abortionist Kermit Gosnell was confronted with this, he used his scalpel to stab babies to death

    Black and Asian abortions were conducted by Gosnell’s staff but Gosnell reserved for himself the pleasure of killing white babies:

    ‘Like if a girl—the black population was—African population was big here. So he didn’t mind you medicating your African American girls, your Indian girl, but if you had a white girl from the suburbs, oh, you better not medicate her. You better wait until he go in and talk to her first. And one day I said something to him and he was like, that’s the way of the world.’

    • Replies: @anonymous
  5. spoonful says:

    I used to be “pro choice,” but as an attorney, it struck me as so clear that the “choice” is made by only one party to the situation, leaving the less powerful – the voiceless baby – without any “choice” whatsoever. “I choose to live” I remember my dear brother telling me before he died of cancer. I suspect the voiceless baby would say the same if given the opportunity

  6. Kevin says:

    Something that ALL Christians and especially Evangelicals need to hear:
    There are few things more Jewish than abortion.
    Jewish doctors are 35 times more likely to provide abortions than those of the largest (Evangelical) religious persuasion, at 40% compared to just 1.2%.
    Additionally, the NARAL, the largest Pro-Abortion lobby in the U. S., has had Jews as all but one of its 5 presidents, including the current one, Ilyse Hogue.
    Of course, early Jewish feminists like Betty Friedan and Gloria Steinem played a large role in pushing for abortion to be made legal.
    And finally, in the Talmud, the religious book of modern Judaism, the unborn child is considered as ‘mere fluid’ and not an entity separate from the body of the woman until long after the water is broken in the amniotic sac. The Jewish scriptures claim that there is no ‘nephesh’ or soul in the child until it is delivered (despite the fact that as Steve King points out in his proposed ‘Heartbeat Bill’, the child has a distinct heartbeat from just a few weeks after conception.
    One of the best examples of this fact is the story of Dr. Bernard Nathanson, a Jewish medical doctor who was a strong abortion advocate, and was actually a founder of NARAL!
    However, eventually after seeing ultrasound images and realising how horrific abortion actually is, he changed his mind.
    He later directed the movie ‘Silent Scream’, one of the most powerful Pro-Life films ever made, and actually converted to Christianity.
    Dr. Nathanson famously said that “no religion matches the special role for forgiveness that is afforded by the Catholic Church.”

  7. Anonymous [AKA "NaturalLaw"] says:

    Please give your source for this assertion:
    Isn’t a living baby a person entitled to the equal protection of the laws? Under the natural law, yes.

  8. “What moral person could find joy in this?”

    Apparently white people who have been advocating killing children in the womb since the 1960’s with wild abandon. White women who apparently would engage in all manner of tryst like behavior to keep the murder of children in the womb.

    I would that we could blame the current state of affairs on blacks — that would just make it all ease and peas. But repeatedly it’s the dominant populations battering down the door of decency and making the same legal to the chill of champagne.

    feeling a tad bit fiesty today . . .

  9. @The Alarmist

    Even characterizing it as “tasteless” is virtue signaling. As the judge is wont to write, “stated alternatively,” don’t be a cuck.

  10. buckwheat says:

    This one issue shows what degenerates we have in the current Congress, in the current Supreme Court and the Presidency before Trump. We no longer and haven’t for some time held the moral high ground. Forget the God Bless America bullshit, if God is alive then its Goddamn America and it shows because it’ll be hard for our politicians to sink any lower. In today’s world putting on blackface is tantamount to a death sentence for a politician, but the fools cheer for a tool that promotes more abortions.

    • Replies: @Liberty Mike
  11. @buckwheat

    Trump included.

    He has surrounded himself with swamp creatures, particularly creepy swamp creatures, and, most alarmingly, the ((( worst ))) kind of swamp creatures.

    Check. and. Mate.

  12. This is the issue on which I can definitively prove that left and right are both idiots.

    I can do it by asking you a question?

    Would you rather make abortion illegal or stop it?

    “Same thing” you say?

    Nope. They are opposites. Neither left nor right believes they are. But they are opposites.

    A. Make abortion illegal and it still goes on. At about the same rate as when it was legal. There is much evidence for this fact from countries where abortion is illegal.

    B. If making abortion illegal doesn’t stop it, then the situation must be hopeless, right?

    Wrong. The answer, as is the answer to everything, is money.

    Fact: the number one reason, by far, women give for having abortions is “money.” Just having a baby costs what is an astronomical fee to most people. Raising one is beyond astronomical.

    So, if you want to stop, I said stop, I mean stop abortions–then PAY women to have children.

    But of course, this solution, the only real solution, a solution promulgated by Jimmy Carter, an anti-abortion Baptist deacon, basing his solution on real, replicable evidence, this solution is unacceptable to both sides. To liberals because they want abortions to happen. To conservatives because they are so stupid, they refuse to “throw money at” a problem, even if throwing money at it is the exact, effective, and only solution.

  13. SafeNow says:

    Regarding the mental health exception, I disagree with the standard that “a” physician be able to make that determination. It should not be the obgyn. A psychiatrist spends much of his four-year residency being trained in, and practicing, how to conduct a psychiatric interview. An obgyn cannot possibly make the mental assessment. An obgyn can perform what is sometimes called a “structured” psychiatric interview, which follows a template. But he or she cannot competently perform the necessary semi-structured or unstructured interview. It would be absurd to have a psychiatrist perform deliveries or abortions; it is equally preposterous for an obgyn to practice psychiatry. Where a psychiatrist is not physically available, technology could of course be utilized.

  14. @obwandiyag


    it’s peculiar advance.

    In my view murdering should children at any stage after conception should be against the law. There is but one exception and that is contentious — risk to a mother’s life — physical life not her existentialist quality of life.

    The argument about stopping such murder isn’t predicated on reality. Sure it would be great to stop murder. But as humans engage in such deeds regardless of the law — we establish a set of rules so that people are aware that breaking them is a no no.

    When murdering children in the womb was illegal, there were certainly those that violated that rule. But more than anything women and men engaged in practices to avoid conceiving a child. The illegality served as a deterrent. However, the largest deterrent was the prospect of being pregnant, if one did not desire to have a child. And the case was that such dynamics were demonstrably burdensome lessons that served as warnings – object lessons. So people as a matter of choice avoided conception. Given the advances in prevention, assuming one is incapable of self control (celibacy/abstinence) and the like there’s no reason why any woman who wants to prevent pregnancy shouldn’t by preventing conception. Illegality of murder helps create that downward pressure.

    And then there is this — something liberals have no clue about. Murdering the innocent as matter of human decency should be outlawed as a matter of conscience regardless of the law — but as part of human value placed on human life itself. And any black who whines about slavery who supports murdering children in the womb has no clue to the moral and intellectual implications used to support slavery by a country which embraced “life, liberty, justice, and equality”. Because the same rationale used to turn blacks into property is the exact same rationale used to children into property akin to skin tissue. And to do so for thirty pieces of silver all but undermines any complaint about slavery.

    That is how you get white liberals pushing the envelope even further to murdering children after birth itself. Speaking of having no clue.

    Murdering children at any stage is an absolute wrong – regardless of the law.

    • Replies: @obwandiyag
  15. @obwandiyag

    this comment,

    “Speaking of having no clue.”

    was over the top

    —- excuse me.

  16. T. Weed says:

    Something never mentioned in this debate: if a woman is so determined not to bear the child in her womb that she is willing to abort it–what happens to this unwanted baby born against the mother’s wishes? Who will take care of it? Aren’t chances good that it will grow up to be a burden to society? Many women who want to abort are pregnant by accident or force, victims of drugs or alcohol. If such a woman is forced to give birth, who will take care of the damaged child? Isn’t our country now burdened with millions of unwanted or neglected children? Many cultures around the world have practiced infanticide. In some American Indian tribes a defective or unwanted birth was left outside to die, not considered murder because the newborn didn’t “know” that it was alive, therefore could not suffer fear. Some Polynesian islanders practiced infanticide to keep population in control. Maybe that’s what the Easter Islanders should have done.

    • Replies: @EliteCommInc.
  17. anonymous[348] • Disclaimer says:
    @Johnny Rottenborough

    Gosnell will never emerge from that jail cell, he will be carried out as a corpse in a box.

    I am fully in support of the death penalty but I do appreciate the fact , in our amoral anti-death-penalty society, that evil people like Gosnell don’t get to be dramatically executed these days, those sick bastards have to live out every sick day of their boring ugly lives, complete with all the sicknesses and illnesses of old age, in cold jail cells, surrounded by the ugliness of humanity.

    and Cuomo and Ocasio-Cortez and Soetero and all those haters – it is hard to know who is worse, Soetero the Kenyan-AMerican who supported dispoportianate culling of African-American fetuses, or one of the other two, will one day understand that Gosnell was their creature

  18. @EliteCommInc.

    Sounds like you are in favor of murdering children. You just want to make it illegal to increase the suffering.

    • Replies: @EliteCommInc.
  19. @obwandiyag

    I am unclear what your comment means. I stand by position that murdering children at any state should be prohibited.

    you have a very peculiar understanding of defending the lives of children.

  20. Issac says:

    Greaseball pundit loves mass immigration, just like from the old country. New majority, formed by immigrants, loves infanticide and socialism. Many such cases!

  21. @T. Weed

    1. This country has managed to care for such children quite well, at least to most the biological needs. I have no clue how many adopted children end up as burdens. Matters not every human being should have the opportunity in be a citizen all their own and make said choices. Life can be tough. But that is in fact life. No one should be arbitrarily prevented from it. As to who will a burden or the next Mother Teresa or Dr. Livingstone is an unknown. But what we do know is that millions of people overcome their past and neither their DNA nor their lineage by definition need be anything other than part of the fabric of living. By your reckoning, it appears that many well bred, and provided for children should be done away — for they managed to upend what they had for a mess.

    2. (Note: Not all of these children are from unwanted pregnancies.

    3. Murdering a child as the result of any of these circumstances is excessive and unwarranted. I want to be careful to avoid appearing obtuse about any woman’s circumstance. But it’s a strange society that punishes a child for the choices and mistakes of adults.

    a. accidents are preventable
    b. very few rapes result in pregnancy but we should certainly support mother and child in those circumstances.
    c. as drugs and alcohol impair judgement, it’s probably a good idea to avoid both when dating, intimacy need not lead to carelessness
    d. assuming a child is damaged based on circumstance is hardly cause for killing the same
    e. and our society has yet to disregard the children that are disabled (unknown how many are the result of unwanted pregnancies)

    ** you realize if burden is your standard, your suggestion here is to killing anyone who is damaged or in any manner disabled — a burden is a burden after all.

    I have absolutely no response to anyone using infanticide as a solution to this issue. Even if one wanted to included all the disabled and the 400,000 or so orphaned, that is a burden of 1.2%, I think we can manage. And most of them (the disabled) are with parents or already supported by family. Why stop there, based on your suggested rationale, we could round up all of the troubled teens and adults and terminate them all — a burden is a burden – “decrease the surplus population”.

    Here’s an idea don’t have relations that lead to children unless you desire to have children and intend to care for them as nurturing parents. And if unable to engage in celibate and abstinate behavior. If lacking the discipline by all means prevent conception.

    ——- adopting out children to those who chosen a same relational dynamic is the least effective option.

  22. T. Weed says:

    “round up all the troubled teens and adults”..of course not. That would be murder. But a defective newborn, that doesn’t know it’s alive, left to die, is not “murder”. Infanticide is a practice as old as mankind.
    I have noticed, by the way, that those Americans most vehemently opposed to aborting a fetus in the womb, seem to be untroubled by their country bombing and killing millions of foreign men, women, and children.

Current Commenter

Leave a Reply - Comments on articles more than two weeks old will be judged much more strictly on quality and tone

 Remember My InformationWhy?
 Email Replies to my Comment
Submitted comments have been licensed to The Unz Review and may be republished elsewhere at the sole discretion of the latter
Commenting Disabled While in Translation Mode
Subscribe to This Comment Thread via RSS Subscribe to All Andrew Napolitano Comments via RSS