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Can we ever achieve consensus on divisive social issues? The just-concluded session of the Montana Legislature sent Governor Steve Bullock the “Montana Unborn Child Pain and Suffering Prevention Act” (HB 479), which would have set the anesthetization of any unborn child twenty weeks gestation or older prior to abortion as standard policy. State Representative Albert Olszewski, who introduced the bill, is himself pro-life, but he presented the bill as a possible consensus measure: if a fetus is a sentient biological being and might be able to experience pain, shouldn’t we do what we can to alleviate that potential pain? Wouldn’t taking the measure of anesthetizing a five month old or older fetus prior to abortion say something at least about our humanity, if not his?

It should be noted that the bill itself was further watered down during the legislative process: the original bill required anesthetization prior to abortion but—so as not to interfere with Roe’s “right to abortion,” any woman could exempt herself from the requirement. In the end, the bill simply set a state default position: absent the gravida opting out, state policy would have been that abortions performed in the middle of the second trimester and beyond be preceded by anesthesia of the fetus.

The federal “Pain Capable Unborn Child Protection Act” (HR 1797) which passed the House of Representatives June 18 and is pending in the U.S. Senate, takes a far less agnostic position about the capacity of a 20 week old unborn child—in whom every organ has been in place for at least 12 weeks and brain waves detectable for 13—to experience excruciating pain during abortion which, at this stage of pregnancy, essentially involves dismemberment. The federal law bans such abortions outright; the Montana bill would simply have put the force of State policy—a policy any pregnant woman could waive—behind anesthetizing the fetus prior to dismemberment. The federal law makes performance of such abortions at so late a stage of pregnancy criminally punishable; the Montana bill would simply have stripped the abortionist of his professional license.

Consensus was not to be had: 20 of the Senate’s 21 Democrats still voted “no.” (While “diversity” may be the flavor of the month, I doubt you will hear about the one Democrat—a Chippewa Cree Native American—and the six women who voted for the bill). Governor Bullock, also a Democrat, vetoed the bill April 30, just in time for the Legislature to adjourn sine die without taking up an override.

While I have no illusions about the possibilities of “common cause” on the “seamless garment of life” (which usually involves voting for everything branded “pro-life” except pro-life legislation), I also have no doubt that the siren call of “consensus” will still continue to echo in some quarters.

For all the search for “ways forward” and beyond “polarization,” however, I would like to see the coalition that assembled in Nebraska to repeal the death penalty—an effort in part driven by the argument that the drugs used in execution by lethal injection do not deaden the condemned’s pain—to try to come together on what I would call the prenatal death penalty. As Montana House Bill 479 originally argued, whether or how much you believed a fetus could experience pain, the least a humane world might do is seek to ameliorate any potential suffering a sentient being might experience.

Montana, after all, makes it an offense punishable by up to two years imprisonment for “tormenting, injuring, or killing any animal” by mistreatment or neglect. And while the “Treasure State” still has capital punishment on the books, execution there is on a practical moratorium.

The truth is that the pro-abortion crowd afraid to admit that humanity requires the alleviation of even potential pain by a sentient being poses the lethal danger of opening up the verboten question about the humanity of the unborn. And once that question is opened up, the whole unscientific scaffolding of America’s abortion license is called into question. Whether that question results in any action is debatable: people may like to wring their hands while keeping an escape hatch open. (I’ll admit a similar hesitance about this proposal: the anesthiszation of the unborn as a humane measure should prompt us to consider their humanity, not salve our consciences while we abort them. After all, even Kermit Gosnell “made his peace” with Bernard Nathanson’s “Silent Scream” by his infamous “snipping” technique, severing the spinal cords of his victims.)

But for the true believers even allowing the palest doubt in the truth and goodness of abortion to arise is to commit an unpardonable heresy that needs to be suppressed by all possible means. That is why the effort to reach consensus on abortion is in my judgment futile—even if driven by considerations of humanity.

Which says something even less attractive about the state of our humanity. In Bulgakov’s Russian masterpiece, The Master and Margarita, Aphranius (who is really the Devil disguised as head of the Roman secret police in Judea) informs Pilate of Jesus’ death. He notes that Jesus had refused to drink the drugged wine given to the condemned (Mt 27:33; Mk 15:23) to dull their pain just before being nailed to their crosses. Pilate’s response: “Madman! To die of sunburn! Why refuse what is offered by law?”

The ancients were humane enough to offer some form of anesthesia before killing someone. Shouldn’t modern day Americans aspire to their laws attaining at least the humanitarian standards of pagan Rome?

John M. Grondelski, a moral theologian, writes from Shanghai.

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