The Lejeune Testimony, Part 5: When the Law Forgets Biology

October 11, 2026 · Byline: VCA Editorial Board

The prosecutor never disputed the science. He said it did not matter.

Before Dr. Jérôme Lejeune took the stand, the State of New Jersey moved to keep him off it. Even if the defendants were right, the prosecutor argued, and “even if their expert testimony establishes that it was a human life,” the abortion was legal (pp. 20–21). The judge let the doctor testify anyway. Then the prosecutor cross-examined him.

In Part 1, we met the witness and the case. In Parts 2, 3, and 4, he gave his evidence: a new human constitution at conception, human and one of a kind from the first cell, a child the size of a thumb at eight weeks. Now the other side had its turn.

What the Witness Would Not Claim

The prosecutor, Mr. Bangiola, began by marking the edges of the witness’s knowledge. Dr. Lejeune accepted every one.

He claimed no expertise beyond his field. When the prosecutor took him into the law anyway, his own lawyer objected that this was not “Dr. LeJeune’s field, as to what law should be” (p. 73). The judge allowed it. What follows is a geneticist answering a lawyer’s questions under oath, not a legal opinion. The State called no geneticist of its own. On appeal, Judge Stanton explained why. The prosecutor “conducted cursory cross-examination because he thought that the witnesses’ testimony was irrelevant to the true legal issues in the case,” and he “presented no witnesses at all on the issue of when human life begins, again because of perceived irrelevancy.” That is the record, and the Board states it plainly. The State did not say the science was wrong. It said the science did not matter. Everything that follows turns on that.

“It Is the Law Which Makes the Mistake”

The prosecutor tried to pry biology and law apart. No two living things are equal, he noted. We tell a donkey from a horse. People even call other people donkeys. If law and biology speak the same language, shouldn’t the law be free to draw lines between members of the same species? (pp. 71–73) Dr. Lejeune agreed that the law sometimes does exactly that. Then he said what happens when it does:

His example was slavery. In 1857, the Supreme Court ruled in Dred Scott that the descendants of Africans brought to America and sold as slaves, whether free or enslaved, were not citizens of the United States. The opinion said they had long been regarded as “so far inferior that they had no rights which the white man was bound to respect,” and it ruled accordingly. No one claimed they were not human. The law decided they did not count. Dr. Lejeune called that “forgetting about what was the zoological evidence at that time” (p. 73). The correction, when it came, was not a scientific discovery. It was a nation deciding to count everyone again.

The Guilty Man and the Company

The prosecutor had one more comparison. The law treats an innocent man and a guilty man differently, though both are human. It even executes the guilty. Why can’t it treat the unborn differently too? (pp. 74–76)

The condemned man is tried, convicted, and counted as a person to the end. The child in the womb is not accused of anything. In this text, he is not counted. Virginia law can count him when it chooses: killing “the fetus of another” unlawfully and with malice is a felony. The question is never whether the law can see him. It is when it decides to. Then Dr. Lejeune turned the prosecutor’s own field against him:

American law has treated corporations as legal persons for more than a century. A company can own property, sue, and be sued. The day before the abortion, Alex Loce asked the courts, up to the New Jersey Supreme Court, for an order to stop it. Every court refused (Part 1). The prosecutor and the witness agreed on one thing: personhood is the law’s to grant. The law granted it to companies. It declined it to him. Dr. Lejeune did not claim the law must follow biology. He said what it costs when the law does not.

The Prosecutor’s Last Question

Mr. Bangiola ended where the real argument lives.

That is the strongest case for the other side, and it deserves to be stated plainly. Biology can tell us what the child is. It cannot, by itself, tell us what the law owes him. Some say “person” should mean more than “human being”: a being that is aware, that reasons, that can want its own future. Dr. Lejeune did not deny that such definitions exist. He said only that they are not biology.

The Board asks one question of every such definition: who else does it leave out? The Princeton philosopher Peter Singer has argued for decades that a newborn is not yet a person in this sense, and that ending its life is not the same as killing a person, though he also calls such a killing almost always terrible. Question 1 says nothing that would permit it, and Virginia law forbids it. The point is not about the amendment. It is about the definition. A definition of “person” that leaves out the unborn because of what they cannot yet do leaves out others for the same reason. Virginians who would never accept that conclusion should look hard at the premise.

There is a second argument, and Judge Stanton made it better than the prosecutor did. It does not ask what the child is. It asks what the law may do to his mother. Forcing a woman to carry a pregnancy, he wrote, “inherently involves pervasive governmental intrusion into the internal bodily processes of the woman.” If the child is human, a woman might be under “a moral obligation to carry the pregnancy to term,” apart from special cases such as rape or a serious risk to her life. But “law and morality are not and should not be identical,” and “wise legal policy would stop short of coercing women to have children against their will.”

The Board grants the force of this. The law does not make every moral duty a legal one, and it should be slow to reach into anyone’s body. But Question 1 does not treat her autonomy as absolute either. It lets the Commonwealth regulate the third trimester. Its own drafters accept that at some point the child’s presence can limit what the law permits. The disagreement is not whether such a line exists. It is where the text draws it, and whether the one on the far side of it is counted at all.

The Hardest Objection

Here is the objection in full, from the State’s own motion. It is the hinge of the whole debate.

He was right about the law in 1991. Roe v. Wade was in force. On appeal, Judge Stanton said much the same: even if life begins at conception, it would not necessarily follow that the State, or anyone else, could use force to stop an abortion. He declined to rule on when life begins at all.

So the honest answer to “even if he is human, may the law still allow it?” is this: the law can. It did for nearly fifty years. It can again. The question before Virginia is not whether the law has the power. It is whether Virginians will write that power into their Bill of Rights, and whom the text will count when they do.

A law that protects a human being only when it chooses to is not protecting him. It is permitting him.

What Virginia Would Write Down

Today, Virginia law allows an abortion in the third trimester when three physicians, the one performing it and two consulting, certify in a hospital record that continuing the pregnancy would likely cause the mother’s death or “substantially and irremediably impair” her mental or physical health. The law also requires that life support be available and used for the child if there is “clearly visible evidence of viability.” A separate section sets those requirements aside when, in the performing physician’s opinion, the abortion is necessary to save the mother’s life. Question 1 would not repeal that statute. It would set a floor that any Virginia law must meet. Here is the floor:

Read the two texts side by side. For every third-trimester case short of saving her life, three physicians become one. The current threshold, “substantially and irremediably impair,” is not written. In its place: “medically indicated,” in “the professional judgment of a physician.” That is a standard. It is a wider one, and one doctor applies it. Under the text, one physician’s judgment that an abortion is medically indicated for mental health is enough, and the Commonwealth may not prohibit it. The word “health” has been read widely before. In Doe v. Bolton, decided the same day as Roe, the Supreme Court said a doctor’s judgment may weigh “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.” The same opinion struck down Georgia’s rule that two more doctors agree: “Required acquiescence by co-practitioners has no rational connection with a patient’s needs.” Both halves belong on the table. Question 1 would write one physician into Virginia’s constitution, and a word with no written limit. How wide “health” will be read is for the courts. Doe shows how wide it has been read before.

Supporters answer that abortions this late are rare. In the CDC’s 2022 report, about 1.1 percent of abortions with a known gestational age, in the areas that reported it, occurred at 21 weeks or later. That count begins in the second trimester. The CDC publishes no third-trimester figure, and those abortions are rarer still. Supporters say many involve grave diagnoses. They also say the three-physician rule can delay care in an emergency. Both points are fair. Neither answers the text. Rarity describes how often. The amendment describes what is permitted. A thing that is rare is not a thing that is prohibited. And the amendment drops the three-physician certification without putting another check in its place.

Even in the third trimester, the clause names no interest in the child. It names what the Commonwealth may never prohibit. Before the third trimester, the text is simpler still. The only compelling interest it defines is one “for the limited purpose of maintaining or improving the health of an individual seeking care.” The child is not on the list. Two individuals are present. The text counts one.

Rights That Depend on No Election

In 1943, Justice Robert Jackson wrote for the Supreme Court about what a Bill of Rights is for. The case was about compelled flag salutes, not abortion. The principle was about everything:

Supporters of Question 1 claim this principle for their side: put reproductive decisions beyond the reach of majorities. The Board grants the principle. The disagreement is over who is counted when it is applied. Justice Jackson’s list begins with life. The amendment’s text leaves that right off the list for the one Virginian it most affects. The vote is happening either way. The question is whom the text will count when it is over.

Injustice by Statute

The psalmist knew that a wrong can be written into law and still be a wrong. “Frame injustice by statute” is a legal phrase. It describes a process that looks orderly from the outside: a vote, a text, a seal. Scripture does not ask whether the statute was passed properly. It asks who was condemned by it, and whether he was innocent.

Dr. Lejeune said it in a courtroom without a Bible open: when the law forgets what a human being is, “it is the law which makes the mistake.” The psalm says the mistake has a name.

Still to Come

Part 6 closes the series with a word to pastors and congregations before the vote. The evidence is in. What remains is the verdict, and the verdict belongs to the voter.

Read pages 70 through 82 of the original transcript for yourself, and the prosecutor’s motion on pages 20 through 22. Share this with your pastor and your family. Early in-person voting runs through October 31.

The prosecutor said the science did not matter. The voter decides whether he was right. Vote No on Question 1.

Courts have declined to count him. None has changed what he is. No statute has ever made a human being less human. But the God who wrote every child’s constitution before the law wrote anything still judges the statutes of men, and He still holds out mercy to every Virginian who will stop and count again.

The Series

• Part 1: The witness, the case, and the child who cannot vote.
• Part 2: What happens at fertilization, as Dr. Lejeune explained it to the court.
• Part 3: How genetics shows each human being is human, and unique, from the first cell.
• Part 4: His description of the child at eight weeks.
• Part 5: The cross-examination, and the gap between law and biology.
• Part 6: A closing word to pastors and congregations before the vote.

Sources

• Transcript, State of New Jersey v. Alexander Loce, et al., Morristown Municipal Court, April 13, 1991. Complete transcript (PDF); prosecutor’s motion to bar expert testimony, pp. 20–22; cross-examination of Dr. Jérôme Lejeune, pp. 70–82.
• State v. Loce, 267 N.J. Super. 102 (Law Div. 1991), full opinion (Stanton, A.J.S.C.).
• Virginia Department of Elections, Proposed Constitutional Amendment, Question 1, full text.
• Code of Virginia, § 18.2-74, “When abortion lawful after second trimester of pregnancy”; § 18.2-74.1, “Abortion, etc., when necessary to save life of woman”; § 18.2-32.2, “Killing a fetus; penalty.”
• Doe v. Bolton, 410 U.S. 179 (1973), full opinion.
• Dred Scott v. Sandford, 60 U.S. 393 (1857), opinion of the Court.
• West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), opinion of the Court.
• Centers for Disease Control and Prevention, Abortion Surveillance: Findings and Reports (2022 data).
• Peter Singer, Practical Ethics (Cambridge University Press), chapter “Taking Life: Humans”; see also overview.

Unless otherwise noted, Scripture quotations are from the English Standard Version (ESV).