There is a “sorting” going on among the states of our nation on the issue of abortion. States are lining up on one side or the other as they did long ago around the Mason-Dixon line on the issue of slavery. In those times it was a divide that was largely between northern and southern states; today the split is between red (conservative) and blue (liberal) states.
The pro-abortion position has steadily become more radical: recent demands are for abortion with essentially no restriction right up to the moment of birth. The opening salvo in the escalating battle was fired earlier this year in New York, when Democrat Governor Andrew Cuomo signed the euphemistically named Reproductive Health Act into law, thereby enacting the most radical abortion legislation in the country—not coincidentally on the anniversary of the 1973 Roe v. Wade decision. In New York a woman may now legally abort her child even as he or she is about to be born!
Bills similar to the one in New York have advanced through legislative chambers in New Mexico, Rhode Island, and Vermont. So far this year, lawmakers in 13 left-leaning states have introduced bills to further protect access to abortion.
At the same time, legislators in conservative states have moved to pass laws limiting the so-called right to abortion. Earlier this month in Alabama, Republican Governor Kay Ivey signed into law the Alabama Human Life Protection Act, which bans abortion in nearly all cases. Efforts in Georgia, Kentucky, Missouri, Mississippi, and Ohio were a little less comprehensive, aiming instead to pass so-called “heartbeat bills” that effectively prohibit abortion beyond eight weeks of pregnancy. Utah and Arkansas voted to restrict abortion to the period before the middle of the second trimester. Other states permit abortion only until the fetus reaches viability, typically held to be 24 to 28 weeks of gestation.
Many analysts interpret the spate of state legislation to protect (or even increase) access to abortion as a response to the appointment of Brett Kavanaugh to the Supreme Court of the United States (SCOTUS). Indeed, after signing New York’s Reproductive Health Act, Governor Cuomo said, “we are sending the clear message that regardless of what happens in Washington, women in New York will always have the fundamental right to control their own body[sic]” [*].
I am heartened to see many states moving to implement more substantial limits on abortion. Simply put, abortion is the taking of an innocent human life, and I cannot see any circumstances (including rape or incest) in which the direct killing of the innocent should be legal, let alone celebrated as a “right.” Even though rape and incest are despicable crimes, the child conceived as a result did nothing wrong and should not be put to death. There are some rare cases in which efforts to save the life of the mother result in the death of her unborn child, but such a death is indirect and unintentional. Actions to save the life of the mother may be permitted even if they are likely to cause the baby to die, provided they are directed at saving the mother and not at killing the child.
There are two fundamentally different approaches to bringing about the end of legal abortion in the U.S. First, there is the incremental erosion method, by which the period during which an abortion may legally be obtained without restriction is shortened (e.g., via heartbeat bills that seek to reduce the unfettered access to abortion during the first trimester) or the restrictions on abortions during later months of pregnancy are increased.
The second approach is to challenge Roe v. Wade directly by enacting legislation outlawing abortion with few if any exceptions. This seems to be the tack taken in Alabama. Its Human Life Protection Act does not have an exception for either rape or incest; abortion is not permitted even prior to the first detectable fetal heartbeat. The only exception provided for is when the life of the mother is gravely endangered. For us purists, the Alabama law is a dream come true. We believe that what is wrong is wrong and that we should not compromise with evil. Some have called Alabama’s new law extremist, but this is somewhat ironic coming from those who do not think it extreme to dismember a living child in the womb.
Even if one believes (as I do) that the Alabama law is not extreme, there remains the prudential question of which method is likely to be more effective? It’s possible that some of the most liberal Supreme Court justices would relish ruling on the Alabama law, seeing it as an opportunity to reaffirm the Roe v. Wade decision.
A key factor in any SCOTUS ruling on abortion will be Associate Justice Brett Kavanaugh (and to a lesser degree Associate Justice Neil Gorsuch and Chief Justice John Roberts). I don’t think Kavanaugh is as conservative as either his supporters or detractors imagine, though others disagree (see here). Roberts’ positions have been unpredictable of late, and Gorsuch and Kavanaugh have each sided with the liberal wing of the Court on several occasions. Court watchers observe that the liberals on the Supreme Court (Associate Justices Ginsburg, Sotomayor, Kagan, and Breyer) vote together far more frequently than do the conservatives (Associate Justices Thomas, Alito, Gorsuch, and Kavanaugh) [**]. Roberts is known more as a slightly-right-of-center moderate, and his decisions lately have been particularly unpredictable.
Therefore, a showdown in the Supreme Court over the Alabama Human Life Protection Act has some people (including me) worried. If a current federal lawsuit to block implementation of the law succeeds, should Alabama continue to appeal all the way to the Supreme Court, or would it be better to forward to SCOTUS a “heartbeat bill” that attempts to erode Roe v. Wade? I am not a legal expert, nor do I follow the courts closely, so I don’t know the best way to proceed. I am just a dedicated pro-lifer who wants to end, somehow, legal abortion in this country. I believe there are prudential judgments to be made in determining the best path to take.
Prudence is often misunderstood as mere caution or as hesitancy to act. While prudence does sometimes dictate caution, and hasty action is seldom prudent, there are times when it is prudent to act quickly and decisively. Sometimes a carefully planned, gradual approach is best but at others a quick denunciation or correction is in order. St. Thomas Aquinas said, “It belongs to prudence chiefly to direct something to a right end; and this is not done aright unless both the end be good, and the means good and suitable” (Summa Theologica II, IIae 49.7, respondeo). Prudence, then, is the virtue that determines the best way forward and then commands the will to execute that approach.
Some of you readers do have legal and political backgrounds, so I ask for your opinions in this matter. Perhaps a few focal questions can guide us:
- Do you think the Alabama Human Life Protection Act would be upheld by SCOTUS?
- If you think the Alabama Human Life Protection Act would be struck down by SCOTUS, do you believe such a decision would make things worse by reaffirming Roe v. Wade as “settled law”?
- Do you think battling Roe v. Wade using the “erosion method” (via heartbeat bills and the like) is the better approach, or is it just a cop out?
- Do you think that rape and incest exceptions should be included in any laws for the sake of expediency even if, like me, you oppose them in principle?
- Is there a group of national pro-life leaders and legal experts guiding the appeal process in all these different cases or is each state on its own?
- Do you think SCOTUS likely to take multiple cases (i.e., rule on abortion-related laws from several states) or just one?
- Is there good reason to be anxious about upcoming abortion-related case(s) before SCOTUS?
- Can you envision any other scenarios that could play out when it comes to SCOTUS and the states?
I pose all these questions sincerely; they are in no way meant to be rhetorical. I do not know what the best approach is in the current climate. Part of what drives my concern is my fear that a strong reaffirmation of Roe v. Wade by SCOTUS would make future progress more difficult.
I would be most grateful if you would use the comments section to let me know what you think, particularly if you have expertise in this area. Please also pray for a change of hearts and an end to abortion in this world!
Cross-posted at the Catholic Standard: Recent Pro-Life Laws Are Encouraging, but Is There Danger Ahead?