Msgr. Charles Pope: Recent Pro-Life Laws in Many States are Encouraging – But are There Dangers on the Road Ahead?

Media Curiously Incurious About MLK Story, by Daniel J. Flynn
May 29, 2019
Beyond the Fog of Politics, by Dr. Robert Royal
May 29, 2019

By Msgr. Charles Pope, May 29, 2019

There is a “sorting-out” among the states of our nation on the issue of abortion. It is a kind of a new “Mason-Dixon line.” The historical Mason-Dixon line was drawn to make clear the borders of Pennsylvania, Maryland and Delaware and was finally agreed to in 1779. But when Pennsylvania abolished slavery in 1781, the western part of this line and the Ohio River became a border between slave and free states. In those times it was a divide that was largely north and south. But today the divide is between red and blue states.

In the liberal “blue” states there is a radicalizing of pro-abortion: a no limits, no holds barred permissiveness for abortion right up to the very moment of birth. The opening salvo was in New York when Democratic Governor Andrew Cuomo signed the most radical abortion law in this country on the very Anniversary of Roe v. Wade, January 22, 2019. Simply put, a woman can legally abort in New York even during labor.

Bills similar to New York’s have advanced through legislative chambers in three states:  New Mexico, Rhode Island and Vermont. Hence, in 13 states so far this year, legislators in “blue” States have introduced bills to further protect abortion access in some way.

This has also inspired and led legislators in “red” conservative states to pass laws further limiting the so-called “right” to abortion. Alabama legislators voted to ban abortions in nearly all cases. Alabama’s bill is the first outright ban on abortion. Georgia, Kentucky, Missouri, Mississippi and Ohio stopped short of outright bans. Instead they passed heartbeat bills that effectively prohibit abortions after six to eight weeks of pregnancy. Utah and Arkansas voted to limit the procedure to the middle of the second trimester. Some other states permit abortion until the baby in utero reaches viability, usually at 24 to 28 weeks.

Most commentators see this trend as a response to the appointment of Justice Brett Kavanaugh to the Supreme Court. Indeed, in signing the New York bill, Governor Cuomo said his intent was to send a clear message that whatever happens in Washington, women in New York will always have “the fundamental right to control their own body.” [*]

I am personally heartened to see many states moving to more substantially limit access to abortion. Simply put, abortion is the taking of an innocent human life, and I cannot see any circumstances (including rape or incest) where the direct killing of the innocent should be legal, let alone celebrated as a “right.” In cases of rape and incest, criminal though those practices are, the child conceived did nothing wrong and should not be killed for the crimes of another. There are certain rare cases of double effect where in seeking to save the life of the mother, the loss of the child results. But this death is indirect and unintended. Bans on abortion are right to include exceptions in cases where the life of the mother is certainly threatened and permit actions to save her life. This is permissible if such actions do not directly intend the death of the child, even if such a death as foreseen as likely.

All this said, there remain some prudential concerns in legal maneuvers to end legal abortion and I am interested in your thoughts in the matter.

Basically, there are two approaches that seem to be at work. First, there is the erosion method wherein Roe v. Wade’s wide permission for abortion is legally limited in stages. This is emblematic of the heartbeat bills that seek to shorten the window of legal abortion, and other methods that seek to insist on stricter medical and hygienic practices. More controversially, it may also include bans and limits of some sort, but with exceptions in the case of rape and incest. This exception acknowledges, even though it does not approve of the fact, that many Americans are not ready for laws that do not permit a rape victim wider latitude in choosing abortion.

Secondly, there is the method of an outright confrontation of Roe v. Wade by a bill with few if any exceptions. This seems the approach of the Alabama law. There are no exceptions for rape and incest. There are no permissions for abortion prior to a heartbeat, and only a very limited exception when the life of the mother is gravely endangered. For us purists, this is the bill of our dreams. What is wrong is wrong and compromising with evil is not right. Some have called the bill “extremist.” But this is rich coming from those who do not think it is extreme to dismember a living child in the womb by surgical abortion, or chemically burn a child with saline.

But even if, as I think, the Alabama bill is not extreme, there remains a prudential question of which method is better to use, erosion or confrontation? One can almost imagine a scenario where the most liberal justices on the Supreme Court would eagerly accept an appeal of the Alabama case, seeing it as an easy win and a way to strongly reaffirm Roe v. Wade.

A key factor is Justice Kavanaugh, and to some degree Chief Justice John Roberts and Neil Gorsuch. Kavanaugh is untested in this matter and I don’t think he is as conservative as either his friends or foes think. (On the other hand, see HERE).  Roberts has been very unpredictable of late, and Gorsuch too has sided with the liberals on the court on several occasions. Court watchers observe that the liberals on the Supreme Court are much more consistent in voting patterns with each other than conservatives. The liberals voted together 92 percent of the time. Looking at any iteration of the conservatives, at maximum they are voting together 75 percent of the time. [**]

Therefore, a showdown in the Supreme Court over Roe v. Wade and the Alabama law at this moment has some worried it would not go our way. Should Alabama continue to appeal all the way to the Supreme Court? Or would it be better to advance a “heartbeat bill” that attempts to erode Roe? What about rape and incest exceptions?

I am not a legal expert or a court-watcher. So, I honestly don’t know the answers to these questions. But I am a concerned pro-lifer, who seeks an end to legal abortion in this land and I am pondering what the prudent course of action is.

Prudence is often misunderstood as merely caution or hesitance in taking action. While prudence sometimes dictates caution, and hasty action is seldom prudent, there are times when it is prudent to act quickly. Sometimes a carefully planned and gradual response is best, but at other times a quick denunciation or correction is in order. St. Thomas says, 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 (II, IIae 49.7, respondeo). Prudence, then, is the virtue that sees the best way and commands the will to execute that approach.

I am just a priest, but some of you do have legal and political backgrounds. And thus, I ask your views in this matter. Perhaps a few focal questions can guide us all:

Do you think the Alabama law would be upheld by the Supreme Court of the United States (SCOTUS).

    • If it is not upheld, would that amount, ipso facto, to a further reaffirmation by SCOTUS that Roe v. Wade is settled law?

    • Do you think the “erosion method” for Roe via heartbeat bills is better, or a cop-out?

    • Do you think that rape and incest exceptions are inevitable or to some degree “necessary” at this stage, even if, like me, you oppose them morally?

    • Is there a group of national pro-life leaders and legal experts guiding the appeal process in all these cases or is it just each state on its own?

    • Is SCOTUS likely to allow several bills to be considered before it, or just one?

    • Am I right to be anxious or are there other scenarios that can play out when it comes to SCOTUS?

Please understand that I ask all these questions sincerely. They are not rhetorical at all. I am uncertain as to what is best in the current climate. Part of what drives my concern is the possible “sudden-death” result where SCOTUS might strongly reaffirm Roe and make future appeals more difficult. But it is also possible that my concerns are exaggerated.

Please let me know what you think and converse among one-another as well. 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 in Many States are Encouraging – But are There Dangers on the Road Ahead?