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Pro-Life Laws: Economic Policy or Policy of Virtue
Joe Kral, M.A. 01 November 2018
Recently, an article at Patheos was published entitled “Congratulations Republicans: You’ve Succeeded In Making the Old Abortion Debates Irrelevant”.[i] In this piece, by Catholic writer, Rebecca Weiss, she argues how the confirmation of Justice Brett Kavanaugh has essentially diluted the pro-life argument because of the sexual assault allegation that was levied against him. In her argument, Ms. Weiss makes an interesting claim regarding pro-life public policy, “I argued that we need to consider our collective responsibility to help women to choose life, and that it might be more effective to try to reduce abortion demand, instead of continuing to attempt to reduce abortion supply.”[ii] This poses an interesting question that gets to the very nature of law itself and how law affects behavior of individuals. But it also poses an interesting question as well does Ms. Weiss’s hypothesis stand up to scrutiny when subjected to critique?
It is telling that in the very next sentence Ms. Weiss also makes the claim that Republican policies tend to drive up abortion demand. What does she mean by this? Thankfully, she refers the reader to an older article she wrote that explains her case.[iii] In this commentary she certainly makes an important case for the need to create a society that cares for both mother and child after birth. But she is quite clear, “In recent years, many pro-life feminists have come to focus on eliminating the demand for abortion, instead of the supply. This is probably the most effective approach at present, if our end goal is saving lives. It’s also possibly the more just approach – because, even if Republican leaders were capable of making good on their promises to eliminate abortion, the root evils that drive women to seek abortion would still remain. Abortions would still happen.”[iv] In essence, Ms. Weiss is making the case that the pro-life movement should abandon traditional pro-life legislation such as parental consent bills, informed consent bills, sonogram bills, and abortion clinic regulations and move towards legislation such as mandatory paid maternity leave.
But is this a good argument? In order to properly answer that particular question one needs to look at what is the purpose of law itself. Thomas certainly does not view law purely in terms of economic behavior. In fact, St. Thomas Aquinas is quite clear on the purpose of law when he states, “Consequently, it is evident that the proper effect of law is to lead its subjects to their proper virtue…”[v] Terms such as “supply” and “demand” might be specific to help determine economic behavior, but for Aquinas law was to affect all sorts of behavior, not merely economic behavior. Aquinas continues, “and since virtue is "that which makes its subject good," it follows that the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect.”[vi] He even continues to further explain, “Virtue is twofold, as explained above (I-II: 63:2), viz. acquired and infused. Now the fact of being accustomed to an action contributes to both, but in different ways; for it causes the acquired virtue; while it disposes to infused virtue, and preserves and fosters it when it already exists. And since law is given for the purpose of directing human acts; as far as human acts conduce to virtue, so far does law make men good.”[vii] So ultimately, it boils down to this, a good and just law will help persons actively behave in a way that is conducive to virtue whereas an unjust law will contribute to the vice of a community.
But another issue needs to be addressed. It would seem Ms. Weiss implies that traditional pro-life legislation is somehow less just than her approach and possibly even less effective. Is this the case? While there are numerous studies[viii] that refute Ms. Weiss’ assertion that traditional pro-life laws are not very effective in reducing the abortion rates, this column will focus on the virtue of justice. As this author has argued on numerous occasions, the aim of traditional pro-life legislation is to restore justice in places where the doctrine of Roe has taken effect.[ix] This in turn has led to an incremental approach to the full restoration of protecting unborn human life under the law.
For purposes of brevity, this article will only focus on two types of tradition pro-life legislative initiatives to make the point. The first case involves parental consent legislation. One of the major reasons why such legislation is promoted is for the very fact that when Roe was decided it created a vacuum within the law regarding minor girls and the so-called right to abortion. Since the law was silent on the matter, it was legally permissible for minor girl to receive an abortion without her parents ever knowing about it. This is obviously a problem since it is a violation of the principle of subsidiarity.[x] Here is a case where federal law subverts the rights of the family to make medical decisions for their minor children. The law is to uphold the integrity of the family. On this, Church teaching is quite clear.[xi] So it is clear that in this instance where parents do not have the right to consent to a major invasive surgical procedure that will be performed on their minor daughter the state has usurped their rights as parents. Furthermore, this type of legislation allows the parents of the minor girl to keep her from making a rash and rushed decision, thus promoting the cardinal virtues of justice (mother and father keep their rights) and temperance (patience in the decision is observed). As a result of this, it is common to see minor abortion rates decrease in those states which have passed parental involvement laws.[xii]
The second type of case involves abortion clinic regulations, specifically laws that mandate that abortionists have admitting privileges to nearby hospitals. While the law in Texas that mandated this was struck down in 2016[xiii], there was a recent decision by the Fifth Circuit Court of Appeals that upheld Louisiana’s admitting privileges law.[xiv] Opponents of the law argue that laws such as these are designed to shutter abortion clinics. However, while that may be a consequence, it is neither the purpose nor intent of the law. The purpose of the law is to right the wrong of the lack of continuous care in the situation where a women is injured during an abortion, the intent is to ensure her safety. Admitting privilege laws are necessary and while abortion doctors and advocates may not like them because it may be difficult for an abortionist to get admitting privileges, that still does not dismiss the reality that women deserve just medical service when something goes horribly wrong. Furthermore, in the case that it does shut down clinics it can further reinforce the virtue of temperance. If clinics do shut down as a consequence of the law it would seem to have the effect of causing the woman to rethink a hasty abortion if abortion is not so readily available.
The simple fact is that traditional pro-life legislation saves lives while at the same time restoring justice where it was absent. As Dr. Michael J. New states, “Furthermore, there is an impressive body of research which demonstrates that a range of incremental, state-level pro-life laws that have been enacted since the Roe v. Wade decision have reduced the incidence of abortion in the United States.”[xv] So-called “supply” side pro-life legislation has been very effective in reducing abortion and saving lives. Furthermore, it is clear that this type of legislation is trying to fix injustices that exist precisely because of Roe.
In the final analysis, both areas need to be legislated upon. While Ms. Weiss is correct in urging more support for the child and mother after birth (certain injustices which do exist), she is incorrect in her analysis that the “demand” side needs to be the primary focus. Even if all the safeguards were in place that Ms. Weiss advocates for yet abortion were still legal, it is unlikely that it would cause the abortion rate to drastically decrease. Why? Because, law, as a teacher of moral behavior, still teaches that one may have sex and still not have to take on the responsibility of a child. Legalized abortion teaches viciousness. Simply put, laws that restrict abortion do cause abortion rates to fall. Why? Because what is slowly being taught is that abortion, itself, is an evil. Failing to pass traditional pro-life legislation or even redirecting most efforts to the so-called “demand” side legislation does not place an emphasis on the reality of the evil of abortion. Abortion directly kills people. You primarily stop abortion by passing legislation that deals directly with abortion related behavior.
[v] Summa Theologica, I-II, Q. 92, A. 1.
[vii] Ibid, Reply to Objection 1.
[viii] There are many studies that show the effectiveness of various pro-life laws and how they reduce abortion. Dr. Michael J. New of Catholic University of America has published numerous articles related to these specific studies.
[ix] One such article may be viewed at: https://www.societyofstsebastian.org/copy-of-spring2018-embryo-rights-kr.
[x] See Catechism of the Catholic Church, no. 1883.
[xi] See Catechism of the Catholic Church, nos. 2202, 2207, and 2209.
[xii] See “How the Legal Status of Abortion Impacts Abortion Rates”, by Michael J. New. The article may be viewed at: https://lozierinstitute.org/how-the-legal-status-of-abortion-impacts-abortion-rates/.
[xiii] See Whole Woman’s Health v. Hellerstedt
Joe Kral, M.A., President of Society of St. Sebastian and Editor-at-Large of the Journal of Bioethics in Law & Culture