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A Pro-Life & Moral Critique of Anti-Abortion Abolitionism & the Doctrine of the Lesser Magistrates
Joe Kral, M.A. | 12 September 2019
When it comes to opposition to pro-life incrementalism, naturally most people think of those organizations such as Planned Parenthood and NARAL. They routinely oppose bills that limit the harm of abortion such as parental consent legislation, ultrasound legislation, and even Born Alive Infant Protection Acts. It will come as a surprise to many that one group of people who want to overturn Roe v. Wade also oppose pro-life initiatives as well. These people refer to themselves abolitionists and they have been gaining in notoriety in the last couple of years.
Some of their proposals, such as criminalizing abortion while also charging post-abortive women with homicide, have been criticized by several pro-life public policy experts on both legal and ethical grounds.[i] But the basic premise that the abolitionists hold is that Roe should be ignored by elected officials such as state legislators, elected executives such as governors, district attorneys, etc. and they should either pass legislation that completely bans abortion or enforce existing pre-Roe laws that were never repealed. On the surface, this looks like a sound strategy, but underneath, it is highly problematic as will be explained below. The whole of the argument rests on what they refer to as the Doctrine of the Lesser Magistrates.[ii] Basically, the idea is that these elected officials have no duty to follow the Supreme Court ruling because it is an unjust ruling. As a result, these office holders should either enact legislation that bans abortion or enforce pre-Roe laws that prohibit abortion. This type of doctrine has been used in the past as when the Lords of England forced the King to sign the Magna Carta. Even our Founding Fathers used this doctrine to break away from England. The phrase “taxation without representation” certainly encompasses the idea of the doctrine. In these situations there was little way to change unjust laws since these systems were monarchies and the king had little incentive to change his own edicts. However, the question arises, does this doctrine apply today and more specifically can it apply to our Constitutional Republic?
At first glance, the Doctrine of the Lesser Magistrates may seem like a good thing, but as was mentioned above, it is highly problematic. For elected officials to ignore Roe or any other Supreme Court decision they disagree with would mean that they have to ignore other portions of the US Constitution as well; laws that are completely just. It would certainly seem that the American Founding Fathers had enough foresight to understand any civil government has the potential to pass unjust laws and accounted for that very scenario within the US Constitution itself. In fact Article V of the Constitution allows for the Constitution itself to be amended which could correct the injustice of Roe. The article allows for amendments to be proposed by Congress or a convention of states to be called to propose amendments and then ratified by three-fourths of the states. Not to mention that another case can be brought before the US Supreme Court where it can reverse its prior decision.[iii] The truth of the matter is that any case involving an issue of unborn human life can overturn Roe whether that is abortion related legislation or IVF related legislation. Currently, as it stands there is reason to believe that the Court will not completely overturn Roe at the present. The latest case involving Indiana indicates the Court’s mood.[iv] However, this still does not dismiss the other two options that the US Constitution provides when it comes to the Supreme Court issuing an unjust decision. The genius of the Constitution is the reality that there is more than one way to overrule the US Supreme Court.
This, of course, shows the real problem with the abolitionist philosophy. In order to employ their philosophy, they also have to ignore the various provisions within the Constitution itself that provide for other means of changing an unjust Supreme Court decisions. To ignore these provisions is to ignore a just law. The great Christian philosopher, St. Thomas Aquinas, can certainly help here with respect to helping one understand what is meant by a just law. For Aquinas law is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”[v] Law has five elements that must be met in order to be properly called law: It must be ordered (purpose), it must be reasonable, it must be for the common good, it must be made by proper authority, and it must be made known. These provisions within the US Constitution certainly meet all of these elements and so can be properly called law. Its purpose is clearly stated within its preamble. It is reasonable in so far has it establishes an organized system of government, what those duties are, how changes can be made to the Constitution, etc. In particular, when one looks at the provisions in question here, one can easily see that the Founding Fathers understood the need to be able change an unjust law in a variety of ways and reasonably set out a methodology so that Congress and the states through duly elected officials could ensure that these changes could be made. It is a peaceful and civilized approach, much different than the days of absolute monarchy. Furthermore, it is for the common good insofar as it helps maintain justice within society. If the law is bad there are numerous options available to change the law to ensure that it will be changed. It was made by just authority. The representatives of the Constitutional Convention were duly elected and each state that sent representatives ratified the Constitution. Lastly, it is made known by the fact it is widely published. And it is here one can understand that the law is just since, at its very core, it seeks to promote justice and it meets all the elements of law that Aquinas so eloquently put forth. One can also understand how the Doctrine of Lesser Magistrates is no longer appropriate within a system that has a variety of ways available to change unjust laws. It certainly seems to be the case that the Founders knew of the importance of changing unjust laws.
By asking state elected officials to ignore Roe and enforce either pre-Roe prohibitions against abortion or ban abortion and then enforce the ban, they are, in essence, asking elected officials to also ignore important provisions within the Constitution that are just. Prudence certainly dictates that a just law be followed even if it takes time to change an unjust law. Merely ignoring provisions within the Constitution or picking what provisions one likes leads to a very dangerous interpretation of the Constitution itself; an interpretation that can lead to confusion and chaos. The Founding Fathers charted a peaceful method that ensured that the Republic they founded would not be destroyed. Pro-Life incrementalism follows this peaceful and civilized approach to changing the unjust US Supreme Court decision of Roe v. Wade. Pro-Life incrementalism understands that while at present it may not be possible to overturn this decision it certainly has the capacity of limiting the various evils that have come about because of it. Pro-Life legal and moral scholars want to abolish the practice of abortion, but these scholars also understand that it has to be done in a just manner. Egregiously violating the Constitution is simply neither just nor wise.
[i] There are several articles that criticize this approach. Here are a few:
1) Brennan, Ana, “Love Them Both”, Sebastian’s Point, December 6, 2018. The article may be viewed here - https://www.societyofstsebastian.org/copy-of-sebastian-s-point-20.
2) Kral, Joe, “Love Them Both Part II: A Natural Law Perspective”, Sebastian’s Point, December 20, 2018. The article may be viewed here - https://www.societyofstsebastian.org/copy-of-sebastian-s-point-22.
3) Forsythe, Clarke, “When Abortion Was Illegal, Women Were Not Jailed. Here’s Why”, LifeNews.com, March 31, 2016. The article may be viewed here - https://www.lifenews.com/2016/03/31/when-abortion-was-illegal-women-were-not-jailed-for-having-abortions-heres-why/.
[ii] Silberman, James, “What Would Happen If A State Nullified Roe And Abolished Abortion”, The Resurgent, April 26, 2019. The article is also republished at the Doctrine of the Lesser Magistrates website which may be viewed here: https://lessermagistrate.com/what-would-happen-if-a-state-nullified-roe-and-abolished-abortion/.
[iii] This provision is found in Article III of the US Constitution. And certainly the US Supreme Court has reversed itself before as in the case of Brown v. Board of Education overturning Plessy v. Ferguson.
[iv] The United States Supreme Court upheld one provision of Indiana’s law that requires abortion clinics to humanely dispose of the fetal remains, while it would not revive the portion of the law that prohibited abortions based on race, gender, or disability. You may view a Washington Post article on the subject here:https://www.washingtonpost.com/politics/courts_law/supreme-court-compromise-on-indiana-abortion-law-keeps-issue-off-its-docket/2019/05/28/18636792-814b-11e9-933d-7501070ee669_story.html.
[v] Aquinas, Thomas, Summa Theologica, I-II, Q. 90, A. 4.
Joe Kral, M.A., President, Society of St. Sebastian & Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.