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The Moral Case for Pro-Life Abortion “Trigger” Bans
Joe Kral, M.A. | 06 August 2020
While pro-life advocates were, undoubtedly, upset over the recent June Medical Services v Russo US Supreme Court decision, which struck down Louisiana's law requiring abortionists to have admitting privileges to a nearby hospital, the truth is it did not advance the abortion industry's agenda either. This is at least good news for pro-life public policy advocates who are busy pushing incremental legislation since the Court’s decision will not impact various pro-life laws that are already in effect.
It should be noted that one day the US Supreme Court will revisit the abortion issue, and at some point in time, it is likely that Roe v. Wade will be overturned. Many pro-life laws have the potential to overturn Roe. Bills ranging from parental consent to clinic regulations have this capacity. As such, there is no one specific type of legislation that is considered to be the bill to overturn legalized abortion. With this in mind, it is time for States to consider legislation in anticipation of Roe's fall.[i]
Naturally, this leads to the question of what sort of legislation anticipates the overturning of Roe? These initiatives are referred to as Abortion “Trigger” Bans. And the sole purpose of this bill is to make sure abortion is prohibited in a state when (and if)[ii] the US Supreme Court decides to let abortion become a state issue again as it was in pre-Roe times. Of course, some may ask if the pre-Roe laws are merely ineffective during the era of Roe, then why can they not simply become effective immediately when the abortion issue has returned to the States? The answer to this particular question needs to dive into how law is enforced and practiced to some extent. Simply put, many States that have not repealed pre-Roe laws have passed other pro-life laws such as those mentioned above. As a result, if Roe were overturned, then there would be a contradiction in state law.
On the one hand, these States would have pre-Roe prohibitions along with other pro-life laws, such as informed consent, that would allow women to receive pertinent information before their abortion. And since informed consent was passed after the pre-Roe laws, the implication is that abortion, even if it is in limited circumstances, is still legal. This contradiction would need to be fixed for the State to ensure that abortion is truly prohibited. This is what Abortion “Trigger” Bans seek to do. These initiatives seek to immediately remedy this contradiction so that the State legislature will not have to after Roe's repeal.
Now the question to answer is, how do these types of proposals fit within the scope of pro-life incrementalism? To respond, the question itself needs to be subdivided into two specific questions: 1) how does this limit the harm of the existing evil law? And 2) how does it help move the society away from the acceptance of the evil law?[iii]
The first question is an interesting one since Abortion “Trigger” Bans do not immediately limit any harm of abortion after the passage and signing into law. In fact, one of the things that make these bills unique is that they are not challenged in court since they do not immediately come into effect, they can only be triggered into effect when a certain event (the overturning of Roe) happens. So, on the surface, it certainly looks like they do nothing to limit the harm of abortion. But this is simply not the reality of the bill itself. It does limit harm. It limits the final harm of abortion within a state by abolishing the limited circumstances of abortion when Roe is overturned. The last remnants of abortion will be washed away from that particular State immediately upon Roe's reversal. This is how Abortion “Trigger” Bans limit harm.
The second question is interesting as well, and in some respects, it can be answered like the one above. However, it is different, as well. In one sense, it certainly does move society away from the acceptance of the existing evil law by immediately prohibiting the evil when Roe is overturned. One of the purposes of law is to act as a great teacher. As the great Christian philosopher St. Thomas Aquinas states, “But every law aims at being obeyed by those who are subject to it. Consequently, it is evident that the proper effect of law is to lead its subjects to their proper virtue: 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.”[iv] Law is meant to help direct/teach virtue. When a law strays away from this, when it teaches injustice, then the law is unjust. Here the law teaches specifically the value of human life at its earliest stages of existence. Yet, before its enactment, before it is triggered into effect, the proposal can help move citizens to an acceptance of a Culture of Life. The State certainly sends a strong message to its citizens that it will not waste any time to ensure that abortion is illegal upon the fall of Roe. In many respects, States that have passed many pro-life laws over the decades seem ready for this particular step since they have been moving toward a Culture of Life to begin with. So, States that have already been moving toward a Culture of Life are ready to accept the total prohibition of abortion as soon as possible, and the Abortion "Trigger" Ban helps accomplish this task.
Clearly, some States have pre-Roe laws that are simply unenforced. The need for Abortion “Trigger” Bans is real. Pro-Life legislators need to seriously consider these types of triggering laws. The fact is, more unborn lives will be saved by a law that is immediately triggered into effect versus going back into session and going through the entire legislative process to ensure pre-Roe laws become enforceable again. Not only does justice demand this sort of proactive solution, but so does prudence. No doubt, there will be other US Supreme Court battles being fought over pro-life laws, and the States have a duty to be ready for the fall of Roe.
[i] Several states have already passed Abortion "Trigger" Bans. There are ten according to the pro-abortion Guttmacher Institute: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, and Utah. You may view their analysis here: https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe.
[ii] It is certainly possible that the US Supreme Court could simply define the unborn child as a person deserving of protection and simply outlaw abortion outright.
[iii] To learn more about pro-life incrementalism, please see https://www.societyofstsebastian.org/index-1.
[iv] Aquinas, Thomas, Summa Theologica, I-II, Q. 92, A. 1
Joe Kral, M.A.
President, Society of St. Sebastian
Editor-in-Chief, Journal of Bioethics in Law & Culture Quarterly