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Is the Pro-Life Private Enforcement
Joe Kral, M.A. | 16 December 2021
On November 1, 2021, the U.S. Supreme Court heard the Texas Fetal Heartbeat Law case. A particular issue was the private enforcement mechanism, which allows private citizens to sue abortionists for performing abortions within the state. Interestingly, the Firearms Policy Coalition submitted a brief to the Court[i] which argued that the court should block the mechanism because it puts other constitutional rights at risk. Justice Kavanaugh even asked Texas Solicitor General Judd Stone pointed questions if this sort of mechanism could be used against other constitutional rights, to which Mr. Stone reluctantly agreed. On December 10, 2021, the Court issued a ruling allowing the law to remain in effect while being challenged. However, this begs a deeper question: is the mechanism moral to begin with?
Private enforcement mechanisms existed before the Texas Fetal Heartbeat Law, for example medical malpractice and wrongful death civil suits. Notably the OJ Simpson case. He was acquitted of murder but was civilly liable for the wrongful deaths of Nicole Brown Simpson and Ron Goldman. Additionally, the federal Partial-Birth Abortion Ban Act of 2003 has a private enforcement mechanism.[ii] Within the ban, the father of the unborn child or the parents of a minor girl who obtains an illegal partial-birth abortion may sue the abortionist for illegally performing the abortion. While this private enforcement mechanism is more in line with medical malpractice since the doctor is performing illegal surgery, it nonetheless shows an evolution of the private mechanism. The private enforcement mechanism found in the Texas Fetal Heartbeat Law and Sanctuary City for the Unborn Ordinances are even more evolved than what is found within the partial-birth abortion ban. However, what makes this type of suit different is that any citizen has the power to sue. It may be more proper to call it the pro-life private enforcement mechanism.
In 2019, the pro-life private enforcement mechanism was first used in a Sanctuary City for the Unborn Ordinance. It has been used in many of these ordinances since that time. The mechanism is ingenious, as it allows any citizen to sue the abortionist for performing an abortion within the city limits of the locale. This has stymied legal challenges. Typically, pro-life laws have criminal enforcement provisions which allow the abortion industry to sue the state. Some laws have been upheld, and others have not. In 2020, the ACLU tried to sue seven Texas cities, but the suit was later dropped.[iii] The next big test came when Planned Parenthood sued the City of Lubbock for passing an ordinance with the pro-life private enforcement mechanism. The case was dismissed.[iv] During the 2021 Texas Legislative Session, the legislative authors of the Texas Fetal Heartbeat Law simply used this mechanism in their legislation, knowing its effectiveness.
The pro-life private enforcement mechanism is merely a tool of law. It is neither moral nor immoral. Laws are made of parts, and while each part of the law has a purpose, many of those parts are unable to stand alone. Definitions, for example, must define the areas of the code that need defining. If definitions exist without the rest of the law, what real purpose do they serve? Likewise, the private enforcement mechanism, by itself, cannot serve any particular purpose but rather must be joined to a greater whole of a policy to truly serve out its purpose: to enforce something.
Like any tool, a pro-life private enforcement mechanism can be abused. The questions raised are not mere trifling inquiries. It must be used in a serious way to benefit the true good of society. Taking away true rights is contrary to the good of society, so these concerns are quite valid. One must be careful in crafting the law and applying any private enforcement mechanism, just like one needs to be careful using a knife. It can be good insofar as it is used to help cut up portions of food to eat; it can also be used for horrible things such as murder. One is good, the other evil. The legislator, when crafting a law, must use proper prudence when applying this tool.
Of course, a question arises, why is it appropriate to use the pro-life private enforcement mechanism in the case of abortion? Many argue that abortion is a protected “constitutional right” guaranteed by Roe v. Wade[v] and reaffirmed by the Planned Parenthood v. Casey[vi] decision. Yet, from a moral standpoint, it is clear these legal decisions were horribly wrong. Both misconstrue the very idea of rights. In Roe, this "right" was linked to the privacy right. Fundamentally, abortion was not linked to a right, but a want or desire that the woman may have. In Casey, it was linked to a liberty interest, but again it is a contradiction of sorts and merely falls into the category of a desire or want. As to Roe, the clearest argument that abortion is not a right is that rights stem from moral duties, and there is no moral duty to kill innocent human life. As a result, there can be no right to abortion since no one has the moral duty to kill an unborn child. As to Casey, abortion is not a liberty interest because there is no such thing as a freedom to kill others. That is anarchy. In essence, it is as absurd as saying that there is a “right” or liberty interest to enslave others. It is obvious that abortion can never truly be either a right or liberty interest regardless of what the U.S. Supreme Court says.
It is moral, considering the circumstances the states have found themselves in regarding legalized abortion on demand and past U.S. Supreme Court abortion jurisprudence. As stated above, the lawmaker has an obligation to be prudent. This, of course, gets into the idea of regnant prudence. Knowing that abortion is an intrinsically evil act, the lawmaker must consider what they can do to help stop this evil. From a moral perspective, one can certainly look to the Christian philosopher Thomas Aquinas to better understand what is meant by regnant prudence. His pivotal work, On Kingship, examines what type of prudence a lawmaker needs when passing laws. For example, he states,
“Therefore, since the beatitude of heaven is the end of that virtuous life which we live at present, it pertains to the king’s office to promote the good life of the multitude in such a way as to make it suitable for the attainment of heavenly happiness, that is to say, he should command those things which lead to the happiness of Heaven and, as far as possible, forbid the contrary.”[vii]
In particular, the phrase "as far as possible" seems to mean two things for Thomas. First, Thomas is alluding to the inability of human law to forbid all vices, which he addresses in his Summa Theologica.[viii] Second, the phrase also seems to address whether the proper authority can change the law. Without getting too much into incrementalism, it should be sufficient to say that a lawmaker should be aware of what can and cannot be done legislatively on the pro-life issues. At least, those pro-life lobbying organizations have the duty to help the legislator become aware of what can be done. Through the years of incremental legislation, it has become clearer through precedence set by the U.S. Supreme Court the possibilities available to limit the evil of abortion. Pro-life organizations know where to push the envelope and inform lawmakers on where to push. In this case, it became clear to some pro-life lobbyists and legislators that they could legally and morally impose this sort of private mechanism. Since abortion is not truly a right, and there is no moral duty to kill innocent human life, the pro-life private enforcement mechanism simply helps correct an unjust law that has been perpetrated upon the whole of the country. Through pro-life incrementalism, the evolution of this mechanism has been able to take place.
However, some argue this new tool should not be used at all since others could also use the private enforcement mechanism to try and thwart the legal process when it comes to other "social issues." One example is the recent news by California Governor Gavin Newsome, who has stipulated using this type of private mechanism to prohibit the manufacturing and sale of assault weapons within the state.[ix] However, it is clear from a moral perspective that Governor Newsome uses the private enforcement mechanism in an immoral way. As stated earlier, rights stem from moral duties. If another is attacking a person, most reasonable people would argue that they have the right to protect themselves. There is a duty for people to help protect the innocent (hence the right to life), and it is within this duty that one finds the right to self-defense. Furthermore, if applied to a larger community, society has a right to self-defense from a tyrannical government. It is here you find the reason for the Second Amendment. It is for this reason that Governor Newsome is morally wrong.
Should the private enforcement mechanism be used in every pro-life law? No. The private enforcement mechanism should be used in cases where states are unable to enforce a just law. In cases where pro-life laws can be criminally enforced, that should be the norm. Laws found to be constitutional such as parental consent laws or laws that regulate abortion clinics, are prime examples. Again, private enforcement is a tool to be used where it is most needed. Not in a mindless way.
Fundamentally, the ordinance can be used to protect the common good. But it must be done properly. The most fundamental right, the right to life, can never be morally abrogated, regardless of what the U.S. Supreme Court says. Rights can only truly exist because of moral duties, and it is the government's job to protect those rights. The pro-life private enforcement mechanism only seeks to protect the unborn’s most foundational right, the right to life.
[i] The amicus brief may be viewed here: 20211027164758725_21-463 tsac WWH -amicus-FPC-final.pdf (supremecourt.gov). Retrieved December 9, 2021.
[ii] See 18 U.S. Code § 1531.
[iii] See Bilger, Micaiah, “Texas Cities Can Ban Abortion Clinics After ACLU Drops Lawsuit," LifeNews.Com, May 27, 2020. Texas Cities Can Ban Abortion Clinics After ACLU Drops Lawsuit - LifeNews.com, article retrieved on December 14, 2021.
[iv] See Bilger, Micaiah, “Judge Dismissed Planned Parenthood Lawsuit Against Lubbock, Texas Abortion Ban," LifeNews.Com, June 2, 2021. Judge Dismisses Planned Parenthood Lawsuit Against Lubbock, Texas Abortion Ban - LifeNews.com, article retrieved on December 14, 2021.
[v] 410 US 113
[vi] 505 US 833
[vii] Aquinas, Thomas, On Kingship, Bk. 1 Ch. 4, 115.
[viii] See Summa Theologica, I-II, Q. 96, A. 2.
[ix] “California’s Governor Pledges to Model an Assault Weapons Ban on Texas Abortion Law,” Associated Press, December 12, 2021.
Joe Kral, M.A.
Society of St. Sebastian
Journal of Bioethics in Law and Culture