Letter From the Editors
Bioethics in Law & Culture Spring 2020 vol. 3 issue 2
Joe Kral, M.A.
Ana Brennan, J.D.
© 2018 -2020
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The first quarter of the year has proven to be very historic. It has also shown to be a boon for the pro-life movement as well. As many of you are already aware, several states gave us a glimpse of a post-Roe world by declaring abortion as non-essential during the COVID-19 pandemic. Further, below you will see a chart of those states who initiated such policies. Of course, these executive orders were quickly challenged by the abortion industry and a myriad of decisions that have resulted.
Nonetheless, these states had the courage not only to prohibit abortion to preserve needed personal protective equipment required by medical professionals treating COVID-19 patients; they were also brave enough to show the hypocrisy of the abortion industry as well. Their mantra of "choice" was proven to be simple wordplay. Clearly, the abortion industry is only interested in the protection of their business.
Something else has happened in this time of pandemic as well. The United States Supreme Court has rendered a decision that looks to be the roadmap they will use to dismantle Roe v. Wade. Ramos v. Louisiana may very well be the case that throws Roe in the dust heap of horrible policies that ever came to be. What makes Ramos so interesting is that it has nothing to do with abortion, but rather it is a case that has everything to do with the legal principle of stare decisis. It is clear that the majority of the justices do not believe that stare decisis is absolute, but should only be applied when a decision is properly made. It was also made quite evident that the justices considered Roe to have been wrongly decided. Hence, it certainly appears that the principle simply does not apply when looking at cases involving Roe. In essence, if this case is any indication, then Roe may be on its last legs.
Below, we have reposted Joe Kral’s Sebastian’s Point article from April 23 for more details and analysis. It certainly gives a hard perspective as to why these state mandates prohibiting the practice of abortion during the pandemic have shown themselves to be more apt in repealing Roe.
A Tale of Two States - A Bellwether for a Culture of Life
Joe Kral, M.A. - Sebastian's Point - 23 April 2020
Over the last month, pro-life advocates have seen a myriad of states issuing executive orders stating that abortion is a non-essential medical service. Of course, the abortion industry, led by Planned Parenthood, challenged those various state mandates. By challenging those directives, the abortion industry showed itself for what it really is: hypocrites that are in the business of selling abortions. The mantra that they are for "choice" has been unmasked as a mere public relations ploy. An elective surgery simply cannot be essential. Simply put, they have shown themselves to be contradictory.
But what else have these state mandates shown the pro-life movement? Interestingly enough, it would appear that these orders, those in favor of restricting abortion and those that do not, show how far along each state has moved towards a Culture of Life. So, for example, one could look at two states, Texas and New York, as both are at the end of each spectrum when it comes to these particular executive orders. Texas is most notable since its mandate has been fought in the courtroom and in the Fifth Circuit Court of Appeals several times just within the last few weeks. It was very restrictive prohibiting all abortions (both medical and surgical). Whereas, New York, the state that passed a law that allowed both abortions up until birth and passive infanticide just last year, [i] has prohibited all elective procedures except abortion. These two states represent a stark contrast to each other, but the pertinent contrast is the differences between the two regarding the respect for the unborn. Texas has numerous pro-life laws that have been enacted and that are being enforced. Laws such as parental consent, informed consent, choose life license plates, ultrasound laws, unborn victims of violence laws, and several more.[ii] Texas has been moving towards the acceptance of a Culture of Life through incremental change, while New York now has no laws respecting the unborn.
But there is a deeper question that needs consideration. How did Texas get to such a point, and what does this say about New York when it comes to a Culture of Life? This is an important question, and really must be looked at philosophically. But where to look becomes the question? The basis for this analysis stems from the very arguments of St. John Paul II in his encyclical Evangelium Vitae, particularly no. 73 of the document and his notions of law itself.
It needs to be noted that when St. John Paul II speaks of law in his encyclical, he is coming from a rich tradition. His thoughts on law are clearly mirroring the thoughts of the great Christian philosopher, St. Thomas Aquinas. Law, as according to Aquinas, is simply “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”[iii] Law is the great teacher that helps direct citizens to virtue, “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.”[iv] So the ultimate purpose of law is to help direct mankind to proper virtue. It is from this philosophical outlook that St. John Paul II is not only writing upon but expanding upon as well. While Thomas alludes to an incremental change within his works, here one sees it being explicitly spelled out. As St. John Paul II states,
A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. Such cases are not infrequent. It is a fact that while in some parts of the world there continue to be campaigns to introduce laws favoring abortion, often supported by powerful international organizations, in other nations-particularly those which have already experienced the bitter fruits of such permissive legislation-there are growing signs of a rethinking in this matter. In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not, in fact, represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.[v]
Without devoting too much time to the idea of incrementalism and how it works for specific pieces of pro-life legislation, the idea of what it is supposed to do is simple. Incremental legislation is aimed to limit some harm that has been caused by an existing evil law. Furthermore, it is to help guide the public away from the acceptance of the evil law. This last point is critical. If law is to be a guide to helping people become virtuous, how do these COVID-19 orders show that the state has moved away from the acceptance of the evil of Roe v. Wade?
To some extent, one can look at the type of legislators that are being elected to office to help determine where the public stands. For a couple of decades, Texas voters have been electing a majority of legislators and executive branch officials that desire to see the end of the doctrine of Roe. As a result, more pro-life bills were passed and signed into law. It is clear that a majority of Texans who elected these officials had similar desires, or otherwise, it would have been doubtful these officials would have ever gotten elected. It is clear that Texas voters wanted to "chip away" at Roe; that they too wanted to limit the harms of legalized abortion. At a bare minimum, it certainly shows that a majority of Texans are at least indifferent to the so-called "right" to abortion and had little to no problem with the limitations being passed. But even indifference is some sort of movement away from an acceptance of legalized abortion. This movement away from the acceptance of Roe and the acceptance that abortion is not an actual good, along with the fact that Texas has been routinely passing more pro-life laws over the years, shows just why Governor Greg Abbott issued the order that abortions are non-essential. Why one asks? Because: 1) abortion is not considered an actual good in the state, 2) Virtue, specifically justice, demands that the unborn be treated with dignity and respect, and 3) Texas has taken gradual steps in showing why abortion is wrong through various legislative initiatives. In many ways, one can see how law has helped Texans gain a more just notion of the unborn. To give a brief example, if one were to look at the parental consent law, it is clear that it gives the obvious impression that 1) Not all abortion is good because many parents will likely object to it being done, 2) that abortion is not as safe as abortion proponents like to claim it is since parents must be involved, and 3) that abortion should not be available on demand. Now take this law among many others that Texas has, and it is clear that these pro-life laws help guide citizens to an understanding that abortion is contrary to the common good since it violates justice.
New York clearly, offers a different scenario. As mentioned above, the state just repealed what very few pro-life laws they did have just last year. Since there are no pro-life laws in effect, it is clear that New York has not moved away from a general acceptance of legalized abortion. Sadly, it is obvious that a majority of those elected to office favor abortion, and this type of politician has been consistently elected since Roe.[vi] While Texas truly indicates that it is ready to end the evil of abortion and its various evil aspects, it is clear that New York is not. That is why Governor Andrew Cuomo gave an exception to abortion when it came to a mandate stopping non-essential procedures during the COVID-19 pandemic. Culturally speaking, pro-life advocates have much to do to help move their community away from the evil of abortion. Of course, other tactics beyond legislation will have to be (and are) employed to accomplish this task. In fact, these methods will be the basis before passing legislation.
Ana Brennan put it best in her article, “Because of the efforts of pro-life activists, these politicians are aware of the strength of their pro-life constituents. The actions of these governors demonstrate the power of incrementalism. These executive orders did not come out of the blue but are a logical progression of our efforts.”[vii] It has become clear that strongly pro-life states are ready to abolish the scourge of abortion when the time comes. Incrementalism made that possible. Some states still have a little more to do to get to the point that Texas and these other states are.[viii] The final point is the reality that the COVID-19 pandemic gave the pro-life movement an overall picture of where the states are in their respective searches to achieve a Culture of Life.
State Orders that Stipulate Abortion as Non-Essential
Alabama – Abortion was declared non-essential. The order was challenged, and a federal judge ruled that abortions could take place if the abortionist deemed the abortion to be essential.
Indiana – Abortion was declared non-essential. All abortion centers have shut down except for one which is refusing to comply with the order.
Iowa – Abortions were declared non-essential. The abortion industry filed suit. An agreement was reached by the state and abortion providers to allow for surgical abortions for those women who were close to the 22-week gestational mark since late-term abortions (22 weeks gestation and beyond) are prohibited in Iowa.
Ohio – Abortions were classified as non-essential. Since they have filed suit and a federal judge has ruled that abortions may continue. As of April 27, 2020, all non-essential surgical procedures are allowed to take place as long as there is no overnight hospital stay.
Oklahoma – Abortions were classified as non-essential. The abortion industry filed suit. A federal judge has ruled against the order as has the Tenth Circuit Court of Appeals.
Maryland – Abortions were classified as non-essential, but abortions still took place within the state. No suit was brought about to try and stop them.
Louisiana – Abortions were classified as non-essential. All but one abortion center has complied. Louisiana has been in the process of trying to get them to obey the executive order.
Mississippi – Abortions were classified as non-essential. The state’s only abortion clinic has closed.
Tennessee – Abortions were classified as non-essential. The abortion industry filed suit to fight the order. A federal judge ruled against the order, as did the Sixth Circuit Court of Appeals. The order prohibiting all non-essential surgical procedures is set to end April 30, 2020.
Texas – Texas was the first state to declare abortion as non-essential; the order ping-ponged back and forth between federal district court and the Fifth Circuit Court of Appeals. Finally, the Fifth Circuit Court of Appeals upheld the Texas order mandating that both surgical and chemical abortions could be prohibited during this time of the pandemic. The abortion industry did not get a chance to appeal to the US Supreme Court since Governor Greg Abbott's order prohibiting all elective procedures ended on April 22, 2020. During the time of the order, abortion clinics were mostly closed.
West Virginia – Abortion was declared non-essential. The order has recently been challenged.
[ii] For more information on the various pro-life Texas laws, be sure to view AUL’s report on Texas. It may be viewed here: https://aul.org/wp-content/uploads/2020/01/Texas.pdf.
[iii] Aquinas, Summa Theologica, I-II, Q. 90, A. 4.
[iv] Aquinas, Summa Theologica, I-II, Q. 92, A. 1.
[v] John Paul II, Evangelium Vitae, no. 73
[vi] New York actually legalized abortion in 1970, three years before Roe.
[vii] Brennan, Ana, "A Glimpse at the Possibility of a Post-Roe World," Sebastian’s Point, April 9, 2020.
[viii] Examples can be seen in states where some pro-life laws have passed, but little was done to stop abortions during this pandemic. A good example would be Florida, where pro-life laws have been passed and enacted. Still, the governor's executive order prohibiting non-essential medical procedures to cease was unclear if it included abortion or not. As a result, abortions continued in that state.