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A Tale of Two States:
A Bellwether for a Culture of Life
Joe Kral, M.A. | 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 cannot be essential. Simply put, they have shown themselves to be contradictory.
What else have these state mandates shown the pro-life movement? Interestingly enough, these orders show us how far along each state has moved towards a Culture of Life. For example, Texas and New York 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, 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.
There is a more profound question that should be asked: 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. 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.
When St. John Paul II speaks of law in his encyclical, he is coming from a rich tradition. His thoughts on law clearly mirror the thoughts of the great Christian philosopher, St. Thomas Aquinas. Law, according to Aquinas, is “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 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 influential 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 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?
One factor to consider is 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. For example, the parental consent law 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. 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 evident 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 its community away from the evil of abortion. Of course, other tactics beyond legislation will have to be (and are) employed to accomplish this task. 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.
[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 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.
Joe Kral, M.A., President of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.