Regnative Prudence and Pro-Life Legislation Part 1: The Heartbeat Bill and Abortion Bans

Recently, Ohio Governor John Kasich vetoed what was termed the “Heartbeat Bill” which many pro-life advocates had fought to pass within the Ohio legislature. It dumbfounded many as to why a staunchly pro-life governor would veto such legislation. Was this not his duty to enact legislation that would help usher in a Culture of Life? Was not Kasich’s veto an act that was contrary to this purpose? Is this not contrary to Scripture?

Many of these fundamental questions center around the virtue of prudence and, in particular, the prudence an elected official must have regarding passing and enacting such legislation. A previous article briefly discussed the virtue of regnative prudence that needs to be employed when a legislator or governor is dealing with such matters where there is disagreement. But to discuss the matter in a little more detail may be needed in order to properly understand exactly what St. Thomas Aquinas was conveying. While many would immediately turn to his masterpiece, the Summa Theologica, to help find the answer, a better approach would be to look at an earlier work of his called On Kingship. It is in this piece where one can see the beginnings of the approach to regnative prudence. Here Aquinas writes,

“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 [emphasis mine], forbid the contrary” (On Kingship, Book 1, Chapter 4, 115).

heartbeatNow, this phrase “as far as possible” seems to mean two things for Thomas. Firstly, it would seem that Thomas is alluding to the inability of human law to forbid all vices which he addresses in his Summa Theologica (see I-II, Q. 96, A. 2). But the phrase also seems to address whether or not the proper authority has the ability to change the law. He states,

Finally, for the proper direction of the multitude there remains a third duty of the kingly office, namely, that he be solicitous for its improvement. He performs this duty when, in each of the things we have mentioned, he corrects what is out of order and supplies what is lacking, and if any of them can be done [emphasis mine] better he tries to do so” (On Kingship, Book 1, Chapter 4, 121).

Here, one can see Aquinas reemphasizing his phrase “as far as possible” and clarifying it to some extent. A clear implication arises from Thomas: if a law cannot be passed for some reason, it may be better not to try. The king, even in Aquinas’ time, could not outlaw everything vicious for various reasons. In today’s situation, states cannot outlaw all abortion procedures because the Supreme Court is not constituted in a way that would allow for Roe v. Wade to be dismantled completely. Therefore, prudence dictates what should or should not be done in order to limit the harm of abortion on demand. This is a fundamental principle of prudent incrementalism.

Furthermore, Aquinas’ teaching on this subject is in conformity with Scripture as well. Take, for example, what is said in Proverbs 14: 15-17, “The simpleton believes everything, but the shrewd man measures his steps. The wise man is cautious and shuns evil; the fool is reckless and sure of himself. The quick-tempered man makes a fool of himself, but the prudent man is at peace.” Holy Writ commands that believers be prudent, to take ‘measured steps’. This is consistent with the US Bishops’ teaching on prudent incrementalism when they state in their document Forming Consciences for a Faithful Citizenship, “Sometimes morally flawed laws already exist. In this situation, the process of framing legislation to protect life is subject to prudential judgment and ‘the art of the possible’” (no. 32). Again, the US Bishops recognize that not every pro-life initiative is going to be possible to pass for various reasons, hence the phrase ‘the art of the possible.’

But of course, all of this begs the question what is a Heartbeat Bill? There have been several proposals throughout the United States. Basically, these types of legislation would prohibit the act of abortion when the fetal heartbeat is detected. No doubt, those advocating for a Culture of Life see this as a pro-life bill that eventually needs to be passed. However, the question is one of timing. Can these types of initiatives survive a federal judicial challenge? It is a simple numbers game and most experts agreed the votes were simply not there to have legislation like this upheld. As a result, the Heartbeat Bill that Governor Kasich was asked to sign was wisely vetoed since it was quite clear that the US Supreme Court was not going to find it constitutional and it would have cost the taxpayers millions of dollars to defend it.

But Heartbeat Bills are not the only types of legislation that suffer from this dilemma. Furthermore, such bills such as the recently filed Texas House Bill 948 which would outlaw all abortion and even impose criminal penalties against the mother if she intended the death of her unborn child. In addition to the constitutional problems, this bill has the added problem of criminalizing the mother. This is unique since historically speaking the states never charged the mother because she too was seen as a victim of the crime of abortion. Clarke Forsythe of Americans United for Life offers an excellent historical analysis of this phenomenon in an information piece, but it is also important to note that it is common practice that women are coerced into abortions as was stated in a previous article. Regnative prudence would also dictate, at least for the time being, not to pass legislation at this moment for the same reasons.

Simply, God has given man the gift of reason. It is one of the ways in which man is the Imago Dei. Regnative prudence is a virtue to help those in authority to better rule and pass laws that are for the common good while also recognizing the ‘art of the possible’. In time, our society will achieve the goal of outlawing abortion, until such time, however, it is important to note that the approach to the Culture of Life will have to take measured and prudential steps.

Joe Kral has been involved in the pro-life movement since he has been in college.  His MA in Theology was completed at the University of St. Thomas where he specialized in bioethics.  From 1996-2003 he was the Legislative Director for Texas Right to Life.  During that time he was also a lobbyist for the Department of Medical Ethics at National Right to Life.  From 2004-2007 he consulted the Texas Catholic Conference on pro-life legislative initiatives.   In 2006 he was awarded the “Bishop’s Pro-Life Award for Civic Action” from the Respect Life Ministry in the Diocese of Dallas.  He currently serves as a voluntary legislative advisor to Texas Alliance for Life, is a member of the Fellowship of Catholic Scholars, taught as an adjunct professor of Theology at the University of St. Thomas, teaches as a Forward Toward Christian Ministry instructor for the Archdiocese of Galveston-Houston, is a member of the Knights of Columbus, and is doing doctoral studies at Harrison Middleton University where he is specializing in the ethical and legal theory of St. Thomas Aquinas. He has been married to his wife, Melissa, since 2004 and they have 2 children together. They attend St. Theresa’s Catholic Church in Sugar Land.
Articles by Joe: