Regnative Prudence and Pro-Life Legislation Part 2: The Dismemberment Abortion Ban

Ever since the Supreme Court of the United States upheld the federal partial birth abortion ban in 2007 some elements of the pro-life movement have taken the next logical step by focusing on the brutality of second and third trimester abortions. This has been done in two ways: 1) through banning abortion at the 20 week gestational mark, and 2) dismemberment abortion bans. As a result, citizens have certainly become more aware of the horrendous cruelty that is involved with late-term abortions. However, there have been some serious questions regarding dismemberment bans. How is the legislator to use regnative prudence in this situation?

Recently, Paul Linton, a highly regarded pro-life constitutional attorney who was the former general counsel to Americans United for Life, author, and pro-life public policy expert, released a memorandum in September 2016 that concluded that this type of legislation would be struck down by the current Supreme Court. It is a direct refutation of the memorandum released by Mary Spaulding Balch when she was state legislative director for National Right to Life. This, of course, begs the question of what is the legislature to do when two highly regarded pro-life public policy experts disagree on such an important public policy topic.

constitutionMuch of their arguments hinge on the concept of what is called is known as ‘fetal demise’. And while much of their arguments center on constitutional case law, this article will explore some of the moral implications of such legislation. Dismemberment bans essentially mandate, without explicitly stating, that the unborn child be euthanized prior to its dismemberment so that he will not feel the excruciating pain. For example, Texas Senate Bill 415 states,

’dismemberment abortion’ means an abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of the unborn child’s body to cut or rip the piece from the body (see Texas Senate Bill 415, page 1, lines 9-16).

It is clear that the language of the bill prohibits dismemberment abortion on a living unborn child, but the bill clearly not only allows, but essentially mandates that if dismemberment is to be done then the abortionist is to euthanize the unborn child prior to the procedure. In fact, the Balch memorandum stipulates that “Similarly, the Unborn Child Protection from Dismemberment Abortion Act provides protection only when dismemberment is applied to ‘a living unborn child’” (see Balch Memorandum, page 3). The Linton memorandum also agrees with this assessment, “All of the bills that have been introduced to date prohibiting dismemberment D&E abortions (including H.R. 3515, the federal “Dismemberment Abortion Ban Act of 2015″) have been limited to those procedures that are performed on ‘live, unborn children.’ The prohibitions do not apply if the physician causes ‘fetal demise,’ i.e., death, before he dismembers the fetus” (see Linton Memorandum, page 5). This is why there has been much emphasis on just how much pain the unborn child can feel during this time. Many experts on fetal development have concluded that the child would feel immense pain during a dismemberment abortion and this has been made apparent by those advocating for dismemberment bans.

The question now becomes, how does this bill limit the harm of the Roe v. Wade decision? Many may try to argue that it is more humane for the child to die in this manner than in a procedure where he will experience excruciating pain. However, that argument is morally problematic because the argument is eerily similar to pro-assisted suicide arguments. These sorts of things are said to try to advance the legalization of assisted suicide. Nowhere in Catholic teaching is the idea of mercy killing deemed morally appropriate. So, in essence, in order to argue for the National Right to Life dismemberment ban one must argue in favor of a morally illicit act such as mercy killing. This obviously is problematic since the pro-life movement also opposes all forms of euthanasia. How can one be consistent if he is to argue for mercy killing of the unborn but then turn around and argue against the legalization of mercy killing for the terminally ill? This type of legislative initiative as currently drafted poses serious problems for the pro-life movement and its legislative allies. For when the time comes that assisted suicide activists advocate for their legislation, some legislators may find themselves in a quandary. They will have to explain why they essentially voted in favor of the mercy killing of an unborn child so that child could avoid severe pain yet oppose legislation that allows for the mercy killing of a terminally ill cancer patient who is a minor at the request of his parents. While this is definitely not the intention of pro-life advocates, this bill nonetheless has this problem that must be addressed and rectified. As a result, until it is properly rectified, regnative prudence should dictate that this is an inconsistent position and untenable as a pro-life policy and as a result should not be passed.

Some may try to argue that the real reason for this is to essentially legislate abortionists out of business since many of them do not have the knowledge on how to cause fetal demise prior to the dismemberment. But this is problematic again. Firstly, because of the constitutional issues that Mr. Linton had raised in his memorandum, but secondly, even if it is enacted and enforced it may not put abortionists out of business if they simply learn how to cause ‘fetal demise’ prior to the dismemberment. Thirdly, because it still does not diminish the unintentional problem regarding the previous arguments about mercy killing. Again, regnative prudence would have to dictate that this is not a morally appropriate step.

If asked how to solve this problem one may wish to look at how the pro-life movement looks to helping a person at the end of life. It is very clear that mainstream pro-life organizations advocate for the alleviation of pain at the end of life rather than euthanasia. Possibly the same can be said for these unborn children who are facing this horrible situation. The solution may be found in alleviating their pain in this horrible time, by mandating that abortionists provide pain relief prior to the abortion. This would truly put a proper emphasis on fetal pain instead of the utilitarian idea of killing the unborn child prior to dismemberment.

The simple truth is that the way the current dismemberment abortion bans are worded makes them prudentially problematic for the pro-life legislator (and movement) to support. As it stands now it would seem that dismemberment bans, as currently drafted, have 3 problems with limiting any harm as presented by the dreadful Roe v. Wade decision: 1) these bills if enacted merely make the mother “feel” better that her child was not in pain while the dismemberment took place, 2) as a result, is inconsistent with pro-life principles since it is a form of mercy killing and therefore a form of euthanasia, and 3) there does not seem to be any other data that suggests that fetal demise caused by any other methods are not painful themselves. While this type of legislation is intended to help usher in a Culture of Life it has unintended consequences that need to be worked out and therefore it needs to be seriously reworked in order to be presentable as proper pro-life legislation. The pro-life legislator knows that mercy killing is unacceptable and regnative prudence should dictate that the legislator demand that pro-life policy experts rework this legislation.

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.
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