In 2004, President George W. Bush signed into federal law the prohibition of the horrendous practice of partial birth abortions. Soon afterwards, abortion advocates challenged the constitutionality of the law within the federal courts. In 2007, the US Supreme Court issued its Gonzales v. Carhart decision allowing the law to stand and to go into effect. However, in the summer of 2015 it became increasingly obvious that some abortionists had violated the federal law with the release of undercover videos by Mr. David Daleiden. In January of this year a Congressional report was released that one Texas abortionist, Douglas Karpen, had clearly violated the federal prohibition.
Under former President Barack Obama’s presidency, it was evident that the Department of Justice was going to forego their legal obligations and not investigate or even begin proceeding to prosecute these criminal actions. This inaction is rather telling in how an administration can pick and choose what laws they wish to enforce. This means that at times justice (both in the legal and moral sense of the terms) is not rendered since no state has a viable partial birth abortion ban. So those states in which the federal violation took place have no recourse to any form of a just consequence for the criminal action if the federal government fails in its moral duties.
This unique situation presents a dilemma for the various state legislatures and it was clearly seen by Texas Governor Greg Abbott. It is not uncommon for states to mirror federal laws from time to time. The reason is simple, if the federal government fails in convicting a person of a crime it allows the state to try and convict this person and it will not violate the constitutional principle of double jeopardy; hence, the filing of Texas Senate Bill 8. However, while this article can focus on the legal aspects, its foremost goal is to present a moral argument that hinges on the virtue of justice.
Most people understood that when the partial birth abortion ban passed that it would not ban late-term abortions altogether. The language only permitted for the prohibition of the actual partial birth abortion procedure. Many pro-life advocates, while supportive of the bill, understood that the bill was educational tool for the public. In its fundamental form, the legislation showed the humanity of the unborn child. The fact that the child is partially born before it is killed woke many people up to the very real brutality of abortion itself—that is that abortion actually kills a human child. Furthermore, findings also indicated that the child was capable of feeling immense pain.
But how exactly will a state ban on partial birth abortion help promote the virtue of justice? The Catechism of the Catholic Church defines justice as “the moral virtue that consists in the constant and firm will to give their due to God and neighbor” (see no. 1807). The critical understanding is that it is something that is rightly “due” to someone. To give an example, now if someone has made an agreement with the neighboring boy to mow his lawn each week for $30.00 then what is owed to the boy is $30.00 for mowing the lawn. The owner of the lawn is owed a mowed lawn. In this way one can simply see that justice is given to both parties. In the same way can the principle be applied with respect to a legitimate law. In the case of a robbery, the victim is not only owed back the stolen items, or if they cannot be returned then proper compensation for the stolen items, but the criminal is owed something as well. In this case it would likely be time spent in prison. If applied to the case of partial birth abortion it would simply be a situation in which the victim (the partially born child) is owed justice and so is the criminal. While the child obviously would not be able to receive compensation since the child is no longer alive, the criminal can be duly served with prison time and loss of his medical license.
But the unborn child deserves justice as well. Society simply does not allow for born humans to be treated as organ factories. Yet, what is being seen is that some abortionists are willingly trying to circumvent the law in order to use these children as just a means of organ harvesting. In essence, they are being used for “medical strip mining”. A ban on partial birth abortion would ensure that these children are not treated with a further indignity by having their body parts being used for unethical experimentation.
Some may try to argue the utilitarian view that good (i.e. medical advances) will come from the tragic case of the abortion. But that argument is problematic since it is essentially “the ends justify the means” logic. Meaning this type of logic does not pose any real limitation since one could debate the point why is this not done on “unwanted” children who are born as well? The Church is clear on how the elements of the moral act (the intention, the object, and the circumstances) must all be good in order for an action to be moral. While intentions may be noble (to save lives), and the object is towards new medical knowledge, the circumstances are highly problematic since this practice of using organs from aborted children helps to encourage the practice of abortion (abortion being a moral evil). It is in this way a partial birth abortion ban can help with the practice of restoring justice.
The federal ban is present, but it is obvious that it was not enough to discourage this practice across the country. It is clear that there are those who will knowingly and willingly disregard the federal directive if they believe the political climate is within their favor. It is now a moral imperative for the states to pass these prohibitions within their borders. If federal prosecutors are forbidden or will not do their job, then the states have the opportunity to give what is justly due to those who wish to violate these kinds of just regulations. It is time to allow the law to be the great teacher and not only help show to the extent abortionists are willing to kill a child but to stop the unethical practice of fetal organ harvesting as well. It is time give justice to those who cannot speak for themselves.
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