Applying Just Laws Unjustly: Undocumented Immigration and Abortion

Martin Luther King, Jr. once wrote, “Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest” (Letter from Birmingham Jail). While it is true that many strive to pass and enact just laws, there are those who wish to pervert those laws to their own ends.

Martin Luther King, Jr. certainly witnessed this kind of perversion during his activism, hence his description. It is within his Letter that King speaks of a just law that has been passed by proper authority, such as his example of an ordinance where one must obtain a permit for a parade. These types of laws are commonplace within the United States because people wish to preserve lives and protect the safety of those marching. But when the person who is in charge of dispensing permits decides to withhold a permit because of racist reasons, then that person has unjustly applied a just law. This injustice of improperly applying a just law is exactly what many civil rights activists had to face and it is something that is seen from time to time when pro-life laws are applied as well.

Recently, it has come to national attention about an undocumented teen immigrant from Honduras who was seeking an abortion in Texas. This battle had many elements to it and ultimately, and unfortunately, she had the abortion. One particular aspect that was not covered much was this teenage girl had to go through Texas’s parental consent for an abortion process. Laws such as this are proposed by pro-life activists because it lessens the harm that the Roe doctrine initiated. In this case, it allows the parents of minor girls to be involved in saving their unborn grandchildren, whereas before they had no say. As with many parental involvement laws involving abortion, there is a process known as the judicial bypass provision within the law (see Texas Family Code, Ch. 33, Sec. 33.003). It is within this process that a minor girl must prove that “the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to or consent of a parent, managing conservator, or guardian” (Ibid).  However, in a recent article where the minor girl was interviewed, Jane Doe clearly stated the following, “When I first arrived at the shelter. I decided to do it because I don’t feel capable of being a mature [emphasis mine] woman…” With a few simple questions the judge that gave her the bypass could have figured out that it was in her best interest to have her parents involved since the girl, herself, admits to not being mature enough. What is even more tragic, if reports are to be believed, is that the parents were actually notified prior to the abortion and did not give consent. It was only afterwards that the undocumented minor went through the bypass process.

This is an evident case where the law was applied unjustly. It is likely the bypass was granted because the judge thinks abortion should be available to any female at any age for any reason and wanted to have the appearance of applying the law. This can be a particular problem with the judicial bypass provision when being applied by an errant judge. While it is true that pro-life public policy experts agree that in order to have a constitutional law the parental involvement law must have a bypass provision, it is also paramount that judges understand their duty to the common good when it comes to such a law.

As was stated in an earlier article, the judge must act in loco parentis, in place of the parents; but again, as the Texas law states, the minor girl still must be sufficiently mature and well-informed and that this status must be proven with “clear and convincing evidence” (Ibid) in order for the bypass to be granted. What Jane Doe’s statement to the press indicates was that she was not sufficiently mature. So one must honestly ask, why was she given the bypass? Merely wanting an abortion because the girl does not think she is ready to be a parent does not necessarily show sufficient maturity. Furthermore, Jane Doe stated that she “didn’t feel sure” about having the child which certainly implies that in her doubt she may have not have been sure about the abortion either. If this is the case, the judge had the moral obligation not to grant the bypass and allow her parents be involved, especially given the situation of her immigration status as an unaccompanied minor.

Unjust applications of the law can have devastating consequences. No doubt, this girl will live with the consequences of her actions, but the judge, by not allowing the parents to parent this child, has potentially caused major rifts within this girl’s family as well. Consider this, if it is justice that this judge was seeking then this person missed the mark terribly since he did not give this girl or her parents their due. Law has the effect of trying to make all virtuous (see Aquinas, Summa Theologica, I-II, Q. 92, a. 1), hence the notion of the common good. But not only was this decision a violation of justice, of what was owed to the girl and her parents, but also that of temperance and prudence. The simple fact is now that since this girl has gotten an abortion, it sends a message that it is not only okay for foreign minor girls to engage in sexual activity outside of marriage, but to perilously and illegally travel to the US to get an abortion. This judge has robbed those other countries of their pro-life laws that protect innocent unborn human life.

This, of course, suggests that all judges that hear a judicial bypass case must seriously apply the law. The reality is that a granted bypass ought to be rare, if ever, granted. Merely knowing what the abortion procedure entails is not a sign of maturity. A 15 year old genius may understand the deepest secrets of physics, but that still does not make him a mature teenager. Maturity is a deeper thing than just mere knowledge.  It is also a level of responsibility and how to act on that knowledge, particularly with actions that deal with virtue. There are no indications that this girl left her family because of any troubles with her parents. If that is the case then she is acting contrary to justice (respect due to her parents). She also illegally entered other countries in order to enter illegally into the United States. These travels are notorious for being very dangerous. This action was contrary to prudence and justice (right reason would dictate that a minor travel with parents for safety reasons and not unduly enter a country you are not supposed to). These do not seem the actions of a mature teenager, but rather one who is intemperate and far from mature. If this judge believed these were mature actions, then it is a good thing that Texas elects its state judges. No judge like this should sit on the bench, because they do not understand how virtue and the law are truly related.

The very essence of Texas parental consent law is to right a wrong when it comes to the parent-child relationship. Judges must understand the very special bond between parent and child and that the law generally assumes that the parent has the best interest of the child in mind. When judges discard that very basic idea of subsidiarity then they are on a short path to not only destroying God’s plan for the family, but of placing vice before virtue.


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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