“I don’t think that Judge Yeakel gets it” were the words Dr. Joe Pojman, executive director of Texas Alliance for Life, used to describe the recent federal judicial decision that struck down the new Texas law regulating abortion clinics. Dr. Pojman is not alone in his frustration. Within the last couple of months, several judges have ruled that regulations in Alabama and Mississippi requiring abortionists to have hospital admitting privileges are unconstitutional.
Alabama, Mississippi, and Texas tried to raise the medical standards of abortion clinics to protect the lives of women. It has become quite clear that many abortion clinics around the country do not adhere to even minimal standards that are even required of veterinary clinics. Dr. Kermit Gosnell is just one case in point. Many in various state legislatures have cited Gosnell’s clinic as an example of why stricter abortion regulations are needed. It has become clear that these legislatures look upon the substandard conditions that do (or could potentially) exist as a problem of an injustice that is being perpetrated against women under the law.
Even these modest regulations cannot survive an activist judiciary, filled with judges like Judge Lee Yeakel and similar allies in thought who reject the Natural Law and its application to human law. This deviation from Natural Law by the judiciary has led to the view that law it is permissible to twist the law to their ends if it supports the so-called abortion right. It is unfortunate that many judges simply do not comprehend that this divorce of human law from the moral law is ultimately a divorce from justice.
It is problematic when a human law does not mirror the Natural Law. As St Thomas Aquinas points out, “As Augustine says (De Lib. Arb. i, 5) “that which is not just seems to be no law at all”: wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature, as is clear from what has been stated above (91, 2, ad 2). Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law [emphasis mine]” (Summa Theologica I-II, q. 95, a. 2).
Looking at the recent Texas decision, Whole Women’s Health v Lakey, one is able to see that much of Judge Yeakel’s problem lies within his interpretation of what is meant by the term “undue burden” as defined by the infamous US Supreme Court decision, Planned Parenthood v Casey. While the Casey decision reaffirmed parts of Roe, it also moved away from the trimester principle and implemented the undue burden standard. The decision stated, “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
In addition to Judge Yeakel, many judges interpret this definition to suit their purposes. Federal District Judge Myron Thompson ruled against similar abortion regulations in Alabama, stating in his opinion, “The evidence compellingly demonstrates that the requirement would have the striking result of closing three of Alabama’s five abortion clinics, clinics which perform only early abortions, long before viability.”
Without getting into the moral problems of the undue burden standard, it is obvious that many judges, including Yeakel and Thompson, are not applying it properly. The standard states that the undue burden must be placed upon the woman, not the abortion clinic. An abortion clinic that refuses to comply with the law is the culprit which places the burden upon the woman, not the state. It is impossible to justify how an undue burden is placed upon a woman when these clinics rebuff mandates that require them to meet the conditions that other out-patient surgical centers must meet.
Instead, these judges apply the undue burden standard in a way that is consistent with legal positivism. That is to say, these judges essentially assert that “law” is merely willed by those in power and has no real connection to the moral law. What is being argued here is that Yeakel and Thompson merely applied the “undue burden” standard as they saw fit, not as it was meant to be applied. As argued in their respective decisions, the mere mention of an abortion clinic closing because it finds the cost of upgrading to the level of an out-patient surgical center to be burdensome was reason enough to declare a law unconstitutional. These decisions clearly demonstrate the absurd reasoning that results when human law is disconnected from Natural Law.
The fact that these decisions are contrary to the virtue of justice is obvious. Through the efforts of organizations such as Operation Rescue, it has become increasingly obvious over the last few years that many abortuaries simply do not meet appropriate medical standards. When state legislatures try to right an injustice that exists under current abortion law they are doing their jobs. Courts that fail to recognize this reality cause more hardship on unsuspecting citizens.
Judges Yeakel and Thompson may believe that the so-called abortion right is sacrosanct, but in reality they are endangering the lives of women by allowing abortion clinics to operate in substandard conditions. The failure to recognize, by these two judges, of the marriage of the Natural Law and the human law has set a very dangerous precedent. And like all divorces, their divorce of the natural and human laws will have devastating consequences.
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 is an adjunct professor of Theology at the University of St. Thomas, teaches FTCM courses for the Archdiocese of Galveston-Houston, and also serves as a voluntary legislative advisor to Texas Alliance for Life. He has been married to his wife, Melissa, since 2004 and attends St. Theresa’s Catholic Church.
