What if Dismemberment Abortion Bans are Ruled Unconstitutional? Another Pro-Life Strategy

Just recently, the Dismemberment Abortion Ban of Texas was struck down by the US District Court for the Western District of Texas. The decision was immediately appealed by Texas Attorney General Ken Paxton to the US Fifth Circuit Court of Appeals where it awaits a hearing. Many other states have also faced similar challenges to their Dismemberment Abortion Bans as well. These challenges, of course, will likely lead to the US Supreme Court hearing one of the cases involving the barbaric practice of dismembering an unborn child and reaching a decision if the practice is constitutional or not.

At present, there is much confusion on the status of Dismemberment Abortion Bans. Furthermore, the pro-life constitutional experts seem divided on the issue. As previously mentioned in an article, two prominent pro-life constitutional lawyers had opposing views on the constitutionality of this type of legislation. As stated in the article, much of their argumentation hinged on what is called “fetal demise” and where the swing vote by Justice Anthony Kennedy will fall. Ultimately, one needs to understand that this procedure is the most common second trimester abortion and how the majority of the US Supreme Court will decide is anyone’s guess. But, for sake of argument, assume that Justice Kennedy and the majority of the Court decide that this type of ban is unconstitutional. What are pro-life advocates to do?

Morally speaking, there appears to be another avenue that pro-life lobbyists can look to. As it stands now, several states have banned abortion beyond the 20 week gestational mark. These types of bans are usually called Pain Capable Unborn Child Prevention Acts. Interestingly, these have not been challenged; very likely because doctors and technology have pushed the line of what viability is. Fetal viability, therefore, is something fluid, meaning that it can be lowered over time due to technological advances in medicine and technology, such as with the invention of the artificial womb.  The truth is the ability for doctors to be able to save a premature infant born at 24 weeks or lower is increasing. As a result, the viability of an unborn child is realistically changing. Because of this change, it seems likely that states may incrementally begin the process of filing and passing legislation that will move up the date from the 20 week mark to the 19 week mark and so on as technology advances.

In addition to the issue of viability, scientific knowledge of the unborn human child has also increased over the last few years. Much of the reason for the passage of Pain Capable Unborn Child Protection Acts  and Dismemberment Abortion Bans are based on the reality of the unborn child being able to feel intense pain. Furthermore, studies have also indicated the ability of the unborn child to begin to recognize family members’ voices. The fact, the unborn child does very human things while in utero is beginning to be understood more. As a result, it is possible to help shift public opinion towards a more pro-life understanding with these facts.

As is the case with any piece of pro-life legislation, a couple of factors need to be weighed. Firstly, does a proposed initiative that moves the 20 week mark to 19 weeks follow the principle of incrementalism as so eloquently espoused by St. Pope John Paul II (see Evangelium Vitae, no. 73)? One can clearly understand how it limits the evil law of abortion. If the proposed legislation moves the ban from 20 weeks to 19 weeks then it begins the process of further reducing the numbers of second trimester abortions. By accomplishing this, the legislation, if it were to become law, further restricts the so-called abortion “right” by mandating that at a certain time within the gestational period abortion is outlawed.

But the principle also asks how the legislation will have the effect of leading the society from the acceptance of the evil law? This can be answered by two means: 1) by explaining the basic purpose of law and 2) how the law educates. The basic purpose is as St. Thomas Aquinas states, “And since law is given for the purpose of directing human acts; as far as human acts conduce to virtue, so far does law make men good” (Summa Theologica I-II, 92, 1). So law, according to Aquinas, is to direct men to do good acts; to help them become virtuous. Here, in particular, one can look to the virtue of justice. The law helps further enshrine the just precept that the intentional killing of an innocent unborn human being is wrong and that people are not to commit acts that take the life of an innocent unjustly. Furthermore, the law helps to educate that all human life is valuable and has dignity and as a result, ought not to be destroyed. Lastly, while it does not fully restore the aforementioned principle, it does partially restore where justice was deprived. Whereas unborn children at the 19th week of gestation were not protected before, they will be protected now if enacted.

The second factor to be considered is one of prudence. Many will argue, for example, that the Dismemberment Abortion Ban may have been imprudently rushed among the states by both professional pro-life advocates and legislators because the US Supreme Court was not comprised of enough votes to ban it. Furthermore, many states, when they lose constitutional challenges usually have to pay the litigation costs of the abortion industry attorneys which can reach in to the millions of dollars. While true, that the legislative and courtroom debate may have educated much of the public, the question becomes does the state want to potentially fund the attorneys who litigate on behalf of the abortion industry? For many, this could be considered a form of indirect scandal. This is why prudence plays a vital role when trying to pass legislation and the question here seems to be is it the proper time to pass such legislation? The Dismemberment Abortion Ban may have been passed a little too soon in several states. As a result, pro-life advocates may need to start considering when to change the 20 week ban to 19 weeks.

It may take another few years before this can happen for a couple of reasons: 1) any US Supreme Court decision that involves the Dismemberment Abortion Ban will have to be considered and 2) medical technology will have to advance a little further so as to ward off any potential court challenges. Regardless though, pro-life advocates need to begin the planning stages to propose such legislation. Many pro-life public policy experts understand that to fully restore a Culture of Life under the law it will take time and patience. However, thoughtful consideration of the next steps should be forefront at the present.

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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