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SPECIAL: State Abortion Bans and Reversing Roe v. Wade: Helpful or Harmful?

J.P. Hubert Jr. MD FACS
Catholic Biomedical Ethicist

In the wake of the recent abortion[1] ban in which the South Dakota State Legislature banned all abortions[2] except those which “threaten the life of the mother” there has been profuse commentary from abortion advocates and somewhat surprisingly from some pro-lifer’s as well. For example, Clarke Forsythe a pro-life legal expert, attorney, and director of the Project in Law & Bioethics at Americans United for Life contends that such bans could be “counterproductive in prudently pursuing the pro-life agenda.”[3] In an interview with Zenit, Forsythe said the following:

“Over the past 33 years, an incremental, step-by-step strategy has proven to be the most effective. Despite repeated attempts, sweeping bans haven't worked and can be counterproductive.Given the pro-abortion majority on the Supreme Court, abortion prohibitions before 2009 are premature. The Supreme Court is still dominated by a majority of at least five pro-Roe justices: Kennedy, Breyer, Ginsburg, Stevens and Souter.

We know that only two -- Scalia and Thomas -- have publicly stated that Roe should be overturned, though even Scalia and Thomas are of the view that the abortion issue is a state matter because the Constitution is silent on the issue. We don't know about Roberts or Alito… Given those obstacles and uncertainties, pro-life legislative efforts should focus on legislation that can put fences around Roe, reduce abortions, protect unborn children, protect women from the risks of abortion, encourage alternatives, and educate the public… Given current obstacles, state or federal abortion prohibitions at any point before the 2008 elections will be premature.”[4]

While respecting Mr. Forsythe’s long standing commitment to the pro-life cause, this author has a different view of advocating for abortion bans in general and the South Dakota legislation in particular.

Moral Clarity not Tactical Concerns:

First, Mr. Forsythe’s contentions imply that one should tailor one’s public policy position with respect to abortion on the basis of what is deemed possible or “practical” politically rather than on the basis of what is actually morally right.[5] Some have sought to justify Mr. Forsythe’s approach by appealing to the late Pope John Paul II who indicated that it was morally permissible to vote or advocate for an initiative which would lessen the likelihood of abortion (rather than make it illegal entirely) if it was the only option available. The actual language employed by the late Pope John Paul II is as follows:

“…A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. Such cases are not infrequent. It is a fact that while in some parts of the world there continue to be campaigns to introduce laws favoring abortion, often supported by powerful international organizations, in other nations-particularly those which have already experienced the bitter fruits of such permissive legislation-there are growing signs of a rethinking in this matter. In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.”[6]

In other words, his Holiness the late Pope John Paul II affirmed that if the only opportunity available is one which does not completely outlaw abortions but one which might make them less prevalent, the Catholic may in good conscience vote for the measure as an interim situation on the way to totally eliminating legalized abortion. However, this does not mean that from the perspective of public policy a faithful Catholic should fail to support the total elimination of legalized abortions. To do otherwise is to send conflicting (mixed) signals which scandalize the faithful who are attempting to form a proper moral conscience and to follow magisterial teaching. It is also to fail in charity that is, the duty to protect the weakest among us (the “least of these” [Mt 25: 40] as the Gospel of Christ teaches and as Pope John Paul II iterated in Evangelium vitae so powerfully).

Utilitarian Calculus Incompatible with Catholic Teaching:

Second, Mr. Forsythe’s position is dangerously close in practice to the argument waged by pro-choice “Catholic” Democrats who claim to be personally ...

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