Are Abortion Laws Unenforceable?

The abortion laws in the United States, as a result of a series of Supreme Court decisions starting with Roe v. Wade and Doe v. Bolton and continuing through the 1980s and 1990s, have become the most permissive in the Western world, allowing abortions even in the third trimester. Most Western European countries, with the exception of Germany and most of the United Kingdom, restrict abortion to the first trimester, with various exceptions for health-related issues, counseling, and sex crimes. The only Western European countries prohibiting abortion are Northern Ireland and the Republic of Ireland, which has come under increasing pressure from the European Union and other advocate groups to change the prevailing law.

But trends favoring stricter abortion laws in the United States have become noticeable in recent years. In Gallup polls during the last three decades, support by both sexes for legal abortion “under any circumstances” peaked in the early 1990s but has receded since then. At present, the majority among both sexes (about 70 percent) holds that abortion should be prohibited or “legal only under certain circumstances” — cases of rape, incest, and danger to the life of the mother.

Ideally, laws should reflect and bolster morality, but their main purpose is to contribute to the maintenance of public order. The German philosopher Immanuel Kant, living in the 18th century in an era when ideals of republican and democratic government were taking the world by storm, theorized that, in a properly organized representative government, the laws should be able to maintain good order even “in a nation of devils.”

 

Kant’s opinion was overly optimistic, of course — but laws often do take account of evil and permit actions that many, or even most, consider immoral. In the United States, we sometimes hear of government protection being offered for Mafia bosses who turn state’s evidence; legalized prostitution in various parts of Nevada; and, through the Supreme Court decisions in Griswold v. Connecticut (1965) and Lawrence v. Texas (2003), overturning laws that had prohibited contraception and sodomy on the basis of the “right to privacy.”

The same “right to privacy” was the chief penumbra of the emanations that were invoked to justify the decision on abortion in Roe v. Wade. In other words, although abortion may be considered by many persons to be murder, in any case it is private murder. It has almost been put in the same category as suicide, which is a completely personal and private self-murder, and largely untouchable by any legislation.

We have been talking about abortion “laws,” but this is of course a misnomer, since the Supreme Court cannot make laws. Laws, properly and strictly speaking, should be made by legislative bodies — in the United States, by state legislatures and Congress. We have the famous unhappy precedent of the notorious 1857 Dred Scott decision of the Supreme Court, which became the law protecting slavery and required Congress to pass the 13th and 14th Amendments in 1865-66 in order to be abrogated.

 

But as the polls above indicate, the climate of opinion in the United States seems to be changing regarding the permissibility of abortion. State legislatures are beginning to take some initiatives in the restriction of abortion. If they are successful, we will probably be confronted with the scenario of competition between permissive and non-permissive states. But is it conceivable that the U.S. Congress could eventually step in with firm guidelines, ending the controversies and the befuddlement?

Legislators, including a strange contingent of professed Catholic congresspersons, often say that they are “personally opposed to abortion, but…” This self-justifying declaration is often taken by pro-life advocates as a species of moral cowardice — refusing to stand by their own asserted moral values in fulfilling the obligations of the position they were elected for.

But let us try to put a better face on their claim. Possibly some, or even many, such legislators are thinking of the following scenarios in the aftermath of making abortion illegal:

  • Abortion providers going underground, establishing lucrative black-market businesses.
  • Presidents like Barack Obama ordering the Department of Justice to not enforce the law (as has happened recently with the Defense of Marriage Act, which the president does not agree with).
  • Local police or federal agents reassigning forces now straining to combat violent crimes and enforce drug laws in order to close down abortion facilities and pursue the underground abortionists (presumably the marked offenders would not be women in the aftermath of pregnancies, but the abortion providers themselves).
  • Inevitable massive civil unrest, due to the fact that the “right” to abort, granted and secured over the years by the Supreme Court, had now been taken away — even from those who don’t wish to exercise it.

Imagining such a scenario, our “personally opposed, but” legislator may be thinking that he or she is in the same shoes as the dedicated Prohibitionist congressman in 1919, who was convinced of the sinfulness of alcoholic beverages, but facing the reality of enforcing a law in spite of inevitable widespread opposition. In other words, such a personally opposed 1920s Prohibitionist might fail to legislate against production and sale of alcoholic beverages, simply because such legislation would be unenforceable. And so, similarly, a contemporary legislator’s “personally opposed, but” might be based simply on his or her conviction of the unenforceability of laws restricting abortion.

Let us continue this analogy with the Prohibitionist legislator a little further: That legislator might have compromised and successfully proposed some restrictions short of total prohibition — for example, restricting the sale of alcohol to certain times and/or places (such restrictions exist even now in certain states and cities). Analogously, would the best hope for successful pro-life legislation be to settle on the first-trimester restrictions prevailing in many Western European countries, and/or granting exceptions only for rape, incest, or threats to the life of the mother — the exceptions supported by many Americans otherwise opposed to abortion?

The ancient Roman proverb fiat justitia, pereat mundus (“let justice be done, even if it means destruction of the world”) is taken by most of us as a caution against trying to change everything for the better precipitously. But, of course, times change, and with them, providential openings and opportunities emerge. Legislation can even inculcate morality. Have not laws against drug trafficking arguably been responsible for getting many to value a drug-free mode of life? Laws against racial discrimination have certainly had the effect of inculcating a sense of fairness and openness to other races in the last two generations.

The most auspicious development for the pro-life movement may be the ongoing legislative drives for a Personhood Amendment to the Constitution. In the 1973 Roe v. Wade case, Justice Potter Stewart had presciently advised the abortion-rights attorney that she would have “an almost impossible case” if it were recognized that the unborn fetus is a person with legal rights. Looking back at Justice Stewart’s comment may indicate the best-case scenario for pro-life advocacy. The recent overwhelming approval of voters in the state of Georgia for a personhood amendment could be just a first spark. Similar developments favoring legal personhood for the unborn are also taking place in Mississippi, Colorado, Nevada, and other states.

It goes without saying that a massive nationwide change, recognizing the unborn human fetus not just as a person but as a legal person, with all the rights of personhood, would amount to a sea change in moral perspective — a change fortunately bolstered by modern biology and embryology, which have given us a clearer insight into early fetal life and development, and the initial reflexes and sensitivity to pain of the unborn.

Howard Kainz

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Howard Kainz is professor emeritus at Marquette University. He is the author of several books, including Natural Law: an Introduction and Reexamination (2004), The Philosophy of Human Nature (2008), and The Existence of God and the Faith-Instinct (2010).

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