After we overturn Roe v. Wade, then what?

Despite the prevalence of pro-abortion views in the U.S., many Americans do not believe that abortion should be available on demand — for any reason, at any time. In addition, there is currently a trend toward greater conservativism among Republicans, and conservatives have obtained a modest increase in political power since the Republicans took control of the House of Representatives in 2010. Perhaps the 2012 election will see a continuation of this increase in Republican influence.

In the U.S. Supreme Court, conservatives and liberals have nearly equal numbers, with many cases decided by one vote. However, one additional conservative on the Court could result in a pro-life majority, or at least a majority who would be willing to let abortion be decided by the Congress and the States. Six of the SC Justices are Catholic or come from a Catholic background.

Therefore, the over-turning of Roe v. Wade and substantial change in federal abortion law may possibly occur in the near future.

The ideal law, from a Catholic point of view, would prohibit all direct abortion, allow indirect abortion only when absolutely necessary, and prohibit all abortifacient contraception. However, in the present political circumstances, such a law has no chance of passing. A constitutional amendment would be needed, and this approach would require a general consensus among Americans against all direct abortion. That is a hope for the future, but the present circumstances require a more practical approach.

If abortion were suddenly entirely outlawed, by constitutional amendment, we would have a Prohibition situation. When alcohol was outlawed by constitutional amendment, the majority of Americans opposed the change. Alcohol was widely available because such a large percentage of citizens did not agree with law. If abortions were banned entirely and without sufficient support from citizens and the medical community, abortions would be widely available despite the law. Hospitals and physicians would offer abortions by claiming that a different procedure was being done. Abortifacient contraception would be offered on the false claim that it was a medical treatment for some disorder. Speak-easy abortion clinics would be set-up and supported with the money and efforts of all who opposed the law.

Does this sound unlikely? But it is a fact that in places where abortion is illegal, the abortion rate is nearly as high as, or higher than, in places where abortion is legal. “Highly restrictive abortion laws are not associated with lower abortion rates.” (Guttmacher)

Our laws must be changed so as to express true justice, but mere law never makes a people just. The hearts and minds of the citizens of each nation must change also.

The problem with the complete and sudden outlawing of abortion, at the present time, is that the vast majority of citizens favor legal abortions at least in some cases. The vast majority also favor some restrictions. But a complete prohibition of abortion would push most citizens into taking a pro-abortion point of view, because most don’t agree with Catholic teaching that all direct abortion is gravely immoral.

I believe and teach the truth: that direct abortion is intrinsically evil and always gravely immoral. No intention and no circumstance justifies the direct killing of an innocent human being, whether in the womb, or during birth, or thereafter. However, I also think that, in the current political situation, a constitutional amendment to completely ban direct abortion would be ineffective and would ultimately do more harm than good. The end result would be more support for legalized abortions, and less support for the pro-life cause.

If Roe v. Wade can be overturned, I suggest a twofold approach to the restriction of abortion: at the Federal and the State levels.

1. Federal laws should restrict abortion, to whatever extent can be successfully put into law. The restrictions must have sufficient support from both parties so that they will remain in place despite a change in power from one party to another. But at the every least, no abortions should be permitted once the prenatal is viable: no third trimester abortions and no partial birth abortions. Also, no abortions should be performed at all on minors without permission from a parent. No federal money should be used for abortion. No health care providers or insurance providers should be compelled to offer abortion or abortifacient contraception.

In order to have the overturning of Roe v. Wade result in any meaningful change in the abortion situation, we need at least this level of restriction. But if greater restrictions are possible, at the federal level, then so much the better.

2. States would per permitted to restrict abortion further, even to the extent of outlawing all direct abortion and all abortifacient contraception. But no State would be permitted to loosen the Federal restrictions, so as to make abortion more widely available.

This suggested approach is intended to put the nation on a path of ever-increasing restrictions, so that eventually all direct abortions would be outlawed. Individual States could lead the nation by example, restricting abortion more than at the federal level. Later on, when there is enough support for greater federal restrictions, those would be enacted also. But the States would always be permitted to offer greater restrictions, never fewer restrictions.

Sending the abortion issue back to the States alone, so that one State could allow unrestricted abortion, and another State could outlaw it completely, would be unworkable. Some States would have no restrictions and other States would have great restrictions. In one State, a physician who performs abortions would go to prison for a long time, and in another State he would have no penalty at all. This contrast, in such a grave matter, is unreasonable. Some type of restriction should be applied to the whole nation. And the law must be designed so as to advance these restrictions more and more as time passes.

Pope John Paul II: “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 favouring 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.” (Evangelium Vitae, n. 73.)

See also: How should a constitutional amendment banning abortion be worded?

by
Ronald L. Conte Jr.
Roman Catholic theologian and Bible translator

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