On January 29, 2018, Federal District Court Judge David Ezra issued a preliminary injunction[i] against the State of Texas from enacting their newly minted fetal disposition law. The law, like several around the country, would mandate that those children killed in an abortion would have to be humanely cremated or buried. However, Judge Ezra believed this law to be unconstitutional on several grounds. His decision is quite problematic from a moral perspective.

 

Judge Ezra’s decision relies upon the application of the “undue burden” legal standard created by the United States Supreme Court, which determines the constitutionality of pro-life legislation, and is a standard that has no moral basis. The “undue burden” standard rests on the idea that “[A] statute which, while furthering a valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.[ii]” The Court continues that an enacted law that has “the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion imposes an undue burden on that right.[iii]” And what is the underpinning of this principle? The Court waxes philosophical by stating that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.[iv]”

 

There are two problems with this standard: 1) it is contrary to the virtue of justice, and 2) its adherence to philosophical relativism. First, justice has a strong tradition of being defined as “that which is due to another.[v]” Even if the Court tries to make the argument that the so-called abortion “right” is due to women, it falls radically short in proving this point in any of its cases. For example, the Court readily admits in Roe v. Wade that it cannot define when human personhood begins, but then permits abortion. This sort of logic is akin to someone who is hunting in the woods and hears a rustle, but he is not sure if it is a deer or a human being but shoots anyway. It is reckless and common sense would tell a person not to commit that sort of action. In ethics, this is called the principle of the safer course.

 

The court creates a potential problem if it says that they cannot say if the unborn child is a person, but they allow for abortion anyway since they could be sanctioning legalized murder (which, of course, they did). Furthermore, it is clear that the child is indeed a person. As hard as some philosophers may try to argue that the unborn child is not a person, they cannot get away from the fact that the child is an individual member of the homo sapiens species. This reality squares with Boethius’ famous definition of personhood, “an individual substance of a rational nature.[vi]” There is no magical moment when a child becomes a person, rather the child, by his/her nature, is a rational substance at the moment of conception. 

 

Second, the Court’s “mystery of the universe” statement is so broad that if this is the basis of law then there is really no law. If a person wishes to be a dog and urinate publically, what is stopping him if this is what the Court truly believes since that person has defined his concept of existence as a dog?

 

With this in mind, one can begin to see the problem that the District Court injunction against the Texas law has. But what other problems exist within the injunction? First, if one is to take the “undue burden” principle literally then one must show that a law has the “purpose or effect of presenting a substantial obstacle.” How exactly, then, does a fetal disposition law present a substantial obstacle to a woman wanting to obtain an abortion? Judge Ezra’s reasoning would be ludicrous if it were not so tragic. In his decision, Judge Ezra directly states the following, “Evidence suggests the purported interest-‘express[ing] the state’s profound respect for the life of the unborn by providing for a dignified disposition of embryonic and fetal remains’-may be a pretext for restricting abortion.[vii]”

 

Merely claiming that a law may be a pretext is not taking the standard literally since the standard asserts that a law must be proven to show that it has a purpose or effect of creating a substantial obstacle. But Judge Ezra continues, “Even if the asserted state interest is not a pretext, there is no precedent showing respect for the unborn by restricting EFTR (embryonic and fetal tissue remains) after the potential for life no longer exists is a valid state interest.[viii]”  

 

Again, common sense dictates that Judge Ezra is mistaken. The fact that law does dictate that human remains of those born are not merely tossed on the side of the road left to decay is an indication of a valid state interest. Merely disposing of human remains in the trash or washing them down a drain, whether they be embryonic, fetal, young child, or adult, is a biohazard. This is why there are laws and regulations regarding the disposition of human remains in general.

 

Judge Ezra also cites concerns of “increased costs for healthcare providers.[ix]” However, this begs the question of why does this exactly matter? Here, Judge Ezra is trying to make the argument that this would be a substantial obstacle, but the bigger moral question is what is truly just? Causing a possible price increase is not unjust in itself. There are already existing protocols dealing with human remains. Even the remains of those not claimed by families are not callously disposed of. The city must follow legal procedures in order to ensure that the body does not become a biohazard to the community at large. But furthermore, much of this also hinges on respect for the human body. It is not mere material to be thrown away.

 

Finally, Judge Ezra cites concerns that the fetal disposition law would also have an adverse impact on women’s mental health by causing grief and shame and may even discourage women from receiving gynecological medical care, “particularly abortions” [x].  What is more probable is that women will be discouraged from having an abortion precisely because they recognize the humanity of the unborn. People do not bury “blobs of tissue”, they bury human beings. What Judge Ezra fails to understand though is that it might discourage women from having abortions, but not in the way he is thinking. While it is evident that he thinks it will be the shame and guilt they will have if they have to bury their child that will discourage women, what is more probable is that women will be discouraged from having an abortion precisely because they recognize the humanity of the unborn. People do not bury “blobs of tissue”, they bury human beings.

 

It is clear that Judge Ezra does not properly link the civil law with the moral law and it is even clearer that he applies the “mystery of the universe” principle when deciding cases that deal with abortion. Simple common sense speaks volumes against this decision and hopefully, it will be overturned by the Fifth Circuit Court of Appeals.

 

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[i] Whole Woman’s Health, et al v. Hellerstadt, Case No. A-16-CA-1300, Document 110

[ii] Planned Parenthood of Southeast Pennsylvania v. Casey 505 U.S. 833,877.

[iii] Ibid, 878.

[iv] Ibid, 851.

[v] See Thomas Aquinas, Summa Theologica, II-II, Q. 58, A. 1.

[vi] De Persona et Duabus Naturis, c. ii

[vii] Whole Woman’s Health, et al v. Hellerstadt, Case No. A-16-CA-1300, Document 110, page 11

[viii] Ibid.

[ix] Ibid, page 12.

[x] Ibid, pages 12-13.