In one of his most recent articles, pro-life scholar, Dr. Michael J. New, makes the following salient observation:

 

In pro-life states, attorneys general are likely to take reasonable steps to ensure that pro-life laws are enforced. But there are some right-leaning states that sometimes elect Democrats to statewide office, including attorney-general positions. In these states, Democrats may choose not to enforce pro-life laws; the attorney general of Wisconsin has already admitted he plans not to do so. Additionally, many conservative states have liberal cities where local law enforcement may not prioritize enforcing pro-life laws. Pro-lifers will need to make the enforcement of pro-life laws a salient campaign issue in right-leaning states. Furthermore, depending on the outcome of ongoing litigation involving the Texas heartbeat law, pro-lifers may need to consider alternative enforcement mechanisms for laws protecting the preborn in places where state officials will decline to enforce the law.[i]

 

This is quite a telling point that Dr. New highlights. In what are considered right-leaning states pro-life advocates might need to consider alternative ways in which pro-life laws are enforced where state officials decline to enforce them.

 

There have been several arguments dealing with the pro-life private enforcement mechanism as seen in Texas’ Fetal Heartbeat Law and in Sanctuary City for the Unborn Ordinances. Many pundits have referred to it as a vigilante law or a bounty hunter law. These hyperbolic terms tend to only explain a political narrative rather than to examine the mechanism itself in a more just way. In essence, these pundits describe it in such a way that 1) shows that they do not like the law and 2) they want to influence the public to view the law as somehow unjust.

 

However, the mechanism itself is not a bounty hunter law and it is quite clear that in the six months that the Texas Fetal Heartbeat Law has been in effect it has not been used in an abusive manner. There has not been a massive onslaught of lawsuits filed against the abortion industry within Texas or in the locales that have passed Sanctuary City for the Unborn Ordinances. Some of the main reasons for this lie within the fact that courts will not take on frivolous lawsuits where there is little to no evidence. Another reason lies within the fact that many will want to proceed with prudence given the fact that there must be evidence of an abortion that took place. Mere hearsay will not suffice. But an abortionist confessing to the news media will suffice or an abortion-related injury will suffice as well.  

 

In a previous article, I explained how the pro-life private enforcement mechanism is moral[ii] and how legislators must be prudent with this tool when creating a law that is to be enacted. Dr. New, as elaborated in his National Review Online article, has certainly extended the idea that if the pro-life enforcement mechanism is upheld as constitutional, it could become a valuable pro-life tool within those states where certain elected officials refuse to enforce pro-life laws.

 

Naturally, one might ask how would this sort of law fit within the framework of incrementalism? In fact, the answer is quite easy. Again, it is important to remind ourselves what incrementalism exactly is from a moral perspective and St. John Paul II provides an excellent summation:

 

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.[iii]

 

Fundamentally, what is being said is that the incremental legislation must limit the evil if the existing unjust law and help move the community toward a Culture of Life by some small step. In the case here in the US, the goal is to incrementally stop the evil of legalized abortion for any reason until birth. Many states have passed initiatives that have helped advance the Culture of Life, such as passing Parental Consent laws that mandate one or both parents consent to the abortion procedure. While the obvious goal is to ensure that parents are involved in the medical decisions of their minor daughters, one must remember that when Roe v. Wade became law of the land, it stripped parents of their ability to guide their minor daughters when it came to this dangerous invasive practice. In fact, they had no say at all. So, while Parental Consent laws do not abolish legalized abortion, they do limit the harm. In addition, they show that this is a procedure that is not to be taken lightly; that it can have profound consequences for the minor girl.

               

As stated above, Dr. New raises the question of what to do in those states in which, at times, a person may be elected to office that refuses to enforce those pro-life laws that were duly enacted? Typically, when pro-life laws are passed, they contain criminal provisions in which the government enforces. However, it has become evident that in some states some elected officials who are counted on to enforce the laws refuse to do so. In this case what is the pro-life person to do? Traditionally, it would have been to vote the offending person out. But that may mean waiting years in which the law is not being enforced and that unborn lives are being unjustly killed. Now, it certainly seems possible that those right-leaning states that have enacted pro-life laws may have another solution.

 

By passing a pro-life private enforcement mechanism to existing pro-life laws it would certainly ensure that in the case of a non-enforcing elected official the law would still be enforced. Furthermore, pro-life incrementalism is still at work in these states. How? Again, in the case where it is allowable that an elected official can choose to ignore the enforcement of pro-life laws this clearly limits that particular harm. Furthermore, it reinforces to the citizens of the state that the object sought is, ultimately, a Culture of Life. Ignoring pro-life laws is simply not acceptable. Bit by bit, it shows that abortion is the true evil.

 

While it is highly possible that, within a few months, Roe will be overturned and many states will either have their Abortion Trigger Bans go into effect or will soon pass laws that outlaw abortion, there will be several states that do have pro-life laws but will not be able to ban abortion outright for various political reasons. It will be within these states that pro-life forces will need to look closely at pro-life private enforcement mechanism language for existing and future pro-life laws. Even if Roe is not overturned this is something that these states ought to consider.

 

The Texas Fetal Heartbeat Law has been in effect for over 200 days with its pro-life private enforcement mechanism. Idaho Governor Brad Little just signed a Fetal Heartbeat bill into law that was modeled directly after the Texas law.[iv] Dozens of cities have enacted Sanctuary City for the Unborn Ordinances with the pro-life private enforcement mechanism.[v] As of yet, no court has overturned this mechanism.[vi] Criminal enforcement of pro-life laws should be the norm. However, in cases where it is sporadically enforced, the private enforcement mechanism is a moral tool to use to ensure enforcement of a pro-life law.

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[i] New, Michael J., “Pro-Lifers Will Face Challenges and Opportunities in a Post-Roe World,” National Review Online, January 25, 2022. Abortion & Roe v. Wade: Challenges Await the Pro-Life Movement | National Review, article retrieved on February 7, 2022.

[ii] Kral, Joe, “Is the Pro-Life Enforcement Mechanism Moral?”, Sebastian’s Point, December 16, 2021. SP/12/16/21/Private-Enforcement/Kral | societyofstsebastian, article retrieved on February 25, 2022.

[iii] John Paul II, Evangelium Vitae, No. 73.

[iv] In fact, Governor Little signed the bill on March 23, 2022. For more information you may view this article: Idaho Governor Brad Little Signs Texas-Style Bill to Ban Abortions on Babies With Beating Hearts - LifeNews.com. Article retrieved on March 24, 2022.

[v] For more information on Sanctuary City for the Unborn Ordinances please visit Sanctuary Cities (sanctuarycitiesfortheunborn.org).

[vi] In fact, the latest ruling by the Texas Supreme Court (March 11, 2022) still kept the law intact and still allowed the pro-life private enforcement mechanism to be in effect. For more on this case please read an article by Mary Elizabeth Castle, “Texas Heartbeat Law Wins Again at Texas Supreme Court”, Sebastian’s Point, March 27, 2022. The article may be viewed here: https://www.societyofstsebastian.org/tx-heartbeat-upheld-castle. Article retrieved on March 29, 2022.

 

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Joe Kral, M.A. 

President

Society of St. Sebastian

Editor-in-Chief

Journal of Bioethics in Law & Culture

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