And when the last law was down, and the devil turned round on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…do you think you could stand upright in the winds that would blow then? –St. Thomas More, from Robert Bolt’s A Man For All Seasons, Act One, Scene Seven
In its defense of life, the pro-life movement fights on two fronts. Education campaigns highlighting science, technology, and personal stories attempt to change the minds and hearts of the public. Then there is the considerable effort to protect life through elections and legislation — and not only to protect unborn life but to reinforce the laws that ensure religious freedom and facilitate the Church’s pro-life ministries to the poor and marginalized.
This was the message of the United States Conference of Catholic Bishops (USCCB) in the recently completed “Religious Freedom Week” that began on June 22, the feast of Sts. John Fisher and Thomas More and ended on June 29, the feast of Sts. Peter and Paul. The theme, “Serving Others in God’s Love,” highlighted how the First Amendment’s protection of religious freedom allows the Church to minister to all people through adoption agencies and foster care, hospitals, schools, and migration and refugee services.
There are some Catholic groups who disagree with the Bishops’ depiction of a “war on religion,” and denounce the USCCB’s efforts as partisan politics. And there are some, like Father Thomas Reese, SJ, who believe the effort to protect unborn life by changing the law is an exercise in futility. However, issues of religious freedom are often inextricably linked to issues surrounding human life. To preserve the former, the latter must be defended.
“Our First, Most Cherished Liberty”
The Fortnight for Freedom campaign, observed this year as Religious Freedom Week, was launched in 2012 by the USCCB. It was a response to several actions taken by the federal government that directly threatened religious freedom. The effort began with a 2011 letter from then USCCB President Cardinal Timothy Dolan to former President Barack Obama in which Dolan urged Obama to “push the reset button” on the government’s escalating attacks on the Defense of Marriage Act (DOMA).”
The other issue of concern for the USCCB was the 2012 Department of Health and Human Services (HHS) mandate that all employers, religious and secular, had to provide for contraception, sterilization, and abortifacients in their employees’ health insurance plans. Although the mandate provided a “religious exemption,” it was so narrowly defined that it did not apply to most religious schools, hospitals, and social service agencies.
To call attention to these alarming developments, the USCCB formed an ad hoc committee on religious freedom, issuing a statement titled, Our First, Most Cherished Liberty.
Catholics in America have [long] been advocates for religious liberty… It is among the proudest boasts of the Church on these shores.
We need [now] …to speak frankly …when our freedoms are threatened. … As Catholic bishops and American citizens, we address an urgent summons to our fellow Catholics and fellow Americans to be on guard, for religious liberty is under attack, both at home and abroad.
Obergefell and Catholic Adoption Agencies
Cardinal Dolan’s fears regarding DOMA were realized following the Supreme Court ruling in Obergefell v Hodges (2015) which legalized same-sex marriage throughout the United States. While hailed by proponents as a victory for individual freedom, the Masterpiece Cakeshop v Colorado Civil Rights Commission case brought attention to the disastrous repercussions of this ruling on how individuals can conduct themselves in their private businesses. It has been devastating for Catholic social welfare agencies as well.
Even before the Obergefell decision, Catholic Charities organizations in Massachusetts, California, Washington, DC, and Illinois were forced to close when these states passed same-sex marriage laws. These Catholic adoption services were denied government funding because, in conforming to Catholic teaching, they refused to place children with same-sex couples. After August 2, the Catholic Social Services in Philadelphia will be added to this list if they lose their legal appeal and their contract with the city is rescinded over this issue. Sadly, the closing of these agencies comes after decades of success working with the government to provide help to thousands of foster children.
The HHS Mandate and the Little Sisters of the Poor
The enactment of the HHS mandate launched multiple lawsuits by religious groups, most of which were decided against the government. Nonetheless, despite additional victories at the Supreme Court in Burwell v Hobby Lobby (2014) and Zubik v Burwell (2016), the HHS mandate remains in effect and continues to impact religious institutions.
The Little Sisters of the Poor, arguably the most famous face of this fight, appeared to be vindicated when President Trump issued an executive order reaffirming the First Amendment rights for religious entities. However, two states, California and Pennsylvania, have taken the Sisters back to court in a lawsuit against the President’s order. According to the Becket Fund for Religious Liberty,
[Following] the [President’s] announcement, several states…sued the federal government to take away the Little Sisters’ religious exemption. These states… [admittedly] have many programs to provide contraceptives to women…Yet [they] claim … the Little Sisters must be forced to comply with the federal mandate or pay tens of millions of dollars of government fines.
The Becket firm represents the Little Sisters in this new round of lawsuits which should be decided within the next few months. Mother Loraine Marie Maguire expressed the Little Sisters’ hope that the court, “will rule as did the Supreme Court in 2016…that the government doesn’t need us to provide these services to women. All we want is to follow our calling of serving the elderly poor.”
“Simply Not Working”
In 1973, Roe v Wade and the companion decision, Doe v Bolton struck down statutes prohibiting abortion in three-quarters of the United States. In the 45 years since then, the pro-life movement has worked tirelessly within the legislative process, hoping to create a situation where a future Supreme Court would reverse that decision.
However, even with a favorable Court, overturning a decision such as Roe is a difficult proposition. The doctrine of stare decisis refers to the importance of precedence in evaluating subsequent cases. Some believe the existence of this doctrine coupled with the strident pro-abortion lobby makes overturning Roe a quixotic task.
One such person is Father Thomas Reese, SJ who wrote in a May 27 op-ed piece for the Religion News Service that the overturning of Ireland’s Eighth Amendment revealed the futility of trying to end abortion through law.
The overwhelming vote in Ireland in favor of allowing access to abortion shows that the pro-life movement needs a new strategy. Trying to preserve anti-abortion laws or trying to reverse the legalization of abortion is simply not working.
In almost every country where abortion has been on the ballot, abortion has won. Rarely have pro-choice laws been reversed. This trend is not going to change. To think otherwise is simply ignoring reality.
Fr. Reese believes the goal should simply be to reduce the number of abortions by supporting “any program that lessens the burden on mothers and their children” such as “increasing the minimum wage, …affordable daycare, and/or healthcare …education and job-training programs, etc.”
In fact, Fr. Reese suggests “pro-lifers must consider voting for candidates, even pro-choice Democrats,” who, Fr. Reese claims, are more likely than Republicans “to reduce the number of abortions by supporting [these] programs.”
“Death By A Thousand Cuts”
In an op-ed of his own, Cardinal Dolan, current Chairman of the USCCB Committee on Pro-Life Activities, refuted Reese, citing “serious reservations about Reese’s strategy.” He characterized Reese’s plan as “a capitulation to the abortion culture, and a grave weakening of the powerful pro-life witness.”
Catholic tradition and basic human rights teach us that every human being has an inalienable right to life that must be recognized and protected in law. While the law is not the only means of protecting life, it plays a key and decisive role in affecting both human behavior and thinking.
Illustrating Cardinal Dolan’s point, while not able to overturn Roe (yet), pro-life groups have been successful in getting laws passed that limit access to abortion. These restrictions include informed consent and parental notification laws, outlawing of certain abortion procedures, and limiting state Medicaid funding for abortions.
Abortion proponents fear this strategy of incremental restrictions will end abortion through a “death by a thousand cuts.” Although the research results are somewhat mixed, a 2018 review of the literature by Michael New of the Charlotte Lozier Institute found that these pro-life laws did have a significant effect on reducing the number of abortions in developed countries. Even a Guttmacher report from July 2017 grudgingly acknowledged the contribution of such legislation to the sharply declining abortion rate in the United States over the last six years.
The Effectiveness of Parental Notification Laws
Although the 1992 Supreme Court decision Planned Parenthood of Southeastern Pennsylvania v Casey reaffirmed the Roe decision, it also upheld the constitutionality of several restrictions, one of which was parental notification laws.
Studies looking at the effect of these laws revealed somewhat varied results. However, a 2008 analysis by Michael New found parental notification laws reduced the abortion rate among those aged 13-17 by approximately 14 percent. Moreover, the more restrictive the parental notification law, i.e. notification versus written consent versus involvement of one or both parents, the sharper in the decline of abortions in this age group.
These results were substantiated in a 2015 study of Texas’s notification laws as reported in Obstetrics and Gynecology and a 2018 study of the effect of Indiana’s notification laws by the Journal of Adolescent Medicine.
Restricting Funding Reduces Abortions
New’s study also revealed that restricting state Medicaid funding “resulted in an even larger reduction in the minor abortion rate…[reducing it] by an average of 2.34 abortions per 1,000 females between the ages of 13 and 17.”
A 2009 Guttmacher study found similar results.
- Of 38 studies reviewed, one-fourth of women who would have had Medicaid-funded abortions instead give birth when this funding is unavailable.
- Medicaid restrictions lead to a reduction in the proportion of teenage pregnancies that end in abortion.
- Studies have found little evidence that lack of Medicaid funding has resulted in illegal abortion.
Interestingly, research has shown that pro-life laws such as these have more of an impact on reducing the abortion rate than increasing access to contraception.
Setting the TRAPs
Targeted Regulation of Abortion Providers, or TRAP laws as they’re called, are the newest weapons in the pro-life legislation battle. Enacted in 23 states, these laws are designed to protect women’s safety by requiring abortion clinics to adhere to the building and personnel standards of other surgical facilities. Regulations include:
- Structural specifications that are comparable to other surgical centers, ensuring room size and corridor width are sufficient for a gurney to be maneuvered easily if there is an emergency.
- The abortion clinics must be within a certain distance of a hospital, and they must have a transfer agreement there.
- Abortions may only be performed by licensed physicians who have admitting privileges in a hospital.
Due to the cost of the required structural modifications and the difficulty of meeting the hospital-related conditions, TRAP laws have resulted in the closing of hundreds of clinics throughout the United States, making it the most effective pro-life legislative strategy to date.
Not surprisingly, pro-abortion groups are vehemently opposed to TRAP laws. Unfortunately, the Supreme Court ruled in Whole Women’s Health v Hellerstedt (2016), that Texas’ TRAP laws placed a “substantial obstacle” to abortion access and were unconstitutional. The laws had resulted in the closing of more than half of Texas’ 44 abortion clinics. Now, because of the Court’s decision, TRAP laws across the country are in danger of being overturned.
“We Cannot Give Up!”
Fr. Reese advised pro-lifers to look to Ireland to see the futility of trying to pass pro-life laws. Indeed, pro-lifers should look to Ireland to see what is happening to the unborn child and religious freedom as a result of losing the Eighth Amendment. Legislators are pushing for unrestricted abortion up to 12 weeks or up to 24 weeks in the case of fetal anomalies. Doctors must refer patients for abortions without regard for their consciences and Catholic hospitals must provide abortions despite Church teaching that forbids it. Not satisfied, emboldened pro-abortion activists are now setting their sights on abolishing Northern Ireland’s pro-life laws.
Cardinal Dolan observed that Fr. Reese’s strategy to combat abortion was like those “in the mid-19th century who proposed amelioration as a way to reduce slavery in our country.”
The ameliorists argued that…slavery was awful, but, really it was here to stay. So we should… simply work to lessen the number of slaves. Thank God, those who believed that slavery was a moral horror…could never accept this capitulation.
St. Thomas More, a lawyer himself, accepted martyrdom rather than assent to an unjust law. If the pro-life movement surrenders the forest of laws to pro-abortion forces who would wield their axes in the name of “choice,” can we as a society “stand upright in the winds that would blow then?” As Cardinal Dolan said, “We cannot give up!”