How should a constitutional amendment banning abortion be worded?

Perhaps the ultimate goal, within the legal aspirations of the pro-life cause, is a U.S. Constitutional Amendment banning abortion. This article considers serious problems that could result if the amendment is not worded correctly.

The first problem is the extent of the ban on abortion. The teaching of the Catholic Church is that all direct abortion is intrinsically evil and always gravely immoral, but that indirect abortion is sometimes moral. If the amendment fully reflected this teaching, all direct abortions, and some indirect abortions, would be illegal. However, the U.S. is only about 25% Catholics, and many of these are nominally practicing or non-practicing Catholics. About 50% of the U.S. population is Protestant. The distinction between direct and indirect abortion and the more general teaching that intrinsically evil acts are always immoral is specifically a Catholic teaching; it is not found in Protestant moral theology. Therefore, it is unlikely that Protestants who are pro-life will support an amendment that is based on these distinctions. The result would be a constitutional amendment that will not ban all direct abortions, and will not give guidance on which indirect abortions are immoral.

Would such an amendment be better than no amendment at all? Not necessarily. Consider, for example, an amendment that bans all abortion, except in cases of rape, incest, or the life of the mother (not her health, but her life). Under Catholic teaching, rape and incest do not justify a direct abortion. Now in the Catholic view, some ‘life of the mother’ cases will be direct abortions and therefore not moral, even to save the life of the mother. But other cases will be indirect abortions, which can be moral. If the chosen act is directed, by the nature of the act itself, to the killing of the prenatal as its proximate end, then the act is direct abortion, even if another end, such as saving the life of the mother, is intended. So this type of amendment would permit some direct abortions, but would outlaw most direct abortions.

Is this a case where Catholics should accept the best law that can be passed, despite certain injustices in that law?

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 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.” (Evangelium Vitae, n. 73).

It is not such a case, and I will explain to you why. If an amendment to the U.S. Constitution permitted abortion in cases of rape or incest, any woman who was willing to lie would be able to obtain an abortion on-demand, as if it were a Constitutional right, by claiming that she was the victim of rape or incest. This situation would be even worse than the present state of the law on abortion. What woman who is willing to kill her own child in the womb would not be willing to lie?

Or what if the amendment banned all abortion except in cases where the life of the mother was in danger? The problem here is that support for abortion is widespread among the general population and among health care professionals. Every pregnancy carries with it some risk of death. A physician who wished to circumvent the law could easily exaggerate and misrepresent an number of minor health issues, as pertaining in some way to an increased risk to the life of the mother, and thereby obtain for her abortion on demand, as if it were a Constitutional right. Then, too, any judge who favors abortion as a so-called right would be able to interpret this amendment such that life of the mother includes health of the mother, and such that health of the mother includes even her ‘psychological health’. Again, the result would be abortion on demand, as if it were a Constitutional right.

And this results in the second problem, that a Constitutional amendment banning abortion must ban all direct abortion, even in cases of rape, incest, or the life of the mother. And this requires an amendment, accessible in its meaning to non-Catholics, which nonetheless correctly distinguish between direct abortion and indirect abortion. Since the eternal moral law is entirely accessible to reason, in all that is required to avoid sin (especially grave sin such as abortion), it should be possible to word an amendment properly, without recourse to specifically Catholic theological terms.

The third problem is that many forms of contraception are abortifacient. Sometimes they work by preventing conception from occurring. Other times they work by killing the prenatal after conception, e.g. by preventing implantation or by other means. If a constitutional amendment bans all abortion, then many forms of contraception will also be banned. From a moral point of view, this banning of abortifacient contraception is good and is necessary for us to have a just society. The use of abortifacient contraception is a grave sin. But the problem is that many pro-lifers will not support a Constitutional amendment that bans abortifacient contraception.

The fourth problem is that many forms of artificial reproductive technology (ART) used at fertility clinics includes types of abortion. In vitro fertilization ordinarily includes creating many embryos, selecting some for implantation, some for freezing, and the rest for destruction. This destruction is a type of abortion. The frozen embryos are sometimes thawed and destroyed for ‘quality control’ purposes. Most frozen embryos are never implanted, and so they will remain frozen until death. Again, this is a type of abortion.

The fifth problem is that embryonic stem cell (ESC) research also involves the direct killing of prenatal human life, which is a type of abortion. Many people who consider themselves to be pro-life would nevertheless permit ESC research to continue.

Pro-life citizens in the U.S. are not all of the same mind. Many pro-life citizens would allow abortion to be legal in cases of rape, incest, and the life of the mother. Many would allow embryonic stem cell research to continue. Most do not associate fertility clinics and their procedures with abortion. Most pro-life politicians would permit abortion in many cases, would support ESC research and would not restrict fertility clinics from directly killing human embryos.

Support for the complete banning of abortifacient contraceptives is weak among pro-life citizens in the U.S. Even many Catholics unfortunately use abortifacient contraception and do not consider its use to be a type of abortion (or even to be immoral), in contradiction to the teaching of the Magisterium.

So then, how should a Constitutional amendment banning abortion be worded? I suggest that it must be worded to ban all types of immoral abortion: all direct abortions, and all immoral indirect abortions.

Otherwise, such an amendment may do more harm than good. Abortions by means of so-called emergency contraception would likely increase. Surgical abortions would perhaps decrease to some extent, at first. But as women realize that they can lie about their pregnancy, claiming incest, or rape, or a medical problem that increases the risk of death, surgical abortions would become just as widespread. Some abortion providers would likely go underground, and provide direct abortions illegally.

And what would happen to Catholic hospitals if a Constitutional amendment permitted abortion in cases of rape or incest or the life of the mother? Catholic hospitals would be forced to perform a direct abortion in any case were the mother was willing to lie and say she was the victim of rape or incest. But since direct abortion is a grave sin, Catholic hospitals would be morally obligated to refuse to comply with the Constitutional requirement (as I’m sure it will be interpreted by many persons) to give women abortions in cases of claimed rape or incest. They would be forced to close, or to cease being a Catholic institution.

And now we are back to the first problem. The extent of the ban must encompass all gravely immoral forms of abortion. And there is simply not enough support among pro-life citizens for such a complete ban. Even if only persons who were solidly pro-life voted, the majority would still not be willing to ban all abortion.

This brings us to the last problem preventing a properly-worded U.S. Constitutional amendment from being passed: most persons who are pro-life would reject such an amendment. For most pro-lifers today, including most Catholics, actually support abortion in many different instances. Until this changes, a Constitutional amendment banning abortion cannot be passed without doing more harm than good.

Here is my suggestion for the wording of such an amendment.

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