Has the time come? Can the pro-life movement take another step forward toward a Culture of Life? Strange as it may seem, the Partial Birth Abortion Ban Act has actually paved the way for HR 36 (also known as the Pain-Capable Unborn Child Protection Act). Ultimately, society has come to the realization that when it comes to late-term abortions, many just find this horrid practice to be unpalatable. In the late 1990s, even pro-abortion “rights” senator Daniel Patrick Moynihan was so horrified that he was alleged to have proclaimed that partial birth abortion was “infanticide”. Why was this the case? It would seem that for many, late-term abortion opened their eyes to the reality of just how human the gestating unborn child really is.
HR 36 is a fairly straightforward bill. For all intents and purposes, it is trying to amend the federal Partial Birth Abortion Ban Act by outlawing the practice of abortion after 20 weeks of gestation. As the bill itself states, “It is the purpose of Congress to assert a compelling interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain” (HR 36 (Introduced Version), pg. 4 , lines 16-20, 114th Congress). Since the legislative debates began with the subject of partial-birth abortion, it has become quite clear that a medical consensus had developed regarding the physiological pain of the unborn child (see HR 36 (Introduced Version), pgs. 2-4, 114th Congress). For many abortion rights legislators, the gruesome practice of partial birth abortion was just too close to infanticide, because the child was partially delivered. But furthermore, the Act while in its legislative phase also recognized that the unborn child can experience pain: “The vast majority of babies killed during partial birth abortions are alive until the end of the procedure. It is a medical fact, however, that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain” (S. 3 (Engrossed Version), pg. 6, 108th Congress). Simply put, HR 36 recognizes the reality that the unborn child, at this stage of gestation, is very much capable of experiencing pain. As a result, HR 36 seeks to outlaw abortion after 20 weeks of gestation.
In many ways, HR 36 helps to further humanize the child under the law. After all, human beings do feel pain and most people understand to cause pain unjustly is contrary to the moral good. But how exactly is this legislation moving US Society toward a Culture of Life? St. John Paul II’s Principle of Incrementalism, as outlined in previous articles, has proven to show just how a society can be moved toward a Culture of Life. In this particular case, this bill proposes to do the same. Evangelium Vitae outlines how a piece of legislation can be legitimately pro-life. Firstly, an evil law must exist. In this case, the landmark US Supreme Court case, Doe v Bolton, is very much in effect. However, over the years it has been picked apart as not granting an absolute “right” to an abortion. In this particular case however, it still does allow for late-term abortions to take place.
Even with partial-birth abortions banned, there are other late-term abortion procedures in existence that can be performed. This flows into the second criteria of the Principle of Incrementalism, which is that the proposed legislation should limit the evil law. Here, it is obvious that HR 36 seeks to limit the so-called abortion “right” by severely limiting abortion after the 20th week of gestation: “Except as provided in subparagraph (B), the abortion shall not be performed or attempted, if the probable post-fertilization age, as determined under paragraph (1), of the unborn child is 20 weeks or greater” (see pg. 6, HR 36, 114th Congress).
Finally, the last criteria of the Principle of Incrementalism essentially asks a question—how will this policy lead society away from the acceptance of the evil law? A December 2012 Gallup poll indicated that 80% of Americans thought that third trimester abortions should be illegal. While the poll did not indicate why over three-quarters of US Citizens believe that late-term abortion procedures should be outlawed, it is easy to speculate. Part of this may have to do with the passage of the Partial Birth Abortion Ban Act. The fact is that most people just simply see the unborn child as too far developed for him or her to be aborted. Other reasons for this may also be due to the fact that many states also recognize unborn children as victims of crime and several other states have passed legislation that is identical to HR 36. With this in mind, it is no wonder that the vast majority of Americans are uncomfortable with late-term abortion. Passing this legislation will seek to further cement the value that late –term abortions are immoral and that the life of the unborn is something valuable.
While it is obvious that HR 36 will not completely prohibit the practice of abortion, it does take prudential steps in doing so. One of the primary considerations is how is the law going to affect behavior and belief. As St. Thomas Aquinas states, “And since law is given for the purpose of directing human acts; as far as human acts conduce to virtue, so far does law make men good” ( Summa Theologica I-II, 92, 1). It is in this vein that people will begin to know that late term abortions are clearly wrong. Simply put, people typically believe that when a law is passed then the action that is being condemned is wrong. As a result, it will modify behavior. People will be less inclined to break the law if they fear there may be a punishment. St. John Paul II echoes this sentiment when he states, “Although laws are not the only means of protecting human life, nevertheless they do play a very important and sometimes decisive role in influencing patterns of thought and behavior” (Evangelium Vitae, no. 90). While the bill is not perfect (for example, at present it does have a rape exception that will hopefully be amended out) it is still moving society in the proper direction. It is in this vein that one can readily see how the Pain Capable Unborn Child Protection Act will help move the US toward a Culture of Life.
Joe Kral has been involved in the pro-life movement since he has been in college. His MA in Theology was completed at the University of St. Thomas where he specialized in bioethics. From 1996-2003 he was the Legislative Director for Texas Right to Life. During that time he was also a lobbyist for the Department of Medical Ethics at National Right to Life. From 2004-2007 he consulted the Texas Catholic Conference on pro-life legislative initiatives. In 2006 he was awarded the “Bishop’s Pro-Life Award for Civic Action” from the Respect Life Ministry in the Diocese of Dallas. He currently is an adjunct professor of Theology at the University of St. Thomas, teaches FTCM courses for the Archdiocese of Galveston-Houston, and also serves as a voluntary legislative advisor to Texas Alliance for Life. He has been married to his wife, Melissa, since 2004 and attends St. Theresa’s Catholic Church.
