Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, November 8, 2023

Disappointing results in Ohio

In Ohio, "Issue 1" -- which adds to Ohio's state constitution an expansive (I would characterize it as radically permissive) right to abortion -- passed by a wide margin yesterday, marking yet another post-Dobbs loss for the pro-life side.  This piece, in National Review, explains well how far-reaching (and deceptive) the Issue is.

The Supreme Court was wrong -- by which I mean, the justices badly misinterpreted the Constitution's text -- in Roe; the Court was wrong to affirm (or, re-make) Roe in Casey; and the Court was right, in Dobbs, to jettison Roe and Casey as "grievously wrong" (as I and some co-authors argued here).

That said, in the wake of the Ohio vote (and of other electoral setbacks), at least two things seem, unfortunately, clear:  First, the media overwhelmingly mischaracterizes / lies about abortion, about its regulation, and about the content and implications of abortion-rights proposals.  This is not going to change, and it would seem to follow that pro-life activists simply must do better in terms of communication and education.  Second, it is, for now, a fact about the United States that -- even in many "red" states -- most voters/citizens want most abortions (i.e., "first trimester" abortions) to be legal. That these voters / citizens are mistaken about the demands of justice is, for present purposes, not relevant.  This could change (but, see the first point) -- we should pray that it does, and do what we can to bring such a change about -- but, until it does, pro-life activists can expect that, in most places, returning abortion-regulation to the democratic process is not going to result in pro-life abortion-regulation regimes (although, we should not forget, in some places it will and has).

In my view, given the two points above, it is both morally permissible and prudent to propose and support incremental measures -- not, to be clear, as principled or permanent resolutions but as the best that can be enacted -- at a particular time, and in a particular place -- until citizens' and voters' consciences are better formed.  As MOJ-er Robby George wrote, a while back, regarding Evangelium vitae,

When it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to 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 (no. 73).

Although there are dedicated pro-life people who continue to believe otherwise, it seems clear to me that the Holy Father is saying that a person who makes manifest his commitment to continue working for the full legal protection of the unborn, may, as a matter of prudence, support and vote for laws that, though not perfectly just, are less unjust than the existing law or any currently politically attainable alternative.

At the same time, as the Pope makes clear, there is never a legitimate excuse for failing to work toward the goal of full equal protection for the unborn and other victims of the culture of death. It is not enough merely to attempt to ameliorate the extent or gravity of unjust laws. The universal and unconditional pro-life imperative demands that we work unceasingly—even if, by necessity, incrementally—toward the ultimate goal of bringing our laws fully into line with the requirements of true justice.

In the words of Fr. Richard John Neuhaus, taken from "the greatest pro-life speech ever given," 

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along the way of life, bearing witness in word and deed to the dignity of the human person—of every human person.



Garnett, Rick | Permalink


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