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                              March 22, 2006

No Exceptions to Catholicism, Not One, Ever

by Thomas A. Droleskey

An article published on this site nearly four weeks ago now, Good Intentions Do Not Redeem Moral Flaws, discussed the bill that sought to ban all abortions except those deemed "necessary" to save the life of the mother had been approved by the South Dakota State Legislature. Without for one moment questioning the good intentions of the South Dakota legislators who sponsored and supported this bill, I noted that, indeed, good intentions do not redeem moral flaws, that there is never any exception to the absolute prohibition on the direct, intentional taking of an innocent human life, something that can never be permitted in the civil law as acceptable under any circumstances.

The very existence of the "life of the mother" exception in the South Dakota legislation, which was signed into law by Governor Mike Rounds, who said that the law did indeed contain such an "exception," was made a bit unclear when the American Life League's communications on the matter insisted that the bill contained no exceptions. Finding it odd that the bill's sponsors and Governor Rounds himself would have misunderstood the terms of the legislation, although cognizant of the fact that politicians use imprecise language on moral issues frequently, I endeavored to ascertain the truth of the matter for myself, desirous of making sure that I had not misinformed you, my readers, by mis-characterizing the bill on inaccurate press reports.

Here is the actual text of the bill that was signed into law by Governor Rounds on March 6, 2006:

ENTITLED, An Act to establish certain legislative findings, to reinstate the prohibition against certain acts causing the termination of an unborn human life, to prescribe a penalty therefor, and to provide for the implementation of such provisions under certain circumstances.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

       Section 1. The Legislature accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion, based upon written materials, scientific studies, and testimony of witnesses presented to the task force, that life begins at the time of conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that each human being is totally unique immediately at fertilization. Moreover, the Legislature finds, based upon the conclusions of the South Dakota Task Force to Study Abortion, and in recognition of the technological advances and medical experience and body of knowledge about abortions produced and made available since the 1973 decision of Roe v. Wade, that to fully protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her unborn child, and the mother's fundamental natural intrinsic right to a relationship with her child, abortions in South Dakota should be prohibited. Moreover, the Legislature finds that the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings, and that under the Constitution of South Dakota, a pregnant mother and her unborn child, each possess a natural and inalienable right to life.

       Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.

Any violation of this section is a Class 5 felony.

       Section 3. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Nothing in section 2 of this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.

       Section 4. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 2 of this Act. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with conventional medical practice.

Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn child is not a violation of this statute.

Nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.

       Section 5. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Terms used in this Act mean:
  1. "Pregnant," the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;
  2. "Unborn human being," an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth;
  3. "Fertilization," that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.

Section 6. That § 34-23A-2 be repealed.

Section 7. That § 34-23A-3 be repealed.

Section 8. That § 34-23A-4 be repealed.

Section 9. That § 34-23A-5 be repealed.

       Section 10. If any court of law enjoins, suspends, or delays the implementation of a provision of this Act, the provisions of sections 6 to 9, inclusive, of this Act are similarly enjoined, suspended, or delayed during such injunction, suspension, or delayed implementation.

       Section 11. If any court of law finds any provision of this Act to be unconstitutional, the other provisions of this Act are severable. If any court of law finds the provisions of this Act to be entirely or substantially unconstitutional, the provisions of § § 34-23A-2, 34-23A-3, 34-23A-4, and 34-23A-5, as of June 30, 2006, are immediately reeffective.

       Section 12. This Act shall be known, and may be cited, as the Women's Health and Human Life Protection Act. An Act to establish certain legislative findings, to reinstate the prohibition against certain acts causing the termination of an unborn human life, to prescribe a penalty therefor, and to provide for the implementation of such provisions under certain circumstances.

Source: South Dakota Legislature

Let me stipulate at the outset that nothing in this critique is in the least meant to impugn the motives of the South Dakota legislators who want to challenge the decision of the Supreme Court of the United States in Roe v. Wade. The finding of facts in Section 1 of the bill is very good, well, at least as far as it goes. Its one flaw is that it does not discuss the morally illicit nature of contraceptive, which violates the law of God by frustrating the the fruition of the natural end of marital intimacy and which, in most instances, chemically assassinates a preborn human being. Other than that, however, Section 1 is a very good statement of fact concerning the absolute certainty of medical science that life begins at conception.

Overlooking for a moment Section 3 of the bill, which states that nothing in the bill is meant to preclude the sale of contraceptives, which will be discussed below, Section 2 of the bill specifically prohibits the sale and distribution of pills whose use is designed to kill a preborn human being after it is determined definitively that that a woman is carrying a baby within her womb. This is also quite good. It means that RU-486 and the so-called "Plan B Morning After Pill" would be prohibited in South Dakota.

The principal moral problem with the South Dakota bill rests in the first provision of Section 4:

No licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 2 of this Act. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with conventional medical practice.

As one who is versed in constitutional law and who taught it for many years in colleges throughout the nation, this provision seemed to me to indicate that a direct attack upon an innocent child in the womb would be permitted. My belief in this regard was strengthened by reading the very careful distinction made in the second provision concerning unintentional deaths to preborn children caused during the course of medical treatments provided to their mothers:

Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn child is not a violation of this statute.

This provision is a recognition of the Catholic moral principle known as the "double-fold effect."  The principle of the double-fold effect teaches that it is morally licit to take a morally justified course of actions that might result in unintentional but foreseen evil consequences. The inclusion of this important moral distinction in the South Dakota bill is indeed laudable.

One of the prototypical examples of the principle of the double-fold effect that one would find in standard moral theology texts before the Second Vatican Council is the case of a pregnant woman who is diagnosed with a cancerous uterus. It is morally licit to save the life of the mother by removing her uterus. Her child may die as a result of the operation to remove the cancerous uterus. The death of the child, however, is the unintentional but foreseen evil consequence of the first intention of the procedure, which is to remove a diseased organ of the mother. No direct attack upon the child is undertaken. The child dies as a secondary effect of the justified act of removing his mother's uterus. While a mother might choose to forego such a procedure, as Saint Gianna Mollo did in her own pregnancy in 1961, to forfeit her own life for the sake of her child's, this act of extraordinary heroism is not required by the natural law.

In actual point of fact, however, advances in medical technology have more or less mooted instances in which women must make the choices faced by Saint Gianna Mollo. It is now possible for expectant mothers suffering from cancer or some other life-threatening ailment to be treated in such a way so as to do no harm to their preborn children, who can be brought to birth via a Caesarian section at the point of viability, at which point the mothers can be treated more aggressively by a course of treatment that her physicians believe can best address their particular conditions. One of the few instances where the principle of the double-fold effect would still have relevancy during pregnancy are instances of ectopic pregnancies. However, it is important to reiterated that the inclusion of the principle of the double-fold effect in the South Dakota bill is very commendable.

Another example of the double-fold effect would be military actions undertaken the course of a just war. The Just War Theory states that it is an obligation of the moral law to indemnify, as far as is humanly possible, noncombatants from the effects of military actions. It is never morally permissible to target civilian population centers in warfare (which includes not only the activities of the Nazis in World War II but those of the Allies in the fire-bombing of Dresden and the atomic bombings of, Hiroshima and Nagasaki). The ends never justify the means. Civilian population centers may never be targeted legitimately. Innocents might die in warfare as a result of what is called today "collateral damage," that is, the result of stray bombs and human error. Such deaths are not directly intended and are the result of the carefully planned efforts to indemnify them from harm in the prosecution of a just war.

What is impermissible in the case of a pregnant mother, though, is to take any action that directly and intentionally causes the death of a preborn human being. It is impermissible for a physician to target a preborn child for execution because his mother has a weakened heart. All efforts must be made to treat the mother without harming the child. It is never permissible to target any innocent human being at any point in his life--from the moment of fertilization to the moment at which he draws his last breath naturally--for a direct attack on his life.

Thus, the very careful inclusion of exclusion of accidental or unintentional deaths to preborn children in the second provision of Section 4 of the South Dakota bill seemed to indicate to me that a direct attack on an innocent human life would be permitted. I contacted a legislative staffer in the South Dakota Legislature to discover the truth of the matter once and for all. The conversation that I had with the staffer was most instructive. He was aghast when I contended that the Catholic Church taught infallibly that there is never a circumstance in which innocent human life may be the first object of an attack. "Is that what the American bishops teach?" the man asked earnestly. I then had to go into a brief discourse as to how the American bishops have been on the wrong side of things for a very long time, that the National Right to Life Committee itself, which makes the "life of the mother exception" as a matter of principle and not as a matter of legislative expediency, was an outgrowth of the efforts of then Monsignor James T. McHugh to include the life of the mother exception in the American bishops' legislative efforts to deal with abortion (see Affirming the Merchants of Death, 2005). Once again, you see, the problems in the South Dakota bill are the result of our own bishops and their policy advisers. Rather than lobbying for a bill that was completely no-exceptions and outlawed contraception entirely, the bishops conceded ground beforehand in the belief that the Supreme Court of the United States would never let a completely no-exceptions bill stand.

To confirm that the first provision of Section 4 of the South Dakota bill did permit direct attacks on the life of a preborn child, I wrote to Representative Roger Hunt, the bill's principal sponsor in the South Dakota House of Representatives. His first response still left me a bit unclear. Thus, I e-mailed him as follows on March 13, 2006:

Thank you, Mr. Representative. I greatly appreciate your taking the time to get back to me. I know how much under siege you are at present. I do have, however, one follow up question:

Would the mother/family and the attending physician have the right under the provision of the bill you have cited to directly, not passively, cause the death of the preborn child?

Once again, thank you for writing to me. And while I would take exception to any provision permitting a direct attack on an innocent human life, as the civil law can never licitly permit any direct attack on an innocent human life, I do commend you for your efforts to try to bring the issue of legalized baby-killing to the forefront of the citizens of this country.

Representative Hunt was good enough to write back to me the next morning, March 14, 20006, with a direct and forthright answer:

In this case, and medically speaking, there is a gray area between direct and passive action. The bill does not make a distinction between direct and passive action. Therefore, either direct or passive action could be taken.

Well, there you have it. The South Dakota bill does include the "life of the mother exception."  Courts are going to give deference to the plain language of the bill and what its sponsors says that language means, not to what anyone who is rightly opposed to all exceptions in pro-life legislative initiatives wants the bill to read. Without condemning the legislators who have brought this issue to the forefront and who have smoked out George W. Bush's phony pro-life credentials for far, far more to see than those who have been following my own documentation of same in the past seven years, the life of the mother exception makes the bill immoral. And it is simply the case that no bill containing any exceptions to the inviolability of innocent human life has ever been tightened up. Exceptions lead to abortions. They do not stop them, as I indicated in a review of the state of state abortion legislation prior to Roe v. Wade in Good Intentions Do Not Redeem Moral Flaws.

Those who doubt that exceptions to the inviolablity of innocent human life in the womb ought to consider the late Associate Justice Harry Blackmun's footnoted comments, at footnote 54, in his majority opinion for the Supreme Court of the United States in the case of Roe v. Wade. Blackman said that the Fourteenth Amendment's protection of life, liberty and property could not be used by the State of Texas to proclaim the inviolability of the life of the preborn as the statute under challenge in Roe v. Wade admitted of an exception to that inviolability. How can a human life be inviolable in some instances but not in all?

When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?

Yes, even though the intent of the South Dakota legislature is to end abortion-on-demand, the plain fact of the matter is that the effect of their legislation would be return matters to where they stood before Roe v. Wade, that, is just a "little bit" of direct killing of the innocent would be permitted under cover of law. This is opposed to God's law and is thus immoral. All direct, intentional killing of the innocent is wrong in all circumstances

The South Dakota bill includes the life of the mother exception because of the advice rendered by the Catholic leaders in South Dakota. A judgment was made, it appears, that such a provision would make it more likely for a divided Supreme Court of the United States to use the bill's provisions as the means to reverse its decision in Roe v. Wade. No thought at all, it appears, was given by the only incumbent bishop in South Dakota, the Most Reverend Blase Cupich of Rapid City (the see of Sioux Falls is vacant at present), that the civil law can never admit of any exceptions to the inviolability of innocent human life. No, legislators were advised that the provision permitting direct attacks upon innocent preborn children were either legislatively and/or morally acceptable to the Catholic Church in South Dakota. The fault here lies not with the South Dakota legislators but with the Catholic leaders in South Dakota, concerned about legislative and judicial strategies and not about fulfilling the following injunction of Pope Leo XIII in Sapientiae Christianae:

But, if the laws of the State are manifestly at variance with the divine law, containing enactments hurtful to the Church, or conveying injunctions adverse to the duties imposed by religion, or if they violate in the person of the supreme Pontiff the authority of Jesus Christ, then, truly, to resist becomes a positive duty, to obey, a crime; a crime, moreover, combined with misdemeanor against the State itself, inasmuch as every offense leveled against religion is also a sin against the State. Here anew it becomes evident how unjust is the reproach of sedition; for the obedience due to rulers and legislators is not refused, but there is a deviation from their will in those precepts only which they have no power to enjoin. Commands that are issued adversely to the honor due to God, and hence are beyond the scope of justice, must be looked upon as anything rather than laws. You are fully aware, venerable brothers, that this is the very contention of the Apostle St. Paul, who, in writing to Titus, after reminding Christians that they are "to be subject to princes and powers, and to obey at a word," at once adds: "And to be ready to every good work." Thereby he openly declares that, if laws of men contain injunctions contrary to the eternal law of God, it is right not to obey them. In like manner, the Prince of the Apostles gave this courageous and sublime answer to those who would have deprived him of the liberty of preaching the Gospel: "If it be just in the sight of God to hear you rather than God, judge ye, for we cannot but speak the things which we have seen and heard."

Wherefore, to love both countries, that of earth below and that of heaven above, yet in such mode that the love of our heavenly surpass the love of our earthly home, and that human laws be never set above the divine law, is the essential duty of Christians, and the fountainhead, so to say, from which all other duties spring. The Redeemer of mankind of Himself has said: "For this was I born, and for this came I into the world, that I should give testimony to the truth." In like manner: "I am come to cast fire upon earth, and what will I but that it be kindled?'' In the knowledge of this truth, which constitutes the highest perfection of the mind; in divine charity which, in like manner, completes the will, all Christian life and liberty abide. This noble patrimony of truth and charity entrusted by Jesus Christ to the Church she defends and maintains ever with untiring endeavor and watchfulness.

Civil law must be conformed to the binding precepts of the Divine positive law and the natural law. Catholic bishops must be in the vanguard of reminding legislators, both Catholic and non-Catholic alike, that they will not bow to the demands of political expediency but will insist on an absolute adherence to the fullness of Catholic truth. It is the case today, however, that judgments are made by the bishops and their public policy advisers that such a goal is neither achievable or desirable, that some allegedly achievable compromise standard must be struck in light of the political and legal and judicial realities of our times. Thus legislative concessions are made from the very introduction of pieces of legislation dealing with preborn life rather than making any real effort to pass the most perfect legislation possible, trusting that Our Lady will use our fidelity to the fullness of her Divine Son's truths in ways that will bear fruit far beyond whatever a Supreme Court does or does not decide on the matter.

Why is it, though, that legislative concessions to immoral provisions in pieces of legislation dealing with preborn life are considered the norm by the American bishops while they maintain a steadfast opposition to the imposition of the death penalty, both in theory and in practice? The right of the state to impose the death penalty on those adjudged guilty of heinous crimes after due process is part of the natural law. It is no more possible for anyone, including a pope, to say that the state has no inherent right in the natural law to impose the death penalty than it is for anyone, including a pope, to say that there are eight persons in the Divine Godhead. The bishops show themselves to be far, far more concerned about protecting the lives of those who have committed heinous crimes than they do to protecting each and every single preborn life without exception by means of encouraging legislators to enact no-exceptions legislation. In other words, innocent human life in the womb is, at the very least, strategically expendable while the lives of criminals is deemed to be absolutely inviolable. Does anyone see a problem here?

Some will say that the late Pope John Paul II approved of "imperfect legislation" such as the bill that has been passed by the South Dakota State Legislature and signed into law by Governor Mike Rounds, citing Paragraph 73 of Evangelium Vitae:

In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to "take part in a propaganda campaign in favour of such a law, or vote for it".

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 favouring 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.

Pope John Paul II, citing Saint Thomas Aquinas, had made it clear in Paragraph 72 that the same Catholic principles outlined by Pope Leo XIII in Sapientiae Christianae still apply:

The doctrine on the necessary conformity of civil law with the moral law is in continuity with the whole tradition of the Church. This is clear once more from John XXIII's Encyclical: "Authority is a postulate of the moral order and derives from God. Consequently, laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience...; indeed, the passing of such laws undermines the very nature of authority and results in shameful abuse". This is the clear teaching of Saint Thomas Aquinas, who writes that "human law is law inasmuch as it is in conformity with right reason and thus derives from the eternal law. But when a law is contrary to reason, it is called an unjust law; but in this case it ceases to be a law and becomes instead an act of violence". And again: "Every law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law but rather a corruption of the law".

There is nothing in Paragraph 73 above that states any piece of legislation may include exceptions to the inviolability of innocent life. Those who assert this are offering one interpretation of this paragraph in Evangelium Vitae, which suffers from the typical conciliarist lack of clarity that has given rise to so many problems within the Church in her human elements in the past forty years. The position that many active in the pro-life movement have taken in the past eleven years since the issuance of Evangelium Vitae is this: that a piece of legislation that ends some category of abortions, such as, say, all late-term abortions, unconditionally without ending earlier term of abortions would be permissible as long as the legislators who vote for such a bill are personally opposed to all abortions and will continue to seek an end to all abortions without exception. Pope John Paul II made it clear that only those whose absolute personal opposition to all procured abortions is well-known could licitly vote for legislation that ended some abortions without ending them all. In the case of the South Dakota bill it is not at all clear that legislators want to end all abortions, partly because they have been convinced by Catholic advisers that it is morally licit to kill babies directly when a mother's life is endangered.

The South Dakota bill suffers from yet another problem, noted briefly above, and that is Section 3, dealing with contraceptives:

Nothing in section 2 of this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.

This provision is gratuitous. It is totally unnecessary. As Father Paul Marx, O.S.B., has noted for decades, most contraceptives abort and most contraceptives abort most of of the time. What follows is a judgment on my part. However, why not strike at the heart of the constitutional reasoning that led to Roe v. Wade, that is, the decision in Griswold v. Connecticut (1965) that struck down a long unenforced Connecticut statute banning the sale of contraceptives to married couples? Why make it appear that contraceptives taken to prevent pregnancy are any more moral than surgical abortion, especially in light of the fact that Section 11 of the bill states that its provisions are severable, that is, a declaration of alleged unconstitutionality of one part would not invalidate the other parts. What did the legislators have to lose by an effort to strike at the very heart of what leads to abortion in both sociological and constitutional terms, contraception? Once again, the legislators did not do so in large part because the Catholic bishops of this country do not want to fight any battles over contraception at all. It is rarely the case that a Catholic bishop or priest speaks or writes about contraception. Why should they want to fight any legal battles over that which they do not preach about?

A strong case could be made to ban contraception at the state level under the Tenth Amendment's reserved powers clause. Indeed, the late Associate Justice Hugo L. Black wrote the following dissent in Griswold v. Connecticut that stated most explicitly that the power to deal with contraception lies with the state governments and not with the Federal courts:

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an "arbitrary and capricious" or "shocking to the conscience" formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e. g., Lochner v. New York, 198 U.S. 45. That formula, based on subjective considerations of "natural justice," is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all.

Why not make the case against contraception, thereby striking at the entire root of how we got to Roe v. Wade? Justice Hugo Black's dissenting opinion in Griswold v. Connecticut gives plenty of legal ammunition for striking at the false principles enunciated in Griswold by the late Associate Justice William O. Douglas. There aren't capable Catholic lawyers who can make the argument on constitutional grounds alone? I don't think so. What is there to do lose?

In the final analysis, however, the Catholic bishops lack the desire to do this, which is why legislators believe that they must insert gratuitous provisions in a well-intentioned but morally flawed bill to leave inviolate the very sociological phenomenon condemned by The Washington Post on March 22, 1931:

It is impossible to reconcile the doctrine of the divine institution of marriage with any modernistic plan for the mechanical regulation of human birth. The church must either reject the plain teachings of the Bible or reject schemes for the 'scientific production' of human souls. Carried to its logical conclusions, the [Lambeth] committee's report if carried into effect would sound the death knell of marriage as a holy institution, by establishing degrading practices which would encourage indiscriminate immorality. The suggestion that the use of legalized contraceptives would be 'careful and restrained' is preposterous.

It is the misfortune of the churches that they are too often misused by visionaries for the promotion of 'reforms' in fields that are alien to religion. The departures from Christian teaching are astounding in many cases, leaving the beholder aghast at the willingness of some churches to discard the ancient injunction to teach 'Christ and Him crucified.' If the churches are to become organizations for political and 'scientific' propaganda they should be honest and reject the Bible, scoff at Christ as an obsolete and unscientific teacher, and strike out boldly as champions of politics and science as substitutes for the old-time religion.

When all is said and done, however, constitutional argumentation is an exercise in straining at gnats. As I have noted repeatedly, we have assaults against the binding precepts of the Divine positive law and the natural law precisely because the Constitution itself admits of no higher authority above its own words, which are as capable of being deconstructed and misinterpreted by judges as the the words of Sacred Scripture can be deconstructed and misinterpreted by Protestants and Modernist Catholics. The Constitution is not founded on a recognition that the Catholic Church has the ultimate say in matters of fundamental justice, principally through the exercise of her Indirect Power of teaching and preaching and exhortation, as the champion of the Social Reign of Christ the King. We were thus bound to find ourselves in a situation where judges would seek to impose concepts alien to God's law as the foundation of civil law. Absent the exercise of authentic Catholic leadership by the American bishops, well-intentioned legislators are left to do the best that they can to craft legislation to deal with evils that will only wind up losing their protection under cover of law when some pope consecrates Russia to Our Lady's Sorrowful and Immaculate Heart with all of the world's bishops.

Father Lawrence C. Smith, who should be a bishop, offered the following assessment of the South Dakota bill that should be taken to heart:

The South Dakota law is immoral because it expresses the will of the Legislature and the Executive that:

1) Contraception is to remain legal;

2) Abortifacients are to be readily available to the public;

3) Babies may be murdered in lieu of the deaths of their mothers.

This is not an attempt to restore a Catholic morality, but is rather an effort to rein in the most demonic elements of modern immorality.  Contraception and abortion in principle remain not only legal, but the goal of the legislation and the government enacting it.  This law is not a step toward no abortions and no contraception; it is enshrining the principles that bring about abortion on demand, while admitting that, perhaps, the demand has gotten out of hand.  If they intend an absolute ban on abortion, the legislation would read something to the effect of, "The direct procurement and use of chemicals, devices, or procedures whose intent is to take the life of an infant in utero is prosecutable as murder in the first degree.  Commerce in chemicals, devices, or procedures whose intent is to take the life of an infant in utero is forbidden.  Those chemicals or devices intended to impede human fertility while resulting in the death of infants in utero are forbidden to be sold."  The same kind of forceful verbiage would be employed to forbid the sale and use of contraception.  Law should reflect the admonition of Our Lord Jesus Christ, "Let your yes mean yes and your no mean no!  All else is from the devil!"  This legislation goes beyond limiting abortion and reaffirms the "right" to contraception and child murder to "save" the life of the mother.

Once again, we are not beating up on the South Dakota legislators, only pointing out that the failure of legislators to craft a bill along the lines proposed by Father Smith is the result of the rejection of the confessionally Catholic state as a necessity  for social order, one of the worst novelties conciliarism and its wretched aftermath. We must seek the fullness of truth without compromise. Our Lady will reward us for such fidelity to the fullness of truth without compromise. Such fidelity can be far more effective in planting the seeds for the restoration of Christendom as the ultimate fruit of the Triumph of the Immaculate Heart of Mary than any supposedly clever strategies we think we can devise that puts even one of those truths into question.

There can be no exceptions to Catholicism, not one, ever. Perhaps our Holy Father, who believes that the State must not recognize the true Faith in the name of a "healthy secularity," will come to recognize this himself before Our Lady is unable to hold back the hand of her Divine Son's wrath for our refusal to acknowledge Him as the King of men and nations.

Viva Cristo Rey!

Our Lady of Fatima, pray for us.

Saint Joseph, pray for us.

Saints Peter and Paul, pray for us.

Saint Isidore the Farmer, pray for us.

Saint Louis IX, King of France, pray for us.

Saint Genevieve, pray for us.

Saint Edward the Confessor, pray for us.

Saint Henry, pray for us.

Saint Wenceslaus, pray for us.

Saint Stephen of Hungary, pray for us.

Saint Elizabeth of Hungary, pray for us.

Saint Casimir, pray for us.

Saint Philomena, pray for us.

The North American Martyrs, pray for us.

Blessed Junipero Serra, pray for us.

Blessed Miguel Augustin Pro, pray for us.

Saint Juan Diego, pray for us.

Saint John Neumann, pray for us.

Saint Elizabeth Ann Seton, pray for us.

Saint Frances Xavier Cabrini, pray for us.

Saint Rose of Lima, pray for us.

Saint Peter Claver, pray for us.

Blessed Francisco, pray for us.

Blessed Jacinta, pray for us.

Sister Lucia, pray for us.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 




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