The Long and Winding Road

07-03-2022Pastor's LetterFr. John Bonavitacola

Dear Friends,

The long and winding road that led to the overturning of Roe v Wade required almost 50 years of playing legal jujitsu. In 1973 the Supreme Court actually decided two cases Roe v Wade and then Doe v Bolton. In Roe, somehow the Justices found what no one else had ever found: that a woman has a constitutional right to an abortion. Then Bolton said restrictions can be placed on that right. Putting restrictions on something that is declared a constitutional right is always were trouble starts. When and what restrictions can be placed on a constitutional right always leads to lawsuits that seek clarification. In another recent example, the Court also took up a case on when and what restrictions can be place on the constitutional right to bear arms.

Then in 1992 Planned Parenthood v Casey was issued. It muddied the waters even further. Basically, Roe claimed that there was a constitutional right to abortion and then Bolton allowed for states to restrict abortions in the third trimester, except in case of the “health” of the mother. The term health was never really defined so it came to mean just about anything. Hence, states attempted to define it. Was it life or death, was it physical health, mental health emotional health? All those restrictions wound up in Court. Later, in Casey the Court dropped the third trimester standard and imposed the possibility of restrictions based on the fetal viability outside the womb (and of course that has changed over the years with medical advances) unless it posed a “substantial burden to a woman”. Lawsuits then began to flood the Courts trying to figure out what a substantial burden was and whether a restriction such as the requirement for informed consent, sonogram, 24 hour waiting period, parental consent etc. were substantial burdens or not. Lower courts ruled in multiple ways.

As you can see all these legal cases dealt with the boundaries of Roe but not its foundation. The question was when to bring up to the Court a fullfrontal challenge to Roe. That required skill and patience. A premature case could make things worse. That is what the Casey case did. Many thought it would weaken Roe substantially. Instead the Court strongly reaffirmed Roe.

The Mississippi case (Dobbs) and the addition of three new Justices, seemed to be the right time to challenge Roe head on. The Mississippi law banned abortions after 15 weeks.

As that Law made its way through the lower courts, conflicting rulings came from different courts (yes 15weeks is ok and no 15weeks is a substantial burden) which is usually the reason the Supreme Court takes up a review. Additionally, many of the lower Courts started to raise the issue of the logic of Roe itself. So, the Supreme Court took up the issue head on. Chief Justice Roberts wanted to just uphold the Mississippi law and not touch Roe but none of the other Justices bought it. If you can ban abortion at 15 weeks, why not at 6 weeks? If Roberts had his way the issue would still be hanging out there and perpetuating the legal labyrinth that the Courts had to wade through for 50 years. The other five Justices decided not to kick the can down the road and reasoned that the Court had no right to declare a right to abortion in the first place. Since a right to abortion is not enumerated in the Constitution it is therefore up to the people to decide.

That’s how we got here. But where do we go now? The issue of abortion now returns to the states to permit or ban or to permit with whatever restrictions a state decides on without having to use either the nebulous “health of the mother” or “substantial burden” test. Things are about to get very dicey.

Here in Arizona, since we are one of the states that permits citizen-initiated Ballot Measures or Propositions to be put up for a popular vote, we can expect that to happen at some point. Probably sooner rather than later. Pro-abortionists are already collecting signatures to put the issue on the Ballot in November.

And remember the Prolife side used the democratic process to reach the overturning of Roe. But so can the prochoice side.

From my point of view Ballot Propositions distort the nature of a republican form of governing. Once passed they tie the legislature’s hands to anyway change the proposition or fix problems that arise from it. Two examples:

Many years back Arizonans passed a Proposition that took away the ability of municipalities to regulate private development and what landowners do with a property. That may have made sense then as an area was being developed for the first time. But now we have overdevelopment, less parks and open space and that pesky water problem. Many residents are complaining about the massive development but sorry folks there is nothing that the cities can do about it without violating the law. If you want to change things, then only another Proposition can do it. Then of course the Proposition that legalized recreational marijuana. And now we are living with the consequences of that: increased DUI, emergency rooms that are dealing with cannabis poisoning in children, cannabis induced psychosis in young people and cannabis induced schizophrenia in teens. Not to mention that Vets see an increase in cannabis poisoning in dogs and cats.

Full disclosure, I fought hard to defeat that Proposition and initially on the first try we defeated it. But the next time around, millions and millions of dollars were poured into Arizona by the cannabis lobby and well as you know it passed by 60%. That doesn't give me much hope that we can defeat a Proposition that will legalize abortion at all stages in AZ.

All that means is we have to continue and redouble our efforts to change hearts and minds. Our efforts at our Prolife Centers are more critical now than ever. We have and we can still show women that life is the best choice and that no matter their circumstance we will walk with them and accompany them as long as needed.

Love,

Fr. John B.