August 7, 2002
The first and second articles in this series examined the principles behind opposing the abortion drug RU-486, and supporting a right-to-life amendment to the Constitution. Both political goals require compromising important principles that limit the state, and therefore an exposure to serious risks from an unconstrained civil government. In this installment, I will contend that proposed health and safety regulations applied to abortion clinics present similar hazards, and should not be a part of the pro-life political agenda.
This year, a federal district judge is deciding on the constitutionality of "Lou Anne's Law," an Arizona statute that applies comprehensive regulations to abortion clinics. The law is named after Lou Anne Herron, a woman who bled to death after a late-term abortion in a Phoenix clinic. According to Americans United for Life, abortion clinics are required under the three-year-old law to meet certain staff qualifications, maintain patient records properly, and establish procedures to provide "emergency care, sanitation, infection control, necessary equipment, quality assurance, and proper maintenance of patient records."
Interestingly, Planned Parenthood is not one of the parties protesting the law. Because the new law is based on Planned Parenthood's existing standards for its own clinics, it would likely raise costs on Planned Parenthood's competitors much more than on Planned Parenthood itself. This is an example of what a college professor of mine called the "bootleggers and Baptists" phenomenon. While the Baptists want liquor stores shut down because they are opposed to drinking (he used the term "Baptists" loosely, meaning teetotalers), the bootleggers want liquor stores shut down because their profits from moonshining will go up. Politics makes strange bedfellows, indeed.
Regulating Abortion Away?
For years, many pro-life groups have noted that abortion clinics are largely excused, in law or in practice, from health and safety regulations that apply to other medical clinics. Understandably, pro-lifers saw a connection between the level of regulation and the alarmingly high rate of complications and even death among women who had abortions. Also recognizing that regulation usually results in higher costs to the supplier of a good or service, and a higher price to the consumer, pro-lifers began to lobby for regulation as a way to cut down on the number of abortions performed. Led by pro-life organizations, at least three other states (South Carolina, Tennessee, and Texas) have enacted abortion clinic regulations.
What is most satisfying to me about the clinic regulation strategy is watching pro-abortion groups; heavily populated with statists, argue the case against government regulation. One of the most prominent lobbying organizations for the abortion industry is NARAL, the National Abortion Rights Action League. One of the NARAL Foundation's press releases contends that these regulations are "burdensome and expensive" and that they will have the effect of "driving providers from the field" and make obtaining an abortion more difficult. "Complying with regulations…will inflict substantial costs on the remaining providers, who will be forced to pass these costs onto women seeking abortions," they argue. It's interesting that most of these same people would reject these arguments outright were they applied to regulation of ordinary (i.e., non-murderous) medical services, regulation of businesses under the Americans with Disabilities Act or the Clean Air Act, or any one of a thousand other regulations.
Sadly, Christian pro-lifers display a similar inconsistency with their professed beliefs when they advocate health and safety regulation to protect mothers or reduce the number of abortions. Apart from scorning the paradoxical idea that a place where the primary business is killing people can ever be considered healthful or safe, we ought to question the propriety of employing this sort of regulation at all. As with the issues of RU-486 bans or right-to-life amendments, we need to make our decisions based on sound principles.
State Regulation in the Bible
As Christians, our rule for faith and life is the Word of God. Each of the three God-ordained institutions in society—the family, the church, and the state—has definite functions outlined in the Bible. For the state, the summary roles are listed in Romans 13:3-4 and I Peter 2:14, where the civil ruler is described as one who punishes those who do evil and rewards those who do good. To answer the natural questions, "which evils should the state deal with, as opposed to the church or family?" and "what punishments are appropriate for various crimes?" we can do no better than to glean principles from the civil portions of the Mosaic law. Though Christians might reasonably differ over the applications of principles (just as the judges under the old covenant certainly did), we are much better off relying on God's Word than on what seems right in our own eyes.
The Mosaic legal code's ultimate purpose was to point to the need for a Savior. Yet that fact does not remove our obligation to be obedient to those aspects of the law that were not fulfilled in Christ. With respect to civil government, the law is fairly concise. Regulation was virtually nonexistent, even in areas where modern man thinks it indispensable. In fact, the civil government outlined in the Bible is so limited in scope that some scholars have referred to it as a type of "Christian libertarianism."
Health and safety regulation consisted of a few quarantine laws (e.g., Leviticus 13:1-46), as well as case laws dealing with such matters as fencing off dangerous areas (e.g., Exodus 22:8, Exodus 21:28-32). The state could not biblically attempt to dictate comprehensive rules for every aspect of human activity, as it commonly does today. Rules mandating flame-retardant tent fabrics, or a minimum width for a tent door, or minimum training for midwives, or sterile circumcision instruments, were unknown. Heads of families, priests, and voluntary market arrangements provided the restraints on negligence and fraud that we would trust now only to the state. To judge by the life spans enjoyed by the Israelites of this time, it would seem they were not worse off for the absence of a regulatory bureaucracy.
Christians vs. Principles
The Biblical state, then, is one that focuses on punishing acts of unjust violence, fraud, and certain profane behavior. Reducing the other hazards of life, or specifying the degree of care we should take to avoid those hazards, is not the civil government's function (with the few exceptions already mentioned). Recognizing this, the Christian should under no circumstances advocate that the state take up an unbiblical form of regulation. It matters not that the regulation might be intended to prevent a "greater evil."
Furthermore, Christians who abandon the Biblical principles limiting the state may find themselves at the wrong end of those regulations in the future. Suppose the state decides that private homes where children are present must pass a state health and safety inspection once a year? Suppose the federal government begins to inspect (and grade) church kitchens for sanitation and worker safety, as they do restaurants? If the state has an unconstrained mandate to protect the body through health and safety regulation, how much more would it be authorized to safeguard the mind? What if the state begins to require that pastors pass a state-approved psychological counseling examination before beginning ministry? Suppose the same is required of counselors in crisis pregnancy centers? What if home schooling families are subjected to regulations requiring them to become certified to teach, to have their home classrooms inspected monthly, and use textbooks approved by the local public school board?
Discarding essential principles that constrain the state to get a limited victory over abortion means those principles will not be available when those principles are needed to prevent other terrible acts. There are other ways, legal ways, to shut down abortion clinics. Appropriately directed political action is certainly a part of this, but among the most powerful anti-abortion strategies are evangelism, Biblical parenting of covenant children, and faithful preaching from pulpits. Unbiblical state power wielded in pursuit of pro-life goals is still unbiblical.
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- Timothy D. Terrell
Timothy Terrell is associate professor of economics at Wofford College in Spartanburg, South Carolina. He is assistant editor of the Quarterly Journal of Austrian Economics and is an Associated Scholar with the Mises Institute.