Catholic Legal Theory and the Abortion Issue

 

 

I thank Michael Scaperlanda, Rick Garnett, and Bob Hockett for their thoughtful contributions on a number of important issues such as school vouchers and abortion, both of which may involve subsidies to citizens through legislative initiatives or judicial decisions. Today, I shall concentrate my remarks on the subject of abortion. In particular, I have been weighing what Bob said in this regard: “Since the state cannot speak in the name of all of us on this very deep question [abortion], any more than it can on the related question of what role a faith should play in an earthly human life, we effectively ‘blind’ the state to this matter for the time being.” More recently in his last posting that I saw while composing this one, Bob concludes Michael S. to be saying that there is “no room for disagreement as to whether unborn human beings from conception onward are legally cognizable persons whom the polity is duty-bound to protect from abortions sought by their mothers” or, for that matter, anyone else. Bob then argues that this claim he attributes to Michael “that there is no room for disagreement... strikes me as simply false.”

Bob elsewhere thoughtfully expresses his concern about the term “abortion subsidies” in the discussion about the current health-care insurance debate before the Congress and then goes on to state that this phrase “is ambiguous as between intended financing of abortion on the one hand, and collateral effects on the disposable income of people who might seek abortion on the other—precisely the distinction that step one of a double effect inquiry aims to keep clear.” His reason for making this point is to ensure that his readers understand that his “question is aimed at what significance ‘intervening choice’ ought to have in the ‘proportionality’ thinking of a legislator who has reached step two of a double effect inquiry—that is, a legislator who already, by hypothesis, does not intend to push funds toward abortion but is now thinking about collateral effects.” He then goes on to say that, in his opinion, “the likely collateral abortion effects of health insurance reform legislation remain at this stage uncertain, particularly because [they are] subject to countervailing tendencies.” One illustration of these tendencies he offers is abortion-seeking on the one hand and poverty on the other.

I think Bob is correct when he argues that the state does not have the authority to assert what role faith has on earthly human life. Such matters are beyond the temporal competence of the state whose role and authority are strong but still limited as Catholic social teaching and other perspectives contend. However, he also opines that “the state cannot speak in the name of all of us on this very deep question” on abortion.

In a way, I tend to agree insofar as the state addresses many issues on which many citizens have diverse views; however, this does not arrest the state from taking action. The fact that it cannot speak in the name of all does not mean that it cannot act on behalf of all even though it must be acknowledged that there often is not unanimous agreement on most temporal issues that the state is addressing. But there is something missing from Bob’s careful reflections, and for me, there remains the vital question of the moral evaluation of what the state does knowing that it has the competence to act on matters where the state does not “speak in the name of all” but nevertheless acts on behalf of all through its making and enforcing of civil law.

Catholic legal theory has something to offer this discussion—both to the citizen and law maker who are Catholic and to the citizen and law maker who are not. Here Bob and I likely part company on some of the points he has made in his several postings over the past couple of days. I first address the Catholic citizen and law maker. Both are “citizens” of two cities—God’s and this earthly dwelling place that we inhabit with the rest of humanity. On matters dealing with abortion, I suggest that, as Catholics, we are asked to be of one view, a view that we freely choose because of our self-identification as Catholics that reflects our being the branches on Christ’s vine.

Bob notes on a several occasions the fact that some in our legal culture agree that the unborn child is not a person; however, I hasten to add, others do. For the Catholic, citizen or law maker, the position should be clear: the unborn is a person whose integrity and dignity are to be protected. Why? As branches of the vine of Christ, this is what we as Catholics freely believe following the instruction that Christ’s vicar, in union with the episcopal college (the ordinary universal Magisterium), has taught and continues to teach. This teaching we freely adopt as the moral compass that guides our evaluation of what is good and what is not in the civil law; what is true and what is not; what is to be done and what is not. If the state permits (through its provision for payment—direct or indirect) for abortion, it is effectuating a grave moral wrong. One may argue double effect, proportionality, or some other rationalization for the state’s action, but the wrong remains clear and obvious. The Catholic citizen and law maker are obliged to oppose this because enabling of the death of an unborn child, who is a person in Catholic teaching, is wrong and violates the dignity of every human being regardless of his or her stage in human development because everyone, in his or her lifetime, was that unborn child. If the taking of one innocent person’s life can be justified by the civil law, the lives of all others may well be compromised under the same legal regime pursuing double effect, proportionality, or some other justification. The task for the Catholic, then, is to begin to reign in both the cultural attitude and the legal regime that allow “collateral issues” to camouflage the reality of what is happening—a grievous offense against God and humanity (a crime) as the Second Vatican Council concluded.

But the citizen and law maker who is not Catholic may hold and offer a different view. It is true that these individuals may not accept the same teachings of our Church on this central issue based on how they exercise their freedom, but this does not mean that they are excused from a careful and critical moral evaluation that centers on the common good or, as our Constitution states, “the general welfare.” The non-Catholic is also obliged, through his or her citizenship or oath of office, to participate in the operation of the state that was founded to “establish justice, insure domestic tranquility, provide for the common defense, promoted the general welfare, and secure the blessings of liberty to ourselves and our posterity.” The fact that what was once illegal may now be legal (i.e., abortion) does not, in fact, make it right or moral.

While some issues involving private morality may not necessarily be subject of the law, those dealing with public morality are or ought to be the subject of the law. And abortion deals with public, not private morality. That which threatens the common good is a part of the enterprise of our civil law and the state which makes and enforces it. One who is not a Catholic may not concede, as the Catholic must, that the unborn child is a person on the ground that this is a “religious” view which he or she does not share; however, he or she must realize (1) that the threat to any human is a threat to all future generations who one day will be in their earliest stages of development and (2) that abortion terminates the life of another human being—regardless of whether there is consensus that he or she bears the title “person.” Everyone and anyone should be able to identify with the unborn human because, regardless of one’s view on personhood of the unborn, everyone shared the same state in his or her early life. May I suggest, then, that the threat to one is a threat to all. The peril to one is a menace to the common good—the general welfare—because when one is threatened, the rights of the integrity and dignity of all may be called into question and compromised. So, those interested in the “the general welfare” and in “our posterity” may find themselves necessarily drawn to the same conclusion of the Catholic that what threatens the life of one inevitably can threaten the lives of all. We know that not all in our polity believe this—some do not believe it because they view abortion as a right, human or otherwise. But such a view opposes the common good, something which right reason should lead anyone to conclude, regardless of whether he or she is Catholic or not.

My sincere thanks to the other interlocutors who may wish to respond to what I have said.

 

RJA sj