A Complement to Professor Moreland’s Post

 

As Mike picked up on the Peppard op-ed piece in today’s New York Times (I wonder if the Times would be interested in publishing Mike’s posting as another op-ed?), there is need to comment on the lead editorial which appeared in the same edition of this journal. [HERE]

The Times continues to show little understanding of or respect for views with which it disagrees. In the context of this editorial, the editors conjure up the imaginary horribles that would emerge if Roe v. Wade “goes.” The editorial asserts that since Governor Romney and Congressman Ryan are “opponents of abortion rights,” supporters of this “right” should be worried. It was kind of the editors to suggest that the Republican nominees have a view that “depart[s] slightly from the extremist Republican Party platform.” But this editorial fails to consider that it is the other party which may now have and push the extremist platform. I offer this suggestion in view of the fact that the ability to seek an abortion is considered a “human right” by the Times. To reinforce its position, the sagacity of the Guttmacher Institute and the Center for Reproductive Rights is relied upon along the good works of the “invaluable family-planning group” Planned Parenthood. The editorial concludes by retelling the tragedy of a young woman who died from the complications of an illegal abortion. This is a tragedy without question, but the Times fails to consider that she might have also died from a legal abortion. Would that have not been a tragedy? Moreover, the Times disregards the statistic that since Roe was decided, almost fifty-million young Americans have died as a result of “legal abortions” performed in the United States since 1973. This is a tragedy of enormous proportion, yet the Times is silent about it.

If the Times were genuinely interested in all the tragedies that can be avoided by honoring all authentic human rights considerations, the worries about Roe’s fate could disappear from its opinion pages forever. How might this occur? Back in October of 2007, I offered some thoughts on the matter regarding the disappearance of Roe and the consideration of alternatives to criminalization, which troubles the Times. Here is the relevant portion of what I said then:

 

Let us first begin by considering the duties of the law-maker (for us in the US, this means state legislatures, Congress, judges, and administrative agencies) that relate to abortion. The law-maker can make a law that criminalizes abortion, legalizes abortion, or regulates abortion. The law-maker may say nothing about morality in positing the law (statute, judicial decision, or regulation) made on the subject.

Moreover, the law-maker may be urged to conclude by the lobbyist or the litigant that the law made must be divorced from moral considerations. This argument has run a thread throughout jurisprudential debate for some time. Two examples would be the Hart-Fuller debates and the disagreements between the Kelsen school and the Rommen/Voeglin schools. Yet, when all is said and done, there frequently are discussions about morality and its nexus with the law and law-making when debates about tax laws, labor laws, education laws, environmental laws, and criminal laws (just to mention a few) occur. The Guttmacher Institute mentions, by the way, on its website that it executes its mission, in part, by “testifying before federal and state legislative bodies and in court cases.” Well, this is participating in the law-making process, and we can readily see what their aspirations are for law-making outcomes regarding abortion and where moral considerations don’t fit into the process.

And what about Catholic legal theory? There is nothing wrong or unusual with introducing moral considerations into debates that occur when law is being made. But, for the Catholic legal theorist I think this would be not only expected but would be compulsory. Moreover, I am confident that Catholic legal theory would have much to offer the law-maker who is positing law addressing the legality or regulation of abortion. And what might this be?

The moral considerations underpinning Catholic legal theory would enable the law-maker to consider more or all rather than some of the issues that must inevitably intersect abortion laws. Today so much of the law in this country pertaining to abortion permits abortion—with few restrictions—and bases the justification on Constitutional requirement (which I submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the argument from equality. The focus of abortion law seems to be on the welfare of the mother only. This becomes patent when judges, state and Federal, scrutinize legislation and regulation looking for the “essential” health exception clause to protect the mother only.

Catholic legal theory, in contrast, begins to look at other welfares, too. The mother’s health and welfare are surely important; but so is the health and welfare of the child whose life will be snuffed out should the abortion proceed. But it is also vital to recognize that the mother has other issues that are often ignored or dismissed as long as she can be allowed to terminate her pregnancy. What might these issues be? Well, informed consent is a place to start. Does she really know what is about to happen? Does she really understand what is inside her womb? Would she want to have an abortion if she could see her child? (Ultrasound imaging would provide her with this critical information.) Has she been provided with education about effective parenting skills? Is pre and post-natal care available for her and her child to ensure good health for both? Catholic legal theory would also provide for the welfare of the father? Where is he? Should provision not also be made for encouraging his responsibility for the life he helped promote by developing among other things his parenting skills? It seems that the law-maker is not restrained from including these provisions relating to these matters as well. Cannot the law-maker provide for orphanages, foster care, and adoption services for children whose birth parents will not or cannot properly care for the raising of the child?

Indeed, the law-maker can provide for all these things and more.

But the critic may well argue that the additional elements will cost money. The Catholic legal theorist can respond by reminding the critic that laws addressing defense, environment safeguards, historical preservation, criminal justice, wildlife protection, etc. (all of which have moral considerations) also cost money. But in spite of their cost, laws are made to advance these interests and protections. Why can the law not do the same to preserve young human life and the lives of those responsible for its conception? This is the response of one Catholic legal theorist.

 

I think these points still have merit today in 2012. I also am confident that they will have merit in the long term, too.

If the Times, Planned Parenthood, and the Center for Reproductive were truly concerned about human rights and human life, the death of the young woman who died from consequences of the illegal abortion won’t be repeated in the future and neither will the deaths of the tens of millions of children whose lives have been snuffed out by so-called legal abortions. It is clear that Roe and its progeny remain a problem, but it is a problem that can be remedied by laws which respect the dignity of a woman who may face any abortion and the dignity of the young children whom the Times, Planned Parenthood, and the Center for Reproductive Rights disregard.

 

RJA sj