Today’s Los Angeles Times has a fascinating op-ed essay by Frances Kissling and Kate Michelman, emeritae respectively of their former posts as Presidents of Catholics for a Free Choice and NARAL Pro-Choice America. The title of their opinion piece, published on the 35th anniversary of Roe is Abortion’s Battle of Messages—It’s not 1973. Pro-choice forces must adjust to regain the moral high ground. [HERE]
The intention of my post today is to comment on the Kissling-Michelman claims presented in their fascinating opinion piece. But before I do, I must comment on their title: it is not only inconceivable but impossible for the “pro-choice forces”, i.e., abortion advocates, to regain the moral high ground. They never had it, and I doubt they ever will. But I digress from my commentary on their essay.
In their very first sentence they state, “the Supreme Court affirmed in Roe v. Wade that women have a fundamental right to choose abortion without government interference.” The Supreme Court, through Justice Harry Blackmun’s majority opinion, said no such thing. It would also be a long stretch to suggest that this is what Harry Blackmun’s opinion could be reasonably construed as asserting. Why? Look at the innovative but flawed trimester theory which Justice Blackmun developed and upon which he and the majority relied to justify what they did. Under their rationale, with the passage of time, the woman’s physician’s (and, therefore the female patient’s) “rights” decreased and those of the state, including its interest to protect the unborn, increased. It is clear from Justice Blackmun’s view of the Constitution that neither the physician nor the woman had the same protection at the end of a pregnancy as at the beginning of the same pregnancy. Moreover, Justice Blackmun acknowledged the right of the state to interfere at some point when he, and a majority of the justices, stated:
subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
In my view, these words do not lead to the conclusion that Mss. Kissling and Michelman plead us to accept without further ado. Blackmun himself asserted that the state, under the circumstances he and his majority colleagues agreed, can interfere and stop at least some abortions by declaring them illegal, albeit on a variety of grounds. That is not a particularly strong pro-life (or “antiabortion” if you accept the nomenclature of Kissling and Michelman) view, but it is not what Kissling and Michelman argue it is—namely, “that women have a fundamental right to choose abortion without government interference.”
Within the same paragraph, Mss. Kissling and Michelman take the opportunity to criticize the 2007 Supreme Court decision in Gonzales v. Carhart by declaring that this “decision on so-called partial-birth abortions was an unprecedented infringement on physician autonomy.” If they respected Roe, they could make no such claim. Gonzales v. Carhart liberally protects the opportunity to perform many abortions as long as they are not of the kind prohibited by the legislation reviewed and upheld in Gonzales.
They also argue that public opinion in the United States “has been relatively stable and favorable to legal abortion.” This is a fantastic but unrealistic claim when one considers the numerous legislative efforts of state legislatures and Congress to mollify and regulate the effects of Roe and its progeny over the past thirty-plus years. They also claim that “[e]arly efforts to overturn Roe failed miserably.” I suppose when one considers that judges were emboldened to declare any regulation of abortion “unconstitutional”, their contention has some merit. But neither the advocates for these judicial decisions nor the judges who rendered them were true to the Constitution or to Roe. If one were to follow faithfully the Kissling-Michelman rationale, one could also argue that people and interest groups that attempted to overturn Dred Scott and Plessy failed miserably, too—until Brown.
Mss. Kissling and Michelman then proffer an interesting assertion,
Given this reality [that efforts to overturn Roe “failed miserably”], the anti-choice movement changed tactics. It no longer focused primarily on banning abortions but concentrated on restricting the circumstances under which abortion would be available. It succeeded in shifting public attention from broad support for legal abortion to strong support for restricting access. Twenty years ago, being pro-life was déclassé. Now it is a respectable point of view.
Well, if pro-life citizens and public officials were judicially frustrated time after time from reversing Roe legislatively or judicially, I suppose, consistent with what Pope John Paul II stated in Evangelium Vitae, the next thing they could do was to argue from Roe itself and seek to legislate the regulations that Roe permitted if one were following what the Roe court said. It was not being déclassé; rather, it was trying to follow a particular judicial precedent, albeit a terribly flawed precedent, that many pro-life citizens elected to pursue. I hasten to add that their view was always respectable and never déclassé. But, again I digress.
It is now necessary to study a remarkable concession made by Mss. Kissling and Michelman regarding the argument from science. Justice Blackmun and his majority refused to acknowledge what the child, whose life was being terminated by an abortion, was. Justice Blackmun labored hard to dispel the State of Texas’s contention that “the fetus is a ‘person’ within the meaning of the Fourteenth Amendment,” but in the end he was forced to conclude in honest fashion that “this conclusion [the majority’s rationale], however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.” In short, the majority failed to, refused to, could not answer the question posed by the State of Texas: is the fetus a person? So, the majority dodged the bullet, for the time being, and moved on to other matters. This sets the stage for the peculiar statement of Mss. Kissling and Michelman in where they question if “those opposed to abortion simply respond more effectively to the changing science as well as the social shift from the rights rage of the ‘60s to the responsibility culture of the ‘90s?”
Science was always with the pro-life side in the abortion debate that began with Roe, and the “responsibility culture” is based on it. It appears that only lately have these two high-profile pro-abortion advocates come to realize that objective medical science did not and does not support the claims proffered by Justice Blackmun upon which they rely. That is why Justice Blackmun had to avoid the question about the status of the unborn child when he said “this conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.”
And what does medical science contend about the status of the unborn? What did it say on January 22, 1973 and what does it still say today? It says this: the target of abortion is life, and it is human life without qualification. Let us be clear on the nature of the embryo, the fetus, the unborn: “It is to be remembered that at all stages the embryo is a living organism, that is, it is a going concern with adequate mechanisms for its maintenance…” [O’Rahilly and Műller, Human Embryology and Teratology (1996)] These same medical textbook authors continue by stating that: “life is continuous, as is also human life, so that the question ‘When does (human) life begin?’ is meaningless in terms of ontogeny. Although life is a continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new genetically distinct human organism is thereby formed.” In similar fashion, Moore and Persaud, the authors of another prominent medical text book on human embryology note: “The intricate processes by which a baby develops from a single cell are miraculous… Human development is a continuous process that begins when an oocyte (ovum) from a female is fertilized by a sperm (spermatozoon) from a male. Cell division, cell migration, programmed cell death, differentiation, growth, and cell rearrangement transform the fertilized oocyte, a highly specialized, totipotent cell—a zygote—into a multicellular human being.”
Justice Blackmun offered no scientific justification for his use of the term “potential life” when he tried to dismiss the constitutional claims made on behalf of the unborn child who would be the target of abortion. The reason is that scientific evidence inexorably denies the claims he advanced with his anomalous terminology “potential life.” His scientific error undermines his legal theory that the unborn child, which he acknowledges is carried in the “mother’s womb”, is at best “potential life.” Yes, Frances; yes, Kate; the entity whose life you believe can be snuffed out by the precedent of Roe is just like you, me, Justice Blackmun, and anyone else: it, no, he or she is human. May I suggest that science has not changed, but perhaps Frances Kissling and Kate Michelman have insofar as they have finally come to realize that they were wrong after all these years, if I may borrow from Stanley Fish’s critique of Ronald Dworkin. But I must add that it was not simply science that facilitated the “swing of the pendulum,” it was the truth about the nature of the human person in the form of the yet-to-be born child whose position we all shared—me, you, Frances Kissling, Kate Michelman, Harry Blackmun, et. al.
Mss. Kissling and Michelman suggest that these “changes” in knowledge have given “antiabortionists an advantage.” Really? Is it an advantage to present the truth against falsehood and argue that the truth, rather than falsehood, should be the foundation of the law?
Since we at Mirror of Justice are joined in the enterprise of developing Catholic Legal Theory, I would suggest that Mss. Kissling and Michelman may, at long last, have come to realize that they have been wrong not only about the law but also about what their faith (they both assert that they are Catholic) has to say about Roe and the legalization of abortion. They argue toward the end of their essay that,
Advocates of choice have had a hard time dealing with the increased visibility of the fetus. The preferred strategy is still to ignore it and try to shift the conversation back to women. At times, this makes us appear insensitive, a bit too pragmatic in a world where the desire to live more communitarian and “life-affirming” lives is palpable. To some people, pro-choice values seem to have been unaffected by the desire to save the whales and the trees, to respect animal life and to end violence at all levels. Pope John Paul II got that, and coined the term “culture of life.” President Bush adopted it, and the slogan, as much as it pains us to admit it, moved some hearts and minds. Supporting abortion is tough to fit into this package.
Thus, Mss. Kissling and Michelman concede that the time has arrived to “support a public discussion of the moral dimensions of abortion.” I am all for that. But, let us also remember that any such discussion, if it is to be a sincere and fruitful one, must be based on the truth, the truth which includes the fact that since Roe was decided somewhere between forty and fifty million young Americans were denied the opportunity to be like you, me, Frances Kissling, and Kate Michelman. Unfortunately, a further examination of their concluding remarks reveals that Mss. Kissling and Michelman do yet want this discussion and the debate that will ensue because they express their wish to defer this debate sine die with these words: “If pro-choice values are to regain the moral high ground, genuine discussion about these challenges needs to take place within the movement. It is inadequate to try to message our way out of this problem.”
I am willing to attend “messaging” school, if need be, to assist Mss. Kissling and Michelman so that they may finally join a real debate about abortion that investigates the truth about human existence that is essential to the law. But, in the meantime, I shall pray for them as I do for all the young Americans who never had the chance to pursue the blessings of liberty that the Constitution promises to all of us who were endowed by the Creator, i.e., God, with certain unalienable rights, including life, liberty and the pursuit of happiness. RJA sj
Sunday, January 20, 2008
I would like to thank the Michaels, Perry and Scaperlanda, for providing the catalyst for this contribution. I am further grateful to Michael S. for his thoughtful post which contained a portion of Archbishop Chaput’s letter On Human Life. Here I would like to indicate that I was indeed born when the encyclical was issued by Pope Paul VI; moreover, I know Michael P. was because I saw him on campus during this time. Now the readership of MOJ know that we are both over the age of forty by more than just a few years.
I would like to begin my commentary of today with some remarks directed toward Elena Curti’s The Tablet article cited by Michael P. First of all, it is unclear on what evidence Ms. Curti relies in her claim that Pope Paul VI’s encyclical Humanae Vitae “is barely heeded by many Catholics in the West.” I cannot dispute the possibility that some folks who consider themselves Catholic do not honor the encyclical’s instruction, but I wonder if that is the only teaching of the Church that they do not follow? It seems that most of us are sinners, and there are times in our lives when we do not follow a host of the Church’s teachings on a wide variety of subjects. However, I think it possible that people labor to obey Church teachings and succeed on some occasions but fail on others. A remarkable thing about human free will is that we make the decision to do what we should do and avoid what we should not do. We choose whether we are in a state of grace or a state of sin. Neither God nor the Church forces us to do something against our will. But the question remains: is the exercise of our will in accord with what God and his holy Church teach?
This brings me to a second point made in the Curti essay. She asserts that some couples may be disobeying the Church’s teachings against artificial contraception, and she may well be correct. They exercise their freedom in accord with the subjective standard of their “inner voice” and little beyond it. That The Tablet is a British publication does not diminish the fact that there are some people across the globe who likely subscribe to the kind of liberty described by Ms. Curti and defined by Justice Kennedy in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life.” But this subjectively formulated sense of liberty insulates the human person from any objective determinant of what is right and what is wrong. However, the exercise of this form of freedom does not diminish the Church’s authority; it ignores it because of an exaggerated mode of liberty that can ultimately be self-destructive. It is self-destructive because sooner or later individually determined conceptions of the meaning of human existence and human life will confront and conflict with one another. While this type of liberty may be attractive to some people, it will inevitably lead to chaos. The wisdom of what the Church teaches, on the other hand, demonstrates how a person in communion with its teachings can avoid this collision and chaos.
My third point about Ms. Curti’s essay concerns her claim that because of its particular teaching about human sexuality and artificial contraception, the Church is “out of touch and lacking in compassion.” Is it? Is it really? While it may present challenges, as Michael S. points out, the Church’s teachings can be followed and be rewarding. I would like to add that the route chartered by Ms. Curti’s assertion leads to permissiveness, infidelity, and a false sense of invincibility against the harms of sexual activity outside of the context of a marriage between a man and a woman. Ms. Curti appears to be familiar with the argument that the Church’s teachings prevent an HIV/Aids infected spouse from having sex with the other spouse. Keeping in mind her thought, shouldn’t we then ask the question: how did the infected spouse become infected in the first place? Perhaps it was a tainted blood transfusion, but my suspicion is that it is usually something else—infidelity.
My fourth and final point is on the Curti essay’s claim that “The shock that greeted the encyclical was the greater because many Catholics had expected a reversal of the Church’s teaching.” The fact that Pope Pius XII may have approved the so-called rhythm method (or natural family planning) ought not to lead to the inevitable conclusion that approval of artificial contraception would follow. But Ms. Curti introduces further evidence to substantiate her claim: the Pastoral Constitution on the Church in the Modern World—Gaudium et Spes. It indeed contains several paragraphs about married life and conjugal love, but Ms. Curti’s statement that this important text from the Second Vatican Council “which identified conjugal love and responsible parenthood as the pillars of married life” does not reinforce her claim that “[h]opes of reform had further been raised” by Gaudium et Spes. In fact, the text of this document from the Second Vatican Council supports a conclusion very different from the one suggested by Ms. Curti. In N. 51, the Council states,
the acts themselves which are proper to conjugal love and which are exercised in accord with genuine human dignity must be honored with great reverence. Hence when there is question of harmonizing conjugal love with the responsible transmission of life, the moral aspects of any procedure does not depend solely on sincere intentions or on an evaluation of motives, but must be determined by objective standards. These, based on the nature of the human person and his acts, preserve the full sense of mutual self-giving and human procreation in the context of true love. Such a goal cannot be achieved unless the virtue of conjugal chastity is sincerely practiced. Relying on these principles, sons of the Church may not undertake methods of birth control which are found blameworthy by the teaching authority of the Church in its unfolding of the divine law. All should be persuaded that human life and the task of transmitting it are not realities bound up with this world alone. Hence they cannot be measured or perceived only in terms of it, but always have a bearing on the eternal destiny of men.
Ms. Curti’s article reminds us about the work of the Pontifical Commission appointed by Pope Paul VI to study population issues. Amongst its members were two Jesuits who were also renowned professors of moral theology: John C. Ford, SJ who taught in the United States and Joseph Fuchs, SJ who taught in Rome. They held opposing views on the permissibility of the use of artificial contraception by Catholics. Michael P. has graciously reminded me in the past that other Jesuits appear to hold views different from those which I propose in my contributions to Mirror of Justice. It seems that times have not changed since the days of Fathers Ford and Fuchs. Since I need to conclude this post, I do so with the words of Pope Benedict XVI who recently sent a letter to the then Superior General of the Society of Jesus and to the members of the 35th General Congregation now meeting in Rome. The Pope reminded us of what it is to be a Jesuit:
The Church has even more need today of this fidelity of yours… in this era which warns of the urgency of transmitting in an integral manner to our contemporaries—distracted by many discordant voices—the unique and immutable message of salvation which is the Gospel, “not as the word of men, but as it truly is, as the word of God”, which works in those who believe. That this might come to pass, it is indispensable—as earlier the beloved John Paul II reminded the participants of the 34th General Congregation [1995]—that the life of the members of the Society of Jesus, as also their doctrinal research, be always animated by a true spirit of faith and communion in “humble fidelity to the teachings of the Magisterium.”
I for one try to remain faithful to this calling not because I am forced to but because I choose to. RJA sj
Tuesday, January 15, 2008
Several MOJ contributors (including Rick Garnett, Richard Stith, Michael Perry, Michael Sacperlanda, and Tom Berg) have recently addressed issues relating to the roles of Catholics and other Christians in public life—be that life in the liturgy of the Church, in prayer, or in the political and public events of the day. I think that many well informed people (lay, clerical, and religious) have the impression that the role of the laity in particular is something new in the Church that resulted from various promulgations of the Second Vatican Council that would include the Decree on the Laity and the Pastoral Constitution on the Church in the Modern World. But this would not be an accurate assessment. While the role of the laity can be traced back much earlier (and I agree with Michael S. that Professor Eamon Duffy’s excellent book The Voices of Morebath demonstrate this in one particular country, i.e., England, but we should also not forget about the roles of people like Thomas More) we need to take stock of what Pope Pius XII said in his first encyclical letter Summi Pontificatus:
This collaboration of the laity with the priesthood in all classes, categories and groups reveals precious industry and to the laity is entrusted a mission than which noble and loyal hearts could desire none higher nor more consoling. This apostolic work, carried out according to the mind of the Church, consecrates the layman as a kind of “Minister to Christ” in the sense which Saint Augustine explains as follows: “When, Brethren, you hear Our Lord saying: where I am there too will My servant be, do not think solely of good bishops and clerics.” You too in your way minister to Christ by a good life, by almsgiving, by preaching His Name and teaching to whom you can. (N. 89)
Throughout this letter, Pius XII identifies and discusses the important role of lay Catholics, especially in the temporal spheres of human existence.
When times get difficult for people, as Michael P. points out regarding the junta years in Argentina, what happens? Where is the Church? What are its members doing to avoid catastrophe? As Rick points out, we are sinners, and we do not always respond well to the circumstances at hand. But, by the same token, it is important to recall that some folks do what they can to stop the nonsense of the day. It may not be much, but they do what they can—which people later down the line may say was not enough. But what would these post-event critics have done differently if they could have done anything?
Questions have certainly been raised about what did Catholics do during the Third Reich in Germany. Let me pose three illustrations that develop this.
The first comes from a story related by Archbishop Raymond Burke in his 2004 Pastoral Letter On Our Civic Responsibility for the Common Good. In the early 1980s he spent a summer in Germany while he was doing his graduate studies in Rome at the Pontifical Gregorian University. He went to Germany to improve his German language skills useful to his academic work. But this opportunity to study in Germany also presented him with the occasion to serve the local church. Archbishop Burke relates that during this period he had some conversations with the lay sacristan at a parish. This man was a teenager at the time the Nazis came to power. As the Archbishop relates (N. 2), this person was “haunted” by the question how the people of his beloved country “could have permitted such horrible evils to happen at all or to go on for so long.” Other conversations in which the archbishop participated suggested that some Catholic bishops did little if anything to teach against the evils of the day, i.e., Nazism. But as I have said, people tend to do what they can to combat the evil of the present moment. History may judge that this was not enough notwithstanding what was attempted to rectify a difficult situation. And this brings me to the second illustration that involves Germany.
This story relates the work of Father, then Bishop, then Cardinal Clemens August von Galen. The Third Reich did not care for von Galen, and, because of what he tried to accomplish in the name of God and the Church, he did little to improve his image amongst the Nazis. But improving his image held by this regime was not his particular concern since he was a dedicated pastor. In a homily that he delivered in the summer of 1941, he exhorted the faithful to withstand the evils of the Nazis with these words:
[S]teel yourselves and hold fast! At this moment we are not the hammer, but the anvil. Others, chiefly intruders and apostates, hammer at us; they are striving violently to wrench us, our nation and our youth from our belief in God. We are the anvil, I say, and not the hammer, but what happens in the forge? Go and ask the blacksmith and see what he says. Whatever is beaten out on the anvil receives its shape from the anvil as well as the hammer. The anvil cannot and need not strike back. It need only be hard and firm. If it is tough enough it invariably outlives the hammer. No matter how vehemently the hammer falls; the anvil remains standing in quiet strength, and for a long time will play its part in helping to shape what is being moulded.
Von Galen did what he could with the resources available to him to stem the evil of his day.
A third illustration is the life of another German, Claus Schenk Graf von Stauffenberg, the army officer and Catholic who also understood the evil ways of the Nazis. He was one of the principals in the unsuccessful attempt made on Hitler’s life in 1944. When the assassination attempt failed, Von Stauffenberg was summarily executed and his family was punished by the Nazis.
While his particular method of countering the evils of Nazism may well be critiqued, von Stauffenberg did what he could to stem the evils of his day.
But there is yet another story that I would like to relate today involving our own country, the United States. We are troubled by a war, by poverty, by white collar and conventional crime, by infidelity, by drugs, by terrorism, and by many other problems. To borrow from Michael P.’s question: “will someone please tell us what the… bishops of the Catholic Church—my Church, our Church—were doing during” in these times? But this question should not be restricted to the successors of the Apostles since it involves all of us. Archbishop Burke’s formulation of the question seems more appropriate to me: how can the people of our beloved country permit such horrible evils to happen at all or to go on for so long? Again I will suggest that people tend to do what they can. Individual bishops, individual dioceses, individual parishes, individual priests, individual religious, and individual members of the laity do what they can and what is proper to their calling to address the evils of our time. The fact that we individually and corporately may be doing something is not to say that we are doing everything that we can.
I would like to conclude this posting with this thought. I, for one, think that one of the greatest evils that has been going on in this United States is the wake of Roe. I suspect that I have not always been welcome by colleagues in the teaching profession because of my views on this grave matter, but I try to do what I can to stem the tide of this evil even though my actions are at best very modest. But I must acknowledge that other brave souls have shown me how to use the tools of reason and explanation to meet the challenges of this calling to which all of us have been summoned and to which some of us have responded. As of the most current count, there have been over forty million abortions performed in the U.S. since Roe was decided. That is a lot of death with no end in sight despite the claims by some persons in or seeking public office that the nation must keep the procedure legal but rare.
What can be said of those who are haunted by this iniquity? And how can the people of our beloved country permit “such horrible evils to happen at all or to go on for so long”? Let us begin by realizing we do what we can do and what we cannot, but let us also not fail to ask what more can we do? We can be a minister to Christ, that is what we can do, and there are many ways of responding. RJA sj
