A flurry of state abortion laws have been enacted or are currently being considered, in anticipation that federal case law on abortion, founded on the Supreme Court's Roe v Wade decision, could change soon, or even come to an end entirely. That expectation was triggered by last year's confirmation of Supreme Court Justice Brett Kavanaugh, who is widely thought to be pro-life. Kavanaugh's accession to the bench, replacing retired Justice Anthony Kennedy, has fed the perception that the Court's balance on abortion has shifted decisively in a pro-life direction.
These new state laws are trending in opposing directions: blue states, including New York, my state of Illinois and others, are looking to lock in as unlimited an abortion license as possible; red states, including Alabama, Georgia, Missouri and others, are looking to restrict the abortion license as much as possible.
What all of these new laws have in common is that all of them have legal effect (or will have legal effect after the inevitable federal court challenges are sorted out) only insofar as they harmonize with Roe v. Wade case law. But what happens if Roe case law is overturned or superseded by a new Supreme Court decision? The widespread assumption is that if that happens, jurisdiction over abortion will return to the states - and these states with new laws will be ready for that contingency. Should that set of circumstances come to pass, abortion law in the US would become a study in sharp contrasts, with some states permitting abortion in nearly all circumstances, and other states prohibiting it in nearly all circumstances.
The editors of America have turned a critical eye toward that prospect and find it severely wanting. They locate the root cause of this situation, not in the allegedly extreme views of activists on either side of the abortion divide, but rather on the Roe v. Wade decision itself:
Many commentators recognize that these new [red state] laws are designed to mount a legal challenge to Roe v. Wade—but they fail to notice that these laws’ blunt restrictions are a mirror image of Roe’s broad rejection of any practical or effective limits on abortion. When abortion rights advocates defend Roe in order to reject any proposed restriction of abortion, they are taking an extreme position. That leaves no ground open for any compromise on less extreme laws. Pro-life legislators are going to meet the same tooth-and-nail opposition whether they aim to ban all abortions or, as recently seen in the U.S. Senate, attempt to require that infants born alive during an abortion receive medical care.In the capacious gap between these new red and blue state laws is where most Americans seem to live. John Gehring explores this phenomenon in Commonweal:
Given the complexity of abortion, it’s not surprising that plenty of people are reluctant to adopt only “prolife” or “pro-choice” labels to describe their views. In a 2011 Public Religion Research Institute poll, seven in ten Americans said the term “pro-choice” described them somewhat or very well, while nearly two-thirds simultaneously said the term “prolife” described them somewhat or very well. In a 2015 Vox poll of 1,067 randomly selected adults, 39 percent selected both “pro-choice” and “prolife” as describing their views on abortion.The America editors also seem to believe there might exist a middle ground where broad, bipartisan agreement might be possible - but neither Roe case law nor these new state laws allow us to reach that ground:
Consistently over decades, polls show that a significant majority of Americans support stricter restrictions on abortion than allowed under Roe, yet not as stark as those established by these new laws. American public opinion on the legality of abortion is conflicted and contradictory: in one poll conducted this month, half of voters believe that the six-week “heartbeat laws” are either “just right” or even “too lenient,” and another poll found that U.S. adults oppose overturning Roe by two-thirds. But under Roe and its successor decision Casey v. Planned Parenthood, the abortion limits many voters want, even while abortion remains legal, are rendered unconstitutional. About 60 percent of Americans support legal abortion during the first three months of pregnancy, but far fewer—less than one-third—support it up to six months. But Casey’s “undue burden” standard disallows abortion restrictions anytime before fetal viability around six months, which is not what most Americans would choose.Meanwhile, Archbishop Joseph Naumann, the chairman of the United States Conference of Catholic Bishops (USCCB) Committee on Pro-Life Activities, expressed his unalloyed pleasure regarding the recent red state laws:
Every single human life has value. The trend of states passing pro-life legislation is a very encouraging move toward ensuring that our society cherishes unborn children and their most basic right to life. The pro-life movement has always had two critical goals: increasing support for mothers and children and eliminating the tragedy of abortion. Our march for justice and human rights for unborn children will not be complete until they are recognized and protected as persons by the law. Our ultimate objective, however, is for abortion to be unthinkable. As we celebrate these pro-life legislative victories, we reiterate our commitment to supporting all mothers with the care and resources they need. The Church stands ready to help and welcome them.Archbishop Naumann doesn't criticize more incremental approaches to rolling back Roe, but neither does he embrace them.
If indeed a majority of justices are now determined to reverse Roe, either partially or entirely, I would be okay with them taking an incremental approach. Half a loaf is better than none at all. And an incremental approach might bring us onto that middle ground where no political advocates dare be seen, but where apparently the American people actually reside.
Why is it important to defer to the American people on this question? Because any improvement to the Roe v. Wade regime in the direction of protections for the sanctity of life must be politically sustainable. If there is any hope for a more pro-life consensus than exists today, the middle ground seems the least unlikely place to find it.
I though John Gehring's article in Commonweal was good. And in the article he referenced a piece by Cathleen Kaveny in 2018 which I had missed. I though she made some good points: "...What if both the following propositions are in fact true: 1) abortion (at least after the possibility of twinning has passed) does involve taking the life of an individual human being, who deserves protection as a person; and 2) that unborn person is in fact completely physically dependent upon the pregnant woman. Growing the unborn person, and delivering her to the wider world, imposes physical burdens on the woman that are both substantial and morally relevant."
ReplyDeleteAnd what if the truth of both propositions has only become more apparent to most people in recent years? On the one hand, 3-D ultrasounds have strengthened our perception of the unborn as “one of us,” while on the other, the #MeToo movement has heightened our understanding of the radical vulnerability of women’s bodily integrity."
"If we hold these two propositions together, we are going to see abortion as a unique legal and moral problem, because it does not fall neatly under one normative description."
The "right to privacy" has always made less sense to me than the right to bodily integrity, of both the mother and the fetus. Which is in tension, hence the seemingly insolvable tension in the whole abortion debate.
Is there a legally recognized right to bodily integrity in the Constitution? I'm just speculating that may be why the justices in 1973 landed on "right to privacy".
DeleteI don't believe a right to bodily integrity is specifically mentioned in the constitution, except perhaps indirectly in court decisions. It just seems like a more basic right than that of privacy. Bodily integrity and autonomy seem to be coming up quite often in arguments from the pro-choice side. But of course they are overlooking the right to bodily integrity of the fetus.
DeleteI think legal notions about how much control anyone has over one's own body, if that's what you mean by bodily integrity, are in a constant state of flux.
DeleteCertainly there was a time when no one accepted the idea that rape could occur within marriage. Men were also allowed to beat their wives within certain parameters (rule of thumb). Corporal punishment of children is not against the law in most places, though people can be prosecuted when it veers into abuse. Women and children (and I suppose men) could be institutionalized for some pretty fuzzy behavior problems. (Now it is nearly impossible to commit mentally ill people against their will, so they end up in prison.) The Amish and Mennonites were jailed for refusing to participate in compulsory military service until after WWI. Sterilization of people with handicaps was common. Even habeas corpus has been suspended at various times. And, of course, enslaved people had very little say in how their bodies would be used.
So the state steps in in lots of situations to claim an interest in curtailing someone's right to control their own bodies. Roe itself guarantees unrestricted constitutional rights to an abortion only through the first trimester.
Jean, good point about the changing understanding of the integrity of ones body. I have to think that it is progress that the beating of wives and children is no longer acceptable. Am looking forward to the day when war is no longer acceptable. But it's a messy intersection when one person's bodily integrity and autonomy basically contradicts that of another.
DeleteI wish all those bacteria, fungi and viruses that want to colonize us could be taught to respect our bodily integrity. They're getting harder to cure than pregnancy.
DeleteKatherine, I don't think of pregnancy as a violation of bodily integrity, except in cases of rape, and I can think of all sorts of cultural evils that might flow from such an attitude.
DeleteHowever, there are medical situations that pose godawful outcomes for mothers and unborn babies. As Catholics, we are not obliged to seek abortions in such cases. But I'm not sure we have the right to outlaw it in all cases for others.
I also think, as Tom seems to reference below, that Catholics who oppose artificial contraception have a harder time selling their hard line approach to abortion. And a lot of people feel that a victory on abortion will fuel an assault on contraceptive freedoms, back to the days when gynos refused to provide contraceptives to single women or wanted to know if married women had informed their husbands about going on The Pill.
Prayerful abstinence for couples who absolutely cannot risk a pregnancy due to a medical condition is something Catholics might choose. But, again, the natural-family-planning-only route is not one I would enshrine in law.
Jean's excellent comment on bodily integrity reminds me that the right to habeas corpus is enshrined in the Constitution. Perhaps one could get to more general notions of bodily integrity from that starting point.
DeleteJean, just to be clear, I agree with you about pregnancy not being an assault on bodily integrity under normal circumstances. Also that I don't want to require heroic virtue of others who are in impossible situations.
DeleteI think any discussion of bodily integrity for fetal life has to first include a discussion about whether that life is entitled to constitutional rights as a person. As we know, it has been impossible for pro-life and pro-choice sides to agree on that. "Viability" seems to be a legal category in Michigan--abortions are not allowed after that point. But the arguments become hazy in specific cases. Some fetuses are never viable (anencephalic babies, for example) and will die almost immediately upon delivery. Can they be aborted without regard to fetal age? I don't know, but I expect that's an argument that could come up.
DeleteI find the Church's certainty about reproductive issues misogynistic at times. And I find secular views that reduce fetal life to nothing but "tissue" callousness and cold.
So not making any arguments here. I expect it will remain an unsettled issue for me and lots of others.
Archbishop Naumann and his brethren don't really have much room to wiggle. If what they are protecting is human life, that life is human even if it is the result of rape or incest.
ReplyDeleteThen comes the life/health of the mother. If it's physical health at stake, even most bishops don't want the mother to die so the baby may live. No one may command heroic moral virtue. (That's why no one told the German Catholics they had to go AWOL from Hitler's war). I suspect our more conservative bishops think mental health is a cop-out, since carrying a child to term and giving birth is not unlike trauma and is known to be. Anybody could be afraid.
And then there is timing to consider. The problem with a six-week deadline, as I understand it, is that the first four are going to pass uneventfully, so the first indications won't come until the fifth week. Not everyone can arrange her schedule as easily as a bishop. And not every woman has perfect periods that slavishly follow the calendar. (That is the physiology of the body. It trumps the theology of the body.) So if the bishops were to say, "OK, we'll go back to what the Church used to always teach about 'ensoulment' and compromise on a window of opportunity, their compromise would still get stuck at six weeks, when there will be a heartbeat. Such a the compromise would be little help to anyone but moral theologians and maybe canon lawyers.
So what have the bishops to give in a compromise? The health of the mother and maybe a little bit on timing. There is not enough there to find common ground, imho.
If history teaches us anything, there are going to be abortions, and some of them are going to be cases in which only a dork with a heart of stone would be outraged. I see abortion somewhat like non-violence. Opponents ask the question: You have a gun, and someone attacks your grandmother. Would you shoot? No. What if he has a knife and starts slicing her up a piece at a time? What if he rapes her while he is slicing her up. Eventually you have to say, "In that case, yes, I would shoot. And I WOULD BE WRONG." If men could get pregnant, the Church would have viewed abortion very differently from the start.
"Archbishop Naumann and his brethren don't really have much room to wiggle."
DeleteYes, they (and I) would not consider the matter finally settled until human life is protected. But within the Catholic tradition, there also is room to prudentially embrace incremental improvements as a realistic step toward something better.
The bishops would argue that the world should not countenance any nuclear weapons, but they would embrace the possibility of a reduction in stockpiles. Sometimes, half a loaf is what is on offer.
Well, Jim, you and Thomas Aquinas and (maybe) I might agree that half a loaf is better than nothing if it advances us toward the full PB&J. But the hierarchy -- maybe I should limit it to the American hierarchy -- recently had a hissyfit and total meltdown over the possibility of insurance for contraception (something Catholics with employer-provided health insurance had all along) under "Obamacare." Sheesh, if condoms give them the vapours and put them all aboard for pudgy egoists, how could they ever permit murder, even as a matter of prudence?
DeleteLeaving aside for a moment the "hard cases", my grandma/great-aunt mind is thinking that both men and women need to think more about respecting their own bodily integrity.
ReplyDeleteYeah, we should all be virgins unless and until we marry, and never stray from our spouses.
DeleteIt's one of the Church's teachings that makes complete sense now that I'm an old lady.
At 16 in the 1960s, with boys talking about getting drafted or running off to Canada, people getting assassinated left and right, and The Bomb likely to kill us all off eventually ... not so much.
Jim, I see that the Illinois House has advanced some pretty radical sounding abortion legislation. Do you think it will pass?
ReplyDeleteYes - it will pass.
DeleteInteresting bit on the radio in which a biologist looks at embryonic life and at what points we might say human life begins: https://www.wbur.org/hereandnow/2019/05/28/science-when-life-begins
ReplyDeleteThe interview with biologist Scott Gilbert isn't going to clarify anything from a theological standpoint, but it perhaps ought to inform lawmakers struggling with legal definitions of personhood.
I presume that the Church's view on this begins with the premise that murdering people is a sin, and if we went to avoid murder, it is safest to assume "people" begin at the moment of conception. I doubt all the scientific info in the world will change that because science does not deal with ensoulment.
But what about this: The Church (if not God) is willing to condemn through excommunication all women who abort for any reason based on an assumption. Is that a problem?
Again, not arguing, just asking.
Of course science can never prove when people get a soul, or even if they get a soul. But it can prove when they get a life. One can either say it starts at conception, or implantation. It's analogous to an oak tree, does it begin with an acorn, or when the acorn is planted in the ground and sprouts? Either way it's early on. It seems logical that to interfer with the life in early stages is bad, but it is worse the farther on in development it is.
DeleteIs excommunication for abortion a problem? I think it is. Especially since it is one of I think only 3 or 4 sins that incur de facto excommunication. Why not just say it is a sin for which one needs to seek forgiveness? Murder in any form is a mortal sin, but it doesn't have the penalty of automatic excommunication. And the church recognizes that there are obviating circumstances such as self defense.
Jean, Women who abort can be forgiven. That's part of the reason for Project Rachel. The only sin that the Church will not forgive is "attempted" second marriages that don't break up in time for the offender(s) to come crawling back for forgiveness.
DeleteIn reality, anything men do can, of course, be forgiven by virtue of their male nature. With women, the Church can never know. She (sic) can only hope.
Hmm. Well, the interview suggests that determining when someone gets a life is not that easy a question.
DeleteNot for the first time, I wish there were an edit function for comments. "Extenuating circumstances" would be more correct than "obviating circumstances" in my previous comment.
DeleteI was called away to help edit a grant. (Ugh).
DeleteI should have explained that science has different ways of determining determine when human life begins--conception, implantation, the point at which cells begin to "specialize" into specific human body parts, the point at which brain function can be detected, autonomy outside the womb. There are also, historically, different traditions about when human life begins--quickening vs. first breath.
I am not against defining life beginning at conception to be generous in our definition of charity toward human life (or to be on the "safe side," if we want to think of these things in terms of Fire Insurance).
But does that definition place unintended burdens on women? There is some rather tortuous reasoning that allows for a tubal pregnancy to be terminated because it is removing a tube (that the baby is in) rather than the baby itself. Plus, a tubal pregnancy poses risks to the life of the mother.
However, there are risks to the mother's life that other pregnancies pose, but removal of the fetus is not allowed in those cases (because the baby is not embedded in another organ other than the womb, which would be a sin to remove because that reproductive organ is not compromised). So, in the case of severe pulmonary hypertension in the first trimester, the woman would have to die rather than agree to an abortion. The baby would also die, just as surely as if it were a tubal pregnancy.
And there are cases in which babies cannot survive outside the womb, such as anencephalic babies. The Church does not require that we keep an Alzheimer's patient alive on artificial life support when his brain stops functioning. But it does require that the mother provide artificial life support for a fetus that has no brain function.
All these instances are, of course, very rare. But they are also the very issues where people would want to rely on the Church's guidance because they are rare and difficult.
What I hear from too many pro-life Catholics, is the narrative that people are just having first-trimester abortions because they are selfish and having a baby is inconvenient. This may be true in the vast majority of cases, BUT in these few and dire circumstances, that narrative doesn't work and women deserve better explanations.
Jean, I agree about the few and dire circumstances. It seems like they should save the life they can. Like that case in Phoenix a few years back. What is gained if there are two deaths?
Delete"What is gained if there are two deaths?"
DeleteConsistency of teaching.
The Church does not like gray areas that leave too much to interpretation and disunity in the pews. Catholics can come to very different conclusions about "just war" teaching. Ditto capital punishment.
Better to draw a clear bright line and refine teaching than to leave too much latitude for personal interpretation, especially in these days of post Vat2 course correction.
Here is a good article on the America site, by Megan Clarke: Catholics Need a Better Way to Talk About Women's Bodies.
ReplyDeleteSorry, I spelled her name wrong. Should be Meghan Clark.
Delete"Reframing discussions of women’s health to view reproduction within a holistic approach to the life, health and well-being is a necessary start. A woman’s period should not be viewed solely in relation to pregnancy. The female reproductive system is integrated within her overall body, not an isolated aspect of it tied merely to procreation."
DeleteWell, I give her points for trying, though the photo that illustrates the essay is that of a woman's torso, as if femininity exists only in that zone.
If the Church wants to look at women holistically, it must recognize that the reproductive cycle and lifelong hormonal shifts affect women's appearance and self esteem; that hormonal changes affect other parts of the body--post-partum depression, migraines, blood pressure, and thrombosis; that diseases (coronaries, strokes, and diabetes) in women do not present the same way they do in men; that sexual desire in women is not "naturally" linked with the desire for children; that women's sexual complementarity with men does not equal some kind of complementarity when it comes to their "natural" roles in a marriage and as parents.
Katherine, I appreciate your willingness to exchange ideas here. But I don't think I'm offering a POV that anyone here finds useful, so that's my last thought.
Jean, I find your input very useful. I hope none of us feels that they have to conform to some kind of group-think.
DeleteI just want to second Katherine's most recent comment. Jean, fwiw, I thought your comment about women's bodies was thoughtful and thought-provoking. Really, I thought it was a sparkling set of insights. I hope someone picks up the thread to continue the conversation. I am not sure what to say in response. To me, it sounds like an invitation to reflect.
DeleteIt's timely, too, because I've been contemplating a bit today about today's feast (the Visitation) in juxtaposition with the abortion law news. Both of those women, Mary and Elizabeth, were pregnant in circumstances where "awkward" might be a fitting adjective: an unmarried teen, and a woman past the usual child-bearing stage of life. I am not sure where these reflections lead, but the church is giving witness to *something* (even unintentionally) by offering this wonderful Gospel story to us during this particular time in public life.
I think "dangerous" is the term you're looking for.
DeleteAn unmarried teen risked being forced into a life of prostitution and early death, her son an outcast. An older woman's risk of death from pregnancy complications and in childbirth would have been sky high at a time before modern obstetrics.
These were two women must have been frightened out of their wits for good reason, and burdened with heavenly messages.
Fortunately, they had each other. I think the story is an illustration of the way "accompaniment" works. No sermonizing, no exhortations, no rules and regulating.
I imagine it this way: "Thank God you're here! My husband has been totally useless. Can't even talk. Angels keep zipping in and out predicting things about God's plan for the baby. No pressure there, ha! But some nights I can hardly breathe and my back hurts, so maybe it's all just in my head. Then all these old biddies in the neighborhood telling me horror stories about everything that can go wrong in a late-life pregnancy and how they hope I won't be too tired to take care of the baby and how nursing might be a problem. I'm at the end of my tether with those trolls. Anyway, I felt the baby kick when you showed up, and that made me feel happy for both of us."
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