Roe Must Be Overturned
The unspeakable horror of yet another child murdered outside the womb and thrown away like everyday garbage – Ron Paul, a delivery doctor, writes this is more common than we would care to know – is not only another sign of human wickedness but also of how Roe v. Wade must be overturned. Compromises that would outlaw such procedures and implement other restrictions, debated through the democratic process, would save many unborn lives and aid Catholic arguments. And they would allow us to far more effectively reclaim a small part of our moral compass as a people. Yet our current legal regime allows no such middle ground and no such basis for dialogue. Ross Douthat is, I think, on target when he suggests that Roe is fundamentally alienating, and very successful at reading anti-abortion arguments out of the debate. It is absolutist, deeply anti-democratic, and a stumbling block to discussion leading to action. In the meantime, its consequence combines with human decision to produce a haunting and unavoidable tragedy for all involved in the act of killing a child.
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Well, good luck.
I don’t doubt there’s something to Ross’ argument, but I find it curious the anti-Roe movement places so little hope in the witness of a compassionate, active, pro-life effort to people in need.
The fanaticism–and it’s not totally unjustified, mind you–against Roe often hamstrings the overall effort.
In 1983 Supreme Court ruled it was constitutional for states to require a second physician to be present when an abortion was performed that might result in a live birth of a viable baby so that the second physician could focus on saving the life of the baby. Only nine states have such laws.
David,
The Supreme Court has struck down many state restrictions and laws. And even if that were not the case, the problem would still exist: nearly any restriction faces immediate legal challenge under the precedent of Roe. (And FOCA would sweep away even the very modest gains opponents of abortion made since 1973.) The framework of this decision is deeply corruptive. It’s not terribly surprising that states respond to the hyper-agressive lawyers of NARAL and Planned Parenthood et al. in the ways they do (we see a similar thing in a variety of other aspects of public life, perhaps most notably in the “voluntary” imposition of quotas/differing standards as a pre-emptive response to “discrimination” laws and its lawyers – meaning “unrepresentative” outcomes even with open and standardized barriers to entry are unacceptable). States with a clear majority in favor of significant restrictions – which, have no doubt, would save many lives – can be mired in legal messes they would just as soon avoid.
Todd,
the anti-Roe movement places so little hope in the witness of a compassionate, active, pro-life effort to people in need.
I strongly disagree with your characterization here. Such a statement is badly in need of reasoning or examples.
Johnathan,
I’m sorry. It just doesn’t seem likely. I think a majority of Americans actually support Roe, and are certainly afraid of what they think would happen if Roe was overturned. The idea that we can take an end run around this by appointing the right justices doesn’t seem likely.
Pray. Our Lady’s Rosary has stopped wars; surely, if enough Catholics offer it for the overturn of Roe (and, more broadly, for a change in our society’s attitude towards innocent human life), a miracle might occur.
Jonathan,
It seems to me that it is open to every state to enact laws that require a second physician to be present after, say, the 20th week of pregnancy to care for an infant should it be born alive. I would think one of the big problems is that pro-life doctors (especially Catholics, who risk excommunication) would not want to be present at an abortion for any purpose. But that is not a flaw in Roe v Wade.
States with a clear majority in favor of significant restrictions – which, have no doubt, would save many lives – can be mired in legal messes they would just as soon avoid.
And do you believe that if Roe v Wade were overturned, there would be fewer legal battles waged over abortion? It seems to me the legal fights following a reversal of Roe that turned the matter back to the states would only intensify the whole pro-life/pro-choice struggle.
Leaving aside the moral question about abortion on demand, it seems to me (not a legal expert, however) that it is hard to see the Roe decision as anything but unwarranted judicial activism.
The Constitution and other basic written law just does not address the issues around the abortion question. The answers ought to be thrashed out in the democratic legislative process, and probably, yes, at the state level where criminal law is mainly developed.
And it seems the democratic legislative process would lead to conclusions not acceptable to either of the polar opposite sides on this question, since public opinion generalizes out to the view that a woman on the one hand does have some sort of “right to choose” (depending on circumstances) but on the other hand that a human fetus has more standing than a mere agglomeration of tissue (depending mainly on maturity).
There is a “vox populi” common sense on this issues that recognizes, for example, that a fertilized egg failing to attach to the wall of the uterus may be unfortunate, but it is nothing like the tragedy of an-almost born fetus dying for any reason, natural or unnatural.
Now how the “vox populi” can blithely countenance any calculating scientific exploitation leading to the destruction of any human individual, of whatever maturity–that I don’t get. I guess it’s the lure of those wonderful prospective cures for a lot of real suffering people we can see before our eyes.
“I strongly disagree with your characterization here. Such a statement is badly in need of reasoning or examples.”
I do think there is a segment of the pro-life movement, exclusively focused on Roe, that misses opportunities. On my web site, a discussion on abortion lurched into Roe. One commenter stated Roe wasn’t the real obstacle. Then one critic disagreed (no problem there, really) but then launched into five paragraphs on why Roe was so important. No problem there, really, but it was rather off-topic and played right into commenter #1′s point.
I see abortion pro- and con- as eerily like the dance of addict and codependent: lots of craziness, not much logic, reasoning, or real feelings.
The problem is that the legal system has set it up for any woman to choose an abortion. Nobody in government is responsible anymore. But if millions of women decided abortion wasn’t in their best interests or that of their child, Roe would be irrelevant, like the 2000 decision on Bush v Gore.
Jonathan,
Amen brother.
But if millions of women decided abortion wasn’t in their best interests or that of their child, Roe would be irrelevant …
Never. No, no, no. Even if no woman ever chose to abort her child at all, Roe would stand as a legal abomination crying to Heaven for justice. Even in that virtually inconceivable circumstance, where Roe stood but no abortion was ever performed, every Catholic would have a grave obligation to unequivocally oppose any so-called legal “right to abortion” without reservation, hesitation, or hedging of any kind. Every Catholic who does not do so is shirking a grave duty. Every Catholic who attempts to minimize or downplay that duty is fighting on the side of Hell, and will ultimately have to answer for it. I pray that they repent.
Even in that virtually inconceivable circumstance, where Roe stood but no abortion was ever performed, every Catholic would have a grave obligation to unequivocally oppose any so-called legal “right to abortion” without reservation, hesitation, or hedging of any kind.
Zippy,
Suppose Roe remained in effect, no abortions were being performed, but there were other laws on the books that actually resulted in serious injustices. Wouldn’t there be a duty to repeal the bad laws with actual effects first?
Of course, you are going to accuse me of fighting on the side of Hell here, but it seems to me that in the absence of any abortions being performed, what you would be talking about is purely a theory of what the law ought to say. You are putting forth a theory of what civil law ought to say even in the absence of any practical need for civil law to address the particular issue in order to regulate actual behavior.
You haven’t explicitly said this, so forgive me if I am attributing something to you that you don’t intend, but I get the feeling you are going farther than saying that if the United States reaches a point where no abortions are performed, the “right” to abortion should be wiped from the books. I get the impression you are saying that even if no abortions are performed, abortion must be legally prohibited. That is, it wouldn’t do for the law to be silent on the topic. There would have to be laws prohibiting abortion even if, as a practical matter, they were unnecessary to prevent abortions from occurring.
It seems to me it would be sufficient for the law to be silent about heinous acts that no one performs rather than to specifically prohibit them. Otherwise it would seem necessary to catalogue every horrific act imaginable and outlaw them all. (I don’t think, for example, that cannibalism is illegal in the United States.)
In any case, my main point is that you are not here arguing so much about abortion as about the purpose of civil law. The Church teaching on abortion is clear and consistent. Catholic theories about what civil law ought to be in a pluralistic democracy that has as one of its basic principles the separation of church and state would seem to carry a lot less weight than Church teaching on abortion itself.
From Evangelium Vitae
I just read an interesting article saying that Pope John Paul II is wrong here, and that voting for any law that permits abortion would be wrong. The idea that voting for a less permissive law as the only practical alternative to a more permissive law would indeed be cooperating with evil. There are of course cases where one must choose between the lesser of two evils. However, one may never vote for a law that permits some abortions, even as an alternative to a law that permits more. The hypothetical legislator in John Paul II’s example must not vote at all when the choice is between a more permissive and a less permissive law, since either way he or she would be voting to permit abortion.
Suppose Roe remained in effect, no abortions were being performed, but there were other laws on the books that actually resulted in serious injustices. Wouldn’t there be a duty to repeal the bad laws with actual effects first?
Now you ask a question of priority; and it is always possible that some other priority is more important, sure. But Todd said that Roe would be irrelevant if no woman ever chose abortion. That is complete tommyrot. The mere existence of Roe as a positive juridical matter is an abomination which undermines the very possibility of governance serving the common good, independent of the question of how many abortions are actually performed under it.
I just read an interesting article saying that Pope John Paul II is wrong here, and that voting for any law that permits abortion would be wrong.
Either I do not agree with that mysterious article, or you have misread it.
Either I do not agree with that mysterious article, or you have misread it.
Zippy,
I think I misread it, although you may disagree not only with my misreading but also the correct reading of the article itself. It is Inconsistent Papal Approaches towards Problems of Conscience?” Colin Harte, The National Catholic Bioethics Quarterly, Volume 2, Number 1 / Spring 2002, pp 99 – 122. I think the correct interpretation of what the author is saying is that Pope John Paul II, in saying that the legislator may vote for the more restrictive of the two bills, is not saying that the legislator may choose the lesser of two evils, as many (including Robbie George) interpret the pope to be saying. Here is similar commentary from another source:
Consequently, the pope is not making the wrong analysis of the situation and recommending the wrong course of action to the legislator. Rather, those who interpret the pope’s analysis to be based on choosing “the lesser of two evils,” words the pope does not himself use, are misinterpreting the pope’s argument.
Apologies for getting this wrong.
David:
Thanks for the reference.
FWIW, my own view is that it is licit for a legislator to vote for a bill, composed and proposed by others, which outlaws some but not all abortions; that is, a bill which increases the restrictions on abortion from a present more permissive state. But in my view it is not licit for a legislator to himself propose the specific exceptions as a means to the end of making the bill “passable”. More generally, authoring a bill and voting on a bill are different acts and must be evaluated morally as different acts. Needless to say my understanding is not popular among some pro-lifers, who would like to have a more free hand, as a tactical matter, than my view implies.
An even more interesting case is a proportionalist case, where we have a proposed law which permits some (say a small number) of currently-prohibited abortions but prohibits (say a large number) which are presently permitted. It is my view that a legislator may not licitly vote in favor of such a law, let alone author such a law.
My views here are fully consistent with EV, inasmuch as I allow that a legislator may licitly vote for a law which prohibits only some abortions. But many pro-lifers take that as a moral license to deliberately author exceptions in the law themselves, as a means to the end of making the law more ‘marketable’, rather than as a moral license to merely tolerate exceptions insisted upon by others. I take EV to mean the latter, because it is never morally licit to intend evil as a means to an end; and (I contend) one cannot author and promote specific exceptions in the law without intending them, whereas one can vote for an omnibus bill without intending every provision in it.
The abortion debate is a complicated one. Really, what we are talking about here, ultimately, though is finding ways to dramatically reduce and hopefully one day eliminate the root causes of abortions, I believe. There are instances when abortions are needed as a last resort option- i.e. in cases in which the mother’s health is potentially jeopardized (some multiple embryo pregnancies, ectopic pregnancies, birth defects and fetal anomalies), as well as cases of rape or incest, etc. Also at stake is the mother’s right to self determination.
What is needed, in my opinion, is to shift the conversation away from legality vs. illegality of abortion- they are legal and need to remain legal and safe, although perhaps with some limitations and additional counseling for pregnant women and their partners, etc.
What both sides CAN agree on, I would venture to say, is to work to dramatically reduce the number of unwanted pregnancies and address the root causes that lead to unwanted pregnancy (i.e. lack of education, poverty, lack of access to quality health and reproductive preventive care, etc). Otherwise, even if abortion were outlawed there would still be an epidemic of millions of unwanted pregnancies per year, AND potentially tens or hundreds of thousands of young women seeking unsafe abortions through surreptitious means- putting their own lives in jeopardy in the process.
This cannot be allowed to happen.
Let’s refocus our efforts on substantively addressing the root causes of unwanted pregnancies that lead these mostly young women to believe that abortion is their only real option.
Moving to outlaw all abortions again may assuage many conservative consciences, but it will not address the root issues, and may in fact further exacerbate them.
Also, I would assert that one cannot rightly call themselves “pro-life” if they are for capital punishment.
For a thoughtful perspective on this, here is an article about moderate Christian evangelical Jim Wallis and his approach:
http://tinyurl.com/dnjqhz
Zippy, my friend, this has nothing to do with the abortion issue. But I have been around the maypole enough in union meetings, Party Central Committee meetings and lobbying legislative bodies from Congress to City Council.
I value and respect the Church’s counsel on the policy questions. But on procedural and parlimentary means I’ll trust my own judgement, be it offering amendments, offering second degree amendments, filling the amendment tree, motion to lay on the table, point of order, suspension of the rules of the day, appeal of the ruling of the chair, move the previous question, or objection to dispense with the reading of the minutes.
Someday, ask me about St. Martin de Porres. :)
But on procedural and parlimentary means I’ll trust my own judgement, …
Keep in mind that a good end never, ever justifies evil means. Ever. There is no dispensation from this rule when you put “parlimentary” or “procedural” in front of the word “means”.
I don’t deny that. I would just maintain that the ability to discern evil and good in such particular situations almost always rests with the individual, and not someone not even present in the room.
Zippy and Kurt,
As can be seen by the articles I linked to earlier about Pope John Paul II’s analysis of the legislator voting for one bill that is better than another but still permits abortion, even experts (e.g., Robbie George) stumbled when analyzing the moral reasoning behind what the pope said. And the correct analysis hinged not on what the bills themselves did — both permitted abortions — but on the intentions of the legislator in voting for them. It seems unreasonable to expect a legislator to do a complex moral analysis of his or her every move. It also seems impossible for Catholic authorities to put together guidelines for every situation that might come up in writing, amending, and passing a bill. This may be a case of expecting legislators to “think too much.” If they are firmly pro-life, they will no doubt do the right thing without getting a degree in moral theology.
And the correct analysis hinged not on what the bills themselves did — both permitted abortions — but on the intentions of the legislator in voting for them.
I don’t agree. The analysis hinges on what passing the bill does to the current state of the positive law. If the current state of the positive law goes from less restrictive to more restrictive, it is licit to vote for the bill. If the current state of the law goes from more restrictive to less – not just in aggregate, but in any particular – then voting for the law is illicit.
The only moral issue is positive law? Is a Catholic to prefer a law on the books making abortion illegal with lax or no enforcement (as is the case in some societies, with abortion widely, easily and publicly available) as opposed to a strictly enforced law with an exception for rape?
Is the issue effective protection of the unborn or the ability of us to wash our hands of civic responsbility?
The analysis hinges on what passing the bill does to the current state of the positive law.
I don’t quite agree. If the legislator votes for a bill that prohibits all abortions, with exceptions for rape, incest, and the life of the mother, he must be firmly opposed to even those exceptions (as I understand it). If he thinks leaving those exceptions legal is a good compromise, then although he is voting to vastly reduce abortions, he is also approving the exceptions. It is his intention to limit what damage he can and (under protest) accept the damage he can’t prevent that makes the vote licit. If he looks at it as choosing the lesser of two evils, the vote is illicit, because then he is choosing an evil, which is forbidden. So how he frames the question in his mind is key.
Kurt:
I have no idea what you are talking about.
David:
I agree that the legislator’s intentions also matter morally: that is, he can perform an objectively good or neutral act and still be doing evil because of his intentions. But his intentions, whatever they may be, cannot make it morally licit for him to vote to make (some) abortions legal which are presently prohibited.
Zippy,
And there are matters where I have no idea what you are talking about.
That is why on many matters, we must give each individual Christian great liberty as they try to pursue justice, acting with the information and understanding they have of a particular situation.
I didn’t mean that I couldn’t understand you. I meant that I didn’t see how what you said had any pertinence to anything I said.