Last week marked the fortieth anniversary of Roe vs. Wade. In the absence of a consensus favoring legal protection of the unborn, what are the alternatives available to us in the short term? In my most recent Capital Commentary piece, I make four suggestions:
First, we always do well to assume that our pro-choice opponents are people of good will who love their families and genuinely care for the welfare of their communities. It will not do for pro-lifers to vilify those on the other side of the issue, a perennial temptation for anyone viewing the struggle in stark apocalyptic terms and focusing on the legislative battle. Those taking a pro-choice position do not hate babies; rather, they see themselves having a heart for vulnerable women in crisis pregnancy situations. We need to build on this sympathy, making a case that it should be extended to the vulnerable child in the womb as well.
Second, those of us who can speak from experience should do so, and in such a way as to open, rather than to close, the lines of communication. Although I personally have no experience with abortion, my wife and I do have experience with an early birth. Our daughter was born fourteen weeks premature nearly a decade and a half ago, weighing in at just over two pounds and spending her first ten and a half weeks in two area hospital neonatal intensive care units. During this difficult time we quickly discovered that our daughter would smile briefly when she was content. It did not take much to convince us that, if she could smile at such a young age, then fetuses, who are more than just inert tissue, must surely smile in the womb. Several years later our suspicions were confirmed by a British study which discovered as much through 3D/4D ultrasound imaging. We were struck by the sheer incongruity between our daughter possessing the legal status of personhood outside the womb, where she should not yet have been, and her lack of such status if she had remained in the womb the full nine months.
Third, as useful as such technology can be to the pro-life cause, we cannot assume that science has proved or will prove the humanity of the fetus, as if science were capable by itself of resolving the controversy to everyone’s satisfaction. Many people on the pro-choice side admit that the fetus is human. Yet this admission is insufficient to move them to the pro-life side. We need, instead, to emphasize the responsibility that new life places on us with respect to nurture and care, a responsibility that we dare not evade by trying to eliminate a life that seems momentarily inconvenient.
Fourth and finally, despite the seemingly intractable differences between pro-life and pro-choice citizens, the ordinary imperatives of day-to-day governance will not go away and will require the cooperation of everyone, whatever their position on abortion, in a variety of other areas. Given this reality, we must all be prepared to collaborate on those issues where agreement is possible, while continuing as best we can to protect the lives of the most vulnerable among us, including the unborn.
January 28th, 2013 | 12:05 pm
What a fantastic article. God bless you.
We must never give up, never.
January 28th, 2013 | 12:32 pm
For one Catholic hospital administration, fetuses are people… unless the hospital is sued for wrongful death.
Many commentators I’ve seen have characterized this as Church hypocrisy; I don’t agree. On the other hand, it’d be impressive if the Church stepped in and convinced the hospital to drop that legal defense…
January 28th, 2013 | 1:29 pm
Your third point that “Many people on the pro-choice side admit that the foetus is human. Yet this admission is insufficient to move them to the pro-life side,” is well taken. One has only to look at the Veil Law of 1975, legalising abortion in France.
Article 1 reads, “The law guarantees the respect of every human being from the commencement of life. There shall be no derogation from this principle except in cases of necessity and under the conditions laid down by this Law.”
Then, Article 2 proceeds to allows an abortion to be performed before the end of the tenth week of pregnancy by a physician in an approved hospital when a woman who is “in a situation of distress” [une situation de détresse] because of her pregnancy requests the abortion.
The representatives of the nation, in voting for the law, obviously believed that the two articles could be harmonised.
January 28th, 2013 | 2:05 pm
First, we always do well to assume that our pro-choice opponents are people of good will who love their families and genuinely care for the welfare of their communities.
This is the kind of thing it is good to hear.
January 28th, 2013 | 2:14 pm
Ray,
It has already been reported that the Colorado bishops are investigating that case. From the story:
January 28th, 2013 | 2:49 pm
For the purposes of wrongful death suits, the unborn in Colorado are not considered persons. I don’t think it is in any way necessary for a Catholic hospital being sued for the wrongful death of unborn twins to attempt to have the law reinterpreted so that the unborn children, against all precedent, count as persons. This is a matter, I think, of legislative intent. If the legislators who passed the law intended the term “person” to apply to the unborn, then the law applies to the unborn. But if they didn’t, it doesn’t. As I think everyone knows, Justice Scalia won’t apply the 14th Amendment to the unborn, since he believes those who wrote the 14th Amendment meant “walking around persons,” not the unborn. The same principle applies here. It does not make sense (to me) to try to establish that the unborn are “really” persons and to make applicable to them all laws that apply to “persons” even though that was not the intent of the legislators. To take a trivial example, we would not want to require a pregnant woman to buy two tickets when she goes to the movies because the tickets say “Admit One.”
January 28th, 2013 | 2:57 pm
Anna – I’ll be curious to see what comes of the investigation, and whether it’s complete before the legal contest is.
January 28th, 2013 | 4:15 pm
Hm, I’m not sure that movie-ticket scenario holds up. I’ve never tried to take a baby to a movie, but I have taken babies on airplanes and trains and to various events requiring a ticket for a seat (my older children did a lot of community theater at one time, for example, which meant that my toddler and baby saw a lot of plays which they now don’t remember). In every instance that I can recall, I did not have to buy a second ticket for the child in my arms, unless I wanted that child to have his or her own seat.
So I’m not sure that defining the unborn as persons would necessitate quite those measures.
January 28th, 2013 | 5:41 pm
So I’m not sure that defining the unborn as persons would necessitate quite those measures.
Sally Thomas,
I gave that as a trivial example, and I did not predict pregnant women would actually be charged two admissions to get into the movies! I sais, “We would not want to require a pregnant woman to buy two tickets when she goes to the movies because the tickets say ‘Admit One.’” However, the Alabama Supreme Court recently ruled that a pregnant woman who used illegal drugs while pregnant could be convicted under a law that forbids giving illegal drugs to children. Now, I have not done enough research to know if that was what the legislature intended, and of course it is not a bad thing to prevent pregnant women from using illegal drugs, since they are not supposed to use them anyway. But what about alcohol? Can a pregnant woman who drinks be charged with serving alcohol to a minor? Can a pregnant woman charged with reckless driving also be charged with child endangerment?
I can’t raise all possible consequences, and it would be difficult for anyone to predict them. I am just saying there are no doubt strange and unexpected consequences to declaring a pregnant woman to have another full-fledged person with full human rights inside her. Certainly the potential for severely restricting the rights of pregnant women is a consequence.
January 29th, 2013 | 9:31 am
Let’s be honest about the legal defense provided by CHI in the Colorado wrongful death lawsuit; it’s really bad, and it makes the Church look bad. Trying to lessen the impact of CHI’s legal argument is just wishful thinking. To the extent that Catholic institutions reflect on the Catholic Church proper, this legal defense shouts, “From the moment of conception human beings are endowed with dignity and with fundamental rights, unless it costs us money.”
I am ill over this lawsuit, and the only acceptable outcome will be for the Bishops to drop the hammer and forbid the use of this legal defense.
January 29th, 2013 | 10:10 am
David Nickol -
A movie theater would be within its rights to insist on such a policy, though. It would be unpopular and counterproductive, but they could do it. They’re not a government, and they certainly aren’t subject to the Bill of Rights the way the government is.
A more salient example – my wife and I can take our kids to Canada so long as we adults have passports, and we have documentation for our kids. But if we wanted to travel to Europe, say, we’d need passports for the youngsters, too. Would it make sense to for a pregnant woman to carry two passports?
Precisely the point. Wheter the baby is born yet is a determinative fact in many areas, so it behooves everyone to think about exactly what that does and should mean.
January 29th, 2013 | 10:28 am
I certainly agree with David Nickol that, as with any law, it is a question of legislative intent.
But I would go further. In the Civil Law tradition, going back to the Roman Lex Aquilia, the law will not set a pecuniary value on the life of a free person. The heir may sue for any patrimonial loss he has suffered by reason of the death and most modern codes allow an action by the dependants for loss of dependency, for these are things that can be valued in money.
Now, one can construct a scenario in which patrimonial loss would flow from the death of an unborn child – a gift or legacy to A, but, if he dies without issue, to B. Here, I can imagine a right of action, although the damages would not be easy to assess.
Again, some systems, including Scots law allow a solatium for loss to a spouse or next of kin, but this is a reparation for their injured feelings, not for an injury done to the defunct.
To set a value on the life of an unborn child, so far from respecting their dignity would be to treat them like cattle.
January 29th, 2013 | 11:22 am
To set a value on the life of an unborn child, so far from respecting their dignity would be to treat them like cattle.
Michael PS,
This seems right to me. My understanding of wrongful death suits is that they are not civil versions of murder trials. They are largely about compensating the person suing for the loss of the dead person. For instance, a wife who was supported solely by her husband might endeavor to show in court what the future earnings of her husband would have been, and seek that as compensation. Although there are, I believe, attempts sometimes to set a value on loss of companionship and such things, it is based on the relationship the deceased and the survivor had before the loss.
January 29th, 2013 | 12:32 pm
David Nickol
Of course, not only loss of earnings can properly be taken into account. Certain domestic services, such as painting and decorating, that the husband did for nothing, a tradesman will do for money and these are rightly taken into account.
Setting a value on “loss of companionship,” like damages for “pain and suffering” can only result in a purely conventional award and, in jurisdictions where such damages are assessed by judges, tend to be based on a sort of tariff that the courts develop,
Insofar as money can improve one’s amenity of life, I suppose there is something to be said for them.
January 29th, 2013 | 3:40 pm
We *can* use some common sense here every once in a while to dispell a conundrum.
The intent of a movie seat ticket is to reserve a seat. A baby in the womb does not need a seat.
There’s no Grand Unified Theory that needs satisfaction here. There’s no struggle to stay morally philosophically consistent here. The baby is a human being. It doesn’t need a seat. Sheesh :)
January 29th, 2013 | 3:44 pm
Ray, the point of a passport has to do with security and identification, not personhood. Unless some kid is planning on jumping out of the womb mid-vacation and causing trouble, then I don’t think it needs a passport…
January 29th, 2013 | 4:28 pm
Ray, the point of a passport has to do with security and identification, not personhood. Unless some kid is planning on jumping out of the womb mid-vacation and causing trouble, then I don’t think it needs a passport…
JDD,
Hmmm . . . don’t people complain about pregnant women coming to the United States (generally from Mexico) to have their babies here so the babies will be American citizens? If we made sure to demand passports for the unborn, this would not happen.
There’s no Grand Unified Theory that needs satisfaction here. There’s no struggle to stay morally philosophically consistent here.
It is not so much a matter of consistency. It is a matter of unexpected and unanticipated consequences, and of trying to reinterpret laws to mean something other than what the legislators intended when they wrote them.
February 5th, 2013 | 2:48 pm
Followup in case anyone’s interested:
Catholic Health Initiatives and St. Thomas More Hospital in Cañon City acknowledged Monday it was morally wrong for their attorneys to defend a medical malpractice case in the death of unborn twins by arguing Colorado law doesn’t consider fetuses to be persons..
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