If the church’s policy is simply repeal of Roe, it is a vacuous policy, since it does not address the legal effect of repeal. In Roe the Supreme Court in 1973 declared a constitutionally protected right of privacy in regard to abortion. If Roe is reversed, the legal situation would revert to the individual states, which would be free to legislate in the field of abortion. One could expect a wide range of state laws, from prohibitive to permissive. In short, repeal of Roe would not by any reasonable stretch of the imagination abolish abortion within the United States. Abortion would be like divorce in the old days, when one had to go to Reno for a quick and easy divorce. Oregon could become the abortion and euthanasia capital of the United States.
In seeking repeal of Roe, some may fancy an amendment to the U.S. Constitution that would have the same broad-scale effect as Roe but in the opposite direction: a ruling that would constitutionally ban abortion as a violation of a protected right of the fetus. Given the sharp divisions in the American populace over the legitimacy of abortion, the chances that any such amendment could muster the broad approval necessary for constitutional change are remote to the vanishing point.
Repeal of Roe would, therefore, result in the recriminalization of abortion either nationally-constitutionally (unlikely) or in certain states (very likely). As long as one is simply morally opposed to abortion, the scope of the legal restrictions and the problem of levels of criminality and punishment need not be raised, but they cannot be avoided if abortion is recriminalized. Will the church advocate a ban on all abortions? What will the church say about abortions for pregnancy after rape or incest? (There is significant popular support for this as a legitimate sanction for abortion, so allowance for that exception would no doubt be written into the legislation of at least some states.) What will church authorities consider proper criminal penalties for abortion? On whom will they fall? The abortion provider? The woman? The newly elected senator from Oklahoma, Tom Coburn, M.D., has from time to time advocated the death penalty for abortionists. Now that would be a public policy! Would the church support this?
Thinking the matter through to the issue of criminality and its penalties should affect how one regards the moral gravity of abortion per se and the circumstances surrounding any particular abortion decision. If the harshest language of anti-abortion advocates were to be accepted, drastic penalties would seem to be appropriate. If abortion is a form of genocide, would not armed resistance to abortionists be legitimate? If abortion is simply murder of innocent life, as our parish priest affirmed one recent Sunday, there would seem to be no difference between abortion and infanticide. Would anyone having an illegal abortion be subject, therefore, to an extended prison term or even execution in states where that is the practice? If these drastic penalties seem misplaced, one can certainly continue to regard abortion as a moral fault (I do) but one of lesser gravity than genocide or infanticide. Lessening the gravity also would imply that there could be extenuating circumstances that could lessen the fault, if not wholly remove it.
A Posture, Not a Policy
I do not pretend that there are easy answers to any of these questions; but unless they are addressed, church opposition to abortion remains a posture but not a policy. Catholic bishops who threaten to excommunicate Catholic politicians who support Roe should be obliged to think through the issue of public policy, because public policy is the issue for politicians. In turn, the proper reply of Catholic politicians who support Roe should not be a statement of personal moral opposition to abortion. That is as much an avoidance of the policy issue as is the bishops’ moral posturing. The right reply from a politician is to insist on the policy question. They should ask the bishop: do you favor recriminalization of abortion? If so, who is to be penalized; what penalties are appropriate; are there extenuating circumstances?
There are further questions: Would the abortion issue be better treated in a patchwork of state lawsthe most obvious outcome of repealing Roe? I do not believe there is an obvious answer to that question. While I believe that issues like abortion, gay marriage and the like are much better dealt with in the back and forth of the legislative process than by broad judicial decree, there is a significant price to pay for too great a discrepancy among multiple and varying state laws. Certainly the patchwork solution will not prohibit abortions; it will simply make them more inconvenient and expensive. Abortion will be readily available to those who can afford to travel; it may be de facto denied to the poor. Denial of access to abortion legally or financially in this or that jurisdiction will, one can be certain, cause the re-emergence of back-alley abortions. The trauma and danger of back-alley procedures will, of course, be confined to the poor.
I have suggested that the church’s policy position on abortion goes no further than repeal of Roe. That generalization is to a certain extent incorrect. If one were to derive a policy from the actual work of the U.S. Conference of Catholic Bishops, the policy would be more like setting conditions on abortion. Sometimes these efforts have been directed at the conditions of the pregnancy, as in the ban on partial birth abortion. Others have been directed at how the woman should be required to proceed in order to obtain an abortion: establishing a waiting period or requiring parental consent for minors. I am strongly in favor of these efforts, but there is significant lack of connection between these prudent efforts and the rhetoric about abortion most often heard from official church sources. As suggested above, if abortion is rightly characterized as genocide or murder, efforts to set conditions would be deeply wrong. One would not advocate a waiting period and parental consent for a young woman contemplating infanticide. As Aristotle pointed out long ago, there are some actions that cannot be performed better or worse. No doubt it is better on the whole that an execution be as painless as possible, but execution may not be the sort of thing one should do painlessly or painfully. Painless infanticide is no better for being painless.
The question of how to go about setting conditions on abortion poses a significant dilemma for the church. Either the official murder rhetoric is too drastic, or the ongoing attempt to limit abortions is too compromising. My view is that the rhetoric is at fault. Almost all decisions to abort are morally flawed. Some are deeply immoral and inexcusablefor example, the decision to abort because the fetus is the wrong sex. But if almost all decisions to abort are morally problematic, not all situations are equally immoral and deserving of condemnation as murder plain and simple.
Moving away from murder as a description inevitably leads into extremely complex moral assessments. Unwillingness to deal with complexity makes simplistic rhetoric a temptation. Assessing individual abortion situations on some scale of moral faults would include consideration of the highly varied circumstances of the woman. Why the pregnancy? Was it due to rape? What is her current economic, domestic or mental condition? Was she coerced by parents or by her sexual partner to abort? And so on.
The Moral Claim of the Fetus
Ultimately one cannot, I fear, avoid assessing the moral claim of the fetus at different stages in its development. This is certainly a slippery slope, but failure to recognize different moral positions for varying stages of lifefor example, equating abortion and infanticideavoids reality. Parents may grieve for a miscarriage, but not as they would over a crib death. The fetus has a strong presumptive claim to live to term, but unlike the claim on life of the newborn, the fetus’s claim may be overridden under certain serious conditionsfor instance, indirect abortions, as in the case of an ectopic pregnancy or the removal of a womb with a cancerous tumor. That statement is at the heart of the conflict over the moral legitimacy of abortion. One may, of course, deny that the fetus’s claim is any different from that of the newborn, but if so the whole array of assumptions and sanctions about murder must apply. Calling abortion murder may look good on a protest sign, but it is highly problematic as a criminal statute.
It would be helpful if there were some clear criteria for determining the exact claim of the fetus at various stages and how that claim would intersect with the woman’s situation. I doubt that any such a decision table could be devised, but that does not mean that one must retreat to overly simple, black and white criteria as a substitutefor example, the assertion that the fetus has from the moment of conception full personal rights similar to those of the newborn. The extraordinary complexity of the woman’s circumstances and the status of the fetus may be one minor argument for not trying to formulate elaborate legal structures around abortion and leaving it to her choice. Choice should, however, be placed within the complex moral framework that the highly particular situations of the woman may demand. There should be a waiting period, consultation and realistic support and adoption procedures to support carrying the fetus to term.
I would be less concerned with leaving the issue with choice, if it were not for the emptiness and amorality of the pro-choice rhetoric. I have accused church officials of posturing, but posturing is not confined to the opponents of abortion. It is equally the fault line in the pro-choice camp, but as the inverse of the pro-life advocates. If Catholics pronounce on morality to the neglect of policy, pro-choice advocates fix on policy to the exclusion of serious moral discourse. Concentrating on the public policy of choice ignores the question whether all choices are morally worthy. I certainly hope that pro-choice advocates would agree with me that abortion for sex determination is an immoral and inexcusable choice. Perhaps if the pro-choice advocates would stop posturing on choice and the bishops on morality, it would be possible to devise a public conversation as well as flexible public policies that would make abortion in the United States safe, legal and rare.
I noted at the beginning of this essay that moral positions do not automatically create public policy. I suggested that United States public policy on drugs was ineffective, counterproductive and immoral. One could make the same arguments about a simplistic attachment to the repeal of Roe. Certainly repeal would be ineffective in prohibiting legalized abortion within the United States. Concentrating on the impossible goal of prohibiting abortion is counter-productive insofar as it bars discussion with those, even in the pro-choice camp, who would support measures that thicken the moral context within which abortion decisions would be undertaken and agitate to ameliorate economic and social policies along with cultural expectations that force young women to seek an abortion. Finally, prohibition of abortion will lead to the immoral consequences attendant on back-alley procedures. These consequences are real. Abortion may be so heinous that the consequences must be tolerated, but they cannot be ignored.