The National Catholic Review
Oct 7 2012 - 9:40pm | James J. Diamond
From August 10, 1974
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Some years ago a flippant slogan was adopted by pro-abortion militants: "Public health the proposition; Catholic Church the opposition." By an almost incredible turn of events the opposite has come about, the slogan now reading: "A Human Life Amendment the proposition; rigorist Catholics the opposition." There is no flippancy meant here, only deep concern.

Those Americans working for the Human Life Amendment (HLA) meet under the auspices of the National Right to Life Committee (NRLC). This year's meeting (June 7-9) was by far the most broadened to date. Ecumenical widening of the HLA movement is now significant and Protestant leaders exert considerable influence in the NRLC. Other growth is evident. The "peace" issue was tied into the pro-life movement by Richard McSorley, S.J., and the first references to the depersonalization of war, racism and religious bias were presented. Those who would once have choked on the words "family planning" applauded astronaut Joseph Kerwin as he told them that energy and population problems are real. These are impressive growth phenomena in a group which once was a handful of Catholics largely numb (let us be honest) to war, racism and other "life" issues. The narrow days are gone forever and the future promises a broad posture against all human disvaluations.

Now for the bad news. It is contained entirely in a single word that promises to mean the difference between possible success of the HLA and its certain failure. This fulcral word is "conception." Because of the complexity of the situation, and because of the ease with which it could be resolved, it is important that everyone who is interested in the HLA understand the problem fully.

Every proposed amendment to date has weaknesses of a semantic, legal or interpretational nature. Sensing these weaknesses, the 10-man team of lawyers for the NRLC worked one year developing a nearly air-tight HLA which, after NRLC approval, was to be sponsored in Congress. Since the HLA is antihomicidal, it must state when human life begins. Weighty biological arguments can be adduced to support the belief that at fertilization only the character of the subsequently hominized entity is established and that biological hominization does not occur until about two weeks later at a time near to implantation. Since science presents no certitude that life begins before this "gray" period is passed, a state of probabilism exists with a strong tilt toward the more probable, holding that human life ought not (a biological "ought," not a moral "ought") to be held to exist until conception.

The Church does not define the initial stage of abortion, nor has it defined the prevention of implantation as homicidal. It does not excommunicate users of the lUD under Canon 2350 whereby it excommunicates those culpable of abortion. The Church position is based upon an inability to define the "moment of animation." The Vatican II commission drawing up the Pastoral Constitution on the Church in the Modern World debated the same problems and with a profound wisdom guarded life from the moment of its conception. The commission also noted that it would not touch upon the "moment of animation," but would leave it to biological science to give evidence of the beginning of life. In other words, it used "conception" as an open term, the precise biological content of which was open to scientific substantiation.

Moral dimensions exist here, as they did for the council Fathers. Doubtful laws cannot be made to obligate a free human being. No one is held to the impossible task of resolving the unresolvable. If it is unresolvably doubtful that the prevention of implantation is a homicidal act, it should not be proscribed by antihomicidal laws. Nor can moral tutiorism (the safer course) be translated into civil law in an unresolvably doubtful situation but only when a resolvable or temporarily doubtful situation exists. Finally, ascetical tutiorism simply cannot be enforced by law in a libertarian, pluralistic society. If John Courtney Murray and Vatican II have not taught us this much, we have simply been ignoring the Declaration of Religious Freedom.

In the U.S. Senate Committee hearings, chaired by Sen. Birch Bayh, biological experts imported by the NRLC admitted to the existence of the "gray" area between fertilization and implantation. Sheer political wisdom indicates that no amendment which outlaws truly life-saving abortions (rare) or the iUD (very common) will ever see the light of day. Sheer practical wisdom in legalism indicates that the evidentiary and procedural problems attendant to either banning or prosecuting any pre-implantational interventions are insuperable, with the result that it doesn't really make any factual difference whether the HLA uses the term "fertilization" or "conception." If all of these considerations are so obvious to the scientists, lawyers and political analysts of the NRLC, why—one must ask—did the nonexpert board of the NRLC reject the HLA proposed for the NRLC and send it back to committee for a useless delay?

The answer lies in the opposition by rigoristic Catholics to any HLA that falls short of the pastoral instructions of the Church to its own faithful regarding life-saving abortions and the IUD. Some voted against the NRLC amendment because it permitted the truly life-saving abortion—"God does not allow them," this despite the fact that in the civil order into which any viable amendment must enter every state somehow permitted such abortions even before the Roe v. Wade decision. Others voted against the NRLC version because it omits the word "fertilization" and thus permits the IUD; this despite the fact that no state ever seriously considered any law proscribing the IUD nor will one ever ratify any amendment which proscribes it.

Other Catholics and many NRLC Protestants, modeling themselves after the council Fathers, insist that the NRLC amendment use the word "conception" as a signal to the Congress and the ratifying states that pre-implantational interventions would be permitted until such time as biological science could prove with certitude that human life commences at fertilization. They also leave the law open to truly life-saving abortions (strictly interpreted). The NRLC wording does not use either "fertilization" or "conception," but protects human life "at every moment of biological development." Even this end-run around the "gray" area might not work once the court asks for biological evidence on the beginning of life. In short, the argument lies between the council-oriented members of the NRLC and those Catholics who act as though fertilization were an article of faith and as though assent to a "conception" HLA constitutes a disobedience to the Church and the bishops, as well as a danger to their own salvation. They are willing to go down the drain with their "orthodoxy" intact.

Others insist on taking the amendment proposal to Congress as one does a money request: "Ask for ten million so you can compromise at five million." Ask for "fertilization," settle for "conception." This is a money-allocation mindset that is improper and alien to a principled amendment mindset. Every amendment in history has proposed for the assent of the Congress and the states a document- able and unambiguous precept of such clarity and truth that it compelled the desired assent. For example, many things can be considered to be involuntary servitude or slavery, e.g., tax payments, service in the military draft, even housework (shades of women's liberation). But the 13th Amendment went for the clear and documentable precept that humans ought not be enslaved. The amendment petitioners did not go for all possible involuntary servitude with the notion that they would settle for the freeing of the blacks from slavery. An amendment to the solemn document whereby we order our society is not to be carried out with fish-market haggling and bargaining.

What can be done to save the amendment? I indicated above that it might be saved easily. The Reverend Bob Holbrook, the Texas leader of Baptists for Life, has noted: "When you see truckloads of slain unborn children being carted off to the trash heap, you don't just stand around debating ways to save them all; you save whom you can while you figure out a way to save the rest."

This is not the last wisdom that rigoristic Catholics are destined to learn from their Protestant colleagues in the amendment drive. Protestants have a more cerebral sense than do rigorists of the civil order within which public moral issues must come to rest. They have none of the old Methodist anti-saloonism, the old ministerial anti-gambling instinct, the old blue-law crusading against profanation of the Sabbath. They are Christians revolting against the social injustice done to unborn children. They are neo-abolitionists seeking to abolish the latest form of human disvaluation, the depersonalization of their smallest, fellow God-ordained human creatures. They are not Baptists defending the Baptist faith. Mormons defending Mormonism, Lutherans defending the Reformation or Protestants defending justification by faith.

But the rigoristic Catholics are defending what they believe to be their faith's basic propositions, and they intend to defend them from "crazy" theologians, lax bishops and Vatican II. They threaten to jump ship from the NRLC if laxism of any degree is manifested in the amendment. Instant experts in all disciplines, they condemn their scientists for admitting to the "gray" area, reject the best work of their lawyers and—as one rigorist said—"if the bishops consent to a ‘conception’ amendment, it will be for us just one more proof that the Church is deteriorating further."

The National Conference of Catholic Bishops will meet in November, and the odds are that the NCCB will simply have to address itself to this matter. Perhaps the time has come for a joint statement by the Protestant and Catholic bishops of the United States similiar to the one recently issued by the German bishops (see "On the Protection of Unborn Life," Catholic Mind, February, 1974). While such a statement would be devastating to the rigorists, it might save the amendment drive. The ecumenical problem in the NRLC is not between Catholics and Protestants; it is between Catholic rigorists and orthodox but realistic Christians who will accept an amendment that falls short of purism rather than fail to gain an amendment at all. It is ironic and a little dismaying to observe that when tempers, accusations and motive-assignments emerge in the NRLC, it is the Protestants who seem more aware that "Thou shalt not kill" is not the only commandment; there is another one which goes: "Love one another." Given the rough road lying before any amendment, it is clear that unborn children will not be protected by law and love until all pro-lifers learn the law of love.

And now for a word from your local bishop. Someone must teach all Catholics that they can embrace a workable amendment that falls short of natural-law moral theology, and that a lesser evil can be consented to in order to achieve a greater good. The bishops can do this while protecting their pastoral concerns, and the coming NCCB meeting looks like a good bet for such pastoral wisdom-seeking. In their November, 1968 statement on "Human Life in Our Day," the Catholic bishops of the United States used the terms "life. . . once it is conceived" and "once conception has taken place." Eminent theologians such as Charles Curran, Richard A. McCormick, Joseph Donceel and Bernard Häring no longer locate hominization at fertilization, hence the time is ripe for an episcopal statement that would instruct Catholics to support an antihomicidal amendment protecting - human life from "conception" of the biologically hominized being rather than an amendment that reaches back across the "gray" area of morals, law and science to "fertilization." While a wrong statement at a premature time can be harmful, more harm can be done by a wrong silence at an overdue time.

James J. Diamond, M.D., is a surgeon who practices in Reading, Pa.