Editor’s note. A draft of a U.S. Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization that was leaked to the press on May 2 suggests that the court will overturn the decision made in the case Roe v. Wade in 1973, which legalized abortion nationally.
Though the court’s final decision in the present case will not be known until it is published and remains open to revision until then, the draft opinion by Supreme Court Justice Samuel Alito has resulted in a firestorm of speculation and argument across the political spectrum. In its current form, the opinion would return decision-making on the legality of abortion to individual state legislatures.
Abortion has long been among the most contested issues in the United States between Catholic health care ministries, including member groups of the Catholic Health Association of the United States (C.H.A.), and civil liberties groups, including the American Civil Liberties Union (A.C.L.U.)
The following essay on areas of disagreement and opportunities for collaboration is an edited version of a conversation between Anthony Rothert of the A.C.L.U. and Charles Bouchard, O.P., of the C.H.A. The conversation, which took place before the leak of the court’s draft opinion, has been edited for length and clarity.
Anthony Rothert: "Despite our differences, we at the A.C.LU. and the health care ministries of the Catholic Church also share many policy goals."
Anthony Rothert. Because there are serious disagreements between the A.C.L.U. and the U.S. Conference of Catholic Bishops, the C.H.A. and other ministries of the Catholic Church about what the law should be on various important matters, it often seems that in our current cultural climate, there are no real prospects for collaboration between the A.C.L.U. and Catholic health care ministries. But even substantial disagreement on some critical questions does not mean the chasm between us is so vast it precludes partnerships.
The most prominent area on which we disagree is on the question of whether abortion should be legal. I think most Americans know that we at the A.C.L.U. believe that pregnant persons have a right to decide whether to continue a pregnancy. Of course, this stands in marked contrast to the official position of the Catholic Church. We differ as well about access to birth control and sterilization.
Similarly, questions around L.G.B.T.Q. rights are well-known points of divide that cannot be ignored. While the Catechism of the Catholic Church teaches “every sign of unjust discrimination [against L.G.B.T.Q. individuals] should be avoided,” the church has opposed marriage for same-sex couples, adoption by same-sex couples and rules barring gender-identity discrimination in employment and health care. But an examination of areas where we do agree—or have similar goals—shows the possibility of significant opportunities for collaboration and partnership, even as we acknowledge the differences that remain.
Charles Bouchard, O.P. Until recently, my impression of the A.C.L.U. was mostly negative. I suppose this is not surprising, because my work in Catholic health care involves a number of controversial reproductive issues which we see in very different ways.
My impressions were shaped by a number of things. I had seen the A.C.L.U./Merger Watch publication “Health Care Denied: Patients and Physicians Speak Out About Catholic Hospitals and the Threat to Women’s Health and Lives.” It featured the story of Tamesha Means, who alleged that a transfer from a Michigan Catholic hospital had endangered her life.
I also knew that the A.C.L.U. sued the U.S.C.C.B. in 2013, alleging that its Ethical and Religious Directivesconstituted medical negligence, and again in 2016, claiming the bishops “routinely denied survivors of human trafficking access to critical health care because of religious beliefs.” I also knew that the A.C.L.U. had challenged the city of Philadelphia to shut down Catholic Social Services because it would not allow adoptions by same sex and unmarried couples.
Catholic hospitals drew negative attention—and lawsuits—from the A.C.L.U. and affiliated groups for refusing to perform some procedures related to gender transition. The story of Oliver Knight, whose surgery at a Catholic hospital was cancelled (“Catholic Bishops stopped My Surgery Because I’m Transgender”) is featured prominently on the A.C.L.U.’s web page.
Charles Bouchard, O.P.: "We share the A.C.L.U.’s concern for the rights of disabled persons, victims of human trafficking and, of course, religious liberty."
A.R. It is true we filed those hospital lawsuits—and would do so again—because we believe that hospitals have a duty to provide their patients, Catholic and non-Catholic, proper care without deviations mandated by administrators.
Despite our differences, we at the A.C.LU. and the health care ministries of the Catholic Church also share many policy goals. There are many areas of convergence, including concerns over pregnancy discrimination, pay equity, systemic racism, self-determination for Indigenous people, immigration, capital punishment and conscientious objection to war.
Both the A.C.L.U. and the bishops support the Pregnant Workers’ Fairness Act, which would prohibit employers from denying pregnant workers the temporary job modifications they need to keep working and have a healthy pregnancy.
On the question of pay equity, as the U.S. bishops put it in 1919, “women who are engaged at the same tasks of men should receive equal pay for equal amounts and qualities of work.” The A.C.L.U. echoes this when they say “the central concept of civil liberties is that all individuals have the fundamental right to be judged on the basis of their individual characteristics and capabilities, not the characteristics and capabilities that are supposedly shared by any group or class to which they might belong.”
On the issue of racism, the bishops of the United States recognize racism is systemic and continues to negative impacts in our communities. The A.C.L.U. agrees with the bishops. We both want a society in which people and communities of color have full access to the rights and benefits of American society, and we both are committed to seeking solutions that go to the roots of racial injustice, including understanding the complex legacy of slavery in society, economic development, culture, politics and law. Indeed, the church is examining its own participation in the institution of slavery and making efforts to begin to atone.
The bishops describe “the devastation caused by policies of expansion and manifest destiny, fueled by racist attitudes, that led to the near eradication of Native American peoples and their cultures.” We share the view that Native Americans have the right to retain their cultural and religious heritage and that the violation of that right has led to poverty and associated social problems.
On the issue of immigration, the U.S. bishops have called the faithful to treat immigrants as they would treat Christ. The A.C.L.U. believes in immigrants’ freedom, dignity and equality. That is why both the bishops and the A.C.L.U. are leading advocates for comprehensive immigration reform to repair our badly damaged system and replace it with one that honors and respects the dignity of newly arrived individuals.
With regard to capital punishment, both the A.C.L.U. and the U.S.C.C.B. believe the death penalty must be abolished. The Catechism of the Catholic Church says “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.” The A.C.L.U. opposes the death penalty because it is dehumanizing, arbitrary and racist.
Like the U.S. bishops, the A.C.L.U. supports a right of conscientious objection both to all military actions and to military service in particular wars. In fact, the A.C.L.U.’s creation was prompted by abuses of this and other civil liberties in the First World War.
C.B. My negative perspective on the A.C.L.U. began to change after I did a podcast with Gloria Purvis for America Media. The working title of that podcast was “Why does the A.C.L.U. Hate Catholic Health Care?” As I prepared for the podcast, I took a closer look. I compared the A.C.L.U.’s advocacy agenda with the Catholic Health Association’s core values and policy priorities. To my surprise, I discovered significant overlap in values and advocacy on a number of issues.
For instance, as you note, C.H.A., the U.S. bishops and the A.C.L.U. all support immigration reform, racial justice and a ban on capital punishment. Catholic health care is committed to addressing inequities in access and outcomes for minority groups. We address socioeconomic factors that contribute to those inequities through our Community Benefit programs. C.H.A. also has a “We Are Called” initiative, which is designed to get explicit support from every Catholic health system for racial equity and to work with “partners who share these convictions to implement wide-sweeping change and eliminate the racial inequities in our marginalized communities.”
We share the A.C.L.U.’s concern for the rights of disabled persons, victims of human trafficking and, of course, religious liberty. For example, the A.C.L.U. and the U.S. bishops both signed a letter supporting protection for Oak Flat, a traditional Native American sanctuary and burial ground, because of our shared interest in religious freedom.
A.R. I feel compelled to note the A.C.L.U. is clear that religious liberty is the right to belief and expression as well as the guarantee that the government will not favor one faith over others or religion over non-religion; it is not a license to discrimination. The truth is, however, we could spend more time describing the many other areas of agreement on policy questions.
Our primary sources of inspiration are different from the Catholic Church and occasionally place us on different sides of an issue. Those engaged in Catholic ministry find guidance in the teachings of the church, while the A.C.L.U. begins with the U.S. Constitution’s promises that individuals not only will have autonomy from the government when it comes to fundamental decisions about how to live their lives but also the government’s support in ensuring equity. Even when we support the same policies, our reasons will not be identical.
In the 1990s, the A.C.L.U. and the church were effective working together to oppose a “children exclusion” provision, which would have denied an increase in a family’s benefits upon the birth of a child if the child was born while a parent was receiving assistance. The A.C.L.U. thought it would punish poor women for having children and violate the guarantee that individuals could make their own reproductive choices without government interference.The bishops worried it would encourage abortions.
We fear that Americans are losing sight of the fundamental human goods that draw us together and give us common purpose.
C.B. There are important nuances that distinguish our positions from those of the A.C.L.U. For instance, the church roots its views in Scripture and church tradition rather than constitutional autonomy. While we support human freedom, we tend to favor the term human dignity because we think that rights language can sometimes be stripped down to mean only non-interference. We see human dignity as a positive value that requires cooperation with others to secure access to basic human goods. This is why we largely agree on the important role of government in ensuring equity.
The A.C.L.U. emphasizes individual freedom, which reflects its longstanding commitment to free speech. Catholics support freedom, too, but we see individual freedom more as a prerequisite than as an end in itself. Freedom expands possibilities but it must aim at both human dignity and the common good.
There are two reasons we will probably never agree on abortion—first because we start with different assumptions about when human life begins and second because the A.C.L.U gives priority to a woman’s right to reproductive freedom. We recognize the dignity of both mother and child. We honor them both, even if there are times when we must allow the unavoidable death of the child to save the mother’s life.
Mr. Rothert and I agreed to write this article together because we both see the dangers of polarization and politicization in this country, and because we know much of that polarization focuses on abortion. We fear that Americans are losing sight of the fundamental human goods that draw us together and give us common purpose.
The Catholic Church and Catholic health care ministries are not anti-woman, anti-L.G.B.T.Q. or anti-freedom. Catholic religious women (aka “the sisters”) established nearly all of our Catholic hospitals and many Catholic schools and universities. They served as leaders long before women in other areas. The institutions they founded were open to everyone.
Too often, the church reacts to its enemies by a kind of false integralism that says “wrong on one thing, wrong on everything.” It is my hope that we can be more discerning and recognize common values in a way that will be a model for others. I also hope that the A.C.L.U. will show some of its traditional respect for minority voices and religious freedom by respecting our beliefs about the sanctity of life and working with us on other aspects of human dignity.
A.R. We have real differences, but we have real opportunities for collaboration. The notion of “strange bedfellows” advocating for the same policy result has always been powerful, and remains so with today’s polarization. It is unexpected. And it forces policy makers to consider that a policy choice arrived at by thoughtful people with different approaches deserves consideration.
The greatest barrier to collaboration is how we handle serious, firm disagreements about vital questions. There is no reason to expect that the A.C.L.U. or the bishops will change their views soon, even if each wishes the other would. And I confess to being distracted by protestations that institutions are not anti-woman, anti-L.G.B.T.Q. or anti-freedom when it appears to me that the laws and policies they support often are.
This nation’s Catholic ministries are powerful advocates for important policy changes needed to advance the common good of our communities. As our nation’s premier advocate for civil liberties, the A.C.L.U. is also a force that influences policy-making. We can accept our strong differences and take advantage of comparable policy views to strengthen our advocacy on points of agreement. We can show mutual respect by working to understand the respective values that led us to the same conclusion. There are many areas where unity and collaboration would help, but too often we shy away from those opportunities because of firmly held opposing views on issues that we both view as fundamental. Is this barrier insurmountable?
