Dennis O’Brien

In February, I received an invitation to speak about abortion to a Catholic student group at a prestigious law school. The student who contacted me had read my recent book criticizing the position of the U.S. bishops on this vexing issue and thought that the students would be interested in my argument. I readily agreed. And then it almost didn’t happen. There were multiple angry objections to the invitation and members of the Catholic students board resigned in protest. My contact then polled a hundred students via e-mail about my possible appearance. The invitation won 3-1. I went, and the conversation was serious, polite, and concerned. Just what any speaker would want. Still, it was a discussion that almost did not happen. At all too many Catholic venues, it is a discussion that doesn’t happen. Can we still talk about abortion?

To put the controversy over my appearance into perspective for the law-school students, I brought to the talk a copy of Germain Grisez’s The Way of the Lord Jesus that he had given me while visiting me and my wife in Vermont. Gerry is an old friend from graduate school at the University of Chicago. He is one of the most influential of the “new natural law” theorists who have influenced conservative Catholic thinkers like John Finnis and Robert George. Gerry and I did not always agree when we were in grad school, and I am certain that he would find my current views on Catholic moral teaching quite wrong. Given that, I quoted from remarks he gave at a workshop for bishops back in 1990: “You [bishops] must face up to the disagreement.... The modernist controversy should have taught the church one thing: Questions must be faced up to and answered. They won’t go away.” Gerry was right: disagreements about abortion must be faced—within the church, and between Catholics and other Christian churches as well as the secular world.

Not the least of the problems with abortion is deciding just what to talk about. The late theologian Richard A. McCormick, SJ, in his massive Notes on Moral Theology, starts his discussion of abortion with the following topic sentence:

Abortion is a matter that is morally problematic, pastorally delicate, legislatively thorny, constitutionally insecure, ecumenically divisive, medically normless, humanly anguishing, racially provocative, journalistically abused, personally biased, and widely performed.

That seems about right! What is surprising, given the complexity of the issue, is that so many of the combatants, prolife and prochoice, think that the answer is simple. Abortion is killing babies. Abortion is a woman’s right.

The two items in McCormick’s list that I want to focus on are “legislatively thorny” and “morally problematic.” 

There is a fixed principle of the practical life: One who wills the end must also will the means. I would very much like to play the piano above the second-grade level I achieved with Sr. Cecilia back at St. Philip Neri grammar school. Unhappily, I do not will the means. I do not practice. My aim to play the piano is a relatively harmless fancy. In contrast, willing the ends and not willing the means in the political arena can be catastrophic. It is no good proclaiming a desire to end the deficit and not saying how one proposes to accomplish that end. The Catholic bishops want to end the practice of abortion. What means do they propose for accomplishing that goal? At least one prominent route—and certainly the most contentious—has been by legal means, starting with the reversal of Roe v. Wade.

Reversing Roe will, of course, not lead to the legal prohibition of abortion. The effect of Roe was to severely restrict the several states from jurisdiction over abortion by sheltering the choice for abortion under the presumed constitutional “right to privacy.” Were Roe to be reversed, jurisdiction would return to the states and criminal law, where it was before Roe.

If there is to be a criminal law prohibiting abortion, what law? Not answering that question is, as they say, a “cop-out.” It is as much a cop-out as Catholic politicians saying that they agree with the Catholic condemnation of abortion but, in a pluralistic democracy, they can’t force their religious views on everyone. That won’t do. Nineteenth-century legislators who wanted to abolish slavery faced a bitterly divided country but pressed ahead because slavery was a compelling moral fault that could be abolished in law. If prohibiting abortion has the same moral urgency and legal possibility as abolishing slavery, a politician cannot avoid the issue.

The Catechism of the Catholic Church says that abortion is the killing of innocent human life; Gaudium et spes says “abortion and infanticide are abominable crimes.” What laws and penalties would be appropriate for these stringent condemnations? In older legal codes, such as the British Offenses against the Person Act of 1861, both the abortionist and the woman were subject to a maximum sentence of life imprisonment. That would seem to be a proper penalty for an “abominable crime.”

What do church officials in fact recommend as appropriate criminal law? A bishop friend told me that the bishops were not in favor of holding the woman criminally accountable. When I talked to Richard Doerflinger at the Pro-Life Office of the United States Conference of Catholic Bishops, he said he thought that was the position of the bishops. As far as I am aware, there has never been an official statement to that effect.

There is, however, some public evidence of how the bishops might stand. In 2006, the South Dakota legislature passed a bill prohibiting abortion in all cases except those “to prevent the death of a pregnant mother.” HB 1215 was strongly supported by the Catholic Diocese of Sioux Falls in a pamphlet distributed to all the parishes. What was the position of HB 1215 on a penalty for the woman? Section 4 reads: “Nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.” Only the abortion provider is subject to criminal law. The provider can be charged with “a Class 5 felony.” In South Dakota, a Class 5 felony can be penalized by up to five years’ imprisonment and a possible fine of $10,000.

Gaudium et spes equates abortion with infanticide. The Catechism talks about “killing” an “innocent person.” It does not seem wholly off-base to say, then, as some Catholic spokespersons do, that abortion is murder or—escalating that condemnation because of the number of abortions—a form of “genocide.” If abortion is “murder,” “genocide,” and an “abominable crime,” that claim does not, to my mind, fit the specifics of HB 1215. Murder is a Class 1 felony. When I asked Richard Doerflinger about the discrepancy, he suggested that endorsement of HB 1215 was an accommodation to what was possible. The aim was to reduce the number of abortions.

I am all for reducing the number of abortions, but I don’t fully understand Doerflinger’s argument. If you want to reduce murder, you could consider expanding the police force and maybe that would lower the number of murders. Still, when a murder was committed, it would be an abominable crime subject to the full penalty of the law.

My point is simple: The moral rhetoric used by many bishops to condemn abortion does not seem to fit the criminal penalties that they apparently accept. Further, I find it hard to believe that the bishops would support severe criminal laws commensurate with the moral rhetoric of abortion as an “abominable crime.” When there is a serious disconnect between the gravity of moral condemnation and legal penalty, one or the other should give. Either the rhetoric is too severe or the law is too lenient. Or, a third possibility: Grave as the moral fault may be, it is not something that can fall under legal restraint. I do not believe that the moral rhetoric of “murder” can be legislated, because any law proposed under that notion would be too severe and would not be enforced—as was the case in the British Offenses against the Person Act. Women were seldom prosecuted.

Is the moral rhetoric really too severe? Is abortion, as McCormick states, morally problematic?

The Catholic position on abortion seems unassailable. From embryo on through birth, there is in existence a being with specific human DNA. This human being has a right to life commensurate with that of any human being. There is no direct way around this claim. It certainly cannot be that the woman has a simple “right to choose.” You have a simple right to choose when the issue at hand is indifferent. “Vanilla or chocolate, it’s your choice.” That cannot cover abortion. To accept that position one has to deny any moral status to the fetus. Putting down the family dog cannot be done as a matter of indifference, much less ending nascent human life.

The moral picture here seems heavily in favor of the Catholic position, yet I think there is something missing. What gets left out is the reality of pregnancy. In offering an alternate picture, I am drawing on the work of Margaret Olivia Little, the director of the Kennedy Institute of Ethics at Georgetown University. She insists that pregnancy is a unique human condition. Gestation is a factual situation for which our ordinary moral and legal categories of fully independent beings are ill-suited. As she says, the mainstream theory depends on “the very notion of a person [as] something physically separate from others.” Given the facts of gestation, this picture of separate beings seems mistaken. “The fetus, the gestating woman, and their relationship do not fit ready-made categories.” As feminist author Catharine MacKinnon says, “We really don’t have an adequate legal designation for fetal life.”

What Little emphasizes is that only in pregnancy is there a factual condition in which one human body is living inside another human body. Pregnancy presents a situation of “intimacy” between the woman and her fetus—an intimacy that is, for better or for worse, more intimate than any other connection we can have with an independent other: friend, lover, parent, or child. In his extensive defense of the prolife position, the Catholic philosopher Francis J. Beckwith argues that there can be no moral difference between persons based on “geographical” location. The human being in the womb cannot have any different worth from that of the newborn out of the womb. Feminist scholar Drucilla Cornell calls that the “container” view of pregnancy. Little’s argument undercuts the container view. The pregnant woman’s womb is not just a geographic location for an independent entity that would be the same if it were located someplace else. The fetus is not just in her body, it is of her body: flesh of her flesh, bone of her bone.

If one casts the abortion issue under the category of intimacy, shifts occur in the moral landscape. Many laws prohibiting abortion make exceptions for pregnancy following rape. This exception is included in the Hyde Amendment—over the objection, one should note, of the Catholic bishops. Their objection follows logically from the Catholic position: the fetus’s right to life is not compromised by the circumstance of its conception. What if one looks at rape in the dimension of intimacy?

As Little suggests, we don’t usually think enough about the moral problems of intimacy. Consider just two moral questions about intimacy: the decision to enter an intimate relation, the decision to terminate an intimate relation already entered into. If a woman turns down a date, she need have no more excuse than that she just doesn’t fancy it. If she decides to break off an intimate relation already entered into, she should have justification commensurate with the length and intensity of the relation.

If one looks at pregnancy through the issue of intimacy, a woman may certainly refuse to enter into that intimacy. If the woman accepts the intimacy of pregnancy, continuing that intimacy may be presumed but—so Little argues, and I agree—there may be some strong justifications for not continuing the relation, the most obvious being a serious threat to her health. This is a justification accepted in most laws prohibiting abortion. What about pregnancy after rape? Here the pregnancy is a “forced intimacy”: she must look forward to having another body growing in her body. I assume that the reason an exception is often made for pregnancy after rape is the judgment that forcing the intimacy of pregnancy is a very stringent if not dubious moral demand and, if legally enforced, could be construed as a violation of the woman’s liberty.

Once the issue of abortion is cast in terms of the intimate character of pregnancy, moral issues arise that can be obscured by the standard view of two fully independent entities. The moral worth of the fetus is not simply abandoned; the fetus is not a nothing—so terminating the intimacy of pregnancy is not like brushing off a blind date. However, there may well be strong moral justifications for terminating an already established intimacy of pregnancy. Just what those might be is not easy to assess, but they should be discussed.

There is a further complexity that McCormick does not mention that impacts moral assessment. Let me call it a theological dimension—it is certainly part of Christian faith.

Return to pregnancy after rape. I believe that Little’s intimacy analysis catches an appropriate intuition about moral and legal obligation. What it does not capture is going beyond obligation, beyond moral duty and law. A woman may have no moral or legal obligation to carry a child conceived by rape—but she may decide to do so. She has no obligation in justice to continue the pregnancy, but she may act from benevolence. Depending on circumstances, benevolence moves into the realm of moral heroism—in Christian terms, into saintliness. As Christians we are all called to saintliness, but saintliness is not a direct moral demand and it certainly is not enforceable by law.

And there are limits even to saintliness. Even at our most heroic and saintly we necessarily come short, we never do all, never do enough. We stand under the judgment of the Kingdom of God.

Jesus is repeatedly asked: “What is the Kingdom of God?” He tells the parable of the vineyard where the workers are hired in the morning, at noon, and late in the day. At the close of work all receive the same wage. That is not fair, that is not just, but in God’s Kingdom all are loved equally. A woman in very difficult circumstances with an unwanted pregnancy may desire deep in her heart that she could love and cherish the nascent life within and meet her other obligations in intimacy, but she decides that this is not possible. Her choice may be legal and morally defensible but, if she is a Christian, she will be haunted by the Kingdom of God where all are loved equally, all can be loved equally.

Richard McCormick was correct: abortion is a very complex issue. It deserves careful and compassionate discussion well beyond the slogans and banners of political confrontation—not least among thoughtful Catholics.

Dennis O’Brien is the author, most recently, of The Church and Abortion: A Catholic Dissent (Rowman and Littlefield).

 

^{Photo: Brochureman}

Peter Steinfels

Abortion, Dennis O’Brien writes, “deserves careful and compassionate discussion well beyond the slogans and banners of political confrontation—not least among thoughtful Catholics.”

I could not agree more.

That is why I was sorely disappointed in The Church and Abortion: A Catholic Dissent, the book that occasioned Dennis’s talk to a group of Catholic law students. Because I consider Dennis a friend, because I greatly admire his mind and many things he has written, I read his book not once, not twice, but three times, and ran through it a fourth taking notes on my underlinings.

Thank God, Dennis is a good writer.

The problem with the book, and to some extent with this essay as well, is that it is not really about abortion. It is about bishops. It is compassionate, but it is not careful. And in fact it has everything to do with political confrontation.

Dennis is incensed, as I am, by the extreme rhetoric and political overreach of some bishops—denunciations of the Democrats as the “party of death”; rejection of health-care reform because of worst-case scenarios for federal funding of abortion; inflated claims of episcopal authority regarding highly arguable political and legal judgments. These are not necessarily representative of the hierarchy but of the most militant, outspoken, and as Dennis has written “flamboyantly condemnatory” prelates, who have managed, unfortunately, to dominate the church’s public posture regarding abortion and public policy.

“Posture” was in fact the word Dennis used in a 2005 article in America complaining that the bishops had not thought through the unlikelihood of reversing Roe v. Wade or of actually banning abortion if reversal somehow occurred.

Dennis is hardly alone in any of this criticism of episcopal politics. I share it. I know bishops who share it. It has been the burden of any number of Commonweal editorials. It has created a backlash against the prolife position, of which Dennis’s book and to some extent his essay here are expressions. If, for example, the prolife position during the next presidential election season resembles the tack previously taken by Archbishop Charles Chaput, newly elevated from Denver to Philadelphia, this backlash, I fear, will only grow.

In his America article, however, Dennis went beyond issues of law and public policy, dwelling on the disjunction between the bishops’ characterization of abortion as a grave moral evil and their failure to advocate harsh penalties for women who obtain abortions. He is clearly enamored of this observation. He repeats it here as he does in his book and has elsewhere. It is a loose thread that he yanks not only to unwind the logic of the bishops’ legal argument but ultimately to conclude that the choice for an abortion can be “a choice for life.”

I am far less impressed with this if-you-will-the-end-you-must-will-the-means syllogism. What strikes Dennis as stark illogic strikes me as perhaps a sign of the very common sense, recognition of complexity, and compassion that Dennis finds missing among the bishops—and perhaps of a more comprehensive view of the function of law than he evinces here.

I have more sympathy for the bishops. They have been operating in an arena where the other side’s tactics and rhetoric have often been demagogic, manipulative, and strongly supported by the cultural establishment. In intermittent complaints about the prochoice movement, Dennis insists that abortion is a morally serious matter. If that seriousness is still alive in our culture, credit must go in good measure to the church and the bishops.

Still, there is no doubt that major parts of the prolife movement have indulged in wild (and self-deceiving) rhetoric about murdering babies and committing genocide, and that a number of bishops have joined them. That is an unhappy tendency of crusading grassroots movements (Michael Harrington, whose left-wing credentials were impeccable as our last champion of socialism, once shocked a Planned Parenthood meeting by pointing out that the right-to-life movement was the one genuine grassroots movement of the 1970s). Surely Dennis remembers, “Hey, hey, LBJ, how many kids did you kill today?” and the many rhetorical (and self-deceiving) excesses about genocide, revolution, drugs, sex, etc., emerging from the frustrations of the antiwar, civil-rights, Black Power, and counterculture movement.

To make his case Dennis has to highlight the most charged rhetoric, coming mainly from the anti–Democratic Party prelates who are the true object of his ire. Type in the word “abortion” into the search box of the United States Conference of Catholic Bishops Web site and you will get about 4,000 entries. Add the word “murder” and you will get about 180 entries or, depending on the search box you use, 360. Adding the word “genocide” will get you about 70 entries.

Not a few of the “murder” references turn out to be, yes, episcopal condemnations—but of antiabortion extremists who have murdered abortion providers. Others endorse proposed laws that would make lethal assaults on pregnant women “double murders,” although specifically exempting abortion. Many are mere repetitions. Many simply contain mention of both murder and abortion in the same document without any connection. And a great number of these entries, for both murder and genocide, simply quote the passage from Vatican II’s Gaudium et spes (27) that include “murder, genocide, abortion, euthanasia, and willful suicide” as offenses against “life itself” in an inventory of modern crimes. To say that the bishops (and Gaudium et spes!) are therefore calling abortion “genocide” is as accurate as saying that they are calling euthanasia or suicide “genocide.”

It is true that in Evangelium vitae John Paul II wrote of abortion as murder (in the paragraph before one acknowledging the tragic reasons for which women seek abortions). Typical episcopal rhetoric in the United States, however, refers to “taking a human life” or “killing the unborn person.” No matter. Isn’t any description that approximates abortion with the killing of a born person bound to entangle the church in the legal and political measures that Dennis laments? Therefore, although stating in his book that “the legal realities should be sufficient to dampen anti-abortion rhetoric,” Dennis feels compelled to forge ahead and challenge that Catholic teaching at the root. He does so always civilly but much more definitively and confidently in his book than in this present appeal simply for more discussion of a complex matter.

Dennis mounts his challenge on three legs. First, what he here calls the seemingly “unassailable” Catholic position on the moral status of the fetus is in his view actually assailable on a number of points. One by one, he exposes weaknesses in the moral case against abortion, although without necessarily bringing his own argument to closure and at crucial turns turning back to the case against a legal ban. Second, Catholic thinking about abortion has marginalized the profound meaning of pregnancy in a woman’s life, treating her instead as a passive “container.” Third, the hierarchy’s current claim that combating abortion is “foundational” actually distorts what is truly foundational about the biblical story of creation, redemption, and the reign of God. All three legs are alluded to in his essay here, although it is the second that is emphasized.

On all three counts, Dennis has valuable insights that deserve incorporation into the abortion debate—on matters like tragic choices, moral deliberation as analogical to artistic judgment, and intimacy and pregnancy. But exactly how much work, as philosophers like to say, can these insights do?

It is hard to tell, because Dennis seldom illustrates his argument with concrete examples, except of course the classic “hard cases” like rape or (in his book) incest and concentration-camp pregnancies. He refers to “tragic choices” but doesn’t indicate what, among the many known reasons for which women seek abortions, might not be a tragic choice. In a rare though politically correct instance, he firmly judges abortion for sex selection so seriously immoral that it might even be legally forbidden. But it takes little imagination to conceive scenarios where refusing a patriarchal husband’s demand to abort a wrongly sexed fetus could have a tragic outcome for a woman’s marriage, family, and well-being. Can he be so sure that his own moral categories clearly rule out abortion for sex selection?

Unlike other writers on abortion, both pro and con, Dennis does not test his ideas about “thin” personhood by exploring their implications for our convictions about newborns, the severely mentally disabled, the comatose, demented, or dying. Surely there are similarities between moral deliberation and artistic judgment, but can we live with a morality that resembles the cacophony of movie reviews or the arbitrariness of the art market? Surely the special intimacy and interdependence of pregnancy deserve underscoring, but are they so categorically different from the decades of intimacy and interdependence of parenting a tragically limited child? Why is destroying the new life thinkable in the one case but not permissible, following the arguments of Peter Singer and other eminent philosophers, in both cases?

The fetus, Dennis affirms, has a moral status that increases in the course of pregnancy without being equal to that of a newborn. He never explains the basis of this status, or what makes it greater, or how much greater, over time. Nor does Margaret Little, the respected moral philosopher to whom Dennis passes the baton but whose writings are probably not widely known among Commonweal readers and whose long-announced book reframing the abortion issue in terms of intimacy and the “ethics of gestation” is still not published.

To tell us, as Dennis does, that the moral status of the fetus is “not nothing” or at least as great as that of the family dog—or that abortion “is not like brushing off a blind date”—does not really tell us much. Is Margaret Little, who generally avoids referring to the fetus’s moral status in favor of saying that it deserves “respect,” really more helpful? To rebut the idea that “any reason to abort is a good one,” she offers the example of someone ending a pregnancy “because she wanted to fit into a party dress.”

A number of women I know, having found themselves pregnant in difficult circumstances, have confronted the question of abortion. Some made choices only hinted at; some, acting in the teeth of social convention, gave birth to individuals whose fortunes as youngsters and adults I now follow.

None of them made me privy to their decision making at the time. Yet I can pretty safely say, with due respect to the bishops, that neither the Catholics nor non-Catholics who were faced with these decisions gave a tinker’s damn about episcopal rhetoric, one way or another, in working through the moral issue. Nor did they have to be told that pregnancy would drastically change themselves and imperil or transform their life plans. Being reasonably well informed, they simply knew that there was a distinct human life within them, even if not a “fully” independent one, and that it possessed a beating heart, an individual blood type, a rapidly forming and active brain, and a genetic make-up that, being different from either parent’s, would make it a unique he or she in the world.

In trying to understand the moral status of this tiny but dynamic human entity and to weigh its destruction against the impact of pregnancy and motherhood on their own future, they would get precious little help from Dennis or Professor Little. At most, they would get the assurance, as Dennis writes in his book, that their own “life experience of pregnancy is determinative in assessing the moral situation.”

“Can we talk about abortion?” I wish the answer were yes. In my experience it is no. Not in the newsroom or on the editorial page of the New York Times, not in the ranks of the left-wing organizations I’ve been party to, not among the liberal Democratic politicians who for many years vied for my vote at primary season by trying to outdo one another in prochoice advocacy, not among the liberal lobbies who have made abortion rights a litmus test for Democratic leaders, not with academic colleagues whose prochoice sentiments dominate faculty opinion at major universities including, perhaps outside of the philosophy and theology departments, Catholic ones.

The overwrought rhetoric and antiliberal politics of anti-abortion crusaders have contributed mightily to this unwillingness to talk—or to listen. It would be nice to think that Dennis’s call for discussion would change that. I fear that his equation of Catholic views with its most vociferous exponents and his too-easy minimization of the moral status of unborn but developing human lives will only reinforce the refusal of discussion.

Peter Steinfels, author of A People Adrift: The Crisis of the Roman Catholic Church in America, is codirector of Fordham University’s Center on Religion and Culture.

^{Photo: Rachel Troyer}

Cathleen Kaveny

In the spring of 2009, the University of Notre Dame was under siege. The university had just announced that President Barack Obama, who is a strong defender of abortion rights, would be the commencement speaker. Many prolifers on campus and beyond were outraged. Some activists mounted an aggressive and relentless protest for weeks before graduation. As we got ready for exams, a prop plane flew in a tight, low circle over the university’s central buildings for hours each day, trailing an enormous picture of an aborted fetus. A large truck, plastered with explicit images of bloody, dismembered infant body parts, the face of Jesus, and dire warnings of the coming apocalypse, regularly parked at a busy intersection on the edge of campus; other trucks, with similar signs drove tirelessly through South Bend neighborhoods and shopping centers.

As the protest wore on, many members of the Notre Dame community felt beleaguered or on edge—and just a touch paranoid, if truth be told. Walking across campus, I would hear the drone of the plane’s engine and look up apprehensively. There was a palpable sense of menace.

Dennis O’Brien rightly asks, “Can we still talk about abortion?” I think the salient question is even more radical: who wants to talk about abortion, if it means talking to people like the prolife protesters at Notre Dame—or to their equally vehement prochoice opponents, for that matter? Why not walk away from the whole debate?

But we can’t walk away. The moral and legal questions are too important. I agree with O’Brien that some prolife rhetoric is extreme and unhelpful. In fact, some of it is downright hateful, and hate is no way to win converts to a religious or moral cause. It is important, however, to step back and try to understand what prompted this kind of rhetoric in the first place: Roe v. Wade. That Supreme Court decision has been on the books for nearly forty years, so it’s hard to appreciate just how radical it was, both in what it did and what it taught. I think we need to remind ourselves.

In one fell swoop, Roe struck down laws restricting abortion in all fifty states, establishing stringent criteria that any future restrictions must meet in order to pass constitutional muster. Most nonlawyers think in dichotomous terms: something is either legal or it is illegal. In actuality, the spectrum of options is far broader. For example, abortion could be (1) constitutionally prohibited, (2) criminally prohibited by statute, (3) prohibited with some exceptions (like other forms of intentional homicide), (4) illegal but tolerated, (5) entirely ignored by the law, (6) legal but discouraged and regulated, (7) actively protected by statute, and (8) celebrated as a constitutional right. Roe didn’t just legalize abortion; it took most states from (2) to (8) with the stroke of a pen. It was, as sociologist Kristin Luker said, a “bolt from the blue” that shook to the core the not insubstantial number of Americans who assumed that everyone thought the unborn were “babies”—including most Catholics.

What did the Roe regime do? For the next fifteen years or so (until Webster v. Reproductive Health Services), the Court rebuffed most efforts to place any restrictions on abortion, particularly in the first trimester of pregnancy. It struck down spousal-consent, parental-consent, and informed-consent requirements, along with waiting periods. In the meantime, the number of abortions performed began to climb, and kept doing so for nearly two decades. According to the Centers for Disease Control, roughly 616,000 abortions were performed in 1973; that number reached a high of 1,492,000 in 1990 before beginning to fall again. Since 1973, there have been approximately 50 million abortions in the United States. That number is staggering.

All law has a pedagogical function; it is a moral teacher. What do Roe and its progeny teach about the value of unborn life? Prolifers excoriate Roe’s decree that the unborn are not equally protected persons under the Constitution. The line that I have always found most chilling however, was penned by Justice William Brennan, who stated in more than one opinion that “abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy.”

No. They’re not.

Because Roe purported to interpret the Constitution, those who opposed it had very few options. They could try to push through a constitutional amendment undoing it, or they could try to remake the Supreme Court to overrule it. Neither approach was easy, quick, or certain—as the past forty years attests. Yet the question—who counts as an equally protectable member of our society—became increasingly urgent as the abortion rate climbed. To make their point, prolifers understandably appropriated a time-honored form of American political rhetoric: the jeremiad. In American history the form goes back to the Puritans, and it has been appropriated by every major moral reform movement since, most notably the abolitionists. The jeremiad is of course modeled on the scathing denunciations of violations of divine law by the Hebrew prophets, and has been used effectively by political liberals as well as conservatives.

The jeremiad’s expressive function is clear and powerful. We all know what Archbishop Charles Chaput thinks about abortion. Ironically, however, its persuasive function is far more questionable. Most self-proclaimed Jeremiahs give you two options: agree with them completely or be consigned to everlasting damnation. A discerning, nuanced conversation about a complicated issue is not an option.

O’Brien expresses his anger and exasperation at the “culture war” bishops. I sympathize with him. Moreover, I think their rhetoric is counterproductive. It leads many Americans to disengage from the public discussion of abortion, thus leaving the status quo intact. The status quo is remarkably stable. Although most Americans have moral reservations about abortion, they do not want to prohibit it legally. One out of three American women will have an abortion during her lifetime. The latest polls show there is not much reason to think that those now in their twenties and thirties are more conservative than their parents on the question. And indeed, we are beginning to see rhetoric from Chaput and others that looks less like a jeremiad and more like a lamentation—the predictable next rhetorical step of a disheartened Jeremiah.

Prophets tend toward dichotomous thinking. Either the unborn is a person, and terminating a pregnancy is therefore, and without exception, to be treated as first-degree murder, or its value is completely dependent on the wishes of the woman who carries it, and terminating a pregnancy is always within her discretion. O’Brien rightly rejects the first pole; I worry that he comes too close to the second. Despite his calls for nuance, he hasn’t entirely escaped the dichotomous thinking that he protests.

Unlike prophecy, the Anglo-American legal tradition has significant resources to resist all-or-nothing dichotomies. In order to do justice to the complexities of a moral dilemma like abortion, the law takes into account not only the status of the victim, but also the circumstances of the perpetrator, as well as other factors such as practical workability. As O’Brien notes, before Roe, abortion was a distinct class of offense. If Roe is ever overturned, and even if the law then acknowledges the full personhood of the fetus, there would still be good jurisprudential reasons to be extremely sparing in the use of the criminal law to punish those involved in abortions. Some studies show, for example, that the abortion rate in societies where the procedure is illegal is not lower than in societies where it is permitted. Notoriously, the death rate among women who procure abortions is much higher when the procedure is illegal.

Nonetheless, O’Brien is mistaken in claiming that it would be hypocritical to punish abortion providers but not the women involved. Many prolifers consider women to be abortion’s second victims. They want the law to protect them too, not to punish them. We do not, after all, arrest minors for conspiracy to commit statutory rape, even if they consented to the sexual act in question. Moreover, the law has room to recognize cases where the line between victims and perpetrators is hazy. A society can rightly decide to punish drug dealers but not drug users, or to criminalize procurement but not prostitution. Even in the case of homicide, motive and circumstances matter.

Echoing Roe’s right to privacy, O’Brien locates the moral and legal core of the abortion question in the “intimacy”—or lack thereof—between the mother and unborn life she is carrying. Yet his way of framing the decision strikes me as too isolating and isolated, both empirically and normatively.

The evidence suggests that a woman’s decision to have an abortion is far more influenced by her relationship to her family and friends, and especially to the father of her child, as well as her social and economic circumstances than to her level of intimacy with the growing life inside her. In fact, most decisions to abort are made before the baby’s presence is made known by anything more relational than a plus sign on a pregnancy test. It is the level of connection and intimacy with the baby’s father that matters most. Studies show that unmarried women, very young women, and women without financial resources are far more likely to seek abortion as a solution to an unwanted pregnancy.

Normatively, abortion is a heart-wrenching and difficult problem because the most vulnerable class of human beings—the unborn—are totally dependent on human beings who are themselves very vulnerable—women facing crisis pregnancies. As Pope John Paul II recognized in Evangelium vitae, isolating the woman and the child together in their vulnerability is not the right response. Building a “culture of life” can’t be reduced to the negative goal of prohibiting abortion—even if it were legally and politically possible do so. Nothing in Evangelium vitae suggests that we must work on outlawing abortion before implementing realistic social policies that encourage pregnant women to carry their children to term.

The best book on abortion policy I have read is Mary Ann Glendon’s Abortion and Divorce in Western Law. Glendon writes that “what is important is that the totality of abortion regulations—that is, all criminal, public health, and social welfare laws relating to abortion—be in proportion to the importance of the legal value of life, and that, as a whole, they work for the continuation of the pregnancy.”

Glendon’s approach gives us moral pedagogy about the value of unborn life without the hard edge of prophecy. It situates both the pregnant woman and the unborn child within a supportive society rather than consigning them to an all too isolating intimacy. It builds a culture of life, rather than merely castigating a culture of death

Dennis O’Brien wants us to talk about abortion. I think Glendon’s approach can help us all move toward a more enlightening conversation.

Cathleen Kaveny teaches law and theology at the University of Notre Dame.

---

Related: Letters to the editor about this article (and O'Brien's respose)
Daniel Sulmasy's review of O'Brien's The Church and Abortion (and O'Brien's response)