Editor’s Note: This article is part of a symposium titled “Abortion after Dobbs.” We asked seven Commonweal contributors, from various backgrounds and with various views, to discuss what the Supreme Court’s recent decision is likely to mean for abortion law, American politics, and the creation of a “culture of life” worthy of the name.
It was foreseeable that a decision by the Supreme Court to overturn Roe would not end abortion in the United States, but would instead result in a patchwork of starkly disparate laws and regulations so that what might be regarded as a right in one state would be treated as a felony in another.
Already we are witnessing what can happen to women and children who live in states where abortion has been seriously restricted or criminalized. The ten-year-old rape victim denied an abortion despite the substantial risk that pregnancy would pose for her physical and mental health. The woman whose water broke at eighteen weeks and who endured a dangerous and agonizing wait for the fetus’s cardiac activity to cease before doctors would complete her abortion. Women with ectopic pregnancies who are not treated until their lives are on the cusp of being lost. Even where laws provide for termination of pregnancy when the mother’s life or health is threatened, doctors and health-care institutions are unsure about what “counts” as life-threatening and what the options are. Must the woman be at imminent risk of dying? What if a woman has preeclampsia and her blood pressure is rising dangerously? How serious does a health risk need to be for termination to be allowed? Does a woman whose diabetes or renal disease can be exacerbated by pregnancy qualify?
And who decides? The lack of legal clarity leaves doctors caught between their oaths to help their patients and the risk of losing their licenses or going to prison. Dana Stone, a doctor in Oklahoma, which has banned almost all abortions, told the Associated Press, “We’ve asked some legislators, ‘How are medical providers supposed to interpret the laws?’ They say, ‘They’ll figure it out.’”
Though it’s already well documented, it’s worth repeating that states with the most restrictions on abortion already suffer some of the highest rates of maternal mortality. Louisiana, which bans abortion after six weeks, ranks forty-eighth in the nation in maternal and child health; from 2016 to 2018, maternal mortality rates rose 16 percent. We also know that the burden of bans will not be borne equitably. Jack Resneck Jr., president of the American Medical Association, made this point in his statement on the Dobbs decision: “Access to legal reproductive care will be limited to those with the sufficient resources, circumstances, and financial means to do so—exacerbating health inequities by placing the heaviest burden on patients from Black, Latinx, Indigenous, low-income, rural, and other historically disadvantaged communities who already face numerous structural and systemic barriers to accessing health care.”
We’ve also seen how those who insist on a legal prohibition of abortion often downplay or ignore the structural economic forces that can lead women to terminate their pregnancies. According to data cited by Luu D. Ireland, assistant professor of obstetrics & gynecology at the University of Massachusetts Medical School, 73 percent of women seeking an abortion say they cannot afford another child. (More than half are already mothers.) The most common reason women give for seeking abortion is lack of social support: they say that “pregnancy would interfere with education, work or ability to care for dependents.” A study conducted by the University of California, San Francisco, shows that women who are denied abortions face greater likelihood of long-term economic insecurity, of remaining in contact with a violent partner, and of serious health problems than women who have them.
Dobbs was not decided in order to enact Catholic magisterial teaching in the public square. But since it was celebrated by many in Church leadership, and since post-Roe abortion bans are the subject of vigorous and munificent Church lobbying, that teaching is worth a quick summary.
Catholic teaching across the centuries has focused almost exclusively on the philosophical quandary of when a developing embryo or fetus is a human person—that is, a being endowed with rights, including the right to life. Personhood, though, is a philosophical determination, while biological development is a continuum with a number of points at which personhood might be imputed. Indeed, in a footnote to 1974’s Declaration on Procured Abortion, the Congregation for the Doctrine of the Faith made this quandary clear:
There is not a unanimous tradition on [when a fetus becomes a human person] and authors are as yet in disagreement. For some it dates from the first instant; for others it could not at least precede nidation. It is not within the competence of science to decide between these views, because the existence of an immortal soul is not a question in its field. It is a philosophical problem.
The footnote concludes with a defense of regarding the early embryo as a person from conception; subsequent Church documents still refrain—barely—from declaring a zygote a person. This does not imply any approval of abortion: the Vatican II document Gaudium et spes declared that “abortion and infanticide are unspeakable crimes.” Abortion imposes latae sententiae excommunication on the responsible parties. According to the ethical and religious directives that guide Catholic health-care institutions, no direct action to terminate a pregnancy, or even a direct abortion of an extrauterine pregnancy, is licit, although in some cases involving double-effect reasoning (one classic example is the reasoning that accepts removal of a pregnant woman’s cancerous uterus), one may pursue treatment that is foreseen but not directly intended to cause the death of an embryo.