Beyond Bans

How Catholics should talk about abortion
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Pro-choice demonstrators in Brooklyn, New York City, May 2022 (CNS Photo/Caitlin Ochs, Reuters)

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.

Those giant posters of apparently free-floating fetuses seen at pro-life rallies sell a biological fiction: there is no such thing as a living, developing fetus that is not utterly dependent on he well-being of its mother.

Finally, Catholic teaching makes no logical exception for cases of rape or incest, since neither crime against the mother affects the ontological status of the fetus. Pope John Paul II also ruled out considerations like a mother’s “desire to protect certain important values such as her own health or a decent standard of living for the other members of the family.” He declared that “in no way could this human being ever be considered an aggressor, much less an unjust aggressor!”—thus apparently ruling out self-defense claims aside from those justified under the terms of double-effect.

Other religious bodies harbor different opinions on the moral status of the early embryo and the morality of abortion; some of those are now protesting abortion bans on religious-freedom grounds. As for U.S. Catholics, most say that abortion should be legal in all or most cases. More Catholics have abortions than members of other religious groups: 24 percent of all women who have abortions are Catholic, compared to 17 percent who are mainline Protestant and 13 percent who are Evangelical Protestant (38 percent have no religious affiliation).

Taken together, all of this suggests to me that we need a new starting point for thinking about abortion. First, let’s take biology seriously. While an embryo, from conception, does have different DNA than its mother, it is also true that from implantation until viability the developing fetus is intimately and exclusively bound to the mother. Those giant posters of apparently free-floating fetuses seen at pro-life rallies sell a biological fiction: there is no such thing as a living, developing fetus that is not utterly dependent on the well-being of its mother.

Taking biology seriously means accepting that sometimes a fetus or embryo can be an unjust attacker—pace John Paul II—even though completely without evil intent. In other words, sometimes it is pregnancy itself that occasions a threat to the mother’s life or health. “Whenever the embryo is a danger to the life of the mother, an abortion is permissible,” John T. Noonan Jr.  wrote in “How to Argue About Abortion,” not long after Roe was decided. “At the level of reason nothing more can be asked of the mother.”

How to make these decisions? We must restore the place of medical judgment—medical prudence—in cases when the mother’s life could be at risk. Discerning whether a pregnancy poses a significant threat to a woman’s life or health involves assessing a matter of medical probabilities and likelihoods, a matter of standards of care that were clear before Dobbs and remain clear in states where abortion is still legal. In keeping with the Catholic principle of subsidiarity, shouldn’t these decisions be made by those closest to them: the pregnant woman, her partner, and the physician? The Biden administration has declared that the federal Emergency Medical Treatment and Active Labor Act, which requires physicians to intervene in life-threatening situations, preempts state laws banning abortion. This protects the ability of doctors to exercise medical judgment in some cases, but it does not guarantee protection from all legal exposure. It also seems to require a delay in action long past when a prudent practitioner might have recognized and dealt with the potential threat before it became an emergency.

Further, rape and incest must be allowed as justifications for legal termination of pregnancy if the mother wishes. Otherwise, we are in effect allowing a man to legally commandeer a woman’s body for nine months, after which she is faced with the agonizing choice of whether to raise or give up for adoption a child conceived by violence, who is the child of her attacker and is also her own. This is a violation of the personhood of women.

We must also strike a stance of solidarity with women who face serious structural hardship from pregnancies. Writing in the Journal of Religious Ethics in 2018, Cristina Traina, the Avery Cardinal Dulles, SJ, Chair of Catholic Theology at Fordham University, argued for systemic change:

Women with unwanted pregnancies need mercy or forgiveness. But they also need compassionate solidarity: prophetic, active efforts to transform the social structures that make material harm and moral failure, and consequent moral anguish and moral injury, inevitable for many pregnant women.

Ideally, effective systemic and individual reforms would have been established before we would ever consider banning abortion. Now that Roe is gone, Church leaders might lobby against enforcement of abortion bans until there are adequate protections for mothers in place.

And a final thought from Catholic moral theology. Aquinas argued that the purpose of the law is not to legislate all of morality, but to serve the common good. It seems clear that post-Dobbs bans and restrictions are not merely confusing, not merely cruel and unjust, but also a direct assault on the common good. Abortions will be less safe where bans are in place. More women will die unnecessarily. More women and children will suffer from poverty. Many women will be forced to bear and likely raise unwanted children. Women of child-bearing age will count as somewhat less than full persons. This is the post-Dobbs United States that all Americans, especially Catholic Americans, should prevent from coming to be. 

 

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Published in the September 2022 issue: 
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Lisa Fullam is professor emerita at the Jesuit School of Theology at Berkeley. She is the author of The Virtue of Humility: A Thomistic Apologetic (Edwin Mellen Press).

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