GOOD VERSUS GOOD
Commonweal’s full reaction to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is one I have awaited eagerly, and your September symposium does not disappoint. Let me single out for special praise Cathleen Kaveny’s illuminating legal analysis, most especially its conclusion, which begins, “A woman’s bodily integrity and moral autonomy is a good. Protecting fetal life is a good. As polls show, many Americans are perplexed by abortion precisely because it is a question of good versus good, not good versus evil.” Because these two absolute goods admit of no compromise in principle, compromise can only come in practice. The tragedy is that it almost did.
The Dobbs case was first filed in 2018. During the four years that separated the filing and the decision, the pro-choice and pro-life parties could have united behind a decision upholding the Mississippi law (legalizing abortion through the fifteenth week) but retaining Roe (with that adjustment only). The result would have made the legality of abortion within that three-and-a-half-month period irreversibly settled law. Alas, as Kaveny explains, this irenic compromise, barely mentioned through the years leading up to the decision, was supported in the end by Chief Justice Roberts but by him alone.
Let me register, finally, a small note of appreciation to Lisa Fullam for writing, “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?” Perhaps I was reading quickly, but I believe that Fullam’s is the only mention in the entire symposium of the rights, if any, of the father.
Santa Ana, Calif.
‘APPROPRIATE PENAL SANCTIONS’
Lisa Fullam raises several good points, especially the harm caused by lack of legal clarity. However, it is unrealistic to expect that the law will ever have enough clarity to address the many different circumstances of pregnancy. The law is a cudgel, ill-equipped to address the concerns and problems that arise in pregnancy. Using laws to make abortion illegal is like using a chain saw to perform surgery: the surgery may be a success, but the patient will likely die.
The Catholic Church teaches that abortions must be illegal and that people must be punished for them. Catechism #2273 mandates, “As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child’s rights.” Many Catholics believe that the better solution to reduce abortions is to provide free contraception, sex education, health care, and child care. Yet Catholic teaching pushes for penal sanctions, imposing on each Catholic the obligation to support punitive legislation.
Fullam asserts that “Dobbs was not decided in order to enact Catholic magisterial teaching in the public square.” While that may not have been the intent of the majority of (Catholic) justices in Dobbs, it is the practical effect. For many in Catholic leadership, the goal is to embed Catholic magisterial teaching into the judiciary and legislation. Catholic leaders have claimed that abortion is never necessary, is always immoral, and should be illegal. From a Catholic point of view, it is not enough that abortion is illegal; there must be punishment. And just what is “appropriate” punishment? For now, Catholic leadership insists that the pregnant person should not be punished, just everyone providing support. There is no reason to believe this. The Catholic agenda advanced by leadership is a nationwide ban at all stages of pregnancy with no exceptions. As for “appropriate” punishment, in some states that includes imprisonment, and even the death penalty.
How should Catholics talk about abortion? Any conversation must honestly address Catechism #2273.
WHAT REPRODUCTIVE JUSTICE IS
The editors in the introduction and David Cloutier in his contribution equated the reproductive-justice movement with the demand for carte blanche abortion access. The movement—begun by women of color three decades ago—actually embraces a position closer to Lisa Fullam’s and Eve Tushnet’s. It argues that reproductive freedom—the truly free choice to bear or not to bear children—requires reliable access to the social, economic, and medical resources to birth children safely and to raise them in a healthy, sustaining environment. Many women of color lack reliable access to these resources. This injustice curtails their reproductive freedom by making it impossible for them to give birth to and care well for the children they would otherwise like to have.
Access to abortion and contraception is one part of the reproductive-justice platform. But if we realized the full reproductive-justice vision, abortion rates would likely plummet.
Cristina L. H. Traina
Avery Cardinal Dulles, SJ Chair in
The Bronx, N.Y.