ALBANY, NY To the Editors: Your editorial invitation to join Commonweal in a reasoned debate on abortion, particularly in the post-Webster environment, evokes this response.
Like you, I believe that the matter merits continuing reflection and debate, and that it does not benefit from obloquy, a word that describes too much of the recent public conversation about this topic.
Perhaps the best I can do right now, is to reflect on some of Commonweal' s commentary of the past six or seven months.
August 11, 1998, in an editorial, "Too Many Abortions," you decried the number of abortions performed annually in our country. I agree that the statistics are sobering, as I think virtually everyone does. More than that, I share what appeared in that editorial to be your minimal expectations about the Webster decision's effect on the number of abortions. After reading Webster closely, I stated publicly that nothing in the decision changed New York law. And in October of last year I wrote in America: "The frustration and disappointment some may feel in the aftermath of Webster comes, at least in part I believe, from their reading too much into the decision and its effect on the law."
The same editorial brought up the issue of viability, finding in the language of Roe v. Wade and in the Webster decision "justification for viability testing at twenty weeks."
The issue of viability is of course a crucial one, and a matter of grave medical and ethical concern because at that point the unique relationship between the woman and the fetus changes in one important aspect. At viability, others could, all circumstances being benevolent, care for the child were it born.
Viability has been, is, and clearly will be, one of the pivotal issues in the discussion of abortion. For that reason, I requested the New York State Task Force on Life and the Law, which I established in 1984, to conduct a medical inquiry to determine the stage of gestational development at which the fetus can survive outside the womb.
The report the Task Force received in January 1988 from a committee of leading medical and scientific experts in New York state included the following findings: The threshold of fetal extrauterine survival is approximately 500 grams or 23-24 weeks of gestation; before this time, the fetal organs, especially the lungs, are not sufficiently developed to permit extrauterine survival even with the most sophisticated technology currently available; it is not likely in the foreseeable future that technological advances will lower the threshold for fetal extrauterine survival. The committee also pointed to difficulties of determining gestational age with exactitude, and noted that survival of infants over the threshold depended on a number of factors, including the level of care available.
The point is that whatever public policies might be made in the future should be based on sound scientific evidence. There are abroad some false assumptions about technology’s potential for pushing back the survivability threshold. It may further serve to avoid future dashed expectations to point out, as State Senator Brandl did in Commonweal (December 1, 1990) that fewer than 1 percent of abortions take place after 23 weeks of gestation.
None of this is to say that the ethical and legal implications of the medical data should not be explored. Only that we should proceed with the caution the facts dictate, and without raising expectations that any law dealing with viability—even if enforced and obeyed—would lower the abortion rate more than minimally.
On the question of counseling, which the August editorial raises, I believe we should at a minimum be consistent. If we require, as we do in New York state, that family planning centers under Catholic auspices provide women—either through counseling or referral—information about the full range of options available, including birth control and abortion, then it would seem reasonable that other such centers, regardless of auspices, be likewise required to assure that their clients understand the full range of options, including adoption. If strengthened regulations are required to assure this full disclosure, I would favor that.
Commonweal concludes the August editorial with a call to women, arising from the feminist insight, to exercise restraint in relationships with men who will not or cannot share the responsibilities of parenthood, or to become effective users of contraception.
In my State of the State message of this past January, I advocated something similar, without focusing exclusively on women.
In a November editorial, "The Politics of Evasion," I was named among some politicians who "rather than engaging in that [political and moral] debate, seem to be evading it."
Frankly, I think the charge of evasion against me is unwarranted. But let me answer some of the editorial's criticisms. First, Commonweal was apparently disappointed by an answer I gave to a question about abortion after a speech (not about abortion) in Tucson, Arizona. The editors at your friendly rival, America (October 14), were similarly disappointed. Here's what I wrote to them (October 28):
As for my own remarks at Tucson, I assure you that they did not represent any change in my long-held position.
In Tucson, I said I felt presumptuous talking about the terrible, hard judgment women make with regard to abortion. I do. I am very uncomfortable with having to make decisions about abortion. I do think there is an element of the absurd or incongruous in men making laws about something they can never experience—pregnancy. I think every male should feel uncomfortable making such judgments. But we've been doing it for a long time, both in the church and in government. Certainly, I knew that when I chose public life.
I did not say that, in every circumstance, the judgment should be absolutely the woman's alone. Nor did I say that I am incapable of making decisions regarding abortion, even with the terrible complexities surrounding it in the public realm. I've done it every year I've been governor, and will continue to, based on the principles I set forth at Notre Dame, as long as they are applicable.
I will continue to accept my responsibility, and to make other decisions that affect the lives of people whose situations I have no direct experience of—the mentally disabled, people dying of cancer, young people addicted to drugs.
I said in Tucson that here in America—where the law permits women to have abortions and preserves their right not to have abortions—the terrible, hard judgment, which that freedom permits, must be a matter of the woman's conscience.
Everything I said in Tucson was perfectly consistent with my position as stated in Notre Dame.
Second, Commonweal faulted me for joining eight other governors in an amicus brief to the Supreme Court on the case Turnock v. Ragsdale. At question was an attempt by the State of Illinois to impose on abortion clinics standards that I viewed as unreasonable. Apart from the fundamental issues of federalism and the separation of powers proper to state legislatures and to U.S. Courts that were involved in the case, the standards imposed by Illinois law were equivalent to hospital standards—far more stringent than experience teaches are required for safe patient care. The standards were, in effect, an attempt to do indirectly, by putting clinics out of business, what the law says cannot be done directly. Illinois, in fact, needed reasonable standards like those in effect in New York, which previously had been challenged and upheld in court. And, in fact, the State of Illinois withdrew the case, and settled out of court—for reasonable standards. The Ragsdale amicus brief that I joined was in no way an argument for expanding abortion rights. I do not regret nor apologize for being party to it.
Third, in the November editorial Commonweal seems to find an inconsistency between my positions on abortion and on the death penalty.
If it were my judgment that theoretically doable legal restrictions on abortion (for example, limitation of Medicaid funding) were fair and would engender a greater respect for life in our state, then I would have to be disposed to advocate for such change. I say theoretically doable because it remains my judgment that, as I stated in my Notre Dame speech, "the equal protection clause in New York's Constitution has been interpreted by the courts as a standard of fairness that would preclude us from denying only the poor—by a cutoff of funds—the practical use of the constitutional right given by Roe v. Wade."
Likewise, if it were my judgment that the imposition of a death penalty would save innocent lives and make our state a safer, better place, then I would have to be disposed to acquiesce in the Legislature's judgment.
But in each case, my prudential political judgment, formed by examining all the available evidence, is that these actions would not have such desirable effects. They would more likely, I believe, merely enable us to ignore the root causes of abortion and crime, and soothe our consciences by allowing us to believe we had done everything possible when we had brought the coercive power of the law to bear.
In December, 1998, Commonweal published approvingly a letter sent by State Senator John Brandl of Minnesota to his constituents. I too commend Senator Brandt's willingness to state his position and his reasoning publicly. I wish more legislators, at both the state and national levels, whatever their religious persuasions, would follow his lead.
On some points, for example Medicaid funding, I might part company with the senator, for reasons already stated. But I'm not sure we're in total disagreement. He writes, without specifying, about favoring "some restrictions" on Medicaid funding. In New York we have some restrictions. When in 1988, we expanded Medicaid coverage to some people 185 percent above the poverty level, abortion and some other services were, at my insistence, not included among those covered. I might add that it was not a popular decision, and that those, including the Catholic bishops, for whom it assumedly was popular, were publicly silent about it.
I am in total agreement with Senator Brandl when he states "the responsibility of a politician...is...to put forward alternatives." I did that, as already mentioned, this past January in my State of the State message.*
Senator Brandl also points out that "politicians must enact laws governing a myriad of situations and for millions of people holding a great variety of moral views about the appropriateness of the act." That is a sentiment to bear in mind when considering another issue he raises-parental notification/consent, an issue which has not yet been presented to my administration. I see it this way. My instinct as apparent is one broadly shared by parents. I would have wanted to know if a minor daughter of mine had to face the decision, whether to have an abortion or carry a child to term. I believe I would have, without any law mandating it. And I believe further it is possible that in some individual cases such a law might be beneficial, not necessarily as a way of preventing abortions but of helping to provide a minor the support she needs at such a time.
But to write a law for everyone, to consider not just the individual situation but the circumstances of each minor and her family in this state, is a far more complex decision. I will give the most careful attention I'm capable of to any law on this issue the Legislature sends me.
Commonweal' s January 26 editorial, "Strategy Time," mentions Bishop Leo Maher of San Diego, seeming to disapprove of his action, but disappointed that it took the headlines. Bishop Maher, it seems to me, did not advance with that action the cause he espouses. But there's a broader point to be made. I don't think there's any disagreement that the Catholic bishops of this country have done as much as any group to keep abortion from becoming a non-issue, something that does not deserve and demand our attention. For that I believe they deserve our gratitude. We shouldn't and don't expect bishops to be politicians. But I don't think we can exempt them from the demands of prudence in the political arena. When the public perception is that they are not simply exercising their teaching role for Catholics, but trying to influence the outcome of an election, there will be publicity.
Like Commonweal, I look forward to the putative guidelines to be issued by a committee of the National Conference of Catholic Bishops on responsibilities of bishops, Catholic citizens and officials in the current public debates. As far as I can determine, the process for drafting this statement will not follow the broadly consultative lines of more general statements such as the pastoral letter on the U.S. economy. That, of course, has advantages and disadvantages. I, for one, will give respectful and careful attention to whatever guidelines, in its proper realm of competence as teacher, the committee might offer.
The February 9, editorial, "Strategy Time II," mentions among other things the actions of two bishops besides Bishop Maher—Bishop Elden Curtiss of Montana and Bishop Austin Vaughan of New York. Unfamiliar with all the details of the Montana case, I am reluctant to comment. I am familiar with the New York case, but in that instance Commonweal has already commented more eloquently than I could: "Bishops have a responsibility to teach and even to enforce the moral law; but their office does not confer the power to read souls, or to make apodictic judgments about how a particular moral principle is to be translated into law and public policy." Amen.
The editorial also raises an issue broader and of more consequence than the actions of individual bishops-that is, the moral, not just "Catholic" character of the abortion issue. I have been criticized for making abortion a Catholic issue, especially after my speech at Notre Dame where I spoke at a Catholic university to a Catholic audience about-in part-my beliefs as a Catholic. I think a careful reading of that speech will reveal that I did not make abortion an exclusively Catholic issue. That would certainly be presumptuous and contemptuous of people who hold other beliefs and some who hold no religious belief, but still oppose abortion.
It is, nonetheless, a problem of public perception, and Commonweal is right to raise it for public discussion.
I hope the Catholic bishops, especially, will join that discussion. The bishops, as I understand it, base their opposition to abortion not just on proclaimed Catholic teaching but on the broader lessons of natural law, of laws written in the human heart by God, norms accessible and available to all members of the human family. But it seems to me that there has been a reluctance on the bishops' part to pressure or criticize non-Catholic politicians whose position on abortion is not theirs. I understand their reluctance. Other Christian denominations and some non-Christian faiths do not teach as the bishops do. Some do.
The reality or concept of the natural law is not one congenial to our society. I don't see much attempt by the bishops to explain, defend, or promote it to Catholics or others. Perhaps, that's a work the bishops could join with others of similar belief-theologians, philosophers, religious leaders-in undertaking. An ecumenical effort to do that might help convince their fellow citizens that what they teach to Catholics would be beneficial for them as well, that their teaching is, as I said at Notre Dame, "not just parochial or narrowly sectarian but fulfills a human desire for order, peace, justice, kindness, love, any of the values most of us agree are desirable even apart from their specific religious base or context."
Finally, as to the February 23, 1990 editorial, "Strategy Time III," that was the proximate occasion for this extended response to your call.
For "real freedom of choice," I would point out that women in New York, because of the policies of this state and its budgetary commitments, are certainly free to choose. We have made enormous commitments to prenatal care, to nutrition, to family life education, to a whole array of programs for teens and others that guarantee the choice is free.
This response to your invitation, may not, I realize, contain everything Commonweal wishes it would, and some things with which it will disagree. My modest wish is that it does not constitute what you have labeled "ducking for cover."
Transforming the minds and hearts of individuals, on this issue and on others—the economy, foreign relations, the homeless, the historic struggle of minorities and women, the environment, for example—is an essential, and quintessentially American and Catholic, work.
Commonweal deserves praise for continuing to engage in that work. At the end of the speech I gave at Notre Dame, I said this: "The problems created by the matter of abortion are complex and confounding. Nothing is clearer to me than my inadequacy to find compelling solutions to all of their moral, legal, and social implications. I—and many others like me—are eager for enlightenment, eager to learn new and better ways to manifest respect for the deep reverence for life that is our religion and our instinct."
I feel fortunate that New York is home to journals like Commonweal and America, willing to undertake the task of easing that inadequacy.
Mario M. Cuomo
Governor of New York
NEW YORK, NY We begin this promised reply to Governor Mario Cuomo’s letter by announcing that he is right: We do not agree with everything his letter said, and the letter does not contain everything we wish it would have. But our response will not deal only with some substantive disagreements and one major disappointment. First it must be said that much of what Mr. Cuomo writes is a welcome contribution to the all but intractable debate over abortion: his civil tone above all, but also his continued willingness to address the moral, political, and legal questions the issue raises. The governor expresses gratitude to the Catholic bishops for keeping abortion from becoming a non-issue. He too has played a part, particularly in emphasizing the complex nature of the relationship between law and morality. There are those who suspect him of complexifying the matter for the sake of obfuscation. Well, perhaps; but some who opt for oversimplification have in our view done greater damage to the body politic.
For his trouble, Mr. Cuomo has not only been found mistaken, but has been personally assailed by some of New York's bishops. No other public official addressing this or any other controverted issue has been treated with the disdain shown the governor. Is it because the governor has overstepped his place by presuming to articulate his position as a Catholic and a public official? Senator Daniel Moynihan has hinted as much; his prochoice votes have never been a problem, he says, because "I've never involved myself ' in the abortion debate on the Senate floor. Is it possible that Cardinal O'Connor's personal feelings toward Mr. Cuomo have foreclosed a more constructive discussion between the governor and church officials? Is it possible that Bishop Vaughan's "prophetic" stance not only does not help to reduce the number of abortions but also prevents the emergence of a middle-way consensus that would? The press attention given to Cuomo's letter highlights another aspect of the situation: the low tolerance of most reporters for serious discussion of the abortion question and the prochoice bias of New York newspapers. Of the papers we've seen, only the Washington Post reported what Cuomo actually said. New York Newsday made a reasonable stab. The city's other tabloids, the Post and the Daily News, downplayed Cuomo's ideas and stressed the conflict between him and the bishops, thereby attributing to him the stance they wanted him to take. The New York Times's Albany reporter, as she has done previously, got an imprimatur for her interpretation by quoting a prochoice advocate. Between New York's episcopacy and New York's press, the governor has his problems.
And then he's got us. As already indicated, we were less than satisfied with the governor's treatment of certain sub-issues within the debate, as raised by Commonweal. Among them were the following:
Counseling: The governor wrote that if strengthened regulations are needed to assure that clients of family planning clinics understand "the full range of options" available to women, he would favor their enactment. Commonweal suggested not only counseling that would point to abortion alternatives, but counseling that "fully describes...what we now know about fetuses and their development." Would this give some women second thoughts about their decision? We hope so; certainly it would give substance to the phrase, "fully informed consent." But we are not clear where the governor stands on the matter.
Parental notification/consent: It is reasonable to stress, as the governor does, the real-world complexity of any such requirement applied to all cases. It is good to know that he will carefully consider any bill that comes before him on the matter. But it is equally reasonable to ask him to describe what bill he would sign into law, what provisions for individual circumstances he would ask.
The governor's amicus brief: We did not criticize the brief the governor co-signed in Turnock v. Ragsdale because it was an argument for expanded abortion rights, as the governor suggests, but rather because it explicitly (and unnecessarily) asked the Court not to overturn Roe v. Wade: "It would be unprecedented for this Court, having recognized a fundamental constitutional right, to withdraw that right and throw the abortion issue back into the political arena. "Democratic political theory and jurisprudence offer sound reasons for contending that abortion belongs in the political arena. What does the governor think?
Viability testing: In supporting the viability testing allowed in Webster, we were not arguing for measures that would insure treatment for fetuses born alive after an attempted abortion (that goes without saying), but rather for a ban on third-trimester abortions. It may be that abortions at twenty-three weeks represent a small percentage of all abortions, but l percent of 1.5 million is 15,000 abortions. Testing at twenty weeks insures that the law would give the fetus the benefit of the doubt. Where does the governor stand?
Tedious as they may become in explication, these are not mere matters of detail. But we reserve our greatest emphasis for what we've described as our chief disappointment with his response. Casting about for an entry point, we turned to another great national debate and read these words:
"He who molds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed."
Thus Abraham Lincoln, joining Judge Stephen Douglas in debate over the 1857 Dred Scott decision, which permitted the extension of slavery to the territories of the United States and determined that slaves had no constitutional protections. Was Judge Douglas personally opposed? "He does not give any opinion on that—but, because it has been decided by the Court....he is, and you are, bound to take it in your political action as law." Lincoln bore in on Douglas's silence about the content of Dred Scott because Lincoln not only opposed the decision but feared it would lead to a second one extending slavery to the states that prohibited it.
There are no perfect historical analogies, but this one is close. Douglas treated Scott v. Sandford as sacrosanct, the law of the land. Roe supporters pay Roe similar reverence. As in 1857 with the Dred Scott decision, so in 1990 with Roe: our political culture is again caught up in a fierce struggle over whether some human lives can be placed beyond the protection of the law. Public opinion is where it has always been, mostly in the middle, unwilling to have all abortions banned, yet troubled by the availability of abortion virtually on demand, the practical consequence of Roe. But, with the Webster decision of last July, a question that had seemed closed now appears to be open; the states are in a position to test how far the Supreme Court will reshape its 1973 ruling. Some states are testing on the far limits—trying to ban all abortions except in cases of rape or incest or a threat to the life of the mother; others are testing at the near margins, trying to end third-trimester abortions, requiring parental notification for minors seeking abortions, and introducing fuller counseling and informed consent procedures.
Shaping new state laws and regulations is a long, arduous, and conflict-filled process. Out of the ambivalence shared by a majority of Americans, some consensus needs to be formed-a consensus that will be shaped in part by the intelligence and persuasive skills that political leaders bring to the public debate. And now our question, our principal question: Why hasn't Governor Mario Cuomo stepped forth as a molder of consensus?
To ask the question is emphatically not to suggest that he has done nothing; on the contrary, he has done more than some of his critics to keep abortion from being treated as a settled question. His letter to Commonweal is only one example of his willingness to wrestle with the effort to reconcile a set of conflicting obligations as he sees them.
And yet, and yet. Those of us who believe abortion is wrong—and we accept that Governor Cuomo so believes—need to do many things. Although, in the face of social and cultural pressures favoring abortion, legislation cannot prohibit it, other legislative measures can help reduce the number of abortions; for example, measures to discourage unwanted pregnancies and to offer alternatives, as the governor recognizes; beyond these, steps to insure that the woman considering abortion is fully and honestly informed.
But public officials do not affect public policy only through legislation and regulation; they also effect change through their powers of persuasion and their use of the public platform they are accorded for purposes of political leadership. Like Mr. Lincoln, Mario Cuomo has the oratorical skills to enlighten and persuade the public. Note his words on child care in the State of the State message: "No infant should come into a world that does not care if it is fed properly, housed decently, educated adequately; where the blind or retarded child is condemned to exist rather than empowered to live."
Here is moral wisdom married to rhetorical power. On abortion itself, Mr. Cuomo offers less of both. If indeed he takes abortion seriously as a direct assault on life, the tenor of his finely calibrated comments do not finally seem to connect with that reality. "He who molds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed."