More Christian than its Critics

The abortion decision: two years later
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People are seen outside the U.S. Supreme Court in Washington July 9, 2018 (CNS photo/Tyler Orsburn).

This article was originally published on February 14, 1975 to recognize the two year anniversary of the Roe decision.

Now that two years have passed since that eventful decision of the Supreme Court in Roe v. Wade, and the blinding dust of emotional reaction has somewhat subsided, hopefully the Catholic community of this country can take a more scrutinizing and less nervous look at the implications of what was said. In the past two years much has appeared in the Catholic press criticizing this decision. The tone of many of these criticisms has often been strident. Unquestionably the decision with its resultant criticisms has brought into the public forum the whole question of abortion with all its personal, public, and religious ramifications. The decision of the Court has not so much resolved the public debate on abortion as it has opened up a Pandora’s box of pent-up emotions and convictions on this extremely controversial subject. This is evidenced by the fact that there is a growing effort among some to bring about a constitutional amendment which would nullify the Court’s decision.

In approaching the problem of abortion from a “Catholic” point of view, a fundamental distinction must be made at the outset. That distinction lies between: 1) the norms of a personal conscience developed from deeply held Christian commitments; and 2) the norms that are to function for a society made up of a multiplicity of convictions developed from various religious and philosophical commitments. These are two quite distinct realities.

The first of these realities is the formed conscience which a Christian develops by studying, praying, meditating upon the essentials of a Christian life. In regard to abortion this is done by evaluating and analyzing the consistency of abortion with the deeply held principles of one’s Christian faith. On this level we make decisions on the basis of Christian tradition which of its very nature involves a number of uncertainties. As certain as the abortion issue may be for modern-day Catholics, divergent positions have been held in the past by various theologians and local churches (including the Holy See) in their laws and prayers on the subject of abortion. Once determined, this tradition has to be placed up against the contemporary questions that modern theologians and Christian thinkers are asking regarding the new uncertainties surrounding abortion. After struggling with these problematics and viewing them vis-à-vis a somewhat fluctuating tradition in the Church, the Christian then decides what procedures he or she will follow, and then willingly takes his or her stand before God with those decisions. Here the Christian is the responsible agent for himself or herself, and those for whom he or she has an immediate responsibility. The conscience being formed, the Christian should follow it, and, indeed, must follow it, regardless of the direction the rest of society may choose to take.

The second area of concern, however, is quite different and it is the one I will be principally concerned about here, precisely because it seems to be that one we need most to clarify as a result of the apparently “official Catholic response” to the Supreme Court decision. Very simply it raises the question: Do we have the right to enforce through law our formed consciences (as they are developed to this point) upon the rest of society, or even on a minority in society, when the consciences of a substantial portion of society dictate principles and values other than our own? The simple response to this question (especially in the light of the decree Dignitatis humanae of Vatican II) should be a categorical ‘No.’

To use the law and its public force as a means of compelling others to agree with our Christian commitments regarding abortion is against the very nature of what a Christian commitment must of necessity be—namely, a free response to the Gospel tradition.

 

Catholics may be adamantly opposed to abortion because of the conscience they have developed up to this point on the sanctity of life and the methods necessary to assure that sanctity. On the other hand, by reason of their Christian understanding that free response is of the essence of human action, they should not be willing to use force (whether psychological, physical, political, or legal) to have others assent to their commitments either in whole or in part. Thus to use the law and its public force as a means of compelling others to agree with our Christian commitments regarding abortion is against the very nature of what a Christian commitment must of necessity be—namely, a free response to the Gospel tradition.

Vatican II was quite specific on this point. It unhesitatingly opposed the use of political and legal force to make others conform to a particular religion, and thus do violence to their consciences. This principle applies not only to forcing people to assume a whole body of religious commitments, as in the case of established religions, but even any part of those religious commitments which would do violence to the conscience of others provided that the continued existence of society can tolerate it.

This principle is easy enough to understand in the situation of a particular state identifying itself through establishment with a specific religion and so imposing it upon all within society. But when specific premises of a particular religion are enforced upon a populace of a pluralistic society, it is no less reprehensible and in violation of the fundamental principle enunciated by Vatican II:

From the very origins of the Church the disciples of Christ strove to convert men to faith in Christ as the Lord—not, however, by the use of coercion or by devices unworthy of the Gospel, but by the power, above all, of the Word of God. Steadfastly they proclaimed to all the plan of God our Saviour, ‘who wishes all men to be saved and to come to the knowledge of the truth’ (I Tim. 2:4). At the same time, however, they showed respect for weaker souls even though these persons were in error. Thus they made it plain that every one of us will render an account of himself to God, and for this reason is bound to obey his conscience.

In the light of these statements, for Catholics to seek enforcement through law of their position regarding abortion upon the rest of society, especially in the pluralistic society of our kind where consciences are formed sincerely from varying philosophical and religious sources, is reprehensible and militates against the basic Christian principle that anyone’s acceptance of Christianity (whether in whole or in part) must be free and spontaneous, not forced and contrived.

This is precisely the importance and significance of the Supreme Court’s decision in Roe v. Wade; namely, to protect the right of individual consciences as this right must be weighed against the legitimate interests of society. I would say in this regard, that the Court’s decision in its basic concerns is more in accord with fundamental Christian principles, and certainly far more judicious in its projections, than the positions reflected in the rather strident criticisms it has received from certain Catholic sources. Although one can take serious exception to some of the historical obiter dicta of the decision, and even to some of the substantive decisions regarding the state’s interests in the danger to the mother in advancing stages of pregnancy, it is difficult to comprehend how the basic thrust of the decision in its concern to protect the fight of conscience (“right to privacy” in legal terms) can be so severely criticized by those purporting to adhere to basic Christian beliefs.

 

From the very start the decision takes into account the indisputable fact that there exists a deep religious-philosophical diversity of opinion over the question of abortion. It acknowledges that, as a matter of fact, there exist in our society vastly different answers posed to such questions as: Is abortion the taking of human life? When does human life commence in the embryo? In the words of the Court:

 We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.

One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In the light of this factual situation of divergent views based on a variety of rationales (some philosophical, some religious, some simply experiential), the Court reminds itself of its duty to a religiously and philosophically pluralistic society by calling to mind the admonition of Mr. Justice Holmes in his dissenting opinion in Lochner v. New York (198 U.S. 45, 76,1905):

It (the Constitution) is made for the people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Confronted with the divergent religious and philosophical answers given to the question of abortion in our pluralistic society, and admonished by Justice Holmes of its responsibility as the protector of constitutional fights, the Court rightly exempted itself from deciding these religious and/or philosophical questions:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

Its decision not to resolve for legal purposes the highly controverted questions revolving around abortion placed the resolution of these questions in the conscience of the individual citizen.

Could the Court have taken any other position without aligning the state with one religious or philosophical answer over another, and so itself have violated the First Amendment of the Constitution by officially accepting one particular position and enforcing it upon all in society? Its decision not to resolve for legal purposes the highly controverted questions revolving around abortion, in effect exempted the State from answering the religious and philosophical questions and placed the resolution of these questions in the conscience of the individual citizen. The court in taking this stand decided that at this time no univocal solution should be imposed by the State. This legally meant that the State has the obligation to protect an individual person in the exercise of his or her conscience regarding the difficult questions surrounding abortion. By preempting the State’s right to impose a univocal solution to the question of abortion, the Court really said that the State has neither an absolute right to prohibit abortion nor any right to enforce abortion. It basically protects the individual in the exercise of his or her conscience.

After recognizing the existence of conflicting convictions in our society, and acknowledging its responsibility to uphold the provisions of Amendments One, Four, Five, Nine and Fourteen of the Constitution protecting the right of personal privacy, the Court decided that it must protect the free expression of conscience in the arena of religio-philosophical controversy by not enforcing upon an individual citizen one position over the other through the force of law.

In its decision in Roe v. Wade, the Supreme Court achieved the ideal expressed by Vatican II in Dignitatis humanae by safeguarding personal privacy in the exercise of one’s conscience regarding the extremely controversial subject of abortion. By stating that “we do not agree that, by adopting one theory of life, Texas may override the fights of the pregnant woman that are at stake,” the Court is articulating the philosophy that in the context of a pluralistic society one philosophy, one religion or one moral position (especially when in such controversy) should not take precedence by becoming the official position espoused by the State through its laws. By taking this position the Court safeguards the right of conscience against the impingements of the State in those areas which are of a deeply philosophical or religious nature.

Apparently, what some Catholics fail to understand is that by taking this position the Court has likewise protected their conscience from State encroachments. In its function as protector of the constitutional safeguards for the exercise of conscience, oddly enough the Court has taken a truly Christian stance—one in accord with the most fundamental of Christian moral principles:

On his part, man perceives and acknowledges the imperatives of the divine law through the mediation of conscience. In all his activity a man is bound to follow his conscience faithfully, in order that he may come to God, for whom he was created. It follows that he is not to be forced to act in a manner contrary to his conscience. Nor, on the other hand, is he to be restrained from acting in accordance with his conscience especially in matters religious. (Dignitatis humanae)

A truly Christian position should be to protect a person in the exercise of his or her conscience and to resist social controls that would infringe upon or obliterate free choice especially in the areas of philosophical or religious commitments. The decision of the Court is very much in accord with this position, because if it had decided that the State could establish laws prohibiting all abortions except in the rarest of circumstances, (e.g., to save the life of the mother) then it would in effect have given to the State the right to decide through law the position the citizenry should take on the delicate problem of abortion. If the State were granted this procedural right then it could in the future reverse its substantive decision and demand that certain persons submit themselves to abortion when civil needs or social consensus would so demand, even though abortion might be contrary to their conscience. By protecting the right of personal privacy in the exercise of one’s conscience relative to abortion against the powers of the State, the Supreme Court protected the right of the Catholic to the exercise of his or her conscience as well as the right of those who hold a contrary position.

Nor did the Court in its decision go as far as to say that the right to freedom of conscience in regard to the question of abortion is so absolute as not to have certain qualifications. Recognizing the importance of this right and taking every step to preserve it from State encroachments, the Court at the same time saw the need of balancing this right with certain social interests which must direct its use. In the words of the Court:

Although the results (of the courts’ decisions) are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards and prenatal life, become dominant.

In working out the delicate balance between the right of personal privacy and legitimate social interests in an individual’s private conscience, the Court recognized three areas of legitimate concern for the State: 1) protection of maternal health; 2) maintenance of medical standards and 3) preservation of prenatal life. It is interesting to note that the Court recognized the State’s responsibility to be concerned about future life in the sense of protecting prenatal life, not destroying it. It allowed the State the right to protect fetal life even against the conscience of an individual who would destroy it; on the other hand, the Court does not admit to the State’s right to destroy fetal life against the conscience of an individual who wants to preserve it. When analyzing the State’s concern for fetal life, the Court puts the right in the positive framework of preservation, and not in the negative sense of a right to destroy fetal life: “If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother.”

Destruction of fetal life, therefore, must come from the exercise of a personal and private conscience, not as the exercise of the State’s compelling interest.

Destruction of fetal life, therefore, must come from the exercise of a personal and private conscience, not as the exercise of the State’s compelling interest. This puts the Court in a position of supporting a pro-life attitude as a state policy, and yet at the same time recognizing and protecting the rights of an individual’s conscience when in the concreteness of their circumstances their conscience dictates that fetal life should be terminated.

The Court, therefore, works out a delicate balance between the exercise of private conscience on the one hand, and legitimate State interest in the preservation of life on the other. Both are important values, and both are extremely difficult to delineate in the setting of a pluralistic society. Yet I would contend that the Court has done a remarkable job in working through this delicate balance, for in the kernel of its decision it has given recognition to both values: “We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Because the Court’s decision in Roe v. Wade squares with such fundamental Christian principles as the right of conscience, legitimate social interests in the exercise of conscience, and a basically pro-life stance as social policy, the Catholic press should have praised this decision instead of condemning it. It would be hoped that the Catholic community in this country would exercise a little better judgment than it has in the recent past by understanding that by safeguarding the exercise of individual conscience the “Catholic position” as well as other positions are protected under this decision. The Court, although committing the State to a basically pro-life stance, is at the same time prescinding from the religio-philosophical debate which is presently going on, by protecting the right of individuals to function in accord with their own positions consistent with their own philosophical or religious commitments. Has the Catholic community so soon forgotten the philosophy articulated in Vatican II’s Declaration on Religious Freedom? Is the Catholic community so myopic that insistence upon its prevailing abortion position has forced it to lose sight of other values such as freedom of conscience, and the State’s obligation to assure religious freedom? Hopefully the vision of the American Catholic community will become broader, and in a real sense more Christian, so as to include some of the other deeply important values considered by the Court in its decision on the abortion issue.

Father Raymond G. Decker, author of various articles on jurisprudence and the relation of religion and law, was an assistant dean at Loyola University School of Law, Los Angeles at the time of this publication.

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