If you had met me thirty years ago, you would have encountered a rather self-assured fellow with a clear vision of the moral landscape in which he lived. Steeped in dialectics at a Jesuit law school and possessed of the trademark zeal of a convert to the faith, I volunteered to teach religious confirmation classes to public-school kids in my Catholic parish and lead youth group discussions.
On the subject of Roe v. Wade, I equipped young people with the tools to argue against the idea that abortion is not really the murder of a human being. It was an easy fight. After all, seeking to fix a point at which a continually developing fetus becomes “human” on the presumption that, until then, it can be destroyed without the moral qualms that must ensure its safekeeping thereafter, is a fool’s errand. On that field of battle the god of science was always squarely on the side of the Church. The DNA of a fetus in the first minute of life is not just fully formed but set in stone, as it were, containing all the genetic markers of humanity that the adult will carry to the grave. The argument that humanity does not vest until the point during pregnancy when a fetus becomes “viable,” meaning that it can survive outside the womb, seemed equally absurd. Coma patients are kept alive only by external measures, yet no doctor in the land would pull the plug on a patient expected to awake healthy and well in exactly nine months’ time. Few people—least of all expectant parents from the very moment they get the happy news that they are pregnant—would accept the notion that the ability to live without help from others is the sine qua non of a child’s human dignity.
Despite this flawed logic, the majority in Roe v. Wade chose the criterion of fetal viability to establish but also limit to the first trimester a woman’s absolute right to terminate a pregnancy. Conflating humanity and viability was nothing more than a rhetorical fig leaf. Crafted in an era of dawning sexual freedom, it was driven not so much by any social or scientific consensus on what makes us human as by the political will to ensure safe and legal access to abortion for newly liberated middle class women. Yet, by conceding that society must take pains not to destroy a viable fetus, the Roe majority uneasily affirmed that human life, with its attendant rights of citizenship under our constitution, necessarily begins at some point before birth. But when, exactly? This was the briar patch into which the pro-life movement happily dove and where it has thrived for the past fifty years.
For my confirmation students, the legal argument was more easily grasped: Our constitution guarantees equal protection under the law to every human being. As once explained with characteristic common sense by President Reagan, as long as there is reasonable disagreement and doubt on the question of when human life begins, the benefit of the doubt must go to the one who will suffer the greatest and most irreparable harm should we decide the question unjustly. It was all so terribly obvious. Then one day, the landscape of the abortion debate shifted for me.
I was in Durham, North Carolina, defending an obstetrician accused of malpractice for failing to order an emergency C-section soon enough to save the life of a pre-term infant. The evidence showed that the mother had suffered a placental abruption that was unknown to her doctor when she went into labor dangerously early. The placenta is the membrane that forms in the wall of the uterus during pregnancy and through which maternal blood carrying oxygen and nutrients is delivered to the fetus. A placental abruption is a complication in which the placenta pulls away from the uterine wall. The subsequent bleeding slowly deprives the fetus of the normal flow of maternal blood and oxygen, causing distress in the form of contractions, pain, and fluctuations in fetal heart-rate and rhythm that can mimic what occurs during ordinary labor, making diagnosis difficult. This mother suffered a particularly insidious form of abruption known as a Couvelaire uterus, in which the bleeding remains contained within the uterine wall and thus hidden from detection by ultrasound.
The mother’s medical records revealed that she was a heavy smoker who had been warned that continued smoking would endanger the life of her baby. In a routine deposition, she admitted she continued to smoke during pregnancy. She further admitted she had been counseled on the harmful effects of smoking during pregnancy and had chosen to smoke anyway.
After examining tissue specimens of the mother’s placenta, a pathologist made our defense chillingly clear: Smoking damages blood vessels. The damage is immediate and becomes irreparable with continued smoking and repeated injury to the vessel walls. Seen under a microscope, the vasculature in this mother’s placenta looked like the plumbing in a hundred-year-old house, with damaged, broken and leaking veins diverting life-giving blood away from the baby. The expert testified it was a reasonable medical certainty the mother’s smoking had proximately caused the abruption and resulting death of her child.
When the case went to trial, the judge was understandably reluctant to ask the jury to decide whether the mother’s negligence contributed to the death of her child. Negligence presupposes a duty of care. In the era of Roe v. Wade, would it be constitutional to find that the mother had a legal duty to protect the life of her unborn child and had sacrificed her legal rights by failing to do so? After wrestling with this dilemma for three days, the judge submitted the issue of the mother’s conduct to the jury but informed the lawyers privately that he would set aside any verdict based on a finding of maternal negligence and let the Court of Appeals decide what duty, if any, the mother had.
In the end, the question was moot. The jury decided that the doctor was not liable for the death of the child, as a result of which they never reached the issue of the mother’s behavior. But the questions raised by the child’s death lingered with me.
It remains in my view the correct interpretation of settled law, even under a regime of abortion rights, that a mother cannot recklessly injure her unborn child with one hand and, with the other, collect damages from her doctor for failing to save the child from that very injury. But that’s not the point of my story. This case in Durham made me consider deeply for the first time the profound impracticality of regarding an unborn child as a citizen with rights and privileges inapposite to the rights and privileges of the citizen in whose body the child lives. Banning abortion is about protecting unborn children, but if a mother can abort or seriously harm her child through indifference to prenatal health (smoking being just one example), how far, practically and morally speaking, are we prepared to intervene in the daily lives of women of child-bearing age to protect the unborn? If we invest all unborn children with full rights of citizenship, the answer would seem to be, “As far as we would go to rescue someone from a burning building.” In other words, as far as it takes. But have we really considered what dramatic changes that would portend for our society?
The troublesome biological reality that the pro-life movement would have courts overlook is that during pregnancy, mother and child stand before the power of the State not as two persons but one. The State cannot champion the rights of unborn children without curtailing the rights of millions of women and relegating them, for a substantial portion of their lives, to a second-class citizenship with towering civic duties unknown to men and wildly more invasive than most of us in our everyday lives would tolerate government to demand.
We could stipulate that every fetus is a human child, that saving the lives of unborn children is an unquestionable good, and that to kill them is an unspeakable evil, and still come no closer to a resolution of this controversy. If choosing goodness over evil were the only criterion of sound policy, the debate would end there. But of course it doesn’t end there. What makes public policy “public” is that we collectively consent to the use of force, if ultimately necessary, to see it carried out. We must decide whether the goodness we seek can be achieved in a world that sanctions the threat of official violence and the use of brute force to compel women to give birth against their will. Stated more plainly, the public question is not merely whether to choose life over death, but whether we shall create a society in which uniformed officers carrying night sticks and handcuffs force women to choose as we command.
It is one thing—and to be sure, no small thing—to insist that women who are unhappily pregnant endure, by government coercion, nine months of gestation followed by the extraordinary physical and emotional trauma of childbirth. But as the case in Durham so tragically revealed, any honest argument that the State has a constitutional duty to protect the unborn child against violence must concede that the job doesn’t end with criminalizing abortion. After all, a six-year old deprived of clean clothes and a loving home is in no danger of death but will still be swiftly separated from his mother by child protective agencies. How does the State uphold its duty when the victim cannot be separated from the body of a mother who smokes, drinks, eats too little or too much, or fails to adhere to a plan for adequate prenatal care?
Abortion is only one means by which children in the womb are brutalized. According to the Department of Health and Human Services, children whose mothers fail to obtain prenatal care are three times more likely to be born underweight and five times more likely to die.[i]
In view of these sobering facts, the justice that would be demanded by fetal citizenship is as obvious as it is ominous: a vigilant State would not merely criminalize abortion but also deeply intrude upon the daily lives of expectant mothers—pressing its will by force and incarceration if necessary—whenever there is probable cause to believe the mother’s lifestyle may be unhealthy for her unborn child. And what of those fetal-citizens whose mothers may injure them unawares in the critical first weeks of pregnancy? To avoid the needless death or deformity of a single child, should not a vigilant State require all women of child-bearing age to submit regularly to pregnancy tests and present proof of their reproductive status before they are served alcohol or sold cigarettes or certain medications?
Those too young to consider seriously the possibility of such pervasive government intrusion into the lives of women would do well to brush up on their history. Until 1965, when the Supreme Court in a split-decision in Griswold v. Connecticut found that a fundamental right of marital privacy was implied in the Bill of Rights, it was a crime in the state of Connecticut for anyone to use any drug or device to prevent conception. Absurdly, that meant that a police officer with probable cause to believe that a husband and wife were committing the crime of having sex while using a condom could arrest them and demand that the condom be removed. Until the Supreme Court decision in Eisenstadt v. Baird in 1972, twenty-six states still prohibited the sale of contraceptives to unmarried persons. Now imagine a world in which the womb of an unwilling mother-to-be is legally no different than the underground cave in which those Thai boys were famously stranded, deserving to be safely extracted by their government at any cost. How many doctors and neighbors would wish to serve in a network of informants telling the police who may be pregnant, who is smoking, who is drinking, and who isn’t taking her prenatal vitamins? America is already a country where parents can go to jail if neighbors see their adolescent child playing alone in a city park. A new prenatal Gestapo could be the well-intentioned but Orwellian outcome of a pro-life movement determined to invest unborn children with the rights of citizenship that would make abortion a crime.
Of course, it is one thing to say that a woman shall no longer have a constitutional right to abortion, another to say a fetus shall have a constitutional right to life. A future Supreme Court wishing to overturn Roe v. Wade could do so without having to go that extra mile. Roe v. Wade took from the states the authority to criminalize abortion. A future Supreme Court could give it back to them on the grounds that there is nothing in the Bill of Rights that prohibits such a law, and on that basis find that the Roe majority was wrong, fifty years ago, to infer otherwise. In the wake of such a decision, abortion at least for a time would be outlawed in some states and not in others. The battle would eventually return to the high court when some state passed a law recognizing a woman’s access to abortion in that state as a constitutional right—something no state has needed to do since Roe made that decision for all states in 1973. This would set up a legal challenge exactly in reverse of the one mounted by Jane Roe. Instead of a woman seeking the right to abort her baby, the plaintiff would be an unborn child seeking the right to life. At that point, the Supreme Court would have to decide whether and when an unborn child becomes, at some point during gestation, a citizen protected by our constitution.
Admittedly, no one can be sure that a criminal justice system of prenatal surveillance would necessarily follow the creation of a fetal right to life. There are obvious enforcement problems, and state governments weren’t terribly concerned with criminalizing prenatal neglect back when abortion was still a crime (although we know a lot more about prenatal injury now than we did then). But what would it say about the pro-life argument if we were asked to believe that concerns about pre-natal surveillance in a post-Roe America are unfounded? If you believe a fetus in the womb is a human child deserving of the protections of citizenship and you acknowledge the many ways in which an indifferent or unwitting mother can pose a mortal danger to the citizen in her womb, why wouldn’t you demand a law-enforcement regime of prenatal surveillance? To suggest otherwise would seem to lend credence to the feminist view that the pro-life movement, cheered loudest by a Catholic priesthood that has shown widespread contempt for the safety of vulnerable children and a Republican Party that champions the death penalty, has less to do with saving lives than turning back the clock on societal changes that have upended traditional roles for women.
Finally, some would say that dystopian images of a post-Roe America as something out of The Handmaid’s Tale are overwrought. Such politicians and public figures are careful to direct their animus not against expectant mothers but rather the doctors and clinics comprising the abortion industry that, in this country alone, receives over a billion dollars annually for its services. At a town hall meeting on March 30, 2016, candidate Donald Trump was swiftly condemned for initially stating that “there has to be some form of punishment” for a woman who has an abortion. His campaign later issued a retraction, stating that only doctors and clinics, not mothers, would be punished if abortion were outlawed. A great many other politicians (and, no doubt, many of the people at pro-life marches) share this sympathetic view. Like Trump, they have given little thought to the possibility that what they advocate could lead to the criminal prosecution of millions of young women.
Making a distinction between abortion providers and expectant mothers might be good politics, but it is hardly clear that such a distinction would be tenable in a legal system that recognizes a constitutional right to life for the unborn. Our constitution guarantees equal protection under the law, meaning chiefly that laws cannot be enforced arbitrarily against some groups but not others. What we say is a crime for one must be a crime for all. We could not send one man to prison for murder while refusing to prosecute another because he happens to be the victim’s father. Likewise, we could not imprison a doctor for the crime of abortion while exonerating the mother who instigated, authorized and participated in the crime. The first argument of the doctor prosecuted under such a system would be that he is being denied his constitutional right to equal protection under the law. If the law protects the mother from prosecution, it must also protect the doctor. If we prosecute the doctor for murder, we must also prosecute his accomplice.
I don’t doubt the sincerity of millions of Catholics, Christians, and faithful members of all religions who may dream of the day when a Justice Kavanaugh will cast the deciding vote to overturn Roe. But as we so often learn through needless suffering, the zeal of the faithful can be misplaced. On this point there is an important lesson in the story of Jesus’ rebuke of Peter for drawing his sword and cutting off the ear of the soldier who came to arrest Jesus in the Garden of Gesthemane. It’s a lesson I would teach my students if I were still a Catholic and entrusted with their formation. It isn’t that Peter’s anger wasn’t justified or that Christ’s life wasn’t worth defending, but that the Gospel of Life was meant to be spread by faith, not force. The normalization of abortion as a form of birth control in popular culture bodes ill for the soul of our nation, yet the only lasting victory against what Pope John Paul II rightly lamented as the emerging “culture of death” will not be won on the steps of the Supreme Court. [ii]
Is abortion even in the very early stages of pregnancy the taking of a human life? The answer that in my view remains as obvious as it is tragic, is yes. Is abortion a sin in the eyes of God? No less a light than Mother Teresa once said, “It is a great poverty that a child must die so that we may live as we wish.” Who cannot see the spiritual and moral poverty that has overtaken our culture in the last fifty years, when widely admired figures like Oprah now encourage women to “shout their abortions” as a symbol of personal empowerment? An abortion is an unspeakable tragedy for a mother and her child followed, for many women, by a lifetime of secret anguish and regret. It should be met with mercy and compassion and forgiveness and grieving, not fist-pumping celebration.
Nothing in this essay nor anything we might say about the rights of women supports the proposition that there can be no limit whatsoever on the right to abortion. Indeed, Roe v. Wade specifically recognized the right of states to regulate abortion in the second trimester and ban it altogether in the third. Many of our individual rights and privileges, even very important ones, can be lost by inaction. The maxim, vigilantibus et non dormientibus jura subveniunt (the law aids the vigilant, not those who sleep on their rights), is at the bedrock of our jurisprudence. Considering the excruciating choice for all concerned between a child’s life and a woman’s rights, it is hardly unjust to expect that a woman who fails to choose an abortion with reasonable alacrity should lose that choice.
None of us who believes that God gives us life could imagine that he is indifferent to its taking, even as we hope and pray he is merciful to the taker. But can we remain a secular society that respects the fundamental right of citizens to privacy against governmental interference in their person and that guarantees men and women equal status under the law, yet force unhappily pregnant women to endure nine months of involuntary, reproductive servitude? The answer I find to be equally obvious, is no. Despite the tragedy of children whose mothers fail to safeguard them in the womb, few of us would welcome an America in which the State is given the power and the duty to control every aspect of the daily lives of expectant mothers that might adversely impact the life of an unborn child. Being a free people, we cannot bend the will of every individual toward every greater good.
To my Catholic friends and former students who pray unceasingly for the unborn, I say keep praying—not because these children have been denied the rights of citizenship by our secular government, but because they already are citizens of heaven.
[i] Prenatal Services, Maternal and Child Health Bureau, Health Resources and Services Administration, U. S. Department of Health and Human Services. http://mchb.hrsa.gov/programs/womeninfants/prenatal.html.
[ii] Joannes Paulus PP.II, Evangelium Vitae on the Value and Inviolability of Human Life, 25 March 1995.