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August 2004
A Letter to Catholic Politicians and Public Officials on the Subject of Abortion and the Law
It is in the spirit and as a follow up to this commitment of the Catholic Bishops that I present the following, A Letter to Catholic Politicians and Public Officials on the Subject of Abortion and the Law.
Introduction
In 1875, John Henry Newman, later
the great English Cardinal, had to answer the accusation that
Catholics of England could not be good citizens of Great Britain.
(3) According to the Prime Minister of England, William Gladstone,
there was an essential conflict between the Catholics' loyalty
to the Pope and the laws of Great Britain. The Catholic citizens
of Great Britain, on the very basis of what they believed, could
not be loyal subjects of Her Majesty, Queen Victoria.
Today, in the United States, it is said, and seems to be borne
out by the actions and statements of certain Catholic politicians,
that it is impossible to be a loyal Catholic and an elected member
of the Senate or the House of Representatives.
This opinion is based on the fact that there are presently certain laws of the country and certain decisions of the Supreme Court opposed to teachings of the Catholic Church, in particular, the Roe v. Wade decision of 1973, declaring the practice of abortion lawful.
This presents a seeming conflict of conscience for Catholics in public life, in particular, a Catholic member of the Senate or the House of Representatives, who is bound by his profession of the Catholic Faith to uphold Catholic doctrine, and by his oath as an elected representative of the People of the United States to uphold, defend and support the Constitution of the United States and the laws of the country.
First, it must be said that Catholic politicians have no obligation and no right to impose the teachings of the Catholic Church upon the nation. Their obligation and their right is to further, defend and uphold the Constitution of the United States. And it must be said at the outset that there is nothing in the Constitution of the UnitedStates and its valid interpretation that is contrary to Catholic teaching.
If that were not so, no Catholic
could, in conscience, hold political office in this nation.
But there can be laws and decisions of the Supreme Court that
are immoral, unjust and contrary, not only to Catholic teachings,
but also to the laws of decency, justice and a genuine respect
for the human person. That is the issue here and will be examined
in this Letter to Catholic Politicians and Public Officials.
For instance, there were laws in certain states, up to very recent times, that forbade interracial marriages and mandated the sterilization of people of low mental capacity. No Catholic could, in conscience, support or carry out these laws, since they were both contrary to justice and to the genuine freedoms granted under the Constitution of the United States.
The Supreme Court itself declared unconstitutional one of these cases dealing with interracial marriage, and the other law has fallen into disuse. The Supreme Court itself has declared, in a case challenging laws upholding Sunday rest, that just because a law or custom has its origin in religious law or custom, does not mean that it does not have a non-religious value. (4)
The way in which the practice of abortion in Roe v. Wade was declared constitutional by the same Court is a revealing study in American jurisprudence. It is something the Catholic politician should be aware of. We should also be aware of the tenuous legal foundation upon which the decision is based. It is not only Catholic doctrine that declares this decision immoral, inhuman and contrary to every law of human decency, it is the whole tradition of medico-legal history that condemns it, as well as the sane, humane and carefully reasoned tradition of Common Law upon which the whole catalog of rights embodied in American law is based.
There is no obligation on the part of any politician or elected representative of the United States, Catholic or otherwise, to uphold the constitutionality of the Roe v. Wade decision, even though he is powerless to do anything about it in his public life. To pretend that opposition to abortion is a uniquely Catholic or a religious matter is to be totally uninformed of the historical roots of American Law and the whole humane tradition of Western civilization.
At present, this is an unresolved dilemma for the Catholic politician, or for any politicians who holds to the tenets of the legal and religious traditions that have shaped Western democracies. It seems that if he holds to Catholic conscience in the abortion question, he must violate the doctrine of the separation of Church and State which he is bound to uphold by his oath as an elected representative of the United States. And if he supports abortion, he violates a sacred tenet of the Catholic Faith. It seems that the only position a Catholic politician can take, if he is to hold public office at all, is to renounce allegiance to his Catholic Faith, at least in the public exercise of his office. It is this contradiction and this dilemma that the Catholic politician is faced with.
Let me say that, except in this matter of support for abortion, the record of Catholic politicians in the areas of social justice is truly magnificent, and bill after bill has been passed under their sponsorship directed to the care of the poor, help for the sick and elderly, and multitude causes that are a glorious part of recent congressional history. And I believe it is because some of them look upon the "right" of abortion itself as a matter of social justice and personal liberty that they support it publicly and, tragically, they do not see it for the massive social evil that it is ... 40,000,000 planned deaths of unborn children in the United States alone since 1973, making the killing of the unborn the greatest social evil of our time.
PART I: The crucible of the
laws (5)
The constitutional question
in Roe v. Wade has never been examined, and the issue of the
unborn has never been studied as a constitutional question. It
entered into the legal arena as a matter of personal freedomthe
freedom of a woman to destroy the child in her womb. Yet, it
was precisely the fate of the child in her womb that was the
object and focus of every abortion law of history, from Hippocrates
to English Common Law. In fact, enshrined by Blackstone as the
heart and hub of the question is the clear and concise principle
laid down in his "Commentaries": "Qui in utero
est pro jam nato habetur, quoties de ejus commodo quaeritur:
(6) One in the womb is held as already born, whenever a question
arises for its benefit." The change of focus in Roe v. Wade
indicates a seismic change in American jurisprudence, comparable
in its legal impact to the Dred Scott (7) decision a century
before, and the Alien and Sedition Laws of 1798. (8) The Alien
and Sedition Laws broke against the unyielding will and purpose
of John Marshall (9), later Chief Justice of the Supreme Court,
and Dred Scott was shattered in its legal intent by Abraham Lincoln.
(10) Roe v. Wade has yet to find its Marshall or its Lincoln.
Whenever a constitutional law has emerged, it emerged in the form of protective laws to protect the weak and helpless members of society from those who could use their power, their privilege, or their position to oppress and exploit. This is so true that law itself can be described as protection for the weak and helpless, since the strong and prosperous have their own means of protection.
In his classic treatise, The Common Law (11), Justice Oliver Wendell Holmes, in direct contradiction to the utilitarian views of Hobbes and Bentham, denied that laws were the mere instruments for the carrying out of government purposes, in order to secure the greatest good for the greatest number. In The Common Law, Holmes with one stroke revealed "the fundamental policy determining the shape of modern law: to allow the greatest personal freedom while avoiding unjustifiable harm to others." (12)
And so it is surprising that,
in American jurisprudence, the destruction of the unborn is looked
upon as "justifiable," an extension of the personal
liberty of the woman bearing the child. One cannot but feel that
there is some principle of law that has been overlooked here,
one that neither the jurist nor the legal scholar has been able
to identify. There is a principle that is staring them right
in the face, a principle that every decent person in the intimate
depths of his moral conscience is able to articulate.
One cannot but feel, in the light of the mammoth steps that American
jurisprudence has taken in the past two centuries, that some
social cancer is gnawing at the entrails of American law, a social
cancer that cannot see that the "survival of the fittest"
is not the founding principle of American democracy.
Legal studies take many forms, from the plodding monographs with
mountains of footnotes found in the more scholarly reviews and
legal journals to the crisp, essaylike opinions of Lord Mansfield
and John Marshall, noted for their logical lucidity and sensitive
humanity. Legal studies are as varied as the jurists themselves
and that is why law and jurisprudence have become an absorbing
and exciting business, their legal output even surpassing, in
some cases, the political commentaries of the New York Times,
Le Monde, and the Manchester Guardian.
And so it is something of a puzzling mystery and historical oddity that no legal studies of any consequence have been made of the legal fabric and social dynamics of the Roe v. Wade decision. Those of us who have grappled with the human problems facing what has now become a global village have wondered why the United States of America, with its enlightened doctrine of exceptionless rights, could authorize and sanction and declare legally justifiable the destruction of the unborn in the womb, contrary to every tenet of humanity that inspired this nation. Who would think that a nation and people of obvious greatness would sanction, legalize and authorize a form of national genocide in the name of the "Right to Privacy," under cover of which abortion related Dilation and Curettage, Dilation and Evacuation, and Dilation and Extraction pass as standard medical practice?
It is possible that the Catholic politician is totally unaware of the savagery of these "medical" procedures or of the legal fabric of the Roe v. Wade decision. It is also possible that he has never studied the legal precedents and juridic principles that were ignored or discarded in the framing of that decision. Abraham Lincoln, in his Cooper Union Speech of February 27, 1860,(13) with the fine scalpel of legal reasoning, dissected the flaws and falsehoods in the Dred Scott decision, which legalized chattel slavery in every state of the Union, abrogating the Missouri Compromise and abrogating as well, in Lincoln's mind, the real intent of the framers of the Constitution. Roe v. Wade rests as well on just as shaky a legal foundation.
In a society without law, the strong destroy the weak, and the basic constitutional principle at work in the American judiciary is that there must be effective checks in the law to protect the weak and deter those who would use power unlawfully only for their own advantage. It makes no difference if the power is political, military, economic or brute physical force, the result is always the same: the weak are at the mercy of the strong, the strong using the law to cover their own lawlessness and using the cover of the law to conceal their destructive intent. The question of abortion is no different from issues that divided the country in the past: slavery, segregation, women's rights, child labor, and the condition of workers.
Those holding power, intent on their own private interests, commit violent acts under cover of property rights, contractual rights, states rights, or the right of personal autonomy. In every case, it is the strong demanding power over the weak, and it is this demand and this claim that brought about the social and juridic revolution at the turn of the 20th century, when Louis Brandeis realized that economic power had become the new tyranny and that the economically weak had to be protected from the economically strong. The result was the Supreme Court's decision in Muller v. Oregon (14) and the famous Brandeis Brief (15) that inaugurated the revolution.
Tyranny always flourishes under cover of the law, and the law in the case of abortion is a three-pronged constitutional claim: the physician's right to medical practice, the woman's right to privacy, and the woman's right of dominion over her own body. All three are valid claims: there is a physician's right to practice medicine; there is a right to privacy protected by the Constitution; and there is a right of dominion that every human person has over his or her body. But it is also clear, to anyone who has examined the issue honestly, that in the case of abortion, these claims of legality are mere legal fictions, legal covers for something unlawful and malicious: the surgical destruction of unborn life under the shield of "standard medical practice."
Two questions ought to be asked: What is the root constitutional principle and the basic constitutional right imbedded in the issue of abortion and how can it reveal itself in the light of the intense controversy surrounding it? The Dred Scott (16), Plessy v. Ferguson, (17) Lochner v. New York (18), and Hammer v. Dagenhart (19) decisions remind us that the judicial process can be flawed, and bring great harm to countless human beings and tragic social consequences.
The legal and constitutional
question facing us today is: has Roe v. Wade isolated and identified
the constitutional right involved, the Right to Privacy (20),
as the majority opinion affirmed?
The Supreme Court cases that parallel Roe v. Wade are not those
concerned with privacy, but rather those that were concerned
with providing a legal cover for acts of violence. The closest
parallels in time are Brown v. Board of Education, (21) which
outlawed segregation, United States v. Darby, (22) which ended
child labor, and Muller v. Oregon (23) which banned the exploitation
of workers by industry.
With Roe v. Wade, the time was ripe for bringing to a close the unlawful use of power as the cover for other acts that the law had always considered inhuman and barbaric. Instead, a legal cover was provided for yet another act of violence, this time in the name of medical science, thus joining slavery, segregation, child labor and the exploitation of workers in the long list of violent acts given the legal sanction of the court.
Roe v. Wade has a distinguished ancestry but a bloody past. It is the history of oppression, genocide, chattel slavery, segregation, child labor. Abortion is simply one more form of violence done in the name of someone's else's right under the law. The fact that the victim is the unborn and has no status under the law makes the case no different from its predecessors. The fact that the doers of the violence are women and doctors does not change the character of the violence. Slavery was the work of respectable families and distinguished landowners and the most vocal advocate of segregation was a distinguished statesman and jurist, John W. Davis. (24) Those who supported child labor were successful businessmen and fathers of families and even members of the clergy.
The legal argument accepted in the Roe v. Wade decision was in articles published in the New York Law Forum by Cyril Means, (25) a lawyer for the NARAL, the National Association for the Repeal of the Abortion Law. Professor Means argued, falsely, that the sole reason for the abortion laws of the past was to protect a woman from dangerous and unsafe surgery.
Under consideration was the surgical procedure itself, as safe or unsafe to the health of a woman, with the conclusion that, with the advance of medical science and the improvement of surgical techniques, all danger to a woman's health had been removed. Using a well-known principle of Common Law, cessante ratione legis, cessat et ipsa lex: when the reason for a law no longer exists, the law itself ceases to exist, (26) he argued that abortion laws had become obsolete and the majority opinion of the Court accepted his reasoning.
What the arguments of Professor Means failed to point out was the real intent of the abortion laws of the past: they were fashioned, not only to protect a woman from unsafe and life-threatening surgery, although this was certainly a major concern, but primarily to protect the life of the unborn from being destroyed. And that was because those laws recognized the unborn child, not merely as a potential human being, but as an actual human subject.
It is a strange fact of history that human rights become a matter of law only after their savage violation. Law develops from lawlessness. In the case of the unborn, the violence done to them, the dismembering of their bodies in the womb, the violent snuffing out of their precarious hold on life, the surgical and sanitary and methodical destruction of their developing powers of life and locomotion, is simply another form of lawlessness given the sanction of the law.
What is needed in this legal battle for the rights of the unborn is, first of all, a detailed and graphic account of the medical and surgical methods used in terminating unborn life, supported by the latest research in genetics, embryology, gynecology and related sciences: anatomy, bio-chemistry, cytology, obstetrics, radiology, uterography and amniology. The work in these areas is extensive at centers such as the Jackson Laboratory in Bar Harbor, Maine, and at bio-genetic centers at several leading universities.
The sciences are growing in number
and it is not untrue to say that there are at least 200 individual
sciences that could be consulted on exactly what happens when
an abortion is performed.
It is not enough, legally, to abhor the destruction of unborn
life. The scientific details of that destruction must support
the allegation that it is unlawful.
These sciences can demonstrate, with detailed empirical data that the womb is the temporary habitation of a developing human being, with embryonic and extraembryonic support systems designed specifically for the preservation of a human life. How many who advocate abortion as a harmless procedure know the scientific structure of the amnion and chorion, the inner and outer fetal membranes and how, as the unborn child begins to experience the epiphany of its powers, it casts off the thin layer of the amnion to form the amnichorionic sac? How much of this is instinctive, or merely neurobiotaxical, is not clearly discernible, but it does lay the basis for a new scientific and legal description of gestation: "A human subject in a state of somatic organizational and developmental repose, with an integrating and organizational principle distinct from and separate from the body of the mother." And there is a body of evidence supporting the claim that "the integrating principle is a human person in the unfolding of its innate human potential, gradually experiencing and revealing the blossoming of its distinctive human powers." (27)
In 1908, Louis Brandeis, a corporation lawyer from Boston, appeared before the Supreme Court with empirical data and legal arguments for a new development in American law that had its beginnings in the industrial revolution, when industry replaced agriculture as the economic base of society.
Until that time, the Supreme Court had fostered what has been called "court-protected capitalism," a legal doctrine based on property rights, with all the rights attached to the ownership of property applied to business and industry.
It was a classical case of empirical data underpinning a new development in law, and the extension of the Constitution into a totally new area of American society: the rights of workers, ushering in a new era of individual and personal rights.
A similar development is taking place in the wake of the Roe v. Wade decision, and the empirical underpinning of this development is being drawn from the medical and biological sciences, which have grown in sophistication and number since the dawn of modern medicine. What is being brought under the scalpel of American Law are the facts of unborn life, and the extension of constitutional rights to the unborn.
Roe v. Wade itself heralded a new watershed in constitutional history: the emergence of the nonenumerated right as the basis for a Supreme Court decision. The nonenumerated rights recognized by Roe v. Wade were the right to privacy and a woman's dominion over her own body. There is no doubt that these are genuine rights, but they were not clearly enunciated, and made part of constitutional law until the Roe v. Wade decision and another landmark Supreme Court decision, Griswold v. Connecticut.
Now there is another legal principle emerging from the Roe v. Wade decision, one that could not have emerged until the question of the unborn was brought into the legal arena. In the case of the unborn, we are faced with the question of divided dominion, something unique in human life and unique in constitutional law. It is the definition and application of this concept of divided dominion that will bring about a further application of the right of dominion, recognizing that while, in law, a woman does have absolute dominion over her own body, she does not have absolute dominion over the body of her unborn child. In the case of the unborn, there is a double dominion, unique in human life and unique in American law, because of the very nature of embryonic life.
Catholic politicians and public officials should be aware that the question of the unborn is not just a religious issue, and far less just a Catholic issue. It is an issue of law, of human rights, and of American Law in particular, as was true in the case of slavery, segregation, workers rights, and child labor. And this battle for rights is firmly imbedded in American Law and people of outstanding religious principles have never hesitated to carry on this battle for human rights, since it is most especially in matters of justice and human rights that religion and law come together.
The challenge to Roe v. Wade in the courts, (and there will be legal challenges as the empirical data from a multitude of embryonic sciences enter the legal arena), will clarify that the mother of an unborn child has merely a trust-dominion over the child, just as she has only a trust-dominion over children already born. This will be an extension of the principle in Common Law, quoted earlier, governing this relationship: Qui in utero est pro jam nato habetur, quoties de ejus commodo quaeritur: one who is in the womb is held as already born, whenever a question arises for its benefit. (28)
As Labor Law developed from the conflict between industry and the industrial worker with new legal principles to resolve the conflict, so Embryonic Law emerges from the conflict between the rights of the woman carrying a child and the unborn child itself. For this, new empirical data, drawn from the embryonic sciences, and new legal principles, based on the right of dominion, will emerge through new cases brought before the Court, creating a new development in American Law with precedents to resolve such cases in the future. The advocates of abortion will have you and others believe that, first of all, there are no legal issues involved in the abortion question, that it is merely a religious issue, and that the unborn child is merely a fetus, a mass of tissue and protoplasm, with no rights or identity under the law.
What is in question in this whole debate is not a religious doctrine or some religious argument based on Church tradition; it is the rights of an identifiable human subject, a developing human person, with its own unique genetic code, possessing the right to exclusive dominion over its own person. The "argument" is not based merely on church tradition, but on a basic principle of law: that government does not give "rights" and that law does not create rights. The purpose and function of law, since the rise of constitutional government, is to recognize and safeguard rights by appropriate legislation, and the failure to do so is a matter of law, not of religion, and those who pretend otherwise are using the law for some private or personal advantage.
It is ridiculous and scientifically
untenable to state that, because the child in embryo has not
reached full biological development or developed to the point
of consciousness and personal autonomy, that its right to dominion
over its own person is handed over to another who has the right
to destroy it. That dominion extends to its total person, in
space and in time, at any stage of development, and to deny this
is to deny that human reproduction is the way that a human subject
comes into existence.
Conception is the process by which a human person comes
into existence, and gestation is the process by which
the human person exercises its powers and gradually emerges into
the human community. It is contrary to every legal principle
and every legal precedent that conception and gestation should
become liabilities for any human person. The securing of rights
for the unborn is the next step in the advancement of human civilization
and human rights, an advancement furthering no particular religious
tradition, but an advancement towards a more just and humane
society.
In the case of the unborn, the crucible of the law has not completed
its work and that is something that Catholic politicians and
public officials should clearly understand before they support
abortion as a legal and constitutional option.
PART II: The hard facts of abortion
The savagery and barbaric methods
of abortion hide under the cryptic and seemingly harmless designations
of abortion related Dilation and Curettage, Dilation and Evacuation,
and Dilation and Extraction, and it is almost certain that most
women who have abortions themselves do not know the raw details
of what is happening in their womb. While it is true that surgical
operations, themselves, are grim and bloody, their purposes are
not death-dealing and the fact that abortions require a high
degree of surgical skills only magnifies the evil of such operations.
There is good reason why the Hippocratic Oath and the mandates
of medico-legal history considered abortions contrary to and
in violation of a sacred trust: the oath of the physician to
use medical science only for life-giving and life-preserving
purpose. It is hard to see how the three designations listed
above are anything but violations of that oath and a betrayal
of a sacred trust to preserve life rather than destroy it.
As in the case of the sacred character of marriage and the sacred
obligation of rulers to govern justly and fashion just laws,
its position is drawn from the humane and carefully reasoned
inheritance of human wisdom. It is when this inheritance has
been ignored or rejected by nations that they sink into barbarism.
What is even more disturbing is the politics of abortion, the
claim that a woman has a right to choose, without revealing what
she is choosing. Exactly what is meant by "having an abortion"
is hidden under the phrase "freedom of choice" or one
of the surgical terms listed above. No one dares to discuss in
public exactly what those terms mean.
It is hard to believe that anyone
familiar with abortion related Dilation and Curettage, Dilation
and Evacuation, and Dilation and Extraction could give these
procedures the sanction of law.
What Roe v. Wade did was to provide a legal cover for these outlawed
surgical procedures, completely ignoring, not only the real intent
of the abortion laws of the past, but any principles of Common
Law pertaining to the child in the womb.
This tactic follows exactly the pattern of Dred Scott, Plessy v. Ferguson and Lochner v. New York, all of which were eventually reversed in American law. Not only were the wrong principles appealed to in order to justify those outlawed actions, but a very important principle of Common Law was violated, indicating either a lack of knowledge on the part of those who submitted the legal brief to the Court, or their malicious will and intent. The principle violated was this one: Scire legis non hoc est verba eorum tenere, sed vim ac potestatem: To know the laws is not to memorize words, but to grasp their force and meaning. (29) The force and meaning of the abortion laws from antiquity was to recognize the unborn child as a subject of the law. In the light of all this, it seems to me, that Roe v. Wade, far from being a step forward in American law, as its proponents suggest, was in reality a tort, the twisting of the law to conceal the commission of a harmful and destructive act. An ancient axiom of Common Law recognized that laws can be twisted to serve private and personal ends that are contrary to law itself. It reads tortura legis pessima, (a twisted law is the most evil) and hints by its very wording that the stench of the tortured law will bring about its own retribution and such a revulsion for the destructive act that the law itself will arise to twist the metal of the law back into shape in the white-hot flame of legal judgment. We have seen this happen in the cases of Dred Scott, Plessy v. Ferguson, Lochner v. New York, and Hammer v. Dagenhart and I have no doubt that in time some legal and juridic talent of the stature of John Marshall, Abraham Lincoln and Louis Brandeis will emerge to assure that this particular decision is consigned to the ash-heap of history.
PART III: Catholic politicians, public officials and abortion
For the Catholic politician and public official, whether he wishes it or not, this is a crisis of conscience, and everything depends upon the side that he takes in this national debate. He cannot have a public and a private face; he cannot believe as a private citizen that abortion is the massive evil that the Catholic Church teaches that it is and declare it to be "good" for his country and for his fellow citizens. He also cannot declare himself to be morally neutral in his public persona. John Kennedy, in his bid for the presidency, at least had the honesty to say that if he ever saw a conflict between his faith and his duties as president, he would resign. (30) As this letter has shown, abortion is not just a religious issue. The conviction that it is a violent assault upon unborn life, contrary to common decency and the law itself, is not the conviction of the Catholic Church, only. It is imbedded in the very fabric of civilized people and can be held by civilized people, apart from its religious context.
The only honest thing that a Catholic politician can do is to uphold the Catholic teachings in his public and private life, or not pretend to be Catholic and declare himself so. If he insists upon holding publicly what is contrary to the teaching of his Church, he should not be surprised if there are public consequences to his action. He should also understand that abortion is not a negotiable question for the Catholic Church and that he is obliged, as a Catholic, to give it the moral weight it deserves. If he cannot or is unwilling to do this, he, in a sense, cuts himself off from the body of the Church.
The Catholic position on the intrinsic evil of abortion is not merely a religious judgment. It is a judgment that the Catholic Church has shared with every major culture and all civilized peoples. The Church for its whole history has been opposed to abortion and euthanasia. In the Holy Father's Gospel of Life, he says this in paragraph 73, "Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection. From the very beginnings of the Church, the apostolic preaching reminded Christians of their duty to obey legitimately constituted public authorities (cf. Rom 13:1-7; 1 Pet 2:13-14), but at the same time it firmly warned that 'we must obey God rather than men'." (Acts 5:29)." (31) The Holy Father reiterates and summarizes his teaching in the following: "In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to "take part in a propaganda campaign in favor of such a law or vote for it." (32)
History has been severe in its judgments of Catholics who failed to protest unjust laws or sins against human rights. The nearest example is the Nuremberg Laws of Nazi Germany, against which even religious leaders were silent, and in the more distant past the laws upholding the African slave trade or those of Apartheid in South Africa. These, too, were contrary to religious doctrine, common decency and were a grave assault upon human rights. We justly admire an Abraham Lincoln, a John Quincy Adams (33) or a Martin Luther King for their open and public opposition to injustice in the marketplace and we praise the courage it took to speak out in the face of massive public opposition. The Catholic Church expects that kind of courage in those who claim to be Catholics, and there is no doubt that history itself will deal harshly with those who fail to possess that kind of courage.
Conclusion
This letter has been
written as a friend to those brave Catholic men and women in
public life in the legislature, in government, in public service.
It is meant to be a helpful word to them in facing the most serious
moral crisis of our time, and the subject of our most serious
public debate since slavery. I have come to have a deep respect
and admiration for those who govern our nation and frame its
laws, and I also know that Catholic politicians, today and for
the better part of a century, have been in the forefront of social
justice and the struggle for human equality. I have read some
of their books and studied some of their speeches; I have seen
the miracles they accomplished for the people of their states
and districts; I have seen the support they have given to just
laws for the poor and helpless and for national policies to further
the welfare of all the nation's citizens. And this letter is
certainly not a criticism or lack of appreciation for their outstanding
public service. I just want to remind them of the critical role
they play in the history and welfare of this nation and the true
dimensions of the most critical moral issue of our time.
And I would like to insist that the question of abortion is not a specifically Catholic or religious issue. It is a human and legal issue and it is on principles that human beings have in common that the debate takes place. The question of the unborn as a national issue is a matter of reason and law, not of religious doctrine, and if the question is to be resolved in the public arena, it is solved as a matter of law, not of faith. The victory over the rights of the unborn must be a legal and juridic one, drawn from principles embodied in the Constitution of the United States and in a juridic doctrine based upon it.
Catholics take part in this debate
as citizens, not as Catholics, since their faith and the tenets
of their faith are not binding upon others. Their faith requires
them to use their reasons to their fullest and to further and
defend those human rights they hold in common with every other
human being.
As in the Abolitionist Movement that brought about the outlawing
of chattel slavery, we are on the threshold of a totally new
juridic development, Embryonic Law, based on legal and
anthropological principles, as well as new developments in genetics.
Whenever such developments have taken place in the past, new
laws to safeguard the human rights of those not previously covered
by the law were enacted and inhuman practices violating those
rights were outlawed. And in every case, there was fierce opposition
to this new development by those who exercised power over others
or by those who profited by ignoring or violating the rights
of others.
What has to be shown in the legal arena is that abortion violates the rights of an identifiable human subject, based upon empirical data drawn from a host of sciences. That is what the abortion battle is really all about and that is what has to be proved in a court of law. What is being pioneered is a new development in juridic doctrine and a final phase in the historic battle for the human rights of every human being. What is critically important is how the battle is fought and that it takes place in more than the arena of public opinion. It is time to move into the legal arena.
Unless and until new cases are brought to the courts, the Roe v. Wade decision will stand. Without litigation, even massive litigation, (34) challenging the constitutionality of Roe v. Wade, the Supreme Court's hands are tied, since it is bound by that decision until new data and new testimony are brought before the Court in specific and concrete cases.
The Constitution of the United States is like a giant searchlight that throws its beams onto the political and social landscape of the United States and reveals the inequities and flaws in that landscape. The landscape of 1788, when the Constitution was ratified, is quite different from the landscape of 1857, when slavery divided the nation. And the landscape at the turn of the 20th century, when workers rights were the issue, is quite different from that of 1857. Each period has its own problems and its own inequities and these problems and inequities are faced by the decisions of the Supreme Court that throw the light of the Constitution on a new set of challenges. These decisions become part of the constitutional fabric of the nation and record the march of the Constitution through history.
In his monument study of Black
America's century-long struggle for equality under the law, Richard
Kluger recognized the critical role of the Supreme Court in solving
the problems of American society. His book is a graphic illustration
of how access to the courts is the only way to change the ethos
of a society. The tool is the Constitution of the United States
and it is only by action in the courts, in the Supreme Court
in particular, that the Constitution is brought to bear upon
the life of the nation.
"It is to these nine men that the nation has increasingly
brought its most vexing social and political problems. They come
in the guise of private disputes between litigating parties,
but everyone understands that this is a legal fiction and merely
a convenient political device. American society thus reduces
its most troublesome controversies to the scope and translates
them into the language of a lawsuit. In no other way has
the nation contrived to frame these problems for a definitive
judgment that applies to a vast land, a varied people, a whole
age." (35)
A dispassionate analysis of the phenomenon of legalized abortion may, in retrospect, show it to be the greatest human rights issue of our times. Although this generation may be inured to the grim reality of abortion, it seems likely that once civilization has come to its senses, future generations will look back on our time as the most barbarous in history, not merely for our wars and terrorism, but especially for the antiseptic extermination of the most defenseless members of our society, the poorest of the poor, the most helpless of the helpless, simply because they have no voice. (36)
REFERENCE NOTES
1) United States Conference of Catholic Bishops, Catholics in Political Life, June 2004.
2) Ibid.
3) "Letter to the Duke of Norfolk," January 14, 1875, cf. Ian Kerr, John Henry Newman, Oxford University Press, 1988, pgs. 679-690.
4) "McGowan v. Maryland," 366 U.S. 420 (1961).
5) Cf. Clifford Stevens, "The Rights of the Unborn: The Constitutional Challenge to Roe v. Wade," at www.priestsforlife.org
6) Sir William Blackstone, Commentaries on the Laws of England, 4 vols. Oxford, 1765-69. Also cited in Black's Law Dictionary, pg. 1481.
7) "Dred Scott v. Sandford," 60, U.S. (1857).
8) "Alien and Sedition Acts," 1798. 9) Cf. John Marshall: A Life in Law by Leonard Baker. Macmillan Publishing Co., 1974.
10) Lincoln at Cooper Union by Harold Holzer, 2004. An account of Lincoln's Cooper Union Speech of 1860, in which Lincoln dissected the Dred Scott Decision and showed its constitutional flaws and falsehoods.
11) The Common Law by Oliver Wendell Holmes, Jr., Little Brown & Co. 18.
12) Ibid.
13) Op.cit (see footnote 10).
14) "Muller v. Oregon," 208, U.S., 412 (1908).
15) Supreme Court of the United States, October Term, 1917, No. 107.
16) Cf. note 7.
17) "Plessy v. Ferguson," 163 U.S., (1896).
18) "Lochner v. New York", 198 U.S. 45 (1905).
19) "Hammer v. Dagenhart," 247 U.S. 251 (1918).
20) Cf. "Griswold v. Connecticut," 381 U.S. 479 (1965), also, "The Right to Privacy" by Louis D. Brandeis & Samuel Warren, Jr., Harvard Law Review, 4, (1890-91).
21) "Brown v. Board of Education" 347 U.S. 483 (1954).
22) "United States v. Darby Lumber Co." 312 U.S. 100 (1941).
23) Cf. Note 14.
24) John W. Davis: "John W. Davis unsuccessfully defended school segregation in Brown v. Board of Education in 1954. He had served as President Woodrow Wilson's Solicitor-General from 1913 to 1918, and was the Democratic candidate for President in 1924. He was convinced that the principle of stare decisis, the appeal to precedent, would hold in the segregation case, but instead the Supreme Court decision of 1896, Plessy v. Ferguson, upholding segregation was reversed.
25) Cyril Means, "The Law of New York Concerning Abortion and the State of the Foetus, 1664-1968: A Case of Cessation of Constitutionality," New York Law Forum 14 (fall 1968). "The Phoenix of Abortional Freedom: Is a Prenumbral or Ninth Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common Law Liberty", New York Law Forum 17 (fall 1971).
26) Sir William Blackstone, "Commentaries on the Laws of England", 2 390-391.
27) Cf. "Brief of Amicus Curiae Clifford Stevens, President of the National Organization for Embryonic Law," the United States Court of Appeals of the Fourth District, in the case: Mary Doe v. Donna Shalala et al., filed November 30, 2001, Record # 01-1298.
28) Op.cit see footnote 26.
29) "Commentaries on American Law," James Kent, 1826-30, Book I, 462.
30) Theodore C. Sorensen, Kennedy, Harper & Row, 1965, pgs. 190-191 on Kennedy's speech at the Houston, Texas, Ministerial Association in Dallas, Texas on September 12, 1960: "In the most controversial paragraph of the speech, Kennedy said he would resign his office rather than violate the national interest in order to avoid violating his conscience." Sorensen adds: "I read the speech over the telephone to the Rev. John Courtney Murray, S.J., a leading and liberal exponent of the Catholic position on church and state -- it was (also) based on my talk months earlier with Bishop (John J.) Wright."
31) The Encyclicals of John Paul II, Evangelium Vitae, 1996, Our Sunday Visitor Publishing Division, pgs 863- 864, paragraphs 73.1,73.2
32) Ibid.
33) After his term as President, John Quincy Adams was elected to Congress, where during his terms in Congress, he read petitions from his constituents opposing slavery, always shouted down by slavery advocates. His determination and persistence earned him the admiration even of his opponents, and his defense of the Africans in the Amistad affair, and his consequent victory in the Supreme Court, laid the groundwork for the abolition of slavery.
34) "Litigation is the vehicle by which the fundamental principles of our Constitution are given content and relevance in each generation ... Constitutional adjudication is the genius of our democracy and its noblest attribute." Supreme Court Justice Tom C. Clark, Hastings Constitutional Quarterly, 1, (1974).
35) Richard Kluger, Simple Justice, Random House, New York, 1975, in the Forward.
36) Cf. An interview with Father Thomas Williams, L.C., Dean of the School of Theology of the Regina Apostolorum Pontificial Athenaeum, (Rome) April 26, 2004.
