Editor’s note: This article is the first installment of an essay series on exceptions in pro-life legislation. The series will examine this topic’s history, prudential aspects and moral impacts.
(LifeSiteNews) — After the U.S. Supreme Court’s seminal Dobbs ruling in June, overturning the 1973 Roe vs. Wade tragedy that decriminalized abortion through nine months of pregnancy nationwide, the responsibility of pro-life legislators and governors in state capitals across the nation becomes much more significant.
With the constraints of Roe in the past, the pro-life movement with its representatives, have a fresh opportunity to honor and restore the most fundamental duty of government, and every single office holder: to protect every innocent human being from violent bloodshed either before or after his or her birth.
While authentic pro-lifers, and indeed all persons of good will and right reason, will recognize this duty, some legislators in “red states” are struggling to actualize this obligation in their law in the face of erroneous political slogans and retorts demanding legal preborn child killing be maintained in a variety of “exceptional” cases.
Though South Dakota and Oklahoma, for example, established near complete bans of abortion, West Virginia went through a difficult process. Its 1849 law, with functionally identical restrictions, was first “gutted,” then in the end, through the heroic work of dedicated representatives, strengthened, but still with an allowance for the legal killing of preborn girls and boys in “narrow” exceptional cases.
But given the acknowledged duty to protect all preborn children, what is the cost of allowing “exceptions” in such pro-life legislation aimed at restricting access to this abominable crime? How effective can we expect this process to be in assisting our society to protect all the vulnerable? What dangers are involved? And is it even morally permissible for pro-life legislators and others to favor legal abortion in such circumstances and, particularly, to vote for it in legislation more broadly aimed at restricting this deadly practice?
In this series of articles, we will broadly examine these questions that have been a point of debate and even significant division within the pro-life movement since at least 1981 and attempt to draw some conclusions.
We will begin here by looking at the history of this debate. In the following installments, we will first examine prudential concerns for such a strategy and then the moral question of legislators voting for bills which are aimed at restricting abortion while simultaneously providing specific permissions for the killing of preborn children in “exceptional” circumstances.
A dichotomy between moral absolutes and public perception
“The current situation is almost a compromise; it removes it as an absolute. Abortion is an absolute evil about which no exceptions are permitted … People see something wrong with it. We have to make more people aware and take it to the next step … The personal circumstances don’t change the horror of the act.”[1] –Cardinal Anthony J. Bevilacqua
After assuming the chairmanship of the Pro-Life Committee of the United States Conference of Catholic Bishops in November 2001, Cardinal Anthony Bevilacqua of Philadelphia made this sensitive observation above. Accurately, he identified a common perception among American citizens that the pro-life movement itself accepts the premise that civil law can, and perhaps should, tolerate the direct killing of preborn children in certain exceptional circumstances.[2]
According to close observers, this predominant perception can be traced, at least in part, to the fact that many or most political candidates currently endorsed as “pro-life” by widely respected political action committees, hold the view that certain abortions can and should remain legal — most commonly, those involving rape, incest, fetal abnormality, and when the mother’s life is allegedly at risk.[3]
Given this dichotomy between the truth that “abortion is an absolute evil about which no exceptions are permitted,”[4] and the perception of the public that right-to-lifers are willing to permit “exceptional” violations of some innocent preborn children’s right to life, it is only natural to ask how the pro-life movement arrived at this apparent “compromise.”[5]
A brief history of pro-life principle
For over four decades the pro-life movement has been divided over the proper means of achieving its common goal of restoring protection for all innocent human beings from the moment of conception.
While dispute over the means has ensued, the end goal has apparently remained intact. Since the now-overturned Roe decision was inflicted on the nation, and indeed even previous to 1973 when laws passed in particular states permitting at least some abortion, the pro-life movement as a whole has generally supported full protection for all innocent human beings from the moment of conception to natural death.[6] Within pro-life circles, this fundamental truth is commonly referred to as the “personhood principle.”[7] As articulated by the Catholic Church in Donum Vitae, this principle holds that
The human being is to be respected and treated as a person from the moment of conception; and therefore from that same moment his rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life.[8]
Implied in this principle of personhood is what one author calls the “protection principle.”[9] Again, adopting an articulation from Donum Vitae, this principle holds
As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child’s rights.[10]
These natural law principles have provided the “the rock of unity for the pro-life movement”[11] in summarizing the evident truths that all human beings have human rights, “first and fundamental among these is the inviolable right to life;”[12] and that man’s “civil law must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person.”[13]
The four cardinals set the standard
Only three weeks after the Supreme Court’s Roe v. Wade decision, the Administrative Committee of the U.S. Conference of Catholic Bishops issued a “Pastoral Message on Abortion.” This message rejected the Court’s decision “because, as John XXIII says, ‘If any government does not acknowledge the rights of man or violates them, its orders completely lack juridical force.’”[14] Affirming the personhood principle above, the statement continued demanding “legal and constitutional conformity to the basic truth that the unborn child is a ‘person’ in every sense of the term from the time of conception.”[15]
Thirteen months later, Cardinals John Krol, Timothy Manning, Humberto Medeiros and John Cody testified before a U.S. Senate Subcommittee on behalf of the United States Catholic Conference affirming the same personhood and protection principles. Addressing the legislative portion of the joint testimony, Cardinal Medeiros directed that “The constitutional amendment should clearly establish that, from conception onward, the unborn child is a human person in the terms of the Constitution.”[16] He continued by noting that
The right to life is described in the Declaration of Independence as ‘unalienable’ and as a right with which all men are endowed by the Creator. The constitutional amendment should restore the basic protection for this human right to the unborn, just as it is provided to all other persons in the United States.[17]
Significant for our purposes, the cardinals refused to endorse an amendment proposed at the time by Republican U.S. Sen. James L. Buckley of New York because it would have permitted abortion “in an emergency when a reasonable medical certainty exists that the continuation of the pregnancy will cause the death of the mother.”[18] In denying the innate right to life of these preborn babies alleged to threaten their mothers’ lives,[19] this amendment would have violated the personhood and protection principles. Even though the passage of this proposal might have improved the situation of unrestricted abortion in the United States, its enactment would further establish an illicit arrogation of power, by federal and state governments, to deprive a segment of the human family of their basic right to life. Such a dangerous precedent would indicate the clear severance of our nation’s civil law from the protective authority of God’s natural and divine law. Regarding this proposal, Cardinal Medeiros stated,
As for an amendment which would generally prohibit abortion but permit it in certain exceptional circumstances, such as when a woman’s life is considered to be threatened, the Catholic Conference does not endorse such an approach in principle and could not conscientiously support it.[20]
Responding directly to a question regarding this same amendment, Cardinal Medeiros replied,
[I]f direct taking of life and intentional taking of life to save the life of the mother, is what you have in mind, then it is not licit … I could not endorse any wording that would allow for direct abortion.[21]
In stating that he and the Catholic Conference “could not” endorse or support “any wording that would allow for direct abortion,” Cardinal Medeiros echoes the teaching of Pope Pius XII that neither he nor the Church nor any “human authority … may offer or give a valid judicial title for a direct deliberate disposal of an innocent human life.”[22]
On this same occasion, the cardinals rejected the “state’s rights” solution that would have turned the deliberation and decision, of whether or not to allow abortion, over to the legislative authority of state governments. In addressing this proposal, Cardinal Medeiros stated
A ‘states rights’ amendment, which would simply return jurisdiction over the abortion law to the states, does not seem to be a satisfactory solution to the existing situation. Protection of human life should not depend on geographical boundaries … The Constitution should express a commitment to the preservation of all human life. Therefore the prohibition against the direct and intentional taking of innocent human life should be universal and without exceptions.[23]
Like Senator Buckley’s “exception” proposal, the state’s rights position violates the personhood principle because it is premised on the non-personhood of the preborn. The government would have been inscribing into law that the personhood of the preborn is a negotiable political issue that individuals may legitimately disagree upon — falsely, and ironically, reducing this empirical reality to a matter of subjective religious belief. Speaking on behalf of the USCC, Cardinal Medeiros apparently judged this option to be the violation of an immutable principle, and thus declined to endorse it.[24]
Division in the pro-life ranks: “Down the Hatch!”[25]
Though tensions within the pro-life movement were present and growing for the next several years regarding the proper means to end the abortion holocaust,[26] this quiet conflict surfaced publicly in 1981 when the Catholic bishops wholly repudiated their 1974 position by endorsing the “state’s rights” Hatch Amendment.[27] Intending to transfer the power to regulate abortion from the judicial branch of government to the legislative, the proponents of the Hatch Amendment expected an enhanced prospect of reducing the rate of abortion.[28]
The amendment itself, however, elicited vehement protests from many other pro-life advocates for it would have entrenched into the Constitution of our nation the premise that preborn children are not persons under the law. Formally establishing that “states could allow, regulate, or outlaw abortion,”[29] the amendment would have permanently rejected the fundamental truth that the civil laws of our country must not contradict God’s natural law[30]—particularly with regards to the unalienable rights of the individual human person. In effect, the amendment would have authoritatively declared secular humanism as the normative religion of the United States of America.
From this occasion forward, an entrenched division of two general camps has remained in the pro-life movement. One camp, we will call “pragmatists,”[31] views any regulation of abortion serving to limit the killing of preborn children in the short term as a worthy objective, despite the long-term detrimental effects such legal precedents may have on accomplishing the shared goal of personhood. They draw their moral and prudential authority from the reasoning exercised in the NCCB’s endorsement of the Hatch Amendment.[32] The pragmatist camp has generally held predominant political influence in the pro-life movement and is represented by the National Right to Life Committee (NRLC) and many of its affiliate groups.
The second camp, we refer to as “no-exceptions,”[33] draws its moral and prudential position from the reasoning expressed by Cardinal Medeiros in 1974: that one “could not endorse any wording that would allow for direct abortion.” This camp holds the position that under no circumstances may legislators support laws that grant permission for the direct taking of innocent human life. They believe this position to not only be a necessary moral stance, but the proper prudential avenue for ending the bloodshed of children as quickly as possible. Though the movement as a whole may be tempted to compromise this principle in order to “save lives” in the short term, this camp feels that conceding the fundamental principle of personhood in any way can only prolong decriminalized abortion, compounding the death toll of children and thus rendering any hailed short-term achievements as merely illusional.[34] The “no-exceptions” camp was foundationally represented by American Life League, which was instrumental in establishing this movement, and now includes the Personhood Alliance, and many other groups such as Pro-Life Wisconsin, Georgia Right to Life, the Right to Life Action Coalition of Ohio, and Canada’s Campaign Life Coalition.
Exceptions as a specific point of debate
Though the two camps are divided on several fundamental questions,[35] one primary point of division, which is the main subject of this essay series, has been the routine acceptance by the pragmatist camp of “exceptions” to prohibitions against abortion in legislative efforts and attached to the “pro-life” credentials of their endorsed political candidates.[36]
An “exception” for the purposes of our discussion, exists when a law that restricts abortion in some way explicitly exempts specific classes of preborn children from its protection. As stated previously, the most common exceptions that pragmatist groups will permit within their definition of “pro-life” include circumstances involving rape, incest, fetal abnormality, and when the mother’s life is allegedly at risk.[37] Though the pragmatists voice support for the personhood principle, they tolerate these exceptions as a means to pass legislation — that might not otherwise be passed — aimed at saving as many children as possible under the present circumstances.
By contrast, the “no-exception” camp contends that such compromises relinquish the truth that all abortion is intrinsically unjust, and that civil government can never authorize or permit the direct killing of just one innocent human being. Such a compromise of basic truth, they contend, has prolonged the abortion tragedy in the U.S. and therefore increased the death toll of children. Reflecting on the impact of these tactics back in 1991, the late Notre Dame law professor and pro-life activist Charles Rice opined that by compromising absolute moral norms, “the pro-life movement has lost the war it chose to fight on the enemy’s terms.”[38]
Pope John Paul II’s Evangelium Vitae addresses the controversy
On March 25, 1995, the Holy See released the eleventh encyclical letter of Pope John Paul II, titled “Evangelium Vitae” (“EV”), The Gospel of Life.[39] EV is the major work of the Church that serves to reiterate her teachings on the sacredness of human life and apply those teachings to combat modern attacks on human life.
Section 73 of that encyclical (“EV 73”) treats the responsibilities of citizens and lawmakers with regard to safeguarding and ensuring the right to life in the law. This section is divided into three paragraphs.
The first paragraph lays out the absolute illegitimacy of laws that permit attacks upon human life. It states, “Abortion and euthanasia are thus crimes which no human law can claim to legitimize.” It goes on to describe the “grave and clear obligation” citizens have to oppose such laws through “conscientious objection.”[40]
Consequent with the identification of such illegitimate laws, the short second paragraph (“EV 73.2”) enunciates the necessary moral prohibitions against obeying or supporting these laws. We quote it here in full:
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 favour of such a law, or vote for it.”
At the center of this debate lies the third paragraph of this section (“EV 73.3”) that enunciates the principles to be employed by pro-life legislators when due to their respective political realities, it is impossible to revoke or abrogate a permissive abortion law. For the sake of our analysis, we quote the relevant passages from the paragraph in full:
A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on… In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.
Response of each pro-life perspective
Both the pragmatic and no-exceptions pro-life camps interpreted EV 73 as supporting their respective position on “exceptions” in legislation. The pragmatists believed that in the face of a legal structure that sanctions unrestricted abortion on demand, this provision expresses the necessity of restricting abortion to the greatest degree possible while incrementally pursuing full personhood for the preborn.
While recognizing many incremental legislative efforts as both licit and supported by the Church’s teaching, the no-exception camp makes the fundamental distinction between licit and illicit incremental legislative measures.[41] The critical distinction within this genus of “imperfect legislation” aimed at limiting the harm of a current law is whether or not the species of the particular proposal is objectively “just” as required by EV 73.2. To put it simply, in the words of Cardinal Medeiros, one “could not endorse any wording that would allow for direct abortion.”
Therefore, the fundamental moral question regarding this text presents itself: According to Catholic moral teaching, particularly as expressed in EV 73, is it licit for a legislator to vote for a law that explicitly permits some direct killing of certain preborn children as an alternative to a more permissive abortion law already in force or about to be voted on? Or, are there moral limits to the wording that legislators may endorse in achieving this laudable end of restricting access to abortion?
The underlying debate and prudential arguments
Having reviewed the history of this debate including the fundamental principles at play, along with the teaching of certain Catholic Church prelates before and after 1981, and the 1995 text of EV addressing the topic, it is clear that a proper moral answer to this question can only be determined by an analysis of what the Church refers to as the Sources of Morality: the object, intention, and circumstances of the act.
While the two camps generally share a common recognition of the Church’s teaching regarding the intention and circumstances surrounding this particular moral act, this debate primarily hinges upon how one identifies and articulates the finis operis or object of the act itself.
It appears that most commentators on this question have not focused on this particular moral quality of the act, but rather the circumstances, intention, and, most commonly, the immediate consequences the proposal may have of “limiting the harm” of a present abortion law.
Despite the fact, however, that the moral debate here pivots on identifying the object of the act, it is worth considering prudential arguments as well. For if a certain type of act abounds with negative consequences, that fact could point to the presence of an intrinsic evil.
These observations having been made, the particular prudential arguments pertaining to these two positions will be considered in the next part of this essay and will be followed by a moral analysis mentioned above.
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ENDNOTES:
[1] “Philadelphia cardinal plans aggressive pro-life campaign,” Washington Times, WashingtonTimes.com, January 19, 2002, <https://www.washingtontimes.com/news/2002/jan/19/20020119-034926-9197r/> (Sept. 19, 2022).
[2] Charles E. Rice, The Winning Side: Questions on Living the Culture of Life, (Mishawaka, IN: St. Brendan’s Institute, 1999), 237 – 238.
[3] Judie Brown and Brian Young, Exceptions: Abandoning “The Least of These My Brethren”: Why Pro-Life Legislation Should Not Contradict Pro-Life Principle, (Stafford, VA: American Life League, 1994), p. 11-12; Also located at EWTN.com; Rice, The Winning Side, 237-238.
[4] See note 1 above.
[5] Id.
[6] American Life League, “About Us,” < https://all.org/all-objectives> (Sept. 19, 2022); National Right to Life Committee, “Mission Statement,” < https://www.nrlc.org/about/mission> (Sept. 19, 2022).
[7] Brown and Young, Exceptions, 2-4; Wanda Franz, “Being Realistic about Effective Pro-Life Work,” National Right to Life News, October 2001, < https://www.nrlc.org/archive/news/2001/NRL10/index.html> (Sept. 19, 2022).
[8] Congregation for the Doctrine of the Faith (CDF), Donum Vitae, (Boston: Pauline Books and Media, 1987), Part I (1).
[9] Matthew S. Bowman, “Pro-Life Laws that Permit Abortion: Allowable under Evangelium Vitae 73?,” (academic paper prepared for credit, Ave Maria School of Law, 2003).
[10] CDF, Donum Vitae, Part III.
[11] Brown and Young, Exceptions, 3.
[12] Pope John Paul II, Evangelium Vitae, (Boston: Pauline Books and Media, 1995), No. 71 [hereinafter “EV”].
[13] Id.
[14] Administrative Committee of the National Conference of Catholic Bishops, “Pastoral Message on Abortion,” February 13, 1973, Priests For Life web site, <https://www.priestsforlife.org/magisterium/bishops/73-02-13pastoralmessageonabortionnccbadmincommittee.htm> (Sept. 19, 2022).
[15] Id.
[16] Humberto Cardinal Medeiros, “Testimony before the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary,” March 7, 1974, Priests For Life web site, <https://www.priestsforlife.org/magisterium/bishops/74medeirostestimony.htm> (Sept. 19, 2022).
[17] Id.
[18] Rice, Winning Side, 233.
[19] It is pertinent to note at this point that thanks to the advances of modern medicine, “there is never a situation in the law or in the ethical practice of medicine where a preborn child’s life need be intentionally destroyed by procured abortion for the purpose of saving the life of the mother.” American Life League, “Protecting the life of the mother,” < https://www.all.org/declaration-protecting-the-life-of-the-mother> (Sept. 19, 2022).
[20] See note 16 above.
[21] Rice, Winning Side, 234.
[22] Pope Pius XII, “Address to Midwives on the Nature of Their Profession,” October 29, 1951, Catholic Culture, <https://www.catholicculture.org/culture/library/view.cfm?recnum=3462> (Sept. 19, 2022): (“[E]very human being, even a child in the mother’s womb, has a right to life directly from God and not from the parents or from any human society or authority. Hence there is no man, no human authority, no science, no medical, eugenic, social, economic or moral ‘indication’ that can offer or produce a valid juridical title to a direct deliberate disposal of an innocent human life; that is to say, a disposal that aims at its destruction whether as an end or as a means to another end which is, perhaps, in no way unlawful in itself. Thus for example, to save the life of the mother is a very noble end; but the direct killing of the child as a means to that end is not lawful.”)
[23] See note 16 above.
[24] As stated in note 22.
[25] Title of 1982 pamphlet addressing the Hatch Amendment controversy; American Life Lobby, “Down The Hatch,” (Stafford, VA).
[26]Judie Brown, Not My Will but Thine: An Autobiography, (Stafford, VA: American Life League, 2002), 68. (Judie Brown left NRLC in 1979 and founded the American Life League feeling this was necessary because “the religion of secular humanism had crept into the philosophy of those who put pragmatism before the laws of God.”)
[27] Charles E. Rice, No Exception: A Pro-Life Imperative, (Notre Dame, IN: Tyholland Press, 1991), 89– 90.
[28] Florida Catholic Conference, “Turning Point In Pro-Life Cause: Senator Hatch Introduces New Human Life Amendment,” Vol. 2, No. 2, Nov., 1981. Also see: United States Congress, Senate, Committee on the Judiciary, “Constitutional amendments relating to abortion: hearings before the Subcommittee on the Constitution,” Washington: U.S. G.P.O., 1983, p. 415. (Archbishop John R. Roach, President of the NCCB testified: “We wish Congress to give its support to an amendment which effectively reverses the Supreme Court’s abortion decisions, allows for effective and universal protection of unborn children against abortion, and has good prospects for ratification. In light of these criteria, we support Senator Hatch’s proposal.”)
[29] Brown, Not My Will, 81.
[30] See EV 72.
[31] I adopt the terminology used by Matthew Bowman, see note 9: (From Bowman’s 5th footnote “‘Pragmatist’ pro-lifers would rather be known as ‘incrementalists’ [and would rather call the other camp “purists,” “perfectionists,” or “absolutists”], while ‘no-exceptions’ pro-lifers would rather be known as ‘total protection’ or ‘personhood’ pro-lifers [and would rather call the other camp ‘compromisers’ or ‘flawed incrementalists’]. I could not dub the ‘pragmatist’ camp ‘incrementalists’ because the no-exceptions camp also advocates a form of incrementalism … The pragmatist camp, meanwhile, is proud to have achieved pragmatic victories. Despite holding no-exceptions views, I do not intend a negative connotation by the ‘pragmatist’ label. I hope that my choosing these labels will suffice as a neutral compromise.”)
[32] See note 28 above.
[33] See note 31 above.
[34] Rice, Winning Side, 233 – 242.
[35] For example, the pragmatist strategy generally declines from opposing governmental funding for contraceptive programs including “family planning,” “population control,” and “sex education.” The “no-exception” camp sees the promotion of these programs as a central cause to the societal demand for abortion and therefore opposes all such funding. (See: Patrick Delaney, “Coddling Contraception,” Celebrate Life, November – December, 2001.)
[36] While this “pro-life” position is common, just two significant examples include former Presidents Donald J. Trump and George W. Bush.
[37] As was affirmed by James Bopp, Jr., NRLC general council, “Since we view abortion as the taking of a human life, the only time a human life may be taken is to protect another [sic]. So that’s why we support a ‘life of the mother’ exception to prohibiting abortion … As to rape and incest, we would also agree that a person can support abortion in the circumstances of rape and incest and still be pro-life.” (ABCNews.com, “Chat: ‘Partial Birth’ Ban Under Review: Nebraska Law at Center of National Abortion Debate,” April 25, 2000.)
[38] Rice, No Exception, 5.
[39] Citation at note 12 above.
[40] EV, 73.1 (emphasis in original text).
[41]American Life League, “Declaration on Truth and Life,” <https://www.all.org/archive/declaration-on-truth-and-life> (Sept. 19, 2022) (“[A]cceptable incrementalism is defined as a series of regular consecutive advances in pursuit of a principled goal—advances that do not contradict or detract from the personhood principle. Thus any alleged incremental proposal or position that allows abortion by way of exception is not acceptable, but rather is unethical and immoral.”).