In this presidential campaign, why did so many Catholics apparently reject the teaching of the Church on citizenship? The bishops and clergy presented clearly the Church's teaching on abortion and voting. "Not all moral issues," said Cardinal Joseph Ratzinger, now Pope Benedict XVI, "have the same weight as abortion ... There may be a ... diversity of opinion ... among Catholics about ... war and ... the death penalty, but not [on] abortion and euthanasia.... A Catholic would be guilty of formal cooperation with evil... If he were to ... vote for a candidate ... because of the candidate's permissive stand on abortion ... When a Catholic does not share a candidate's stand in favor of abortion ... but votes for that candidate for other reasons, it is ... remote material cooperation, which can be permitted in the presence of proportionate reasons."
With over 48 million surgical abortions and uncountable millions more by pill or other abortifacients, all authorized by law, Archbishop John J. Myers of Newark accurately concluded that "policies on welfare, national security, the war in Iraq, Social Security or taxes, taken singly or in any combination, do not provide a proportionate reason to vote for a pro-abortion candidate."
The Obama campaign, as the Washington Post put it, reached out "aggressively" to Catholics, arguing "that the church's teachings on social justice and ... poverty, the environment, health care and unjust warfare should guide Catholic voters as much as abortion.... The Democratic effort includes antiabortion Catholic scholars who ... favor ... Obama [and] progressive Catholic organizations that have sprung up." Some Catholic professors described Obama as the "pro-life" candidate, because he would reduce abortions by promoting pro-life attitudes and providing social services. You probably have to be an academic to believe that.
The readiness of some Catholics to put abortion on a par with issues of lesser gravity and so find a "proportionate reason" to support a pro-abortion candidate could be an unintended consequence of a decision the bishops themselves made nearly three decades ago.
In Roe v. Wade, the Supreme Court ruled that, whether or not the unborn child is a human being, he is not a "person" and therefore has no right to life. The Court acknowledged that if he is a "person" the case for abortion "collapses, for the fetus' right to life is then guaranteed by the [Fourteenth] Amendment."
The National Conference of Catholic Bishops (NCCB) promptly condemned the decision and urged "legal and constitutional conformity to the basic truth that the unborn child is a 'person' in every sense of the term from conception." When four cardinals, Krol, Manning, Cody and Medeiros, testified before the Senate in 1974, they insisted that a constitutional amendment "should clearly establish that, from conception onward, the unborn child is a human person in the terms of the Constitution." It should restore the "right to life ... to the unborn, just as it is provided to all other persons in the United States." Cardinal Medeiros said "A 'States rights' amendment which would simply return jurisdiction over the abortion law to the States, does not seem to be a satisfactory solution ... Protection of human life should not depend upon geographical boundaries ... Therefore, the prohibition against the direct and intentional taking of innocent human life should be universal and without exceptions." If the unborn child were recognized as a "person" with respect to his right to life, abortion would still depend on state legislatures for its prohibition but those legislatures would be bound by "the supreme law of the land" not to deprive the unborn child of that right to life.
During the late 1970s support for the cardinals' position eroded. In 1981, the bishops endorsed a states' rights amendment. Archbishop John R. Roach, president of the NCCB, in endorsing the amendment, told the Senate that "[w]e are committed to full legal recognition of the right to life of the unborn child," but the NCCB acknowledged that the amendment "places the extent of restriction and prohibition [of abortion] entirely in the discretion of the federal and state legislatures." The Senate Committee on the Judiciary agreed that, under the amendment, a state legislature or Congress "could ... prohibit abortion or ... maintain ... abortion on demand [or enact] reforms that fall somewhere between these ... propositions." Report, June 8, 1982.
The "states' rights" approach affirms the holding of Roe that the unborn child is a nonperson. If your life is subject to termination at the discretion of a state legislature or Congress, you are, in terms of the Constitution, a nonperson. That goes beyond the limited recognition in Evangelium Vitae, no. 73, that a legislator "could licitly support" an imperfect law on abortion when it is "not possible to overturn or abrogate a pro-abortion law." Nor is "states' rights" a return to the situation prior to Roe. Before Roe, there had never been a ruling by the Court on personhood. Once the Court ruled in the negative, the only coherent response was, and is, to insist on the personhood of the unborn with respect to his right to life. That does not preclude the advocacy also of effective restrictions on abortion.
The bishops continue in their support for "states' rights." One of the most eloquent statements by bishops in the 2008 campaign undermined its affirmation of the right to life by saying, "Roe is bad law. As long as it stands, it prevents returning the abortion issue to the states where it belongs, so ... the ... people can decide its future through fair debate and legislation."
It is no surprise that some Catholics interpret, or use as a pretext, the bishops' consignment of abortion to the evaluation and "discretion" of state legislators as an invitation to them, as voters, to make that same political evaluation with abortion as one issue on a par with others.
The technology of early abortifacients is making abortion a truly private matter beyond the reach of the law. To promote what John Paul II called a "culture of life," it is more essential than ever to insist on the entitlement of every human being "to be respected and treated as a person from the moment of conception." Introduction on Bioethics.
It involves no criticism of the bishops, whose witness is admirable, to suggest that it would be appropriate for them to reconsider the cardinals' 1974 insistence on the entitlement of the unborn child to the right to life guaranteed to persons by the Constitution.
Charles E. Rice is professor emeritus at the Law School. He may be reached at 633-4415 or at rice.1@nd.edu.
The views expressed in this column are those of the author and not
necesarily those of The Observer.
