Roe’s Imminent Demise
Michael Pakaluk
When I teach about abortion, I start with a poll. “How many of you believe that abortion is legal only for the first three months of pregnancy?” All the students raise their hands – naturally enough, because this is what the media has repeatedly told them.
I then go to my computer, connected to an overhead projector, and search on “late-term abortion near me.” The search comes up with clinics in one’s own neighborhood offering abortions up to 24 or even 36 weeks.
For example, in Washington, DC, Capital Women’s Services explains under its pull-down tab for Late Term Abortions that it “offers late-term abortion care up to 36 weeks under certain circumstances, such as for fetal or maternal indications.”
That’s a devilishly obscure phrase, “Maternal indications.” The clinic explains, “The U.S. Supreme Court, in its classic Roe v. Wade Decision, ruled that abortions are legal at any gestation to preserve the life or the health of the woman.” (Note the finesse of language: “at any gestation,” not “at any gestational age,” as the latter raises the awkward question, whose age?)
Well, they at least get Roe v. Wade. And “health” as defined in Roe’s companion decision, Doe v. Bolton, brought in psychological and socioeconomic considerations as included under “health.”
The website goes on: “Maternal health problems can be very distressing in themselves, and doubly upsetting because they can sometimes mean that a pregnancy cannot be continued. These are tragic situations, and we will always respect the right of a woman to make her own medical decisions regarding her own life, her own body, and her own family.”
Sure, humanity dictates that women will not usually abort their babies at eight months because of a runny nose. And there are undeniably tragic cases, not to be minimized. But suppose the mother wants an abortion at 32-weeks “gestation” because her boyfriend has just abandoned her, and getting up three times a night to go to the bathroom now seems completely unbearable?
“We will always respect your decision,” the clinic says flatly. They will insist on a consultation, of course, and charge extra money, but the abortion will be available.
After that, I show my class pictures of unborn children at 32 or 36 weeks. Then I go to a website which gives the description, from an abortion textbook, of a D&X abortion (“dilation and extraction”), or a “partial birth” abortion. Invariably the response from my students is the same: shock and utter disbelief. “How can they allow that?” “ How can this be legal?”
The correct answer is not so much that it is legal as that it is not illegal. It once was illegal, but the Supreme Court held that no authority of law could deem it illegal.
My students naturally elide “allowed” to “legal.” The old legal philosophers said that there were three acts of law: to forbid, to require, or to permit. Anything under law had to be deemed one of these three. We are “one nation, under law,” after all. So, in the face of the grisly reality of late-term abortion – my students implicitly infer – some authority must have decided that these acts belonged in the “permitted” category, not the “forbidden” category. But, strictly, no: what Roe did was declare null the laws which made such things forbidden. It did not replace these laws with a new law, which said what was permitted and on what grounds. Strictly, it created zones of lawlessness.
This is why I am actually heartened by the recent law in New York and the prospect of similar laws in Vermont and Virginia. I believe such laws make it more likely that Roe will be overturned, and they will hasten the passage of laws that will outlaw abortion.
There was something safely popular about Roe’s merely striking down a hindrance. Roe had always shared the appeal of the nonsensical mantra, “it is forbidden to forbid.” No one likes saying no per se; saying no in reply to no, then, looks like an easy win. And one could also always feign a surprise at the consequences, a lack of responsibility for what followed. (“I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices. . . . Plainly, the Court today rejects any claim that the Constitution requires abortions on demand,” as Chief Justice Burger put it with astounding simplicity in his concurring opinion to Roe.)
But saying yes, in contrast, is unsafe. It reveals plainly what you love, and what you fail to love. Now you have actually declared abortion to be in the category of the permitted under law – and therefore you have been shown additionally to have a twisted concept of lawfulness. What you call law we call power employed to protect your interests. We know that type.
Abortion rights rhetoric has shifted back-and-forth over the years, between an apologetic approach, claiming weakness, and a brazen approach, boasting strength, though these are not found in equal proportion: it is as if after a hundred of the apologetic pieces (“no one likes abortion, it is a regrettable necessity”), someone has to come along with a brazen piece to clear the air (“every woman who gets an abortion knows it is killing, but sometimes one must kill to get by”).
These attitudes exist uncomfortably together. But legislation like New York’s resolves the tension in favor of the brazen, from which many will recoil in horror: Do we really think this? Do we hold this?
Likewise, by creating jurisdictions where Roe is now affirmed in state law, it will look as though, politically, Roe can be overturned by the Supreme Court. It can be overturned without being overturned, fully. (And who cares about flyover states clinging to their guns, religion, and heartbeat bills?)
The abortion debate has, fatiguingly, raged long enough that its resolution into separate settlements will seem long overdue – a peace of Westphalia, indeed, but still something like a peace.
Michael Pakaluk, an Aristotle scholar and Ordinarius of the Pontifical Academy of St. Thomas Aquinas, is acting dean of the Busch School of Business at the Catholic University of America. He lives in Hyattsville, MD with his wife Catherine, also a professor at the Busch School, and their eight children. His latest book, on the Gospel of Mark, The Memoirs of St Peter, is coming out from Regnery Gateway in March 2019.
So Cardinal Dolan, What’s the Plan?
Anthony Francois
Enough of whether New York Archbishop Timothy Cardinal Dolan should excommunicate Governor Andrew Cuomo, and what the media or Cuomo’s political supporters or Planned Parenthood or anyone else of ill will would make of such a move. I have no particular quarrel with those calling for it, other than to observe that it is, in fact, the province of the bishop to decide. It just isn’t really the most important point.
Excommunication, the Cardinal says, would be politically counterproductive. That is not an ecclesiastical judgment but a secular one. In that order of things, Cardinal Dolan is by definition – and Church teaching – no more an authority than any member of his flock.
So, how can we assess the wisdom of Dolan’s call on the politics of the matter?
We would need to know what “productive” would mean in order to assess whether excommunicating the Governor aids or hinders it. We would need to know what strategy is being implemented to know whether any particular act was within or without the plan. But nothing remotely like a Catholic political strategy to change the trajectory of New York state’s final descent into child killing madness is on offer.
One strategy might be: build up the moral formation of New York’s Roman Catholics to the point that Andrew Cuomo and his ilk will someday have to give a damn about what they think on this matter.
What is Cardinal Dolan’s strategy for catechizing (or perhaps evangelizing is the right word) New York City’s Catholics to the point where they, as voters, won’t stand for this sort of thing anymore? Is there one?
Dolan’s diocese has almost 3 million Catholics, a third of all residents. New York City is said to be one of America’s most Catholic cities, and New York is one of the nation’s most Catholic states by population. Roman Catholicism is the Empire State’s largest religious grouping.
But if you look at those claims by how many New York Catholics will vote to re-elect Cuomo, or any legislator who voted for this monstrosity, the number that currently matters to any Catholic pro-life political strategy is very, very much smaller.
Governor Cuomo just won re-election with 59 percent of the statewide vote. Dolan’s archdiocese provided Cuomo with over a third of his total votes, and voted for him at roughly the same rate as the rest of the state. Looking at Dolan’s counties that Cuomo won, the effect is more dramatic: just under a third of Cuomo’s total statewide vote came from these counties, which he carried by 66 percent. Zooming in on New York City alone, Cuomo won the heart of Dolan’s archdiocese by 86 percent in Manhattan and 90 percent in the Bronx.
These facts demonstrate two things. First: making a rapid and significant difference in New York’s political landscape on abortion is probably an unrealistic short-term goal for the Cardinal. So why should anyone care about excommunicating Cuomo, which is marginal to such a goal? You might as well ask what effect canceling a Netflix subscription has on colonizing Mars.
Second: Cardinal Dolan urgently needs to do something more effective to evangelize his whole flock on whether they should ever vote for zealous legal enablers of child killing. As it stands now, in any one-on-one contest between Cuomo and Dolan, almost all of the Cardinal’s people are rooting for the Governor. He needs to change that.
Reasonable minds will differ on what would be productive to that effort. But who in the chancery cares what the Church’s enemies think about a bishop’s effort to help Catholics understand that you shouldn’t vote for those who make a top priority of liquidating the unborn?
Catechetical, liturgical, and disciplinary reform are not easy. But these are the only “resources” that the Archbishop of New York has to form his flock to the point that they will rally as Catholic voters to stand athwart barbarism. None of Cardinal Dolan’s other responsibilities contribute anything significant to that effort. They may have ancillary value to some of the Church’s enterprises, but they aren’t making Big Apple Catholics more pro-life.
Whatever other good they do, none of the Archdiocese of New York’s public contracts or philanthropic collections to provide social services provide substantial moral formation or courage to broad swaths of voting Catholics on this issue. None of Cardinal Dolan’s otherwise appropriate and arguably useful relationships with politicians, as such, teaches the faithful how to deal with those pols at the ballot box on this issue.
Grand Marshalling the St. Patrick’s Day Parade isn’t, without more, giving Catholic New Yorkers the zeal of the Patron of Ireland, or anything more conducive than a pub crawl to virtue or spiritual wellbeing. The Al Smith Dinner may raise a pile for the Church, but it doesn’t form consciences, no matter how many viewers C-SPAN reaches with it.
If the Cardinal wants to face down Andrew Cuomo over abortion with a crowd at his back, he is going to need to do something “productive” to get his people back.
None of which is to say that Cardinal Dolan doesn’t care about the most important of his responsibilities, or put an honest or capable effort into them. But it is to say that if he thinks that political considerations dictate that “those who oppose the Church” are a more important audience at this time than “those who adhere to the Church,” he doesn’t understand what are and are not his political opportunities.
The only way he is going to improve his political opportunities is by prioritizing the formation of his flock over trying to manage optics or manipulate what the enemies of the Church will say about him.
So fine, if excommunicating Cuomo will undermine some plan to make the faithful of New York a more effective bulwark in defense of the unborn, then by all means, forget it.
But please, if not, enough about how not disciplining him is good politics.
Tony Francois is a Senior Attorney with Pacific Legal Foundation, where he specializes in constitutional and environmental law. He and his family reside in Sacramento, California. The views expressed are solely his own.
*Image: This is an actual screenshot from an online story about New York’s recent abortion law with the unplanned, serendipitous juxtaposition of an ad.
