Kerry's explanation

From the LA Times

Sen. John F. Kerry, a Catholic who is personally against abortion, attempted to explain Thursday how he could support abortion rights even though he believed life began at conception, a knotty issue that has dogged him on the presidential campaign.

"Let me tell you very clearly that being pro-choice is not pro-abortion," he told ABC's Peter Jennings. "And I have very strong feelings that we should talk about abortion in a very realistic way in this country. It is a very complicated, incredibly important moral issue that people have to face."

Kerry recently came under fire from some Catholic leaders who suggested that pro-choice politicians should be denied Communion. And on the campaign trail, the Massachusetts senator has emphasized his personal opposition to abortion, which he says stems from his Catholic faith. Earlier this month, he told an Iowa newspaper that he believed life began at conception.

Thursday, Jennings pressed Kerry about whether he then believed that early-term abortions were murder.

"No, because it's not the form of life that takes personhood in the terms that we have judged it to be in the past," the senator responded.

"It's the beginning of life," Kerry added. "Does life begin? Yes, it begins. Is it at the point where I would say that you apply those [criminal] penalties? The answer is, no, and I believe in choice. I believe in the right to choose, and the government should not involve itself in that choice, beyond where it has in the context of Roe vs. Wade."

Kerry said Thursday that he personally believed that, in the fertilization process, "a human being is first formed and created, and that's when life begins."

"There's a transformation. There's an evolution. Within weeks, you look and see the development of it, but that's not a person yet, and it's certainly not what somebody, in my judgment, ought to have the government of the United States intervening in."

Comments

[Michael]

So, when is it a "person," Mr. Kerry? When there is a heartbeat? When the umbilical cord is cut? When the head is most of the way out of the birth canal? When an ultrasound "looks like" a human? Why doesn't the government have an interest in protecting life before "personhood" is achieved, Mr. Kerry? Why do women have the right to choose the kill their children without penalty, but I can't go down to the 7-11 and blow away the clerk without facing trial? I'd like these questions answered by the senator from Massachusetts, with more than the standard, "I believe in choice."

[Tom]

Kerry's statements, coupled with the recent articles by women who aborted their children to avoid the horrors of Costco, are the best news possible for the pro-life movement now. Kerry's tortured logic nicely summarizes, I think, the law's approach to abortion--an approach that pre-dates Roe v. Wade and its companion, Doe v. Bolton. And the NYT articles blow the lid off the "personally opposed" duplicity many pro-"choice" folks labor under. No longer can one hide behind the notion, "I believe life begins at conception but I can't force that on others. It's up to the mother to choose." These "others" believe life begins at conception, too; they just don't want that life to continue.

So, again, I say, rejoice pro-lifers. The evil of abortion and the shiftiness of the law has never been so plainly demonstrated--and by some of the most pro-abortion voices in the nation.

[Mike Petrik]

I agree with much of what Tom has to say, but I wish I was as confident that people will actually recognize the duplicity and shiftiness, or even if they do, will actually care. As I've commented before, man's ability to rationalize his beliefs and conduct to conform to his selfish impulses is exceptionally well-developed.

[Matt W.]

"No, because it's not the form of life that takes personhood in the terms that we have judged it to be in the past," the senator responded.

Not an original comment on my part, but I imagine that statement would be perfectly at home in 1850 in a different context.

[Shaun]

In light of these comments, it seems unreasonable and inconsistent for Kerry to be "personally opposed" to abortion. After all, if he thinks that an unborn baby does not meet the requirements for personhood that the Supreme Court has established and that he affirms, why would he have any objection — personal or otherwise — to the procedure? Opposition to abortion only makes sense is if you feel a wrong is being committed, and it's obvious Kerry doesn't. In fact, in a more general sense, I've long thought that it is unreasonable and disengenuous for abortion-rights advocates to concede that the decision to have an abortion is a serious, difficult one. If it is only a "blob of tissue" that they're removing, it should really only be as hard a decision as getting a stone removed.

[Donald R. McClarey]

Kerry is making a major political mistake in trying to have it both ways on abortion. It takes the political, and lying, skill of a Bill Clinton to successfully perform that contortion, and Kerry simply isn't in that league. Pro-lifers are revolted, and a few of the more extreme pro-aborts may, mistakenly, get nervous and vote Nader.

[Eutychus Fell]

His supporters, of course, realize he has to play this game in order to have a chance at election. If his supporters really believed he felt this way, they'd be screaming.

[Gerard E.]

Abortion- The Issue That Won't Go Away. As Kerry and his spin doctors try to straddle the fence, it comes out. As the fanatics at NARAL, Planned Parenthood, etc. hold his feet to the fire, they get burned. If Kerry is not elected President- and he should have a 20-point lead on GWB, not a statistical dead heat- his habit of hominahominahomina will keep him out of the White House. He doesn't need 200 economic advisors. He doesn't need amoral foreign policy aides like Sandy Berger who stuff secret documents in their socks. But if he's muddled on abortion, he'll go mushy on other important issues.

[Rick]

A question for the lawyers and legal scholars:

If all humans are acknowledged to be legal persons from the moment of conception entitled to equal protection under the law, and abortion is declared illegal on this basis...what obligation does this impose upon civil authorities to achieve a parity between the murder rate and the illegal abortion rate?

Here's the problem I keep running into. Even if abortion were declared illegal, abortion doctors prosecuted and imprisoned, and primary use abortifacient drugs taken off the market, I suspect the illegal abortion rate would be orders of magnitude higher than the murder rate...especially when considering the abortions that take place through dual use pharmaceuticals.

There would be additional ways to bring the illegal abortion rate down: aggressive prosecution of aborting mothers. Heavy regulation of dual use pharmaceuticals, etc. But even many prolifers, such as myself, would be uncomfortable with these methods.

Would such measures be required if surveys and statistical analysis suggested a large discrepancy between the murder rate and illegal abortion rate?

[George]

I don't think he is making a political mistake responding to questions about his views on abortion. He is showing that he is not really afraid of his opponents in the Church, nor is a beholden to the pro-abortion wing of his party.

There are few, if any, pro-life leaders who would consider anything other than voting for Bush. But there are many Christians who want to know what this pro-choice senator really thinks about abortion and Kerry is telling them, in his own words and without a whole lot of political language.

Nader was an option last time for the Left. They have learned their lesson. Check out F911 if you doubt this. Or listen to Air America Radio for a few minutes.

[Lynn]

Last night I had a conversation with several active parishioners of a local parish. They are all voting for Kerry.

[Mark C.]

Kerry's statement that life begins at conception is not Catholic teaching, but scientific fact. His statement that this nascent life is not a person is a contradiction of Catholic teaching, which holds that all human beings are persons from the moment of conception because they are endowed by God with an immortal human soul. SO Kerry, as a Catholic, should believe that the unborn child is not merely alive, but a person, from the moment of conception.

It would be great if some reporter had the moxie to ask follow up questions about when Kerry believes that human beings become persons - if he chooses any point other than birth than he reveals himself as a hypocrite for refusing to ban partial birth abortion or opens himself to the charge of supporting infanticide.

[Rick]

Mark,

Catholic teaching...holds that all human beings are persons from the moment of conception because they are endowed by God with an immortal human soul.

Not that this justifies abortion in any way, but the Church has never committed itself definitively to the proposition that ensoulment takes place at conception. Here's what Evangelium Vitae says on this subject:

Some people try to justify abortion by claiming that the result of conception, at least up to a certain number of days, cannot yet be considered a personal human life...Even if the presence of a spiritual soul cannot be ascertained by empirical data, the results themselves of scientific research on the human embryo provide "a valuable indication for discerning by the use of reason a personal presence at the moment of the first appearance of a human life: how could a human individual not be a human person?". 58

Furthermore, what is at stake is so important that, from the standpoint of moral obligation, the mere probability that a human person is involved would suffice to justify an absolutely clear prohibition of any intervention aimed at killing a human embryo. Precisely for this reason, over and above all scientific debates and those philosophical affirmations to which the Magisterium has not expressly committed itself, the Church has always taught and continues to teach that the result of human procreation, from the first moment of its existence, must be guaranteed that unconditional respect which is morally due to the human being in his or her totality and unity as body and spirit:"

[Emphasis added]

[Sean Gallagher]

As I noted in a comment to a post from yesterday, the view put forward by Mr. Kerry--making a subjective distinction between that which is a human being and that which is a person--is frighteningly dangerous.

When personhood becomes subjective, it is ultimately defined by he who is the strongest. This is nothing less than tyranny.

[Rick]

Whoops! I think I forgot to turn the italics off. My apologies.

[Han Ng]

For Rick,

I do not think that there would be any obligation to bring the abortion rate down if abortion were to be criminalised because prosecutors traditionally have discretion to prosecute or not to prosecute. If you are thinking that there is some Equal Protection issue raised, I don't think it is a concern. Equal Protection is not really about equality as such, but rather figuring out whether the alleged victim falls into a specially protected class of persons entitled to heightened scruitiny. Race, colour, national origin and religion are entitled to "strict scrutiny"; sex and gender are entitled to "intermediate scrutiny", and sexual orientation, despite the "rational basis" language of the courts, seems to be entitled to some form of heightened scrutiny. Murderers are not a specially protected class, and so the state need only a rational basis (which means just about anything) to justify the discrimination. In this case, I would imagine that the rational basis is efficiency, limited resources, &c. The state only has the resources to prosecute X number of murderers, they will concentrate on the nasty knifing in the park which causes general unrest rather than the abortion that nobody knows about. The latter case can be delt with by selevtive enforcement, sort of like how the police stop and ticket a very small proportion of speeders to get everyone to slow down.

Besides, the sending people to jail aspect of criminalising abortions would not be the cause of a drop in the abortion rate if abortions were to be criminalised. The largest drop in the abortion rate would occur because of market forces. I get the feeling that most abortionists are not ideological abortionists, but rather folks who are doing it for the money. If abortion is criminalised and there is sufficient selective enforcement, I think that a good majority of abortionists would find something else to do to avoid the possibility of prosecution. After all somebody who is willing to rationalise away the fact that he is killing a child to make a buck is probably self-centered enough to leave women with "no choice" to avoid getting personally gang raped in the showers of state prison and/or fined rather heavily.

The other effect of the law would be more long term. Law is not simply the mechanical application of certain rules, but it also has a pedagogial effect. Take the Civil Rights Act, for example. I think that even without it, Jim Crow and the racism behind it would have eventually died out, but it certainly would not have died out (not that there aren't racists out there, but racism, at least as directed against non-whites, is just not culturally acceptable anymore) as fast as it did. Similarly, the legalisation of abortion in the 1970s did not merely allow a procedure to be performed, but it also sent a message that this act was OK. Criminalising abortion should have the effect of reversing that mindset somewhat in the long run (say a generation or two).

[Han Ng]

Maybe we can give Sen. Kerry the benefit of the doubt--he is not a hypocrite (the nonconsenting Catholic part notwithstanding), but like so many in this age a Manichean.

On of the most radical truths of Christianity is that man is essentially, not simply accidentally, a body-mind-soul union. Mark C. writes that from the moment of conception, God endows the human body with a human soul. I think it is deeper than that. God creates the human soul as he creates the human body becase the human soul and the human body are necessarily and essnetially conjoined. God could not create a human body without a human soul because humanity is by definition a body-soul union (Not that God is incapable of creating just a body or just a soul, but by definition He would be creating an animal or an angel). On either side of this truth are the errors we see today. On the one hand there are those who deny the existence of a soul (or even a mind--as distinct from biochemical or neural impulses) altogether--leading to stuff PETA's "animals are human too" position because humans are just animals. On the other side, and this is where Sen. Kerry seems to be, there is the idea that there is a essential human--a soul that is not necessarily related to the body. The body is not something that makes one who one is, but rather is an insturment to be used for the benefit of the immaterial soul and may be discarded or modified at will--there is no moral content the the use of the body per se. Thus, the mere fact of the existence of a biologically human body does not necessarily imply the existence of an immaterial human soul because body and soul are related only accidentally and not essentially.

This of course, is all erroneous, as Evangelium Vitae, cited by Rick, notes. Because a human being is fundementally a body-soul union, inseparably joined in essence without confusion or admixture, the existence of a live, biologically human body conclusively proves the existence of a human soul, and therefore a human person in and of that body. This is why daemonic possession is so bad and why death is so bad. The separation of body and soul caused by possession or death divorces what was created good as a unity.

[caroline]

Han Ng. You are great. Thanks.

[PMC]

I think Han's right on the question of any supposed requirement of parity between murder and abortion rates. I'd note that the premise of Rick's question -- if abortion were declared illegal on the ground that all humans are acknowledged to be legal persons from the moment of conception -- is virtually certain never to come to pass (absent a Constitutional amendment). Even the Supreme Court's most consistent and eloquent anti-Roe voice (Scalia) has stated that he would reject any effort to interpret the Constitution to expressly define personhood as existing from the moment of conception. Such a reading of the Constitution would be inconsistent with the text of the document and its historical interpretation (pre-1973). Rather, the most that he -- and most conservative legal scholars -- would be willing to do at the Constitutional level would be to roll back Roe, which would mean returning to the pre-1973 status quo, under which each State legislature (or court) was empowered to regulate and police abortion as it saw fit. That would be consistent with the nation's history and with the Constitution.

[Rick]

Han,

Thanks for your very helpful post, and for your explanation of how Equal Protection is applied. Just two comments:

1. I acknowledge your point that murderers are not a protected class, and authorities can have a rational and legitimate reason to focus on apprehending the "knifer in the park" rather than the aborting mother. But I am still wondering, if the unborn are designated a protected class, what steps might authorities be obliged to take to protect them?

I can easily imagine the illegal abortion rate (including abortions by dual use pharmaceuticals such as the Pill) being 10x or more the murder rate, were abortion clinics to be shut down and RU-486 taken off the market. Is it in the discretion of prosecutors to tolerate such a discrepancy? Or would they be obliged to more aggressively prosecute aborting mothers, in order to achieve parity in the murder rates for the born and unborn?

2. Given that removing the economic incentive from abortionists would be the main thrust of prolife legislation, how would we evaluate legislation that outlawed the buying, selling, or advertising of abortion services, but not the act of abortion per se?

Abortion would then be treated similarly to how some jurisdictions treat marijuana or certain firearms. It's not an offense to own the gun or drug itself; it is an offense to buy or sell it.

The practical advantage of such legislation would be that it would shut down abortion doctors, take RU-486 off the market, etc, without exposing mothers who self-abort to selective prosecution or intrusive police actions. Such legislation would also serve the pedagagical function of identifying abortion as a social ill. Admittedly, it would not recognize the personhood of the unborn child — which may be a fatal flaw for Catholics.

[Charles M. de Nunzio]

O.K., let me get this straight. With fertilization, "a human being is first formed and created, and that's when life begins." However, "that's not a person yet, and it's certainly not what somebody, in my judgment, ought to have the government of the United States intervening in."

Huh ???

I think it's time for us to strike up the chorale and sing, in the person of John F. Kerry, the lyrics to the Jeopardy! theme song:

I smoke dope; do you smoke dope?
Everyone I knoo-oow's been smokin' somethin'!
I smoke dope; do you smoke dope?
Everyone I know – smokes – dope. Boom BOOM!

At least the dear Amy Richards of "selective reduction" fame (born 60 years too late for a plum job at Auschwitz, what a pity!) drops all the pretenses. Yes, I carried three human beings, but that was two more than I wanted, so when I found out that there was a set of identical twins, guess which two were going to be killed off! So I have a baby boy and he's fine and I don't have to move out of Greenwich Village and start buying stuff at Costco after all. Life is good.

[Rick]

PMC,

Even the Supreme Court's most consistent and eloquent anti-Roe voice (Scalia) has stated that he would reject any effort to interpret the Constitution to expressly define personhood as existing from the moment of conception. Such a reading of the Constitution would be inconsistent with the text of the document and its historical interpretation (pre-1973).

Wow! If you had a link to Scalia's statements on this I'd love to see it.

Doesn't this mean that Scalia is in fact in agreement with Kerry's quote above?

Thursday, Jennings pressed Kerry about whether he then believed that early-term abortions were murder.

"No, because it's not the form of life that takes personhood in the terms that we have judged it to be in the past," the senator responded.

[Han Ng]

For Rick,

If we look at the Equal Protection issue from the standpoint of the unborn, we would be bettor off using the Due Process Clause rather than the Equal Protection Clause since the unborn have never been designated a specially protected class. The problem with looking at it from the point of view of the unborn is that their status as legal persons, entitled to the protections of Equal Protection and Due Process, is still uncertain and the criminalisation of abortion does not necessarily require the law to recognise the unborn as a person, since the legal victim in a criminal action is not the person harmed, but the state. For there to be a civil cause of action against the state for civil rights abuses, there would have to be an injured person. Even if the law were to explicitly recognise the personhood of the unborn, there would be a problem of standing. The dead child obviously cannot sue, and the closest relative, the mother, is unlikely to bring suit. That leaves the father or the grandparents. Outside organisations would not have standing since their harm would likely be held to be too remote. Furthermore, just because criminalising abortion is designed to help the unborn does not mean that the police or the DAs have any legal duty to protect them. Courts throughout the country have rejected the idea of public duty (except in situations where the authorities have already intervened). Thus, when the 911 operator blows you off and your ex-husband kills you, your mother has no cause of action against the state for your wrongful death. All one can do, then, would be to vote in a sherrif and/or DA who would place greater emphasis on prosecuting abortionists.

The only basis for requiring parity, other than a law mandating parity, would be a situation in which murderers are a specially protected class, and that a greater rate of prosecution of normal murderers as compared to abortionists is unconstitutional discrimination as prohibited by the Equal Protection clause. It is highly unlikely that this would happen. If there is no constitutional basis for requiring parity, and assuming that there is no statutory requirement of parity, then achieving parity in the rates of abortion and other murder (that is bringing the abortion rate down to the other murder rate, not the alternative) would be a nice goal there would be no legal obligation to do so.

As for the purpose of such legislation, the exonomics are merely a means. The purposes are twofold. First, it would be to save the lives of unborn children. The always was and always will be a percentage of those who are willing to do anything it takes to get rid of the child, criminalising abortion does not stop them. It stops those who want to get rid of the child, but not so much that they have to break the law or are too inconvenienced. This is where the economics comes into play. The other goal is to send the message that abortion is bad. That is why abortion must be criminalised. It is not primarily a public health issue or a consumer protection issue, but rather a moral issue. While legislation that falls short of criminalisation is not bad per se since we currently have very few restrictions of any kind on abortion, criminalisation should remain the goal.

[PMC]

Rick, I of course paraphrased Scalia in my previous post, but he has said many times that just as the Constitution does not contain a right to abortion, so also it does not prohibit abortion. Here's an example of his thinking from an article he wrote in First Things on the death penalty:

"Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter."

http://www.firstthings.com/ftissues/ft0205/articles/scalia.html

Of course, he's right. The temptation to read into the Constitution a prohibition on abortion is simply the flip side of the temptation that the Court has succumbed to many times -- as in Roe -- that is, the temptation for the justices to read their personal preferences into the text of the Constitution. It's a recipe for mischief. That's why we have legislatures, not to mention an amendment process.

And, no, I'm quite sure that Scalia would not agree with Kerry. First of all, Kerry supports Roe; Scalia doesn't. Second, Scalia would support restrictive abortion legislation, whether federal or state, I believe, while Kerry's legislative record belies any claim that he would ever support any restrictions on abortion.

In short, Kerry is for permissive laws that allow unlimited abortion on demand. Scalia is not, but he rejects the use of the courts and distortion of the Constitution (absent an amendment) to achieve that end.

[Liam]

Rick

As a matter of history, the abortion laws that were struck down by Roe were statutes that criminalized the activities of abortion providers. The common law (non-statutory, judge-made case law in the Anglo-American legal tradition) did not distinguish between providers and recipients, as it were, but the statutes that supplanted the common law in the 19th century did focus on the providers. Even Roe and Doe did not raise a question that such a focus was unconstitutional.

[Liam]

PMC

Your analysis of course assumes a positivist reading of things. The federal constitution's supremacy clause gives strong support to a positivist reading. But the organic law of the country, most especially including the Declaration of Independence, belies that reading quite as stand-alone and offers a natural law trump card, as it were, and the Supreme Court even in its first decade wrestled indecisively over this larger issue. At the state level, some states definitely embraced a natural law position as superior to a strict constructionist, positivist reading of their state constitution (Massachusetts being a leading example of that in the 1780s and thereafter).

The historical fact is that American legislators, jurists and executives have consistently appealed opportunistically (that is, inconsistently) both to the positivist and natural law approaches. Trying to find consistency otherwise is more than a bit of a red herring.

[Mark C.]

Rick,

I am aware that the Church has never formally defined that a human being is ensouled at the moment of conception. However, I think this is implicit in the Church's liturgies (especially in the East) celebrating the conceptions of Our Lord (March 25), Our Lady (December 8) and John the Baptist (September 23, Eastern calendars), and the whole doctrine of the Immaculate Conception, which clearly implies that the personhood of Christ, Mary, and John commences with their conception.

But Aquinas, under the influence of Aristotle, held out for progressive ensoulment as the developing embryo went from vegetable through animal through human phases. This theory was generally rejected by theologians by the 18th century, and definitively after the discovery of the ovum in the 19th century. So the opinion of most Catholic theologians and philosophers, and the teaching of the ordinary magisterium, is that ensoulment is presumed to take place at conception.

As for Scalia, he is simply saying that he would not read the Constitution (specifically the 14th amendment) to discover a right to personhood for the unborn in the Constitution. His legal view is that the Constitution is silent on the question of when personhood begins (as it is silent on Roe's upposed "right to privacy"), and that abortion is a matter to be legislated on by the states. I am sure that as a Roman Catholic, he believes that personhood begins at conception, and that if he were a legislator, he would vote for pro-life legislation. It's just that as a jurist he doesn't believe he has the rightto invent such legislation from the bench.

[PMC]

Liam, I don't disagree, but you're mainly talking two centuries ago. Personally, I don't see the Supreme Court relying on natural law theories to decree that life must be protected from conception, no matter what the Declaration of Independence or the 1780 Constitution of Massachusetts may say. I was referring to the Supreme Court's radical legislative usurpations of the last 40 years or so -- the substantive due process revolution, as it were.

[Liam]

PMC

The natural law approach can be used in a variety of ways, as can a strict constructionist approach: both can be used for liberal purposes and for conservative purposes. Substantive due process is a vaguely textually-grounded way to bring in a natural law approach. And that does not mean natural law only as the Catholic Church might read it, because there are many different visions of fundamental human rights that cannot be trumped by a positivist constitutional approach. (And textual strict constructionism often becomes an exercise in "I know it when I see it" approaches to a text. That is why neither approach prevents judicial legislation, among many other things.)

[Rick]

My thanks to all who responded. I am very grateful to benefit from your expertise.

Han

the criminalisation of abortion does not necessarily require the law to recognise the unborn as a person, since the legal victim in a criminal action is not the person harmed, but the state.

Interesting, I didn't realize this.

I wonder: Can Catholics be satisfied with legislation that criminalizes abortion without defining the unborn as legal persons?

Or must we work, at least incrementally, for the recognition of the unborn as legal persons, even if abortion is already otherwise criminalized and such recognition offers no additional actual protection?

PMC

Thanks for the link. Of course I realize Scalia violently disagrees with Kerry on Roe and whether abortion ought to be restricted. But I was surprised to learn that they both agree that the unborn are not Constitutional persons. In fact, they both agree that the Constitution does not forbid abortion, even though the unborn are human beings.

Btw, here'a another First Things article that discusses this issue. (Your post inspired me to search writings on this issue).

How Not to Overturn Roe v Wade

Liam:

As a matter of history, the abortion laws that were struck down by Roe were statutes that criminalized the activities of abortion providers.

Thanks. I didn't know this either. I'd be interested in reading a popular article on the history of abortion law and practice in the US.

[c matt]

So, when is it a "person," Mr. Kerry?

When it casts its first vote for a Democrat.

[PMC]

Liam, it's true that justices' personal preferences may be advanced under a variety of different interpretive theories. (Though it seems you're calling Scalia a "strict constructionist." I don't think he'd apply the term to himself.) But while neither "strict constructionism" or "natural law" are complete bulwarks against "judicial legislation," any approach that disregards the history of the Constitution and the relative powers granted to Congress and to state legislatures invariably seems to result in a great amassing of power in the hands of the Court and a diminishing of the historic power of the legislatures. Such is the case with Griswold, Roe, Lawrence, et al. That's a bad prescription for democratic government. Interpreting the Constitution to decree abortion unconstitutional (as opposed to a simple overturning of Roe), absent an amendment, would lead down the same road.

[Lisa-Ann]

One pretty well balanced book I'd recommend is "Abortion and the Politics of Motherhood" by Kristin Luker. While its a sociological work, it does provide some history.

Also, there is "Abortion: The Clash of Absolutes" by Laurence H. Tribe. While I found that it fell on the pro-choice side of the fence, it did make an attempt to be balanced. It has a good summary history on abortion both here in the U.S. and other countries.

And lastly, "Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982"
by John Keown & Charles Rosenberg. This is pretty heavy going . . . I check it out of the library every few years, but have not yet managed to finish it in the 3 week check-out period.

[c matt]

Anopther interesting question I've never seen raised in the legal context - The Constitution does not recognize the embryo as a person, and therefore the "right" to abortion has no countervailing right to stop it. But even if the US COns says its not a person, why can't a state constitution (or state law) simply declare that it is a person under that State's Constitution or law? The US Supreme Court has no final jurisdiction over interpretation of a State Constitution - that is up to each individual state. And the S.Ct. has already said that State Constitutions can grant more rights, offer more protections than the Federal Const. Has this been tried?

[Mike Petrik]

c matt,
Nice try, but state constitutions may not grant state rights that impair federal constitional rights. Hence, state constitutional protection for unborn children cannot trump the putative federal constitutional right to abortion.

[Mike Petrik]

Fascinating exchange between PMC and Liam. For what it's worth, I agree with PMC. While I certainly believe in natural law, I do not think natural law can displace positive law. Instead, it is our duty as Catholics to work the political process to ensure that our enforceable positive laws reflect natural law as much as possible, but contorting positive law with the purpose of conforming it to natural law is ultimately dishonest. It is, in fact, indistinguishable from substantive due process and the goofy privacy/penumbera analysis offered by Griswold/Roe and progeny. We should all work hard to discern God's natural law and work honestly to enact positive laws that are consistent.

[Liam]

I should note I was being descriptive, not prescriptive. I was merely trying to sketch the history of how the two seemingly opposite approaches are interwoven in our history. I was not recommending that someone try to pull off a juridical coup de main.

[Han Ng]

For Mr. Petrik,

You wrote: "While I certainly believe in natural law, I do not think natural law can displace positive law."

Do you mean by this that as a matter of jurisprudence and constitutional/statutory interpreation? Certainly the Natural Law--that which one cannot not know--trumps contradictory positive law as a matter of justice or morality. Even as a jurisprudential matter, there must be a point where a disconnect between fundemental justice and the imperfect justice of positive law becomes so great that one's obligation as a legislator, an officer of the State, a judge or an attorney must be to uphold the Right over positive "rights."

The essence of Law is the practical application of Justice. The problem with the constitutional jurisprudence of the latter half of the last century was not that there are not fundemental principals of Justice that should be part of the Law, but that the Court engaged in an exercise of Will rather than Judgment when it created non-existent "rights" in the name of social progress and without heed to the constitutional system which was put in place to mitigate the fallibility of men.

The problem with Natural Law jurisprudence today is not that it is inherently illegitimate, but that, having abandoned ontology, we no longer are able to talk about what the Natural Law is. We have become a postmodern people who seem to believe that because there is disagreement as to what the Natural Law is (content-wise), there either is no natural law or "natural law" is code for somebody's own opinions which are entitled to no greater weight than another's. You may be correct then that Natural Law jurisprudence is not a practicable way to enact the Natural Law, but I think you are mistaken if you meant to imply that Natural Law jurisprudence is per se illegitimate.

This post has been brought to you by a guy who likes to see himself type.

[Han Ng]

ADDENDUM:

I wrote: "Even as a jurisprudential matter, there must be a point where a disconnect between fundemental justice and the imperfect justice of positive law becomes so great that one's obligation as a legislator, an officer of the State, a judge or an attorney must be to uphold the Right over positive 'rights.'"

This is not only a demand of morality, but a demand of Law. If the essence of Law is Justice, a system of "laws" which is fundementally unjust (not merely imperfect) is no law at all. The above-mentioned groups of person must obey Natural Law instead of positive law in such circumstances not simply to be good people, but to be real lawyers/judges/&c.

[Donald R. McClarey]

"Nice try, but state constitutions may not grant state rights that impair federal constitional rights. Hence, state constitutional protection for unborn children cannot trump the putative federal constitutional right to abortion."

Agreed as a constitutional matter, but as a political issue it intrigues me. The Supreme Court has always given broad deference to constitutional protections enshrined in state constitutions. I think the Justices would find it awkward, to say the least, to be striking down portions of state constitutions protecting the unborn. I can imagine Scalia's fiery dissents! Additionally it would give the lie to the argument that Roe and its progeny are settled constituional law. Someday it will become obvious, even to the average Supreme Court justice, that they are like Canute attempting to halt the tide. I can imagine such amendments passing in Louisiana, Utah, South Carolina, Idaho, to name just a few states. I think this is an area that definitely needs to be explored.

[PMC]

Mr. Ng,

Could you expand on what you mean when you say that a judge "must obey Natural Law instead of positive law in such circumstances not simply to be good people, but to be real lawyers/judges/&c."?

I agree with your premise that there is a Natural Law, and that at some point Natural Law must trump postive law. And I think you've correctly diagnosed the problem of us po-mo people -- the dictates of Natural Law, like the beginning of life, has become viewed as little more than one person's opinions.

But given our state of affairs in 21st C. America, what must a good judge do -- to be a "real judge" and a good person -- when he reaches that point at which the Natural Law trumps the postive law?

Disregard the positive law?

Or step down?

[Earl E. Appleby, Jr.]

If I may address the preceding question posed by PMC to Mr. Ng?

"We must obey God rather than men." The civilized judge, i.e., the true judge, should follow Natural Law. Indeed, an unjust law is no law at all.

To step down is to concede the courts to kangaroo judges like FL's Judge Greer, who is determined to murder Terri Schikavo under the guise of "law." Of course, billy clubs and guns can never make murder legal.

Your thrust is perceptive. As America slides deeper and deeper into the gutter, God-fearing citizens, in particular practicing Catholics, will be driven from professions such as law, medicine, teaching, so they may not impede their prostitution by the Culture of Death.

[PMC]

Earl, I agree in principle but not in practice, on account of Mr. Ng's correct diagnosis of our disease. We (that is, generally speaking, non-secularists and secularists) are unable to talk about or reach a consensus about what the Natural Law is and what it requires.

You and I will not be pleased, therefore, when a secularist judge strikes down some law -- say, for example, a century-old statute criminalizing sodomy -- based upon his completely wrongheaded notions of the "sweet mystery of life." Oops, sorry, we're already way past that point...

[Mike Petrik]

Han,

I think you have me right. I agree that natural trumps positive law from a moral standpoint, but the fact remains that a society based on laws is ultimately based on positive laws. If committing an act is legal under positive law but wrong under natural law, we would be wrong to punish the actor under our human legal system. That does not mean that society (and certainly God) does not have other recourses.

If a judge is required by positive law to commit an unjust act he should recuse himself if the injustice is sufficiently serious. But he should not violate his duty to apply the positive law enacted by the people. That would be dishonest, and the good end does not justify the bad means.

As a practical matter all societies are stuck with positive law from a legal standpoint. As Catholics, we should work diligently to ensure that positive law reflects natural law as much as possible.

Any other system would lead to practical disaster. Roe was basically an example of the Supreme Court applying its understanding of justice (i.e., natural law) to trump the will of the people as reflected in positive law. Most people who insist that courts should do justice rather than follow the law have very odd notions of justice. Very few are as educated and thoughtful as Han Ng.

[Another Ken]

As far as I know the Constitution doesn't recognize the concept of a "soul". So the whole "personhood at ensoulment" argument is meaningless in the legal debate about abortion.

I don't know what argument Kerry and, I guess, the Supreme Court would use that says a certain living human being is not a person.

Ken

[Ringo]

Pro-choice or pro-life? Well there's always the choice, and with that comes consequences and potential outcomes. I am pro-life in the sense that I don't really like abortion, but I really believe things are almost always pro-choice. If a pregnant woman wants to have an abortion because she did not want to have a child, well then she should have never even had sex in the first place. Abortion to them can be seen as a way of erasing a consequence/outcome she or them(if a couple made the choice) did not want. What she should do instead is put the baby up for adoption and give the baby a chance to live and grow up with parents that can love and nurture the child in the ways that the biological parents could not. (However, I do not really know how good of quality the adoption system is in the US. I would like to assume the child would end up in a better situation with parents that at least wanted him/her).

In terms of Kerry's opinion, I see it as just a moderate approach to the issue, and by not really picking a side hes strongly for he does not really offset a side, although Im sure pro-lifers would love to see him take action on his personal beliefs.

[Ringo]

Pro-choice or pro-life? Well there's always the choice, and with that comes consequences and potential outcomes. I am pro-life in the sense that I don't really like abortion, but I really believe things are almost always pro-choice. If a pregnant woman wants to have an abortion because she did not want to have a child, well then she should have never even had sex in the first place. Abortion to them can be seen as a way of erasing a consequence/outcome she or them(if a couple made the choice) did not want. What she should do instead is put the baby up for adoption and give the baby a chance to live and grow up with parents that can love and nurture the child in the ways that the biological parents could not. (However, I do not really know how good of quality the adoption system is in the US. I would like to assume the child would end up in a better situation with parents that at least wanted him/her).

In terms of Kerry's opinion, I see it as just a moderate approach to the issue, and by not really picking a side hes strongly for he does not really offset a side, although Im sure pro-lifers would love to see him take action on his personal beliefs.