A Catholic Case (for Roe) against Dobbs

How should a Catholic feel about abortion and the law?

From time to time I have been asked in podcast interviews and elsewhere how, as a practicing Catholic, I could support the rulings of the U.S. Supreme Court in Roe and Casey. My answer is both simple and complex. As a Catholic, I give free assent to what the Church teaches about the beginning of life and the grave moral evil that is abortion. I never would perform, procure, support, or otherwise have anything to do with an abortion.

But what I believe does not need to be the fundamental law of the United States. And, from that point we embark on my argument. The Catholic Case (for Roe) against Dobbs is not about what the Church teaches about abortion at all. It is about what the Church teaches us about conscience and religious freedom. The teachings of the Church that incur excommunication latae sententiae do not apply to whole communities or nations. They apply to persons. I am a person. The United States is a political community filled with non-Catholics.

The Catholic Church teaches us that life begins at conception. But putting it that way is a poor statement of a complex claim. “Life” is not what we are discussing. “Life” describes my front lawn and face mites. We mean a human life—really, a human person, the imago Dei. The question is not when life begins, but when a person is created. When may we say there is a new image of God? Instantly, all of the arguments about fetal heartbeats and prenatal ultrasound imaging become irrelevant. Science proves life. The question of when a person becomes a person or the image of God is a question for philosophy or theology. These are things about which citizens are permitted to disagree under the Constitution of the United States. My ethical claim or faith claim about when a person becomes a person should not be constitutional law simply because it is my claim. The Constitution protects my right to believe it. The Constitution does not exist to enforce my claims on others who do not share them.

Disagreements among Americans of various points-of-view about when a person becomes a person should interest us. The Church’s teaching about when a person becomes a person, we know, has changed across time. For a long time, “ensoulment” or “quickening” was understood to tell us the answer. When a mother felt fetal movement, we could say a person was growing and developing in her uterus. Fixing the beginning of personhood at conception reflects the later dominance of a Thomist intellectual framework. St. Thomas Aquinas adopted the teleological thinking of the pre-Christian philosopher, Aristotle, which says that a thing should be understood according to its proper end, its telos. We should not use a smartphone as a bowling ball because a smartphone’s proper end is not to topple bowling pins. A smartphone has a different purpose. That is a crude example, but it makes the point. A conceptus even in the earliest moment following conception is a person, according to a teleological way of thinking, because the proper end of a conceptus is to develop into a human person. The conceptus always is understood according to that proper end, and so a person is a person at conception.

Aquinas lived and died in the thirteenth century, two hundred years after the Great Schism of 1054 when the Orthodox churches of the East split from the Roman church in the West. Orthodox Christians still today have not adopted this Thomist framework because St. Thomas Aquinas never was a part of their communion. Western Christians, Protestants and Roman Catholics, follow the Thomist approach. Eastern Christians do not. Orthodox churches teach that abortion is sinful, as Christians have believed since the time of the Apostles. But the Orthodox rejection of abortion has subtle differences because the Orthodox do not believe within a Thomist intellectual framework. (Once, an Orthodox metropolitan asked me—”Can you imagine being a Christian without Aquinas? Because, I can!”) Unlike the Catholic Church, Orthodox Christians believe a pregnancy that threatens a woman’s life may be terminated and a penance performed. There is no excommunication and, pastorally, those churches engage with and minister to women in those situations as part of their communities. This is a subtle and enormous difference from the Catholic understanding.

Among Jews (whose Scriptures Christians call our own), the differences are even more noticeable. The Mishnah, an ancient oral tradition of teachings, requires an abortion when a woman’s life is in danger “because her life comes before the life of the child.” For Jews who hold to this teaching, in some cases an abortion can be a moral duty to save the life of a mother. Among both Orthodox Christians and Jews, if a woman who already has children may die bearing another, there is even greater degree of understanding when abortion is chosen.

Just these two examples of faith traditions nearly kindred to Catholicism illustrate how access to abortion may be tolerable among religious people. In fact, among many Jews abortion can be more than tolerable. Abortion can be said to be a moral duty as that tradition understands the life of the unborn. We have not even yet addressed less kindred faith traditions or Americans with no faith. Yet they as much as Jews, Orthodox Christians, and Catholics all enjoy an equal claim of citizenship and protection under the Constitution.

It is a lie to say that the Roe regime was “pro-abortion.” It was not. Roe identified a right that could be exercised or not according to one’s own conscience. We also should add that Roe held a woman’s right in balance with the state interest in the life of an unborn baby, which was why Roe made abortion more difficult to obtain after the first trimester. Holding all of these priorities in balance, Roe settled the challenging question of abortion about as well as could be hoped in a free republic home to many faiths and perspectives.

As a practicing Roman Catholic, I believe what has been authoritatively taught by an ecumenical council acting in communion with the bishop of Rome, the highest magisterial authority of the Church—

the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others.

The Catholic case for Roe has nothing to do with abortion and everything to do with the rights of non-Catholics to exercise their consciences under a constitutional system meant for everyone. The integrity of that constitutional system has been the durable source of everything the United States Government has done to promote justice and peace for two hundred and thirty-three years. When I say “everything the United States Government has done to promote justice and peace” I mean great things like Civil Rights and Voting Rights. But also, I mean small things we take for granted such as not coercing citizens to act against conscience. Every time government does not coerce citizens, it promotes justice and peace.

No one needed to have an abortion under Roe. Abortion was an option. Government was not in the business of forcing abortions. Yet, under Dobbs state governments will be in the business of denying abortions even to citizens who have no conscientious objection to abortion and to citizens who may regard abortion, in some cases, to be a moral duty. Under Dobbs, conscience will be restrained—even coerced.

As a practicing Catholic, I find that restraint and coercion of conscience objectionable. But there is more. Also as a Catholic, I know the constitutional system has been a source of peace and justice. The Dobbs decision has unsettled that constitutional system. Peace and justice in the United States are in jeopardy because of it. And for that reason, too, I hold that a Catholic should object to the Dobbs ruling. The Catholic case (for Roe) against Dobbs has nothing at all to do with abortion. Of course Catholics oppose abortion. But Catholics also are meant to support free consciences and civil peace. Because I do, I cannot support Dobbs.