Many of us are disappointed in the health reform law because it does not go far enough, goes too far, or contains provisions that we disagree with. An Italian proverb says, “Perfection is the enemy of the good.” Are we willing to sacrifice the good achieved for the unachievable goal of universal agreement? Abortion and less radical means of controlling pregnancy have become the litmus test for all discussion having to do with the morality of “interfering” with nature. There is a sharp difference between anti- and pro-choice advocates. The official position of the Roman Catholic Church and its magisterium is that no women should ever have the choice of having an abortion regardless of the circumstances. Some Roman Catholics do not believe that the church has the right to impose its moral views on non-Roman Catholic women; other Roman Catholics disagree with the institutional church’s position altogether. Most non-Roman Catholic Christians disagree to one extent or another with the Roman Catholic position.
The argument of anti-choice moral theologians is based on the opinion that an embryo/fetus is an appropriate subject, i.e., a “person”, under both canon and civil law. However, both church canon law and civil law have traditionally held the view that an embryo/fetus achieves personhood upon birth and not before. Of course, as human tissue, like a human organ or limb, the product of a spontaneous abortion is to be treated with the appropriate respect. There is provision in canon law for the baptism of an aborted fetus if it is alive. A fetus that has been separated from the womb and is still alive is, by definition, no longer a fetus but a “child”, i.e., a “person’ and, as such, a suitable candidate for baptism. Liturgically, we celebrate the Feast of the Incarnation not on March 25 [the Feast of the Annunciation], but on December 25, when Jesus’ human birth is celebrated.
That an embryo/fetus has no rights under either canon or civil law because it is not a “person”, i.e., not an appropriate subject in law, prevents a pregnant woman from being criminally prosecuted in the event that harm or death should come to the embryo/fetus through some action or inaction on her part (e.g., smoking, the abuse of alcohol or other drugs, etc.). If the argument that an embryo/fetus is—under law—a “person” were to be accepted by the courts, a pregnant woman could face criminal charges ranging from assault and battery to first degree murder in the event of harm to or death of the embryo/fetus in her uterus provoked by some action on her part. That is a position that has never been taken either by the church or the civil courts.
Perhaps our discussion and energy would better serve our common interests if we confined it to the embryo in the third trimester, i.e., when it is potentially capable of extra-uterine survival. Roe v. Wade already treats third trimester abortions differently from earlier abortions. At that point in pregnancy, the extrauterine survivability of the embryo already creates circumstances that require special care. Focusing on the increased potentiality of the fetus to become a legal “person” through birth or surgical removal from the womb may help us—Roman Catholics, other Christians and non-Christians—to come to a consensus in both church and civil law.
Name calling and punishing faithful Roman Catholics for differing with what is, after all, a patriarchal, authoritarian, hierarchical position held by a group of celibate men who are in no danger of being pregnant does not further the enterprise of rational discourse about moral theology within the Christian theological community or about ethics in the larger society. When one examines the obsessive concern with matters of sexuality within the Roman Catholic Church—celibacy of the clergy; ordination of women; equality within the Church of gay and lesbian people; teaching on contraception and abortion; the exclusion of remarried divorced people from communion; the legitimacy of scientific techniques (e.g., in vitro fertilization) to assist infertile couples to have children—give one the impression that the Incarnation took place in order to control people’s exercise of their sexuality or regulate gender issues.
One of the central questions has to do with natural law arguments and religious arguments. The conclusions of the former are “binding” on all by virtue of their reasonableness, whereas the conclusions of the latter are binding only on the “faithful”.