Abortion policy's legal and moral realities

George Dennis O'Brien

George Dennis O’Brien -- a philosophy professor, former dean at both Princeton University in New Jersey and Middlebury College in Vermont, and former president of both the University of Rochester, N.Y., and Bucknell University in Pennsylvania -- is the author of The Church and Abortion: A Catholic Dissent. O’Brien spoke with NCR in an hour-long interview Dec. 12 about some of the key themes of his book, which criticizes the U.S. bishops’ strategy on abortion. Following is that conversation, edited for length.

NCR: What’s the main thrust of your argument in this book?
O’Brien: I think the main thrust of the book is that the rhetoric, particularly of some of the more vocal bishops, runs beyond the realities that are out there -- both the legal realities and moral realities.

A basic legal example: If you call abortion the killing of an innocent and say it’s the equivalent of murder, there are well-known criminal penalties for murder. I just do not believe the church would support those. Take a look at the South Dakota law, where the church said there would be no criminal penalty for a woman who seeks abortion.

Last year, Bishop Thomas Tobin from Providence, R.I., was in a controversy with Congressman Patrick Kennedy. Tobin said that Kennedy should not present himself for Communion because he was “pro-choice.” Because of that, Bishop Tobin was interviewed by Chris Matthews on MSNBC.

During that interview, Matthews asked Tobin: “If abortions were to be outlawed, should women who procure abortions be thrown in jail?” That was the key question, to which Tobin replied: “I have no idea what the penalty should be.”

It seems to me that’s to vitiate the policy. If you say you ought to have a law, but you have no idea what the penalty for that law ought to be, then I don’t think you know what you’re asking for.

If indeed you wish to have a law which is commensurate with the rhetoric, I think the church would not support that. And then you get into the problem that if you can’t criminalize it for the woman, why do you criminalize it for the abortionist? If I ask you to perform an act that is noncriminal for me, why would it be criminal for you to do that?

For NCR's review of O'Brien's book, see: On abortion, it's time to get past polarization, author argues
For NCR's editorial on abortion, see Work to make abortion rare

What does this say about the practicality of what the bishops are arguing? If this isn’t working, what should the practical argument be?
I think that if I were a bishop, I would get away from the idea of trying to reverse Roe v. Wade and make it clear that the church is not in favor of criminalizing the woman for having an abortion. Then we can try to seek laws which could in fact slow down or diminish the number of abortions.

Clearly by having proper medical services, counseling, adoption services -- all kinds of things -- you could reduce the number of abortions.

One of the things that was clearly wrong with the bishops’ opposition to the health care law was the notion that the law would somehow increase the number of abortions.

I think the answer is precisely the opposite. The health care law will decrease the number of abortions because poor women particularly will have some access to medical care, which they don’t have at this present time and therefore, it seems to me, they’re more likely to carry the child to term.

These ideas lead almost directly to questions of personhood and how we view the fetus. Can you talk about that?
The question is whether or not -- while the fetus in all stages is something of great dignity and worth -- is it of the same moral status as a fully born newborn or as the mother?

My judgment is that I don’t see how it could be. If you’re going to support a law which diminishes the criminal penalty for the mother who has an abortion, then it must be because your intuition is that somehow or another abortion -- while obviously a bad thing, an intrinsic evil -- isn’t as weighty as actually murdering someone who is a full born human being.

Now, where do you draw the line regarding personhood? That’s of course always very difficult. But I think that the basic idea behind how I read Aquinas is that you cannot have a human soul until you have a fully functioning human body to receive, as it were, that soul.

I think that’s an important distinction to make and it’s reflected in church practice. While the church claims that with the embryo -- from gestation on through -- you have a full moral person, I have a hard time figuring that out because the church does not baptize miscarriages, doesn’t bury them, doesn’t seem to treat them as if they were fully functioning persons.

An argument that pro-life activists make is that it has to be the moment of conception at which a person gets a soul, that there’s no other point at which we would know a soul is present. How do you answer that?
That’s a wholly different idea of soul. It’s as if the soul were some sort of spiritual principle or some sort of energy packet that you could put into almost anything.

A human soul can only be put into a human body. Until you get to a certain time in the gestation of the child you don’t have a human body. You have a potential human body, but it’s still not a full human body. And that only occurs when that human body has developed to a certain level, when it can function independently as a human body and is not dependent on the mother. As long as it’s dependent on the mother it’s a different kind of soul.

The point is that the idea that the soul is put in at the very beginning doesn’t make any sense, at least to Aquinas. You can’t have a soul put into something except a human body. The soul is simply the human body alive. The human soul is the human body alive doing what human beings do. Being animate, being rational, being out of the womb, being able to walk around, doing those sorts of things.

You said earlier that church practice doesn’t recognize the fetus as fully human. I want to tie that together with something you say in the book, that the bishops’ language “damages the Christian story.” What do you mean by that?
I think it damages the Christian story in one obvious sense. Making abortion a foundational issue and pushing it to the fore all the time tends to make the Catholic church the church of antiabortion.

The church is a church of sin and salvation, of creation and God’s love. Those are things you’re supposed to talk about. Talking about abortion seems to be off to the side of the biblical message and the story of the Bible, which is the story of God’s creation, Jesus’ incarnation, and his saving action with human beings.

To keep talking about abortion all the time is simply a distraction from the basic framework and basic doctrine of Christian thought. Coming out of a deep sense of what Christian life is about, one can talk about abortion. But you have to derive it, you don’t start with that. The foreground has to be the Christian story, the story of Jesus, the story of the Bible.

The Christian story is a story -- despite the destruction and tragedy of the cross -- of hope. It’s a story of salvation. Certainly that story can and should have significant impact on how you think about life, of bringing children into the world. But it’s the story as a whole which gives us that context.

You say the Christian story is a story of hope. Thinking of that hope, what is your message for pro-life and pro-choice advocates?
Well, both sides want to claim that they’re dealing with a moral issue. It comes down to a question of how you think moral issues are dealt with. They can only be dealt with by open discussion between opposing parties.

The pro-life people, it seems to me, discount the situation of the woman. The pro-choice people discount the situation of the fetus as if there was no value there to be addressed.

Both sides have got to learn that you cannot have a true moral discussion unless you’re willing to open up to the kinds of cares and commitments which the person who is opposing you wants to express.

Moral argument does not always end up in everybody agreeing. But you’ve got to recognize that the other person has made a considered judgment to act in that way. It may not be what I would agree with, but I know this other individual is a moral actor.

A woman may make the decision to have an abortion for very serious moral reasons. I think you have to recognize that that’s true. And if you don’t recognize that there are serious moral issues the other person is considering, what are you saying about people who are pro-choice?

One of the things that I hope my book does is that it tries to be pretty fair-minded to both sides. At the same time, of course, it spends more time criticizing the church than it does the pro-choice people. My responsibility as a Catholic is to speak to my own faith and belief.

And that gets to one of the reasons I wrote this book. I think very few other people are going to write it. I’m not a cleric, I’m not on a Catholic faculty anywhere, so I can write this book and presumably the Vatican’s not going to show up at my door. Somebody, I thought, had to start this discussion within the church. And whether I’m right or wrong, as long as it gets people to think about it, I will be delighted.

[Joshua J. McElwee is an NCR staff writer. His e-mail address is jmcelwee@ncronline.org.]

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