ROE v. WADE: the Catholic Dilemma

by Clifford Stevens

1. One of the tragedies of the present abortion debate taking place in the United States is that many Catholics are no longer credible witnesses to what they believe or to their own position in the debate. They engage in the debate in such a way that dooms the very cause they represent or defend their position with arguments that have nothing to do with the issue. The worst offenders are those Catholics who use the abortion issue to further their own political agenda, giving the impression that unless one accepts a certain "conservative" political philosophy in its totality, together with its critique of "liberal" positions, one has entered the pro-abortion camp. They have tied their opposition to abortion so strongly to their political philosophy that the two issues have become identical. Opposition to abortion is a moral and legal position, it is not tied to any particular political position or philosophy.

Others are convinced that all that is needed in the abortion debate is moral indignation at the evil of abortion and that opposition to Planned Parenthood is what the debate is all about. They believe that their public opposition to abortion is the only witness required of them and give the impression that theirs is only one party bringing pressure on government and the legislature to reverse the Roe vs. Wade decision. Their failure is evident in the public airing of the issue: two parties screaming their arguments at each other in the public forum and on the nightly news. As a legislative and legal issue, abortion is a dead question because Catholics have not dug deeply in their own traditions to face with the full riches of that tradition the most critical moral issue of our time. That failure could defeat the very cause they represent and make the "right to abortion" a right enshrined in the annals of government and in legislative history.

In this, Catholics have violated the first law of public debate, the law that says: if I am to convince another of the falseness of his position, I do not do so on the basis of my principles, but on the basis of his. They have also violated the first law of logic in matters of controversy: define the issue. The issue in the public arena is not a moral and religious one, even though moral and religious values are deeply bound up in the question. The issue is a legal one, a matter of juridic doctrine, and if Roe vs. Wade is to be defeated and reversed, it has to be examined as a piece of jurisprudence and shown on solid juridic principles to have violated a basic legal principle, bound up in the Constitution of the United States.

In facing the Roe vs. Wade decision, what must first be examined is the whole history of jurisprudence, from the dawn of the modern era when "human rights" became the concern of government, and constitutional government safeguarding these rights began to emerge. American Law is not based upon transcendent values, or some trans-historical ordering, but on historical experience. Juridic decisions in the United States court systems depend upon the normative guidance of written laws, precedents, and from ongoing interpretation of these precedents. American Law is not based on trans-historical ideals, however noble, but on historical actions firmly rooted in one basic law of jurisprudence, which became the backbone of all constitutional government and all Western democracies: the Law of Dominion, and it is on the basis of this law that Roe vs. Wade and any other legislative action must be examined.

It was on the basis of this law that constitutional government began and that critical moral and legal questions in the public arena were solved. And it is important to see the application of this law in the historical precedents that have shaped the history of Western jurisprudence, giving rise to constitutional government as we know it, and to the Charter of Rights of the United Nations. And the beginning of those precedents is one that challenged the deepest currents of Catholic thought, and drew from the riches of the Catholic theological and philosophical tradition, legal principles that are now the common possession of humanity.

2. The Spanish Theological-juridical Renaissance.

This precedent entered the arena of law with the discovery of Hispaniola and the Caribbean Islands by Columbus and the setting up of colonial settlements for the economic exploitation of the new territories. That economic exploitation soon involved the creation of the Spanish colonial system of encomienda, the forced labor of the native islanders, simple in their economic pattern of living and totally unprepared to defend themselves against the military and political force that was used against them and totally unprepared to defend themselves in a court of law.

They were seen by the Spanish colonists as having no rights under Spanish law, completely in the power of the landowners who employed their labor, a power that the Spanish colonists and military governors claimed as a right under Spanish law.

The first attempts to claim rights under law for the native Indian was first voiced by Dominican friars in Santo Domingo in 1511, who came to the colonies as spiritual advisers to the Spanish colonists. When this claim was first voiced, in a stirring sermon by a Dominican, Fray Antonio de Montesinos, the angered colonists cut off the food supply of the friars and insisted that they be silent in the matter, and that their power over the Indian was a right of law that should not be challenged.

The second claim was made by one of the landowners himself, Bartolomeo de Las Casas, who recognized the legal right of the Indian to his own lands and to protection from exploitation and took his case to the highest tribunals of the Spanish government. His claim was recognized by particular decrees, but the decrees were not enforced and the Indians, forced to meet the increasing labor demands of the colonists, were eventually wiped out, marking the beginning of the slave trade from Africa and the introduction of Black slaves to the Western hemisphere.

But Las Casas was not the only voice that was raised proclaiming, not only the Indian's rights to his own land and to freedom from exploitation, but the right of dominion over his own person, given, not by Spanish law, but by the law of nature itself. The finest theological and legal mind in Spain, a Dominican professor from the University of Salamanca, Francisco de Vitoria, put his legal powers to the case and produced what are considered classics of international law, his treatise De Indis and De Jure Belli, which many consider the foundation of international law in the European community.

In these treatises, which laid the groundwork for the United Nations four hundred years later, Vitoria declared: that the right to have power over the Indian for economic purposes by the Spanish colonists was not a right under law and that the native Indian had equal rights under the law with the colonist, in fact, the native Indian was the rightful owner of the lands the Spanish claimed and that due restitution had to be made to the Indian for taking possession of their land. He declared that Spanish law could not annul the rights of the Indian as human beings, and it was their status as human beings that gave them rights under the law and that the sacredness of their persons could not be violated because their right to dominion over their persons was not given by the law, the only purpose of law was to secure and protect that right.

This declaration of Vitoria was incorporated into Spanish law, promulgated by the King of Spain, but the laws did not take effect because the Spanish officials refused to enforce them. The fact that the laws were ignored in the future history of the Spanish colonies is a sad fact of history and a brutal commentary on the inability of government to enforce its laws and to insure the rights of its citizens.

The wisdom of the decision was borne out, not only by the production of classic treatises on International Law which created a whole new development in the science of jurisprudence, but by the creation of a totally new science, unknown when the laws were framed, as the history and culture of those native American peoples came to light in later centuries, the science of Archeology. What this science revealed were the remains of the remarkable cultural achievements of the Native Americans, achievements embodied in the ruins of the great cities of Mexico, Yucatan and Peru. These cultural remains showed the Native Americans to be not only the cultural equals of the Europeans, who freely exploited them, but in some things surpassing them. The new laws framed by the Spanish jurists did not prevent the exploitation of these peoples, but they did declare, to the credit of these legislators, that this exercise of power had no sanction in law and that those who exercised that power did so contrary to Spanish Law.

The Spanish Theological -Juridical Renaissance, by a clear delineation of the right of dominion, laid the foundation for the rise of constitutional government and of the Western democracies. It is this right that is embodied in the Constitution of the United States and in particular laws embodying that right. The history of the science of jurisprudence is the history of developments which extended this right to persons not yet covered by law. The abortion debate is the final phase in the extension of that right to every human person and to every moment of human existence. What the Spanish jurists inaugurated was a whole new tradition of law, International Law, laying the foundations for Western constitutional government and a concern for human rights as the basis of all government. And they did it by creating a whole new body of juridic doctrine, drawn from the riches of a philosophical tradition rooted in the Law of Nature.

3. The New Juridic Development: Embryonic Law.

Catholic doctrine, on abortion or on any other question, has no authority over those who are not Catholic and it has no force in the public arena, if the issue is a purely religious one. Catholic doctrine cannot be forced on legislators or jurists, and if, as some advocates of abortion insist, objections to abortion are "religious arguments based on church traditions", the battle against abortion is lost before it is begun.

In the public arena, the issue is primarily a legal one, bound up with political theory and principles of jurisprudence, and it is in that arena that the battle must be fought. The focus of concern is a basic human right, not given by law or government, a right to be safeguarded and defended by law, which the law has no right to take away.

With the opening of the question of human rights in the Spanish Juridical Renaissance of the 16th century, there has been a progression of laws and legal decisions extending the right of dominion to persons denied this right or who were not yet protected by the law in the exercise of that right. After the New Laws of Spain, promulgated by Charles V in 1542, recognizing the rights of the Indians of the New World, the next legal battle was the battle for the abolition of Black slavery in the Americas. This was accomplished by the 13th Amendment of the Constitution, reversing the Dred Scott decision of the Supreme Court, which had denied this right to certain African-Americans. Next, this right was granted to women by the 19th Amendment and finally, the Child Labor Laws of Great Britain and the United States recognized the rights of children under the law. In the United States also, the Chief Standing Bear decision of a federal judge in Nebraska in 1879, recognized the right of Native Americans in the United States to equal protection under the law.

It was only a matter of time before the question of the unborn would become an issue in the legal arena and that question had its formal juridic opening in the Roe vs. Wade decision of 1973. Since that time the issue has been debated in newspapers and magazines and in the forum of public opinion, together with certain legal decisions supporting the decision. There is no body of juridic doctrine to appeal to in discussing the issue or in challenging the decision. The most important first step in challenging that decision must be to examine it as a piece of jurisprudence, and upon this basis to see where it is wanting. In this, the Spanish jurists of the 16th century provide an example of juridic analysis that brought about a totally new development in the history of jurisprudence and laid the foundation for further developments. That example provides a model for a legal challenge to Roe vs. Wade.

What must be identified in challenging Roe vs. Wade are three human moments that are also juridic moments: the embryonic moment, the pedagogical moment, and the autonomous moment. The autonomous moment of adulthood is recognized as a juridic moment, and most laws are framed to safeguard the rights of adults. The pedagogical moment of childhood is also the subject of laws, the most notable, Child Labor Laws and those relating to education and juvenile crime. What has now to be demonstrated and secured are embryonic rights, the Law of Dominion applied to human beings in the embryonic moment of their existence. What Roe vs. Wade has done is to place the right of dominion over the unborn human being in the hands of the mother, under the claim of the right to privacy, with the right to destroy the life of the unborn. What must be demonstrated on sound legal principles, is that the right of dominion is not granted or bestowed by the law or by government, and belongs to a human being from the first moment of his or her existence. The law and the parent have this dominion only in trust, and their only function is to safeguard this right. That is the crux of the legal challenge to Roe vs. Wade. The Supreme Court acted unlawfully in granting to a woman the right of dominion over her unborn child. That dominion belongs lawfully only to the unborn child.

What has to be created and built up from the right of dominion is a body of juridic doctrine pertaining to the human being in the embryonic moment of human existence, and for that to be done, it is necessary to see that the Law of Dominion is the juridic basis of all constitutional government and is imbedded in the very Constitution of the United States.

 

4.The Law of Dominion.

The abortion question, legally, is not really a right to life issue, but a right not-to-be-killed issue. But this Right not-to-be-killed is part of a larger right, a positive right, in which the right not-to-be-killed is firmly imbedded: the right of dominion. That law, which is the basis of all constitutional government states: as a human being, I have dominion over my total person, as well as the free exercise of that dominion, a right given to me, not by any law or any government, but by the very Law of Nature, by the very fact that I am a human being. The purpose of all human law is to safeguard this right, to secure it when denied or ignored, and to safeguard it when it is threatened. The law does not create this right, and so it has no legal power to interfere with it, to restrict it or to take it away, except for the commission of some crime which is a danger to the exercise of this right to others.

The Law of Dominion is my right over my total person, not only my right to life, but my right to my hand and my foot, to every part and portion of my being, and that is true whether all that exists of me is the fertilized ovum, by which I begin my human existence, or those things that I need to live and to enjoy normal human existence: my breath, my land, my home, my possessions, and all of those things that are an extension of my person in the exercise of this right of dominion.

When we speak of freedom, we mean freedom to the right of dominion over my person, in my beginnings as a human being and in those stages of human growth by which I emerge into the human community. Conception is the human process by which I come into existence, and gestation is the process by which I begin to exercise my human powers and emerge into the human community. I and only I have dominion over my person from the first moment of my existence, and in the initial stages of growth, when I cannot exercise that dominion for myself, it is kept in trust by my parents and by the law. Just as the pedagogical moment of human existence has its own laws and its own safeguards in law, because of the very condition of the child, so too does the embryonic moment. What Roe vs. Wade has done is to give another human being rights over my person in the embryonic moment, a right which permits the termination of my existence.

Embryonic Law, then, is founded upon the Law of Dominion, the basic law of every Western system of jurisprudence and this Law states:

Every human being, by the very fact that he or she is a human being, has total and exclusive dominion over the totality of his or her person.

This right is not bestowed or created by the law itself or by government, nor can it be abrogated by any government, except for the commission of a crime denying or threatening this right to others.

The purpose of law is to recognize, further and safeguard this right and to give it the protection of the law when this right is denied, ignored or threatened.

This must be the basis of any legal challenge to Roe vs. Wade, together with legal arguments that develop and apply the Law of Dominion to the embryonic rights of the human person. What also must be demonstrated, in the light of this Law, is that abortion is diametrically opposed to this right and to this dominion, and that government has no power to sanction this violation of the rights of the human person.

The pioneering labors of the Spanish jurists in their battle for the human rights of the Indians of the New World drew upon the tradition of the natural order developed by St. Thomas Aquinas and the drawing out of the juridic implications in the Thomistic doctrine. In this doctrine, the natural order derives from God as the creator and governor of the world and that natural order is the common inheritance of every human being. Catholics have this inheritance in common with every other human being and this human inheritance includes those natural and human rights and duties that are the object, not of faith, but of human reason.

It is in this arena that the debate over abortion takes place, not as a specifically Catholic or religious issue, but as a human and legal one and it is on principles that human beings have in common that the debate takes place. The Law of Dominion is a postulate of reason and of law, not of religious doctrine, and if the question of abortion is solved in the public arena, it is solved as a matter of law, not of faith. The victory over abortion must be a legal and juridic one, drawn from principles embodied in the Constitution of the United States and in a juridic doctrine based upon it.

In no other way will a challenge to Roe vs. Wade be successful, and in no other way will the inhuman practice of abortion be outlawed. Catholics take part in this debate as citizens, not as Catholics, since their faith and the tenets of their faith are not binding upon others. Their faith requires them to use their reason to its fullest and to further and defend those human rights they hold in common with every other human being. That is the heart of the abortion debate for Catholics.

As in the battle for Indian rights in the 16th century and in the Abolitionist Movement that brought about the outlawing of Black slavery, we are on the threshold of a totally new juridic development, embryonic law, based on legal and anthropological principles, as well as new developments in genetics. Whenever such developments have taken place in the past, new laws to safeguard the human rights of those not previously covered by the law were enacted and inhuman practices that everyone recognized as violating those rights were outlawed. And in every case, there was fierce opposition to this new development, by those who exercised power over others or by those who profited by ignoring or violating the rights of others.

Even those who are in favor of abortion recognize it as an inhuman and inhumane practice and justify it legally only in linking it to the right of a woman to privacy. In the past, the ignoring of the right of dominion was linked to some other claim, which the law eventually denied in the name of the rights of some other human person.

What has to be shown in the legal arena, if Roe vs. Wade is to be successfully challenged, is that it violates the rights of an identifiable human subject, a right enshrined and assured by the Constitution of the United States. That is what the abortion battle is all about and any other effort is doomed to failure. That is the lesson that history teaches and that is the lesson that Catholics have to learn in this serious moral crisis. What is being pioneered is a new development in juridic doctrine and a final phase in the historic battle for human rights for every human being. What is critically important is how the battle is fought and that it take place in more than the arena of public opinion. Thus far, Catholics have limited themselves to public controversy on the question and the airing of their views in the public press and in private discussions. It is time, with the riches of their tradition, to move into the legal arena. Any other effort at this moment in history is useless.

New Perspectives on the Defense of the Unborn as a Constitutional Issue