Justice Alito’s inept, inaccurate and ideologically motivated draft decision of the Supreme Court to overturn Roe v Wade, if it becomes law in something like its present form, will pose a set of serious challenges for the Catholic Church’s pro-life stance. Let’s take them one at a time.
First, the absolutely worst thing to do would be for the Catholic Church to welcome and celebrate a decision simply because it removes abortion from the list of federally protected rights, and then sit back and do nothing more. If it should be the case that Roe v Wade is overturned, then Church authorities must ramp up support for those women who, whether they wish to or not, find they must bring their pregnancy to full-term. But it must also be ready to aid those who will have had resort to illegal abortions or have traveled to states where abortion is legal, whether their pain and suffering is physical or psychological, or both. Church teaching opposing abortion does not include judgment on those women who have chosen that path, and particularly not when it is quite obvious that a change in the law will disproportionately affect the poor. Both these groups will need material aid, not just pious words of encouragement or empty compassion. Compassion, after all, is “suffering with” those whose suffering we encounter.
A second necessity is for Church leaders to scrutinize the logic of the Supreme Court position and be ready to criticize it for its weaknesses. In other words, it might well be that they will find themselves in only moderate agreement with the stated reasons for overturning Roe v Wade. Legal strict constructionists like Justice Alito have no feeling for context and no nuanced way to read history. While the pro-life position of Church doctrine will obviously lead to welcoming what will presumably be substantial reductions in the number of abortions, leadership will need to ask what the further implications are of Alito’s unhistorical thinking for ecclesial life and American culture. In Church teaching obtaining an abortion is classified as an objective evil, a serious sin, but a sin is not the same thing as a crime. Crimes are punished, while sins are forgiven. Would we really be comfortable with the criminalization of abortion in such fashion that a woman could go to jail for it? Would we really want to argue that a surgeon who performed an abortion to save the life of the mother, or because the pregnancy was the result of rape or incest, should be imprisoned for a crime? These are the consequences of arguments like those of Justice Alito, legal thinking devoid of compassion. The Church has absolutely no interest in the criminalization of abortion, neither the woman who has obtained the procedure nor the surgeon who has performed it.
A third issue of urgency is for the Church to abandon its outmoded, dead letter teaching on the “evils” of “artificial” birth control. For the most part, bishops have gone silent on the issue of contraception, perhaps because most Catholics of childbearing age who can access birth control do not have moral qualms about using it. And perhaps also because they know that teaching that is consistently ignored by the bulk of those to whom it is supposed to apply is of dubious, if any, authority. The next step is obvious enough. If Roe v Wade is overturned, it remains as important as ever to limit the number of unwanted pregnancies, and birth control is the only practical way to contribute significantly to that result. Curiously enough, there are parallels between Church teaching on contraception and the Alito draft document on abortion; both are based on forms of strict constructionism. Moreover, just as most Catholics do not agree with Church teaching on contraception, most Americans do not want to see Roe v Wade overturned. Perhaps our leaders in faith can attend to the important idea of the sensus fidelium, just as one has to hope that public opinion might influence the Supreme Court.
Fourth and finally, there is a difference between wishing for a world in which human life at all stages is cherished and using legal prohibitions to cause more pain and suffering to people than did the status quo ante. Would overturning Roe v Wade be better than the situation we currently have, imperfect though it is? Could the cure be worse than the disease? Might it not just be a wiser course of action, if one that would take longer, to put the energies of society to the service of building a better world, one in which “the common good” meant above all concern for the poor and the needy?
Paul Lakeland is a teacher, scholar and director of the Center for Catholic Studies at Fairfield University.