Life Affirming?

Author: Richard W. Garnett

We often hear, and it certainly seems, that our American community and culture are divided, sorted, angry and anxious. It is not just a matter of “red” and “blue” counties anymore; even our fast-food loyalties and television-binge preferences reflect hardening tribal divisions and identity-based conflicts. What better time could there be to reflect on the law, policy and politics of abortion, and on the challenge and demands of a consistent ethic of life?


Last January, many hundreds of thousands of Americans gathered, marched, protested and prayed in parks, squares, courthouses and churches across the country — from South Bend’s Main Street to the National Mall in Washington, D.C. — to mark the 44th anniversary of the Roe v. Wade (1973) decision by the Supreme Court of the United States.


Among the speakers at the March for Life in our nation’s capital was the new vice president, Mike Pence, who as a legislator and governor of Indiana had a consistent record of supporting regulation and opposing funding of abortion. “Let this movement be known for love, not anger,” he challenged the cheering crowd, and “for compassion, not confrontation.” Quoting the Letter to the Philippians, he urged those listening to “press on” but also to “let your gentleness be evident to all.” The tone struck and themes sounded were encouraging, optimistic: “Compassion is overcoming convenience and hope is defeating despair,” he reported. “Life,” he insisted several times, “is winning again in America.”


Pence’s use of “winning again in America” is easy to hear (and, perhaps, to dismiss) as an echo of some of candidate Donald Trump’s favorite Twitter boasts and on-the-stump slogans. For now, put that resemblance aside. Bracket also, for present purposes, the glaring inconsistency between the vice president’s no-doubt-sincere hopes for the pro-life movement — “love,” “compassion,” “gentleness” — and now-President Trump’s own speech, conduct, temperament and character.


Ask instead, is it true? Is life winning? What would it mean, really, and what would it look like, for life to be — now, again or ever — “winning,” in U.S. law, policy, culture and hearts? Even if one evaluates the vice president’s report in purely partisan terms — that is, even if one treats it simply as an observation about the electoral success of the political party with anti-abortion platform planks — a situation where that party’s standard-bearer is polarizing and erratic, and unable to respond clearly or coherently even to a terror-style killing at an ugly rally of racists, is not an obviously “winning” one for the cause of life.


Also consider just a few items that floated through the news and across our screens in recent months and might complicate the vice president’s assessment: A piece in Slate noted that the stunning, $5 billion new headquarters of tech-giant Apple has every creature-comfort and amenity imaginable — except a child-care center. Apple does, however, pay for female workers to freeze and store their eggs — which might not sit well with commentator Jill Filipovic, who broke the Internet in mid-July when she tweeted the neo-Malthusian scold, “Having children is one of the worst things you can do for the planet. Have one less and conserve resources.”


Dr. Brian Callister, a Nevada physician, was told by an insurance company that two patients of his were not eligible for coverage of certain life-saving treatments but did qualify for coverage of physician-assisted suicide. Assisted suicide now accounts for 4.5 percent of all deaths in the Netherlands.


Last April, the State of Arkansas scheduled eight executions in an 11-day span in order to avoid going past the expiration date on a drug used in its lethal-injection cocktail. Four of the executions went forward. Since then, the autopsy of a man executed in Virginia appears to confirm concerns that this particular drug can cause a painful, drowning-like death.


Oregon’s legislature enacted in July one of the most sweeping abortion-funding laws in U.S. history, one that makes abortions taxpayer or insurance-company covered for nearly any reason and at any time during pregnancy.


In early August, a team of medical researchers announced what some hailed as a major “advance” in gene-editing technology. The group reported having created, “edited” and repaired and then destroyed human embryos in the course of “very elegant lab work.” A few weeks later, CBS News reported that “Down syndrome births” — that is, births of people with Down syndrome — have been “eradicated” in Iceland.


And so on.


On the other hand, and as the vice president reminded his fellow Marchers for Life in January, it is true that the new administration almost immediately reinstated the Mexico City Policy, which prevents foreign-aid funding from going to organizations that provide or promote abortions. It is also true that states are now allowed — if they so choose — to exclude Planned Parenthood from receiving family-planning funds. An executive order signed in May directed various federal agencies to consider expanding the religious exemption from the HHS mandate, which requires no-cost coverage of drugs that can function as abortifacients. (However, that exemption has not yet been expanded.) Executions are at their lowest level in 26 years and most efforts to legalize assisted suicide in the United States continue to fail. The president has nominated a number of jurists to the federal bench — including the Supreme Court’s newest member, Neil Gorsuch — who will almost certainly be deferential to reasonable regulations of abortion and skeptical of arguments that the Constitution requires states to allow assisted suicide. It seems clear that many of those holding or nominated to fill important administrative posts in agencies such as the Departments of Justice or of Health and Human Services and in the Food and Drug Administration will work, to the extent they can, to protect conscientious objectors to abortion and assisted suicide and to reduce government support for it.


And so on.


Now, the obvious and understandable focus of the annual March for Life is the issue of abortion — specifically, the Supreme Court’s top-down imposition of an anomalously permissive regime on every jurisdiction in the country. However, the cause of life and the question of whether it is “winning” have long been understood to be about more than the regulation and public funding of abortion, the conscience-rights of physicians and nurses, and the religious freedom of hospitals and clinics. It’s been more than 30 years since Cardinal Joseph Bernardin of Chicago called for a “consistent ethic of life,” acknowledging that the “case” for it, “which stands for the protection of the right to life and the promotion of the rights which enhance life from womb to tomb . . . is both a complex and a demanding tradition.” The current archbishop of Chicago, Cardinal Blaise Cupich, suggested a few years ago that “people are more attuned now” to this tradition and its demands.


The proposal, the claim, and the truth that grounds the comprehensive and integrated pro-life position is that every person matters and no one matters more than anyone else.


It is a challenge to achieve and maintain a balance between two propositions that are both indispensable to what Bernardin called the “case” for life. The first is that the right to life — and, specifically, the injustice of a legal regime and of cultural norms that exclude unborn children, the disabled and the elderly from the law’s protections — is primary and fundamental. As Notre Dame theologian John Cavadini put it, “[a] culture that allows the powerful to kill the weak just because they are weak is a culture without significant moral substance and all attempts to use the language of morality will be subverted by this fundamental incoherence.” There are reasons to think that many who cheered the vice president’s report that “life is winning” had this first proposition, about the right to life, in mind.


The second essential pro-life proposition is that the group of persons whom Cavadini called “the weak” does and must include those who are dependent, vulnerable, marginalized and disadvantaged, and who are in need not only of legal protections from utilitarian violence but also of assistance, accompaniment, encouragement and embracing in order to flourish. Newark’s new Catholic bishop, Cardinal Joseph Tobin, seemed to underscore this proposition in recent remarks that identified both abortion and harsh anti-immigrant rhetoric as symptoms of the “brutalization of the American heart.” Cupich has placed the appalling gun violence in Chicago “front and center with all of the other” life issues. Pope Francis, during his visit to the United States, linked in his speech to the American Catholic bishops the “innocent victim of abortion” with “children who die of hunger or from bombings,” “immigrants who drown in the search for a better tomorrow” and “the environment devastated by man’s predatory relationship with nature.” Cardinal Daniel DiNardo described the hateful demonstration in Charlottesville, Virginia, in August as nothing less than an attack on “the intrinsic dignity of every human person.”


So, with these two propositions in mind and in balance, ask again: Is life winning? Is life making progress with respect to abortion and, if it is, is that enough? When trying to answer this question, there are (at least) three ways we can miss or misunderstand the connection between the legal regime relating to abortion, on the one hand, and what Pope Saint John Paul II called “the inescapable responsibility of choosing to be unconditionally” — consistently and comprehensively — “pro-life,” on the other.


First, we can mistakenly reduce the matter of our legal regime to the single question of whether or not Roe v. Wade is overruled by the Supreme Court. Some observe, and complain, that even after decades of prioritizing judicial nominations — and of pro-life voters supporting Republican candidates who promise to support anti-Roe nominees — the Court’s decisions still support a broad legal right to abortion and still stand in the way of reasonable regulations that democratic, bipartisan majorities support.


This is true. It is also true, though, that no Democratic justice appointed since Roe has voted to reverse or even to substantially revise it; that the justices who have consistently voted to uphold reasonable regulations on abortion and to vindicate the free-speech rights of pro-life advocates have all been Republican appointees; and that the judicial philosophy of those who sit on the federal bench matters a great deal to the ability of legislators and citizens to compromise, find common ground, and move law and policy in ways that better reflect scientific and moral truths. To put the matter starkly, it matters and it is good for efforts to respect and protect unborn persons that Justice Antonin Scalia’s replacement on the Supreme Court is Neil Gorsuch and not either President Obama’s (entirely qualified and well-respected) nominee, Judge Merrick Garland, or any jurist who would have been nominated by Hillary Clinton. What’s more, three more justices are near or over the age of 80, and hundreds of judicial seats are currently vacant.


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It should not matter as much as it does — it would be better for our law and for our politics if it mattered less — who sits on the Supreme Court of the United States. Still, as Justice Scalia liked to point out in his law-school and after-dinner speeches, we can hardly be surprised that our debates about the personnel of the court are “political,” given that the court has taken for itself the task of deciding so many hot-button and “political” questions. When the Supreme Court constitutionalized an expansive right to abortion in 1973, thereby removing the possibility of legislative and political compromise, variation and experimentation, it not only misunderstood the Constitution, it also distorted and hamstrung our politics. Correctly understood, the Constitution allows citizens to argue and act regarding abortion, and it allows life, comprehensively and consistently, to win, in law and in culture.


There is a second mistake to avoid when thinking about the place of the abortion regime in the larger project of building the culture of life. We must not forget that laws and policies implicate the issue and incidence of abortion in many, many ways besides direct regulations that may or may not survive a judge’s scrutiny. Governments and public officials act in a wide array of capacities: Yes, they regulate, prohibit and punish, but they also subsidize, incentivize, discourage, teach, license, condemn and celebrate. A vice president can speak at the March for Life, but he or she can also warn — as Hillary Clinton did recently — of “unprecedented attacks” on women’s reproductive rights at Planned Parenthood's 100th-anniversary gala in New York City.


Our laws do and must answer the question, “when should abortion be permitted and how should it be regulated?” However, public policy, elected officials, administrative appointees and government employees also answer questions like “should hospitals be required, as a condition of receiving federal funding or being allowed to operate, to refer patients for elective abortions, or to provide them, or to extend privileges to doctors who perform them?” “Should a faith-based social-welfare agency be required, as a condition of cooperating with the government to combat human trafficking, to refer clients for abortions?” “Should the pro-life counseling and services of crisis-pregnancy centers be treated as deceptive commercial practices?”


Those who cheered Vice President Pence’s “winning” assessment at the March for Life were probably right to believe that had Clinton been elected — had the federal executive branch and administrative apparatus been staffed by her advisers with her nominees — the answers provided in federal policy to these and many other questions would have undermined, not advanced, the case for and cause of life. In many varied ways, from state laws regulating facilities where abortions are performed to domestic and international funding to judicial appointments to executive and administrative rulemaking to the employment of the “bully pulpit,” governments can facilitate and encourage, or they can regulate and discourage, abortion.


It must not be forgotten that our abortion regime is a front-and-center injustice. Our laws, in effect, exclude some people — persons who exist, have worth and potential, and bear the image and likeness of God but who are also vulnerable, dependent, weak and small — from the laws’ protections. Most of us enjoy these protections from intentional violence and from cost-benefit analyses regarding our convenience, our predicted successes, our capacities and our contributions. Unborn children do not. To be committed to social justice and solidarity is to keep in view the challenge of responding to, challenging and remedying this injustice.


It must also be said, though — as was said previously — that the wrong of abortion is situated in a web of other difficult issues, including prenatal and pediatric healthcare, poverty, medical research, armed conflict, peacemaking and employment. And so, these first two errors — focusing only on the overturning of Roe and forgetting the many ways governments can support or prevent abortion — are joined by a third. Namely, the mistake of treating the call for a seamless and consistent ethic and culture of life either as a distraction from what Pope Francis has called the “unspeakable crime” of abortion or as a “free pass” or excuse for parties, politicians and partisans to ignore it.


To be sure, not every important issue is a “life issue,” and crucial moral differences exist between policies that foreseeably result in some earlier deaths (think of a speed-limit increase) and policies that intentionally exclude vulnerable people from protections against killing (for example, the legalization of doctor-assisted suicide). Nevertheless, there is an important sense in which, say, careful, responsible stewardship of the environment and humane, decent treatment of unauthorized immigrants is a “life issue.” Lead poisoning, obesity and the abuse of prescription opioids do kill people and undermine human flourishing. If policies and policymakers are indifferent to these results, or if these results are deemed tolerable because the costs they involve only fall on the marginalized, we are not so far removed from the core, dehumanizing wrong of abortion.


Our ultimate, transcendent worth does not depend on what we accomplish, on what we are capable of doing, on what we can produce or contribute, on how much we are wanted, or on how much we cost. No one is worth less and no one is worthless.


Consider the broad context of medical practice, health insurance coverage and biological research. We are moving rapidly to a place where genetic testing and manipulation, assisted reproduction technologies, and embryo-destructive research will put great pressure on the fundamental rights and equal dignity of all people. What happens when insurance companies — and, perhaps, government-run health-care programs — decide that the cost of a lethal overdose is covered but the cost of continued treatment or even palliative care is not? A century ago, most people spent almost nothing on medical care — the “healthcare coverage” question as we understand it did not exist — and millions died from infectious diseases. Today, health care has become in large part the management of chronic illnesses. We now have the luxury, and face the challenge, of having to confront the expense of end-of-life treatments and costly interventions. In the coming decades, our biggest health-care expense item will be the care of persons with Alzheimer’s disease. How will we respond? As we become more and more able to extend life, perhaps at great financial cost, how will this ability be distributed, regulated and constrained?


The point of highlighting the multiplicity and relatedness of “life issues” is, again, not to downgrade the seriousness of the abortion question or to give a “pass” to officials and voters who are complicit in our unjust abortion regime. It is, instead, to recall what lies beneath the judgment that this regime is unjust. After all, there is a reason why it is. The proposal, the claim, and the truth that grounds the comprehensive and integrated pro-life position is that every person matters and no one matters more than anyone else. This was the message of Pope Francis’ Installation Mass homily, and it is at the heart of the Catholic Church’s social and moral teaching. A human being is a human person, and to be a human person is to have great, inestimable worth. This is true when we are very small and vulnerable, when we are old and sick, when our life seems all potential and when it seems at its very end, when we are strong, beautiful and creative, and when we are weak, ugly and venal. Our ultimate, transcendent worth does not depend on what we accomplish, on what we are capable of doing, on what we can produce or contribute, on how much we are wanted, or on how much we cost. No one is worth less and no one is worthless.


Politico’s Timothy Alberta has called economist and think-tanker Arthur Brooks “the most interesting man in Washington.” At a recent forum at Harvard’s Kennedy School, Brooks was reflecting on the unedifying state of public culture and conversation in America, and he proposed that the problem with our politics is not disagreement, division, polarization or even anger. In a free society, strong disagreements about at least some things that matter are, this side of Heaven, inevitable. For Brooks, what is striking is not simply the “Big Sort” into red and blue enclaves or our increasingly tribal divisions that infect everything down to debates about the regulation of large sugary sodas. Our real problem, he suggested, is “contempt,” which he defined as the “conviction of the worthlessness of another human being.” Who can deny that “contempt” is pervasive and ubiquitous? Indeed, in many contexts it seems to be the currency of our discourse. Anger can be resolved, but contempt, Brooks warned, leads to permanent estrangement.


Brooks is on to something. During the campaign — recall the Access Hollywood tape or his imitation of Serge Kovaleski — and since his election, President Trump has not hesitated to mock, insult and degrade — to express “contempt.” On “the other side,” one of the turning points in the election was Clinton’s expression of dismissive disdain for those in the “basket of deplorables” to which she consigned so many of those who resisted the appeal of her candidacy. No one could spend much time at the rallies or following the Twitter feeds of either of the two candidates and their surrogates, fans and followers and not be struck by the vicious, deep contempt with which the two camps regarded each other. It was contempt, not “heritage” or “history,” that inspired and informed the marchers’ chants in Charlottesville.


Now, Brooks was not speaking directly to abortion or to the “life issues.” Still, his assessment is helpful. The pro-life position is not merely a package of negative prohibitions but is a thoroughgoing response to the call and challenge to solidarity and mercy. To stand in solidarity — in community — with other persons is to embrace these other persons’ dignity, value, worth and destiny, and to truly — despite differences in ability, strength, beauty, talent, advantages and prospects — regard and treat them as equally bearing the image of God. What could be more contrary to solidarity than, as Brooks says, the estrangement that contempt produces? “Life” isn’t really “winning” — it cannot, really — if the political community and conversation are saturated with contempt.


Pope Francis has forcefully condemned abortion as a symptom of and contributor to what he calls our “throwaway culture.” It is an arresting and illuminating image, and it resonates with Brooks’ diagnosis and definition of contempt. What is it, after all, that we throw away? We throw away what we think is worthless, that which we can no longer bother fixing, saving, nurturing, protecting, repairing, treasuring or loving. It is, the pope has said, “precisely the weakest and most fragile human beings — the unborn, the poorest, the sick and elderly, the seriously handicapped, et al. — who are in danger of being thrown away.” But not only are there no “worthless” people, there are, as C.S. Lewis remarked in his sermon The Weight of Glory, “no ordinary people.” Those “we joke with, work with, marry, snub, and exploit” — those we mock on Twitter, those at whom we direct contempt, those we “throw away” — are “immortals” and “everlasting splendours.”


Pope Francis has said much the same thing: “Even the weakest and most vulnerable, the sick, the old, the unborn and the poor, are masterpieces of God’s creation, made in his own image, destined to live forever, and deserving of the utmost reverence and respect.” Lewis’ essay concludes with a striking assertion: “Next to the Blessed Sacrament itself,” he wrote, “your neighbor is the holiest object presented to your senses.” And remember the answer that Jesus gave to the question, “who is my neighbor?” When we, in our laws and in our lives, give and act on the right answer, life will be winning.


Richard Garnett is a professor and an associate dean in the Notre Dame Law School. He served as a clerk to Supreme Court Chief Justice William H. Rehnquist before joining the Notre Dame faculty.