LAW, MORALS AND ARORTION

...These principles can support unified action to impose legal restrictions on abortion if Catholics, in particular, recognize the difference between law and morals in this question, and if enough Americans recognize the urgent necessity for laws designed to limit abortions and to preserve respect for human life...

...The moral position of this group rests on two main ideas and both of them, I submit, call for the aid of law...

...Law should, protect and advance our most basic moral rights, but if the law fails to do so, then we must insist on those rights without the aid of law...

...Aside from the merits of this moral position, which has been questioned by theologians, the Cardinals, it seems to me, equated law with morals...

...Difficult as it may be for many to accept, laws banning all abortions do not seem to be possible in our society...

...My argument, however, has to do with the underlying relationship of law and morality in abortion...

...I am here as a private individual who on January 22, 1973, was robbed of his right as a citizen to participate in the public processes by which we as a people PAUL RAMSEY iS a Methodist layman and Harrington Spear Paine Pro[essor of Religion at Princeton University...

...The first effort, after the right to refuse to participate in an abortion has been secured, should be for legislation requiring good-faith efforts to save babies born alive in an abortion procedure...

...To support this conclusion, one could point to our present experience with unrestricted abortions, where carnage seems not too strong a word, and where we hear persistent, nagging reports of live infants being left to die after having been delivered by an abortion procedure...

...Those who are concerned for the value and rights of fetal life in our society should find the Supreme Court's decision lacking in the most minimal protections of that life...

...The only laws regulating abortions in the first six months of pregnancy can require, in the fourth to sixth months, conditions that are safe for the woman...

...These rights are so important and depend so much upon mutual recognition by all of us in society that law cannot leave them to private choice alone...

...This argument, which appeals to my own moral judgment, does recognize the moral claim of potential human life at any stage, but it also insists on a qualitative moral difference when the fetus has achieved a developed human form, with the brain, organs, nervous system and other characteristics of the human body...

...The movement for therapeutic abortions based upon the mother's health and other reasons such as rape and the birth of a seriously defective child arose some twenty years ago...

...This means that Americans who find that abortions raise grave moral issues, but who do not believe all abortions to be wrong, would have to agree that laws restricting abortions are needed...

...I came here today because of what I regard as the deep significance of the issue before you, and the seriousness of this hour in the moral histo~ of this nation--indeed, of mankind...

...Support of such laws, for those who hold the stricter moral position, would be based upon the reality that laws prohibiting abortions were enacted by men and just recently invalidated by men, and that we are in the position of seeking some possible consensus for new laws which might replace, in part, the old...

...determine the outer limits of human communityNthe limit at the first of life and soon it may also be the limit at the end of hfe--within which boundaries an equal justice and equal protectability should prevail for all who bear the agreed "signs of life...

...II In our society, the future of laws limiting abortions depends upon a wide range of support, enough to pass a constitutional amendment voiding the Supreme Court's ruling, or enough to convince the Court to modify its ruling (outright reversal seems unlikely...

...Law, as Aquinas puts it, must fit the capacity of men and women who are "imperfect in virtue...

...Never before have I knowingly testified before a Congressional committee...

...but they alone do not set the criteria...

...The sacredness of th~ life of the developing human at any stage of the pregnancy is affirmed...

...The message of moderately restrictive abortion laws, in contrast, would be that the fetus is entitled to the protection of the law, that abortion should be restrained, not encouraged, by our society, and that abortions are a grave matter, not to be undertaken at the whim of any person...

...When these efforts fail, I would hope that an extended new effort would be made to unite all of those who oppose abortion on demand, and that this new effort would result in the following: (1) a constitutional amendment returning to the states the power to prohibit abortions...

...It depends upon human agreement for its enactment and for its observance, since its sanctions are effective only when most people are willing to follow the law...

...The first idea, one represented to some extent in all of the laws on abortion and even in the recent Supreme Court decision, is that there is a difference between the claims of the developing human in the early stages of human gestation and in the later months before birth, and this difference is a moral as well as a physical one...

...It is an intrinsic quality Commonweal: 305 of law, therefore, not only that it be just, but that it be possible...

...The Court's terrible mistake, however, was to declare that law and organized society must ignore, almost totally, the claims of human fetal life...

...Despite the iron face of this ruling, we can look to the principles which ought to guide us in establishing the relationship of law and morals in abortion...

...and although science has recently shown the continuity of fetal development, this can not settle the question of the moral claims of the fetus to life...

...Other legal efforts, as Minnesota's new abortion law, can go forward even under the Supreme Court's ruling...

...It is the aim of law to organize human society by creating a structure of just relationships among men...

...Laws restricting abortions would be bulwarks against that tide...

...I hope, however, that the fetal deaths now taking place in abortion clinics and hospitals will move the great majority of Americans to recoil from an abortion society and to unite to support moderately restrictive abortion laws...

...Generally I am not a social activist...

...The astonishingly swift success of the abortion reform movement and the utter defeat, to date, of the pro-life forces should convince the latter that consideration of what laws are possible must enter into their position...

...There the fundamental moral and legal debts are found: the right to life, to material needs, to education, to friendship, to civil and religious liberty...

...In an incredible definition of a right of privacy, the Court has held that no laws may be passed prohibiting the taking of human fetal life in the first six months of its existence...

...There are two messages conveyed to society under the Supreme Court's ruling...

...PROTECTING THE UNBORN PAUL RAMSEY How do we as a people determine the outer limits o| humcm community...

...At the same time, the law's purpose is to serve as a bulwark for human rights...

...III Although some representatives of the pro-life movement are seeking to prohibit abortions by constitutional amendment, the prohibition of abortions in our society demands careful detail and an ability to amend the law not possible in the Constitution of the United States...

...Although law aims at the common good, in which the protection of human life is primary, law, often enough, can achieve its ends only imperfectly and inadequately...

...The special concern of law is the area of justice, of the claims we have on others and the claims they have on us...

...after this, as Paul Ramsey puts it, only growth is to come...

...Such has been the speed of change, however, that laws permitting therapeutic abortions, which had been adopted in a number of states, were left behind in New York in 1970, when New York's law was amended to allow abortion on demand in the first 24 weeks of pregnancy...

...It concerns, therefore, the bonds of our society and our respect for life...

...He is past president of the American Society on Christian Ethics and former president of the American Theological Society...

...That an issue of llfe and death is a difficult, even agonizing one is all the more reason why society must continue to face it through law, lest we abdicate our morality and our justice...

...In continuing to insist on the sanctity of human fetal life and its claim to justice, the pro-life forces have done this country, it seems to me, an inestimable service...

...Abortion concerns law because law's function is to ensure that justice is done, especially at the basic level of the right to life...

...Then in January 1973 the Supreme Court of the United States adopted a constitutional position on abortion which was even more permissive than that of New York...

...We are in that situation now, and nothing could illustrate more clearly the difference between morality and law...

...Such laws, it seems to me, not only can be supported by those who hold all abortions to be wrong, but there may even be a duty to support them in the present circumstances...

...Such a law would not require the precision of moral argument, but would be based upon a general consensus that there is a crucial difference be31 May 1974:306 tween the rudimentary stages of fetal life and the more fully developed fetus...

...The second, more commonly held idea is one that considers the claims of fetal life along with the mother's health, or the problems caused by rape, or the birth of a seriously defective child (the most troubling moral issue of all, since it weighs the value of the child himself...

...Law's concern is with justice because law can regulate our actions, by which we render what we owe to another in justice, or by which we do another an injustice...

...These claims call for actions or forbearances which we owe to others and which are in turn owed to us...

...There are odds against the success of such efforts, of course...

...There legal position must reject the taking of life on demand and substitute a concern for the protection of life even when it concedes areas of private decision in the early stages of pregnancy and allows abortion of the more developed fetus when there are serious reasons...

...The protection of the life and health of the American people through criminal laws, furthermore, has been assigned in the first instance to the fifty states, not to the federal government...

...This occurs at the end of the second month...

...for doing so...

...Holders of the stricter moral position on abortion often exhibit a horror of legal compromise, while those who take a more relative position have shown too little appreciation of the need for legal safeguards to protect human fetal life...

...Most Americans would not agree to an outfight ban on all abortions...

...It is at the law's base, however, that moral and legal justice are most closely related...

...Their position, nevertheless, has sometimes mistakenly equated moral principles with law...

...The law would decide that certain abortions are prohibited, not that those excepted are encouraged...

...If this distinction between the limited prohibition of abortions and their encouragement was ever unclear, recent events have clarified it...

...The second message is that almost all abortions are legally and morally respectable because a person's constitutional right to terminate a pregnancy outweighs the claims of the fetus...

...Legally, the argument supports the drawing of a line which would not attempt to restrict abortions at the earliest stages of pregnancy, but which would restrict abortions at the later stages, from the fourth month forward, for instance, at which stage the fetus has for some time possessed the physical characteristics of the human infant...

...Today, after the Supreme Court's decision, disregard for human life runs high...

...The first message, conveyed by the hundreds of thousands of unrestrained abortions under that decision, is that human fetal life is of little or no value and that respect for human life itself is in question...

...I hope we would do the same in the (more likely) event that physicians began to declare people dead not on the basis of brainstem death (the current "up-dating"), but when there is only cessation or destruction of the higher cortical functions of the brain (thus certifying as corpses for burial or for organ donation bodies whose hearts still 31 May 1974:308...

...The real question for holders of the stricter moral position on abortion is not whether a narrow exception can be allowed, but whether more liberal abortion laws, allowing for abortions in the first few months of pregnancy, or for therapeutic abortions, can be allowed...

...These laws would find their justiCommonweal: 307 fication in a common moral sense that the sanctity of human life is involved in abortion, especially when the fetus has developed...

...For some of the justices at least, one of the reasons was the perception, shared by most of us, that abortion is a difficult issue for society...

...Law, in relation to the moral problem of abortion, has intrinsic limitations...

...The stricter moral position on abortion holds that the taking of fetal life, from the moment of conception, is an abomination...

...To allow these mutual rights to be accepted or rejected at the will of any private party would contradict their nature as rights and would destroy the bonds of society, putting in jeopardy all of human life and its achievements...

...Many Americans, women especially, may come to accept the Supreme Court's view that abortion is a matter for the personal decision of the woman...

...The exact status and claims of fetal life and the moral right of a woman to terminate her pregnancy have been difficult questions for the human race...

...State laws should also require stricter standards for ascertaining the age of the fetus, since it is now too easy to abort a viable fetus because of a mistake as to its age...

...Vatican II, for instance, deliberately avoided that question in condemning abortion...

...The Supreme Court has rejected this principle as it would apply to the rights of human fetus...

...In the unlikely event that physicians began to allow people to die all the way through to the end of cellular life (until hair and nails stopped growing) we would find ways of telling them that is not what we mean by the difference between a still living human being and a corpse...

...To give an instance, even state laws of the past provided for exceptions when the abortion was necessary to save the life of the mother...

...Although law need not treat the human fetus in all respects and at all stages of development as having the same legal rights as a human infant, the human fetus, especially in its later development, shares too many of the characteristics of human existence to leave its life or death solely to choice of private persons...

...The holders of this position are the people who have acted most responsibly, in my opinion, to protect human life ever since the reform of abortion laws became an issue...

...He is one o/ the ]ew non-pro[essionals elected to membership in the Institute of Medicine of the National Academy of Sciences...

...If in the stricter moral view all abortions are a grave injustice and a threat to respect for human life in our society, still it may be possible to reduce the taking of human fetal life and to utilize the law as a symbol that fetal life has a claim to our protection...

...They are the subject of disagreement among the great religious traditions in our society, as the Court noted...

...The position does not rest, as the Supreme Court seemed to suggest, on the religious belief that ensoulment begins at conception...

...These principles show, first, that the stricter moral position on abortion, identified principally with Roman Catholics, does not require an equally strict position on laws restricting abortions...

...This position also demands the aid of law...

...It is more than possible that legal efforts will fail in the face of the great obstacles raised by the Supreme Court's ruling on abortion and that efforts to prevent and reduce abortions will have to be confined to a moral and social sphere apart from law...

...In the most recent example of this, the four American Cardinals, testifying before a Senate committee, rejected Senator Buckley's proposed constitutional amendment to prohibit abortions because it allowed for abortions necessary to save the life of the mother...

...Protestant theologians such as James Gustafson and George Williams have agreed that the taking of fetal life is a grave and even agonizing moral issue, but they have also found the stricter moral position to be too narrow, centered as it is on the value of fetal life without regard to other moral claims and values, of the mother especially, which may be involved in the decision to terminate a pregnancy...

...These are judgments about the best factual evidence...

...Secondly, however, concern for justice and human life in our society demands that society seek to prevent or reduce through law the taking of human fetal life...

...FATHER DANIEL A. DEGNAN, S.J., iS a Pro]essor o] Jurisprudence at Syracuse University Law School...

...What we do or allow to be done to the fetus concerns our willingness to render justice to another...

...Law is a coercive human instrument, not something written by God...

...Laws should be drawn to test the parameters of the Supreme Court's ruling, especially the period of six months when no restrictions can be placed on abortions, and the permissive standard for abortion in the three months before birth...

...The constitutional amendment could founder on the state legislatures' reluctance to have this question returned to them...

...In the final three months of fetal life before birth, laws can go so far, in the Court's words, as to proscribe abortions, but the same laws must allow abortions any time a woman's physician decides that her health, mental or physical or even social, requires it...

...Under it, there are no legal protections through two-thirds of the fetus' life, while in the three months before birth the court-imposed indication for an abortion is no more than a single doctor's judgment...

...LAW, MOrtALS AND ABORTION DANIEL A. DEGNAN Alternatives in Ught of the Supreme Court's decision In any discussion of the law and morality of abortion in this country, the Supreme Court's ruling of last year slams shut like an iron door...

...Morally, arguments can be made to support the judgment that in the earliest stages of gestation there is as yet no human body adequate to sustain the existence of the human individual or person...

...In any event, the difficulty of amending the Constitution and disagreement over the proposals would seem to doom these efforts...

...The choice today is between living under the Supreme Court's ruling and attempting to overturn or modify it in order to enact moderately restrictive abortion laws...

...Among his publications in the area of medical ethics are Fabricated Man: The Ethics of Genetic Control and The Patient as Person: Explorations in Medical Ethics...

...Physicians are our deputies in applying the criteria for stating that a man has died...

...Today, rejection of all abortions rests upon the value of the potential human person which is the fetus...

...2) a common position, shared by as many Americans as possible, in laws which would allow for some abortions, but which would attempt to restrict the taking of fetal life in both the middle and later months of pregnancy...

...This article is based on written testimony recently presented to the subcommittee of the Senate ]udiciary Committee holding hearings on the various abortion amendments...

...Until recently the proposals were seen, quite accurately, as an attempt to relax both legal and moral standards concerning the taking of human fetal life...