The Right of Abortion

Absolutely excluded

So why do the abortion laws stay on the books? One reason is the apparent inability or unwillingness of those who advocate population limitation to see the connection. (This does not apply to Planned Parenthood-World Population, which in November, 1968, passed resolutions calling for repeal of the abortion laws in support of its declared policy of voluntary parenthood.)

By 1968, almost all the major religious groups in the United States except the Roman Catholic Church were on record in favor of abortion-law reform or repeal. The American Baptist Convention and the Universalist/Unitarian Church came out for total repeal. And public opinion polls demonstrated that a majority of people, including a majority of the Catholics asked about the issue, favored at least some liberalization of the laws. But the opposition of the Catholic Church is potent and well organized. The Church holds that the fetus is "ensouled" at conception. In his encyclical Humanae Vitae in July of 1968, Pope Paul said, "We must once again declare that the direct interruption of the generative process already begun and above all, directly willed and procured abortion, even if for therapeutic reasons, are to be absolutely excluded as licit means of regulating birth."

To this unequivocal statement—which is, of course, not the law in any American state, since all states permit abortion at least to save the life of the mother—the Pope adds an "Appeal to Public Authorities." He says, "To Rulers, who are those principally responsible for the common good, and who can do so much to safeguard moral customs, we say: Do not allow the morality of your people to be degraded; do not permit that by legal means practices contrary to the natural and divine law be introduced into that fundamental cell, the Family....May all responsible public authorities—as some are already doing so laudably—generously revive their efforts." I submit that insofar as this is an appeal to Catholic officials in this country, it must clearly be disregarded, because it is inconsistent with the laws of the land.

By issuing such an "Appeal to Public Authorities," the Pope has placed in a very difficult position those Catholics who occupy public positions in this or in any country where separation of church and state is constitutionally or otherwise basically guaranteed. They must choose, for example, when it comes to abortion for the therapeutic reason even of saving the life of the woman between their obligations to their church and their obligations to their state. This leads to the question whether as a matter of law Catholic doctors and Catholic hospitals which follow the teachings of the Pope are practicing sectarian medicine. If I am right that they are, then they are infringing the American Medical Association's canons of ethics, which prohibit the practice of sectarian medicine:

"In order that a physician may best serve his patients he is expected to exalt the standards of his profession and to extend its sphere of usefulness."

"To the same end, he should not base his practice on an exclusive dogma, or a sectarian system, 'for sects are implacable despots: to accept their thralldom is to take away all liberty from one's action and thought.' A sectarian or cultist as applied to medicine is one who alleges to follow or in his practice follows a dogma, tenet, or principle based on the authority of its promulgator to the exclusion of demonstration and scientific experience."

Richard Cardinal Cushing said some time ago with reference to birth control: "Catholics do not need the support of civil law to be faithful to their own religious convictions and they do not seek to impose by law their moral views on other members of society." Perhaps it is because of their awareness of the impossible legal position the present stand of the Pope forces on Catholics who are lawmakers, law interpreters, or law enforcers, that such leading Catholic legal scholars as Father Robert Drinan, dean of Boston College Law School, have called for total repeal, rather than amendment, of the abortion laws of all states. They claim that since to Catholics all abortions are unacceptable, the state should keep hands off the subject rather than decreeing that some abortions are legal and some not. Catholics should, of course, be allowed to follow their own convictions in this area, but so surely should the rest of us.

To the extent also that doctor and hospital adherents to the Pope's Encyclical are the recipients of public funds, they may be afoul of our First Amendment guarantees of religious freedom and anti-establishment of any church. And finally, if for sectarian reasons they withhold a procedure which in any given situation would be regarded as the proper medical response to the problem presented, they may be guilty of civil and criminal malpractice unless they at least explain to the patient their sectarian reasons for withholding the treatment so that the patient can go elsewhere if she chooses.

It would seem that abortion-law reform—and better, repeal—is an idea whose time has come. It is more than time that it be supported by all those who want to slow down our population growth rate without resorting to coercion or compulsion. As Secretary-General U Thant and many of the UN agencies have repeatedly said, "The opportunity to decide the number and spacing of children is a basic human right." Until such time as we have a perfect contraceptive universally available and invariably used, voluntary abortion should be infinitely preferred to compulsory sterilization or compulsory birth control, and that may well be the choice.

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