Abortion before the court

The U.S. Supreme Court will consider the issue of abortion for the first time in three years:

The U.S. Supreme announced today that it will hear the petition filed by June Medical Services, a Louisiana abortion business, and the cross-petition filed by the State of Louisiana. The cases provide the Court with the first opportunity to speak to the abortion issue since the Hellerstedt decision three years ago, and potentially the continued viability of the constitutional right to abortion announced in Roe v. Wade (1973) and affirmed in Planned Parenthood v. Casey (1992).

“Americans United for Life welcomes the Supreme Court’s decision to review both the commonsense Louisiana admitting privileges law and the legal question whether an abortionist should be able to stand in the shoes of his patients to challenge a medical requirement that is designed to protect them from him,” said AUL’s President, Catherine Glenn Foster. “Louisiana’s long and sordid history of dirty and dangerous abortion businesses being shuttered one by one in order to protect women from fly-by-night and dangerous abortionists should tell the Court all it needs to know, both about the legal benefits of this law and the dubious right of abortionists to sue to overturn laws designed to protect their own patients.”

June Medical’s petition seeks review of the constitutionality of a Louisiana law requiring all abortion doctors to have admitting privileges – the ability to directly admit a patient from the abortion clinic into a nearby hospital when emergencies arise – within thirty miles of their abortion facility. The U.S. Supreme Court held a similar Texas provision unconstitutional in Whole Woman’s Health v. Hellerstedt in 2016, but did not rule on the overall validity of such provisions. Louisiana now argues that since its admitting privileges law would leave abortion centers open in both population centers in the state, it does not create an “undue burden” on abortion access in Louisiana in violation of Casey.

Abortion law has been a mess for decades. We’ll see how things look in 6-9 months.

‘Life begins with breath’

Clarke Forsythe writes on Mayor Pete Buttigieg’s attempt to hand-wave away the issue of abortion by, of all things, invoking the Bible:

Democratic presidential candidate Pete Buttigieg appeals to Scripture to defend his opposition to restrictions on abortion. “There’s a lot of parts of the Bible that talk about how life begins with breath,” he told a radio audience Sept. 5, adding that no matter what anyone thinks about “the kind of cosmic question of where life begins,” it ought to be up to “the woman making the decision.” …

Mr. Buttigieg’s religious musings obscure that America’s legal tradition—going back to the English common law—has long protected unborn children to the greatest extent possible given existing medical understanding. As Justice James Wilson noted in the 1790s, “With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction but from every degree of actual violence, and, in some cases, from every degree of danger.”

Rulings from as long ago as the 17th century show that English common law prohibited abortion at the earliest point that medicine could detect that a developing human was alive (the stethoscope wasn’t invented until 1816). English and American law subsequently prohibited abortion at earlier points during pregnancy, as medical understanding and technology allowed.

We know scientifically when human life begins—when the process of human development starts. What we need is the ethical and legal and judicial courage to protect human life comprehensively based on what we know to be true—and based on what is consistent with our own social/moral tradition as Clarke outlines it.

Roe and abortion in American life

Catherine Glenn Foster, President & CEO of Americans United for Life, appeared at the National Constitution Center in Philadelphia tonight.

I left Washington mid-afternoon and caught a train from Union Station to Philadelphia to be there for the hour-long conversation—ostensibly about Roe v. Wade, but in fact about whether abortion represents a public good, and whether the Supreme Court should be made to preserve abortion as America’s most controversial public policy.

It’s worth watching as an introduction to two diametrically opposed factions in American life: one faction that ignores the scientific and embryological facts concerning what abortion itself is and does and is concerned with its utility as an alleged means of empowerment, and the second faction which views abortion as fundamentally incompatible with the constitutional human right to life as much as it is incompatible with justice and equality.

I was disappointed by how much politics and elections drove the conversation among the former faction, and was encouraged that Catherine Glenn Foster was able to move the conversation toward the more important teleological questions behind abortion-as-public-policy.

Unreasonable foreign assistance

Lauretta Brown of National Catholic Register reports on the increasing push amongst Democrats to make it a priority for American tax dollars to fund optional, non-medically indicated abortions for foreign nations. I’m quoted in the piece:

As the 2020 Democratic presidential race heats up, many of the candidates have called for the repeal of a long-standing ban on the use of U.S. taxpayer funds for abortion overseas.

Seven of the 2020 Democratic presidential candidates recently confirmed their opposition to the Helms Amendment, including Sens. Elizabeth Warren of Massachusetts and Cory Booker of New Jersey, entrepreneur Andrew Yang, author Marianne Williamson and former Texas Rep. Beto O’Rourke.

Permitting taxpayer dollars to fund abortions overseas also was included recently on the wish list of a coalition of abortion groups and was added to the Democratic Party platform in 2016.

The Helms Amendment, named for its author, the late Sen. Jesse Helms, R-N.C., says that “no foreign assistance funds may be used to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortions.” It was enacted as a permanent amendment to the Foreign Assistance Act of 1973 shortly after abortion was legalized in the Supreme Court’s Roe v. Wade decision. …

Tom Shakely, the chief engagement officer at Americans United for Life, agreed, telling the Register that the 2020 Democrats were making an extreme break against long-established bipartisan bans on taxpayer-funded abortion.

“When Roe was imposed on America in 1973 by seven men on the U.S. Supreme Court, elected officials responded by making clear that no American taxpayer would be expected to fund abortion overseas and that no taxpayer dollars could be used to either coerce or motivate anyone to perform abortions overseas,” he emphasized. “That’s what the simple, commonsense Helms Amendment makes clear.”

“It has been the American consensus for nearly a half-century, and it’s a sign of the needless extremism of our time that some politicians believe that trashing the Helms Amendment and spending precious American tax dollars to promote abortion internationally makes any fiscal or ethical sense,” he said.

Reasonable foreign assistance can take many forms, but never abortion or other forms of violence or encouraged self-harm.

World Suicide Prevention Day

Leonardo Blair of Christian Post reports on the issues of suicide and suicide prevention, in light of World Suicide Prevention Day. I’m quoted in the piece, pointing out that America is taking an incoherent position on the issue of suicide prevention—discouraging some forms of suicide, while legalizing and promoting other forms of suicide:

According to the World Health Organization, nearly to 800,000 people die due to suicide every year. That’s one person taking their life every 40 seconds. Studies also show that for every adult who died by suicide there might have been more than 20 others attempting suicide.

In 2017, the Centers for Disease Control and Prevention reported that suicide was the tenth leading cause of death overall in the United States, claiming the lives of over 47,000 people. Among individuals between the ages of 10 and 34, it was ranked as the second leading cause of death and the fourth leading cause of death among individuals between the ages of 35 and 54. There were also twice as many suicides as there were homicides that year.

As the world marked Suicide Prevention Day on Tuesday, suicide prevention advocates like Tom Shakely, chief engagement officer of Americans United for Life, called attention to the rise in physician-assisted suicide laws that allow terminally ill people to end their lives with a prescription from their doctor.

On Sept. 15, Maine is expected to become the ninth state to allow physician-assisted suicide, joining New Jersey, Oregon, Washington, Vermont, Montana, California, Colorado and Hawaii, as well as the District of Columbia.

“When we lose a loved one to suicide, we lose someone who belonged in our world and in our lives. We live with the unresolvable grief and trauma of the loss, even as we encourage those wrestling with thoughts of hopelessness that where there is life, there is hope,” Shakely of Americans United for Life, a pro-life nonprofit, public-interest law and policy organization, said in a statement to CP.

“At this critical time in our nation, we have to do better for all our vulnerable brothers and sisters, and recognize that if we continue to make certain forms of suicide lawful, particularly suicide by physician, we send a terrible message to some members of the human family that they are owed some measure less of suicide prevention than others. We must do better,” he added.

Cain was spared by the God of justice

In light of the U.S. Department of Justice’s decision to reinstitute the death penalty for those on federal death row, Archbishop Charles J. Chaput is circulating past remarks of his on capital punishment, calling us to do better:

The evidence against capital punishment demonstrates that innocent people are sometimes convicted and executed; that our legal system discriminates against minorities and the poor; and that defendants in many states get disastrous legal counsel unless they can afford otherwise. All these things seem to be true — but let’s ignore them.

Instead, let’s assume that a defendant is genuinely guilty of a brutal and premeditated murder; that he or she gets excellent legal counsel with correct due process; and that a fair jury convicts our defendant after careful and intelligent deliberation.

Killing the guilty is still the wrong choice for a civilized nation. Why?  Because it accomplishes nothing.  It does not bring back or even honor the dead. It does not ennoble the living. And while it may satisfy society’s anger for awhile, it cannot even release the murder victim’s loved ones from their sorrow, because only forgiveness can do that.

What the death penalty does achieve is closure through bloodletting, and violence against violence — which is not really closure at all, because murder will continue as long as humans sin, and capital punishment can never, by its nature, strike at murder’s root. Only love can do that.

Executions in Texas averaged nearly two a month in 2004.  Ponder that through the eyes of a young person reading the newspaper.  Is this how we define ourselves as a God-fearing people? Is this really a fitting monument to murder victims?  In “sending a signal” to would-be murderers, do we realize that we are also teaching a message of state-endorsed violence to our own children?

The reality of any homicide is heart-breaking beyond words. We cannot presume to understand the deep and bitter personal wounds suffered by those who lose their loved ones through murder. As a people, we must never allow ourselves the luxury of forgetting the injustice done to victims of murder who cannot speak for themselves—or our obligation to bring the guilty to full accounting.

But as Jesus showed again and again by his words and in his actions, the only true road to justice passes through mercy. Justice cannot be served by more violence. In the world of 2005, capital punishment has become just another narcotic we Americans use to ease other, much deeper anxieties about the direction of our culture. Executions may take away some of the symptoms for a time (living, human “symptoms” who have names and their own stories before God), but the underlying illness — today’s contempt for human life — remains and grows worse.

In Genesis 4:10-16, humanity’s first murderer — Cain, the man who brought bloodletting into the world — was spared by the God of justice.  We should remember that.  God’s ways are not our ways; they are wiser and better.  God’s heart, unlike ours, is driven by love, not anger.  A culture ultimately defines its moral character by the value it places on each human life, particularly those lives that seem most burdensome, inconsequential or unworthy. Violent criminals present an especially harsh moral challenge for us, because their own cruelty has forced them to the margins of society. Recognizing a criminal’s humanity is bitterly difficult when our hearts are clouded by pain.

But the same needle that poisons the killer in every [execution] also poisons us as a culture.  Repaying cruelty with cruelty does not equate to justice.

“The Department of Justice is simply enforcing the law, our law, passed by our elected representatives,” Chaput concludes. “Which means that all of us, as citizens, are implicated in the coming executions. We can do better as a nation. For the sake of our own moral integrity, we need to do better.  We need to abolish the death penalty now.

On Leana Wen’s ouster

Dr. Leana Wen was forced out as Planned Parenthood leader this week, as a result of their board determining that Dr. Wen’s vision of Planned Parenthood as a comprehensive healthcare provider risked compromising their commitment to abortion. Catherine Glenn Foster, President & CEO of Americans United for Life, issued this statement:

“Planned Parenthood has long claimed that healthcare encompasses the intentional killing of unwanted human persons, and Dr. Leana Wen—despite her brief eight-month tenure—has consistently traded on her training as a physician to perpetuate Planned Parenthood’s falsehood that ‘abortion is healthcare’. The pro-life movement is continuing to rack up legal victories at the state and federal levels, and we have every intention of building on those victories until we reach a post-Roe v. Wade era, and we will do that no matter who is leading America’s deadliest non-profit.”

And I offered the following thoughts on Dr. Wen’s departure, which still strikes me as a strange strategic decision in advance of an election year:

“What Planned Parenthood’s board leadership has done,” stated Tom Shakely, Chief Engagement Officer at Americans United for Life, “is simply to confirm that Planned Parenthood is solely and ideologically committed to abortion—not comprehensive care, not patient outcomes, and certainly not authentic medicine. Planned Parenthood is a single-issue organization whose most desired outcome is the ending of the lives of their most vulnerable patients—developing members of the human family.”

“We earnestly hope that Leana Wen herself is led to a conversion of heart on the fundamental human right to life. She would be a powerful witness for the capacity of all persons to recognize the truth of a difficult issue, and serve as advocates and protectors of vulnerable human persons.”

 

Constitutional persons

Calvin Freiburger writes on Joshua Craddock’s 2017 piece in the Harvard Journal of Law and Public Policy, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”:

Pro-lifers and honest pro-abortion legal scholars agree that Roe v. Wade was wrongly decided. But just how wrong is it? Is it bad law solely because it declares a right to something the Constitution is silent about, or does its judicial malpractice run deeper? …

The first key point of Craddock’s work, critiquing the late, great Justice Antonin Scalia from the right, is an audacious undertaking, but here it’s warranted. You see, while Scalia was a committed originalist and clear opponent of Roe, he was also of the opinion that the Constitution is neutral toward abortion – that its use of the word “persons” “clearly means walking-around persons,” and therefore, states should be left free to set whatever abortion laws they want. Craddock notes several other pro-life judicial originalists who hold (or held) this view, though Scalia is the most recent and most revered modernly.

Craddock concedes that there is some basis for this thinking because “natural rights were not exhaustively enshrined in the federal Constitution” and “states have traditionally decided the question of personhood.” However, he rightfully maintains that a truly originalist answer to the question has to consider what the word “persons” was understood to mean when the Fourteenth Amendment was written and ratified.

He proceeds to explain that layman’s dictionaries treated the concepts of humanity and personhood interchangeably, and so did legal terminology – more explicitly so, in fact. As we’ve discussed in the past, Craddock notes that Blackstone expressly recognized that personhood and the right to life existed before birth with a simple and clear legal standard: “where life can be shown to exist, legal personhood exists”…

Two patients, or one?

Dr. Darrell Cass recently led a successful pre-birth surgery on a child at 23 weeks:

Cleveland Clinic has successfully performed its first in utero fetal surgery to repair a spina bifida birth defect in a nearly 23-week-old fetus.

A multispecialty team of clinicians performed the surgery in February, and the baby, a girl, was later delivered by caesarean section near full term June 3, making it northern Ohio’s first surgery of its kind. Mother and daughter are doing well. …

Spina bifida is a birth defect that is most often discovered during the routine anatomy scan typically performed when a fetus is around 18 weeks old. The condition affects the lowest part of the spine and occurs when the neural tube does not fully close, causing the backbone that protects the spinal cord not to form as it should. This often results in damage to the spinal cord and nerves and can even lead to brain damage.

Spina bifida can affect a child’s lower leg strength and their ability to walk and run, as well as their ability to go to the bathroom and urinate adequately. According to the CDC, approximately 1,645 babies are born with spina bifida each year in the United States.

During the fetal repair surgery, a caesarean section-like incision is made and the mother’s uterus is exposed. An ultrasound is then used to locate the placenta and fetus. The uterus is opened 4.5 cm and the back of the fetus is exposed, showing the spina bifida lesion. The surgeons then carefully suture several individual layers of tissue (myofascia, dura and skin) in order to cover the defect. After the uterus is closed back up, the fetus remains in the womb for the remainder of the pregnancy and is ultimately born by caesarean section.

“By successfully repairing the defect before birth, we’re allowing this child to have the best possible outcome and significantly improve her quality of life,” said Dr. Cass.

When a member of the human family, like this child, is wanted by her mother, we call this child a patient—and our physicians care for the child as a patient whose worth is equal to mother and father. But when a member of the human family is unwelcome, we call that child a fetus—and sometimes even a parasite—and our physicians do not care for the child as a patient, but instead intentionally kill in order to enforce the demands of the comparatively powerful over the comparatively weak. This describes not a humane or compassionate society, but rather one wherein violence has come to be seen as acceptance and even ethical.

If we only have worth because we are wanted, then none of us possess any inherent value. And if this is true, there is no coherent basis for such a thing as human rights.

There are always two patients in the case of a mother pregnant with her child. What varies is not the reality or unreality of the second patient; what varies is our interest in acting as if human rights were either real, on the one hand, or merely a sometimes convenient fiction, on the other.

Noa Pothoven’s suicide

Ross Douthat writes on the suicide of 17 year-old Noa Pothoven:

In the Netherlands, a depressed teenager … committed suicide at home, starving herself while parents and doctors offered palliative care. …

It remains shocking that a young woman’s parents and doctors would give up on treating her at seventeen and let her kill herself. And it remains shocking that Western nations are normalizing euthanasia for mental illness among otherwise healthy adults. …

When such a system emerges as a seemingly organic feature of the liberal order, what then should be your attitude toward liberalism itself? …

Liberalism has never done as well as it thinks at resolving its own crises. America’s gravest moral evil, chattel slavery, was defeated by an authoritarian president in a religious civil war, not by proceduralism or constitutional debate. The crisis of the 1930s ended happily for liberalism because a reactionary imperialist withstood Adolf Hitler and a revolutionary Bolshevik crushed him. The liberal peace that followed may depend on fear of the atomic bomb.

All of which hints that a genuinely post-liberal politics might, indeed, someday be required — to save liberal civilization from dystopia or disaster. The post-liberalisms presently on offer are not as serious as either their advocates hope or their critics fear. But if you cannot imagine ever being a post-liberal, left or right, you are not being serious either.

It couldn’t be clearer to me that the logic behind pro-suicide laws in the United States, which claim to be interested only in permitting suicide for those near death and with a terminal illness, will in time result in lawful suicide for practically anyone, in any condition. When a teenager’s suicide is affirmed and facilitated by both her family and the state, that’s a good indicator that the society has lost its ability to distinguish justice from injustice.