Unsettled law

Clarke D. Forsythe writes on Roe v. Wade’s 46th anniversary:

The U.S. Supreme Court’s 1973 opinion in Roe v. Wade is as controversial today as when it was first decided. … It is unsettled today for numerous reasons, but three stand out: the extreme scope of the court’s nationwide legalization of abortion; the inherent defects that the Supreme Court recklessly built into Roe; and the persistent pressure of the cause for life year after year, which has aggravated Roe’s contradictions.

Roe’s abrupt legalization of abortion throughout America ignited the campaign against it — but successfully overturning Roe will require understanding and emphasizing the defects of the decision. Many of these defects are hidden below the surface of the court’s opinions in Roe and the important companion case, Doe v. Bolton, which was decided the same day. Neither Roe nor Doe had any trial or evidentiary record about abortion, its risks or its implications. Without such evidence, the justices floundered in their understanding of basic scientific and legal questions, and stumbled into a number of egregious mistakes:

1. The justices ignored our legal heritage of protecting the lives of developing human beings to the extent allowed by medical knowledge. …

2. The justices overlooked the growing science of fetology that was underway. Well-documented briefs were filed showing the growing medical data on fetal development. Dorothy Beasley, the attorney representing Georgia in Doe v. Bolton, told the justices in December 1971 that “the State has a greater obligation to protect that fetal life” than ever before. “There are more methods now that can be used to protect it,” she added, “including blood transfusions and surgery while it’s still in the womb.”

Unfortunately, Justice Harry Blackmun’s majority opinion in Roe casually dismissed the science and “the well-known facts of fetal development,” and instead stated, “We need not resolve the difficult question of when life begins.” …

3. Roe had no foundation in precedent, as numerous legal scholars have recognized.

4. The justices relied on falsehoods about the relative safety of abortion. Anxious for anything that would support their decision, they cited unreliable data about abortion safety from Soviet Bloc countries dating back to the 1950s. Despite the lack of evidence, the justices adopted a mantra — that abortion was safer than childbirth — and that premise shaped major planks of Roe and Doe, including broad deference to abortion providers. …

5. The justices ignored a critical distinction about personhood: Whether or not he or she was recognized as a constitutional “person” and specifically protected against the states by the Fourteenth Amendment, the unborn child was recognized as a human being and increasingly protected against private action by property, tort and criminal law.

Through the briefs and oral arguments, the justices were informed about legal developments that protected the unborn child from conception. As one federal court wrote in 1946, “From the viewpoint of the civil law and the law of property, a child en ventre sa mere [in the mother’s womb] is not only regarded as a human being but as such from the moment of conception — which it is in fact.” …

6. The justices arbitrarily chose fetal viability as the measure of legal protection, despite the fact that viability was not historically the standard of fetal protection. Listen to the original oral arguments in Roe and Doeat www.oyez.org: The word “viability” was never mentioned once in four hours of argument. No party or organization urged the court to extend the abortion “right” to viability or beyond. …

7. The companion case of Doe v. Bolton, decided with Roe, radically expanded the “abortion right” throughout pregnancy. The court required the 50 states to allow abortion “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” At the same time, it defined the “health” exception as “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.” Thus, Roe and Doe set the United States apart as 1 of only 4 nations (of the nearly 200 across the globe) that allows abortion for any reason after fetal viability, and 1 of 7 nations that allows abortion for any reason after 20 weeks.

In the years since Roe v. Wade, obstetric ultrasound machines and other medical and technological developments have permanently changed public understanding about fetal development. Year after year, states have enacted more comprehensive legal protection of the unborn, from conception, in prenatal injury law, wrongful death law and fetal homicide law. …

Abortion is an elective procedure, and in the vast majority of cases it is chosen for socioeconomic reasons. It is not “health care.” Unsafe, a 2016 report by Americans United for Life, documented that 227 abortion providers in 32 states were cited for more than 1,400 health and safety deficiencies between 2008 and 2016. …

In 1992, in Planned Parenthood v. Casey, a majority of the court abandoned the false historical rationale for abortion in Roe but replaced it with the claim that American women need abortion for equal opportunity in society (“reliance interests”). But that claim, too, was flimsy, and factual and legal changes are challenging the court’s assumptions.

Now, for the first time in a quarter century, the court does not have a majority of justices who are invested in Roe as their legacy. Substantial momentum against this legacy has been built through the many efforts in the cause for life, including state legislation, public education and compassionate services to women and their children. As this momentum is reinforced by political victories and pro-life work, expectations are increasing that Roe’s days are numbered.

Clarke Forsythe’s “Abuse of Discretion: The Inside Story of Roe v. Wade” tells the full story of Roe and the seven men who imposed unlimited abortion in every state.

Spotlighting the ‘whole life’ ethic

Ashley Fetters writes on “secular, liberal pro-lifers at the March for Life”:

On Friday morning, a few hours before the start of the March for Life—the 46th-annual event held to commemorate the Supreme Court’s Roe v. Wade decision and to call for its repeal—banners waved above the heads of some 60 people gathered on the wet, slushy grounds of the National Mall. Consistent Life Network: … End Abortion, End Poverty, End Racism, End War, read one. Secular Pro-Life: For the embryology textbook tells me so, read another—a sly riff on the “for the Bible tells me so” refrain of the Christian hymn “Jesus Loves Me.” Protesters carrying signs (Destroy the patriarchy, not the preborn) and wearing buttons (War is not pro-life) stood in the cold listening as a teal-haired atheist with a nose ring addressed the crowd that had gathered: Why, she asked, if it is wrong to kill a person who’d been born already, would it be okay to kill a person who hadn’t yet?

The #ProScienceProLife meet-up, this year’s title for the gathering held annually ahead of the March for Life, served as a summit of sorts for groups such as Rehumanize International, the Consistent Life Network, Secular Pro-life, and Democrats for Life of America. These groups espouse something called the “consistent life” or “whole life” ethic—the belief that human life should be protected from violence and killing from the moment of conception onwards. So while these groups often protest abortion, they also protest police brutality, torture, war, human trafficking, and the separation of immigrant families.

The meet-up brings together some of the nontraditional pro-life groups at the march—that is, the nonconservative and nonreligious organizations—to hear a slate of speeches, many of them from nonreligious or left-leaning pro-life leaders. But Rehumanize International’s communications director, Herb Geraghty, takes care to explain that these aren’t meant to be counterprogramming efforts: “When we host these meet-ups, we’re not protesting the March for Life,” he says. He describes these events and the presentations given at them as supplementary to the main rally. …

But despite what the popular narrative might suggest—that the pro-life side of the abortion debate is conservative and the pro-choice side is liberal, and the two sides don’t like each other—secular and left-leaning pro-lifers I spoke with said they felt welcome at the March for Life, and that most of the time they feel welcome in the pro-life movement in general, too.

… Aimee Murphy, the executive director of Rehumanize International … told me she was heartened by the theme chosen for this year’s March for Life, “Unique From Day One: Pro-life Is Pro-science.” … The lineup of speakers did … include an equal number of Republican politicians and Democratic politicians this year (two each)—which Bill Samuel, the former president of the Consistent Life Network, sees as a positive development. Samuel, 71, has been attending the March for Life for more than 15 years, and he credits the march’s current leadership with making nonconservative and nonreligious pro-life groups feel welcome at the event.

I met Aimee Murphy at Notre Dame last summer as a fellow participant in the Center for Ethics & Culture’s Vita Institute, and appreciate what she’s doing with Rehumanize International.

March for Life 2019 scenes

I joined what was probably 200,000 or so today for the 46th March for Life in Washington, DC. Started the day with a breakfast with Democrats for Life, reconnoitered at The Willard hotel and joined the growing crowds on the mall. After the march, headed to the Americans United for Life reception on Capitol Hill.

In the evening, we headed to the National Press Club for a Notre Dame-hosted reception, and ended up finishing the night off with friends at the Dubliner.

Progress on ‘unresponsive wakefulness’

Richard Doerflinger writes on the American Academy of Neurology’s recently released guidelines on care for patients like Terri Schiavo:

Court cases involving patients like Nancy Cruzan, Nancy Ellen Jobes and Terri Schiavo have established a broad right to discontinue feeding and let patients in a vegetative state die of dehydration.

Now enters the American Academy of Neurology with new guidelines on treatment of these patients, developed along with other experts and the National Institute on Disability, Independent Living and Rehabilitation Research. This group’s findings and recommendations are game-changing:

  • A more descriptive term for “vegetative state” is “unresponsive wakefulness syndrome.” (This will be welcomed by families who don’t appreciate their ailing loved ones being compared to broccoli.)
  • There is a significant chance for rehabilitation (sometimes allowing patients to return home and resume employment) even in patients who have been in this state for a year or more, so “continued use of the term ‘permanent vegetative state’ is not justified.” The term “chronic” should be used, as it does not imply irreversibility. Protocols are recommended for enhancing the prospects for recovery.
  • Studies show that the likelihood of misdiagnosing the condition is about 40 percent. This includes cases where patients diagnosed as “vegetative” actually had locked-in syndrome, where they cannot respond but are fully aware (so presumably they can hear their doctors calling them vegetables).
  • One study found that 32 percent of patients with severe traumatic brain injury died in the hospital — but 70 percent of the deaths were due to withdrawal of life support, and such withdrawal had more to do with the facility where care was provided than with the severity of the symptoms.

In short, our medical system has been giving up on far too many of these patients, prematurely ensuring their deaths based on faulty diagnoses and self-fulfilling hopeless predictions.

Bobby Schindler and I wrote earlier this year on the increasing shift from describing brain injured persons as “vegetative” to instead experiencing “unresponsive wakefulness:”

What was essential in their recoveries from the standpoint of their families and caretakers was, first, a willingness to acknowledge a certain powerlessness — We cannot always make our loved ones better by our own power — and, second, a willingness to embrace uncertainty about their ultimate fate — Are they still really ‘with us’? Will they ever fully recover?— yet an even stronger willingness to live hopefully and with the sort of care that could provide an environment for life and for recovery.

Every person intuitively knows in his or her heart that what makes the special people in our lives so special is not what they do for us, but instead who they are. Every person who matters to us is a gift, always unearned, and often unexpected, whose particular value is incalculable and priceless.

Yet our medical culture is designed increasingly to also be an accounting culture, which necessarily introduces some temptation to view those for whom it was originally created to care unconditionally not as gifts, but as products.

In aggregate, this results in treating patients as a sort of raw human material whose potential future worth, just like a rising or falling stock, dictates their present value.

For example, unresponsively wakeful persons are not “attractive investments” in a profit-driven medical and accounting culture, and this means that families facing such a diagnosis will have to be particularly brave in providing the sort of safe havens and environments for potential recovery from which Terri Wallis, Martin Pistorius and Patricia White Bull each benefited in their own way.

For a society wishing to be humane, no “unresponsively wakeful” patient who is not dying can be allowed to fall victim to an imposed death of starvation and dehydration by removal of so-called “artificial” food and water. It is neither a natural nor a simple way to die.

Encouraging to see the American Academy of Neurology rejecting the sort of medicine-governed-by-accountants culture and But what can they do in this condition? thinking that has led to the deaths of Terri Schiavo and countless others.

Obianuju Ekeocha at Georgetown

Attended Obianuju Ekeocha‘s talk at Georgetown tonight. Uju is one of best pro-life advocates in the world, and having followed her for a while it was great to hear her speak and meet her for the first time. I was on a conference call on my way to the talk and unfortunately missed the first 10-15 minutes, but recorded the rest. I think Georgetown Right to Life streamed or recorded the entire talk. Uju riffed on some of the themes of her book “Target Africa: Ideological Neo-colonialism of the Twenty-first Century” and spoke with the joy and warmth that should mark every advocate of life.

Tonight was also my first time in Gaston Hall, finished around 1901 I think. What an incredible environment. The whole play conveys some of the best things about any real university: What you think matters. What you say matters. How you live matters.

Obianuju Ekeocha (Uju), the founder and president of Culture of Life Africa, has dedicated her life to promoting the sanctity of life, blessings of motherhood, and right to family. The youngest of six children, Uju was born in southeast Nigeria. She earned her Master’s degree in biomedical science from theUniversity of East London and her Bachelor’s degree in microbiology from the University of Nigeria. She served as a medical laboratory scientist with the University of Nigeria Teaching Hospital, and in 2006, she moved to the United Kingdom to begin her work as a biomedical scientist in hematology.

Culture of Life Africa facilitates numerous pro-life conferences and March for Life rallies in Africa. This has been made possible through Uju’s close affiliation with African members of Parliament, United Nations delegates, ambassadors, and decision makers on pro-life and pro-family issues.

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Autonomy of violence

Bobby Schindler articulates a view of autonomy that he and I have been talking through for a while, which is that an “autonomy of violence” and self-harm pervades life and ethics issues. He writes in CatholicPhilly.com about this, and includes a survey of practical examples around the world that’s worth looking over if you’re not familiar with what’s happening:

Attacks on autonomy and human dignity appear to be intensifying.

Autonomy, of course, refers to our ability to act as independent human beings, with an innate and inviolable human dignity inherent to each of us, regardless of our physical, medical, emotional, psychological, or financial circumstances.

It seems as if so many, however, are intent on reconsidering autonomy to mean something like an “autonomy of self-harm.” In other words, many are using autonomy as a means to advocate for forms of euthanasia and assisted suicide.

Yet autonomy has traditionally referred to human good; our ability and desire as well as power to achieve a good life in cooperation with our loved ones, neighbors, fellow citizens, and others. It’s a tragic and perverse situation to use autonomy as a rhetorical battering ram for advocating the rights of human beings to intentionally end their own lives.

As so much of our attention is focused on dramas of the political arena, stories which ought to be receiving attention are simply not. Certainly, meaningful public dialogue surrounding issues like autonomy and human dignity are not taking place in any sustained manner. …

Autonomy means nothing if we allow laws or medical perspectives to compromise the innate and inviolate human dignity each person possesses, regardless of their state of health. When someone is encouraged to accept euthanasia or assisted suicide, and even worse, when individuals are forcibly euthanized against their will or without consent, the power of law and medicine become weapons rather than shields.

No humane society can accept the normalization of intentional human killing.

In practice, we’re too often favoring a simplistic “might makes right” sort of ethics when it comes to life and death issues, where autonomy exists in a limited way—enabling a sort of “autonomy of the powerful” to impose themselves and their judgments on comparatively weaker persons.

The same thing, with white gloves

I missed the initial report last month when Pope Francis spoke bluntly about the use of abortion as a eugenic instrument:

Pope Francis on Saturday called the practice of having an abortion after pre-natal tests have discovered possible birth defects a version of Nazi attempts to create a pure race by eliminating the weakest.

Francis made the comparison in a long, off-the-cuff address to a members of a confederation of Italian family associations.

“Children should be accepted as they come, as God sends them, as God allows, even if at times they are sick,” he said.

Francis then spoke of pre-natal tests to determine if a fetus has any illnesses or malformations.

“The first proposal, in that case, is ‘Should we get rid of it’? The killing of children. And to have a more tranquil life, an innocent is done away with,” he said.

“I say it with pain. In the last century the whole world was scandalized by what the Nazis did to pursue the pureness of the race. Today, we are doing the same thing, with white gloves.”

Under Nazi eugenics programs, hundreds of thousands of people were forcibly sterilized and tens of thousands killed in an attempt to “clean” the chain of heredity of those with physical or cognitive disabilities.

Good for Pope Francis for speaking so clearly on this. Our individualistic, autonomy-cherishing, consumerist attitudes need these sort of gut-checks.

If we’re going to accept the logic that we can eliminate developing human persons due to predicted characteristics or disabilities, it’s hard to understand why we shouldn’t also accept Peter Singer’s logic that we should be able to eliminate born-but-undesired or born-but-ailing human persons for the same reasons.

And that would lead, certainly, to a freer and more autonomous society, but it would also be a liberty obtained by the strong at the expense of the weak in a society wherein no one’s rights are ultimately secure.

To Vita Institute

I’m in Charlotte right now on a layover, headed to Notre Dame for the next week or so. Notre Dame’s Center for Ethics & Culture is hosting its Vita Institute, which I’ll be a participant in this year. I attended Vita Institute’s New York one day seminar earlier this year, and that made participation in the full program attractive:

The Notre Dame Vita Institute is an intensive interdisciplinary training program for leaders in the national and international pro-life movement. Through engagement with our premier faculty, interaction with other pro-life leaders, and exposure to award-winning community outreach programs, the Vita Institute aims to further enhance participants’ expertise and prepare them to be even more effective advocates on behalf of the unborn.

Held for a week every summer on Notre Dame’s beautiful campus, this program is wholly unique: it provides participants with the opportunity to study the fundamentals of life issues with world-renowned scholars across a wide range of disciplines, including social science, biology, philosophy, theology, law, communication, and counseling. Lecture topics include:

  • The Personhood Debate in Contemporary Philosophy
  • Abortion Jurisprudence
  • Basic Human Embryology
  • Dos and Don’ts of Public Policy on Human Life
  • Helping the Abortion-Minded Woman Choose Life
  • Legislative Strategies for the Current Decade and Beyond

It’s often pointed out that the “right to life” is the right that makes every subsequent right possible. As a culture, we should be doing everything we can to support mothers and fathers facing unexpected pregnancies as much as we provide meaningful care for the aging, elderly, and disabled, and everyone in between through better community life and better social and political responses to crisis.

The promotion of suicide as a good and legitimate response to old age’s feelings of loneliness or doubt about the meaning of life as one’s abilities fade is particularly tragic to me. We celebrated Dr. David Goodall’s recent suicide and mourned and lamented Anthony Bourdain’s within the span of four weeks, all the while ignoring the essential questions of meaning, purpose, and appropriate responses to psychological distress that certainly impacted both decisions. As long as we perpetuate violence against human life in the name of “autonomy” or “self-actualization” or “health and wellbeing,” we’re falling short of our ideals as a people—and worse, we’re lying to ourselves about the nature of what we tolerate in the pursuit of those ideals.

These are some of the reasons I’m eager to spend the next week participating in this year’s Vita Institute. I might share some of that experience, and will at least share some scenes from Notre Dame and South Bend along the way.

Pursuing what seems good

Ireland has voted to repeal the 8th Amendment to its constitution, which was passed in September 1983 to strengthen its existing law to “recognise the equal right to life of the mother and the unborn.” The specific language:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

In practice, this amendment was designed to ensure that the principle of equality of human life was recognized at the highest level, and wouldn’t be threatened by judicial or legislative actions. In practice, this meant abortion was permitted only in situations where a mother’s life was in jeopardy. The language above recognizing basic equality passed in 1983 with 67 percent of the vote, and the rejection of basic equality just passed with what looks like 67 percent of the vote. The Save the 8th campaigners on the referendum result:

The 8th amendment did not create a right to life for the unborn child—it merely acknowledged that such a right exists, has always existed, and will always exist.

What Irish voters did yesterday is a tragedy of historic proportions. However, a wrong does not become right simply because a majority support it.

We are so proud of all of those who stood with us in this campaign—our supporters, our donors, our families, and our loved ones. This campaign took a huge personal toll on all of us who were involved, and we have been so grateful for their support.

The unborn child no longer has a right to life recognised by the Irish state. Shortly, legislation will be introduced that will allow babies to be killed in our country. We will oppose that legislation. If and when abortion clinics are opened in Ireland, because of the inability of the Government to keep their promise about a GP led service, we will oppose that as well. Every time an unborn child has his or her life ended in Ireland, we will oppose that, and make our voices known.

Abortion was wrong yesterday. It remains wrong today. The constitution has changed, but the facts have not.

We naturally pursue what we believe is the good, so Ireland’s swing on this particular issue in the space of a quarter century, as it related to what its people define as “the good”, is incredible. It suggests, to me, a continuing triumph of a particular sort of libertarianism, and probably continuing problems in Western nations as people try to sort out whether justice is ultimately a contingent and relative thing, or whether any universal or natural justice exists that reason and law should endorse.

Not choice, but violence

Who are the victims of suicide? There are the persons themselves, who die by their own hand or by instructions to other hands in the case of so-called assisted suicide. They are certainly victims. But what about every person touched by the person who is lost? All these are victims, too. Jason Cipriani shares:

I delivered the speech with confidence, but I did get choked up as the words my mother told me that day came out of my own lips “your dad killed himself this morning.” And again as I talked about turning to my grandma on that day, seeing her completely broken down (something that never happened), hearing her say “I’m really sorry boys. I know exactly what you feel, my mom took her own life as well.” …

A few days later I received my critique sheet which included helpful tips and pointers on improving my public speaking skill set, along with a grade. I don’t remember my grade, I don’t remember one critique listed on that piece of paper. The only thing I remember seeing was “I am a victim of suicide, too. I’m sorry for your loss.”

A victim of suicide? Huh. I’m not the victim, my dad was… wait. I am a victim. I have to deal with the emotional scars created by my dad’s decision for the rest of my life.

Those words and the change in perspective they brought regarding my father’s suicide have changed my entire outlook on life. As silly as that sounds. …

I guess, really, it gave me a title. It gave my emotions, my pain, my hurt, my anger, my sadness, my years of depression growing up.. it gave it all a title. You know how people that are chronically sick without a diagnosis feel relief when a doctor is finally able to identify the diseases attacking their body? I can only guess I felt the same way.

After Michael Novak died, Elizabeth Bruenig shared something he said to her a few weeks prior: “A kind word not spoken takes something out of the fabric of what should’ve been.” A life not lived, but willfully concluded, takes something out of the fabric of what should’ve been for every person who knew them, and many who would have. It is a scandal that journalists and media who are too ready to share the desires of euthanasia and assisted suicide advocates do not hold their feet to the fire on the true nature of what they’re promoting. Not choice, but violence.