Tom Shakely

Culture of Life

  • There was never a right to an abortive act

    Clarke Forsythe writes on the history of the “born-alive rule” in Anglo-American law, highlighting the importance of its history and application for refuting any historically-alleged right to abortion:

    Justice Samuel Alito’s leaked draft opinion could be even stronger in refuting the notion that Anglo-American law ever recognized a right to abortion. The draft addresses the common-law history in detail and is powerful in assembling the historical data and describing the contemporary medical context.

    But nowhere does the February 10 draft discuss the common-law born-alive rule. The rule — and, more important, its prenatal application — demonstrates conclusively that Anglo-American law never recognized any right to abortion, even before quickening. This is particularly relevant in rebutting the claim of the U.S. solicitor general, Elizabeth Prelogar, who told the Supreme Court that “at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its early stages.”

    As the draft opinion shows, abortion law was necessarily limited by contemporary medical understanding. The era of the common law — before 1803 when the first English abortion statute was adopted by Parliament — was a time of primitive medicine and high infant mortality. (The stethoscope, for example, wasn’t invented until 1816.) Before modern medicine, the mother’s first sense of fetal movement — called quickening — was the most reliable evidence of a viable (progressing) pregnancy and a live child in utero. That generally occurs around 16 to 18 weeks of pregnancy.

    Before quickening, all “signs” of pregnancy were ambiguous, evanescent, and unreliable. The law focused on quickening as the most reliable evidence of pregnancy and fetal life. The quickening rule was an evidentiary rule, as numerous treatises and common-law cases confirm, not — as abortion advocates claim — a substantive rule of humanity or personhood. …

    [T]he born-alive rule was adopted as a standard of sufficient evidence of homicide. Live birth — showing signs of life outside at any time of pregnancy — was necessary at the time to connect the dots, to show that an abortive act killed a living prenatal human being. Evidence of live birth was accepted at any stage of pregnancy. There was no gestational limit. …

    The born-alive rule, like the quickening rule, was an evidentiary rule. And if the infant was born alive, that evidence of life outside eclipsed the need for the quickening rule.

    Some common-law writers mention the born-alive rule as early as the 1300s. And it was confirmed by cases and legal authorities such as Coke for centuries, but the clearest statement was by William Blackstone in his influential Commentaries on the Laws of England in the 1760s. He held: “To kill a child in its mother’s womb, is now no murder, but a great misprision: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it is murder in such as administered or gave them.” This is the clearest statement of the prenatal application of the born-alive rule.

    The born-alive rule shows two things of legal importance that utterly refute Roe v. Wade. First, there was no “right” to an abortive act. An abortive act that resulted in death after birth was a homicide. Second, it shows that the connection of the prenatal act in utero to the death after birth from the prenatal act proved the elements (corpus delecti) of homicide. It showed that the prenatal being and the child after birth were the same individual. If the child was not a human being until after birth — as Justice Blackmun suggested in Roe — then no prenatal act could be relied upon to prove homicide. The prenatal application of the born-alive rule showed that the human entity inside and outside the womb was the same entity in the view of the common law.

    The U.S. Supreme Court finally appears set to reverse Roe v. Wade. When it does so, it will be ending one of the most tragic experiments in the history of constitutional law—a 49 year experiment to see whether the strong might get away with denying the very humanity of their most vulnerable brothers and sisters.

  • A majority of Americans support personhood rights for preborn children

    Alexandra DeSanctis reports on our latest AUL/YouGov national poll, which finds that American majorities agree that abortion ends the life of a human being before birth:

    Americans United for Life (AUL) has partnered with YouGov to survey 1,000 Americans on their opinions about abortion, fetal personhood, and legal rights for the unborn. YouGov conducted the survey between May 6 and May 13, shortly after someone leaked a draft opinion in the Supreme Court case Dobbs v. Jackson Women’s Health Organization.

    The poll sample included Americans with a wide range of views about abortion. Thirty-nine percent of respondents said they are pro-choice, 32 percent said they are pro-life, and 29 percent said they identify with neither label.

    According to the poll results, a copy of which was provided exclusively to National Review, majorities believe in fetal personhood and believe that unborn children have a variety of rights. For instance, a combined 55 percent of respondents said they believe an unborn child is a person either from the moment of conception or within the first 12 weeks of pregnancy. Only 14 percent of respondents said they think an unborn child becomes a person at birth. An overwhelming majority (86 percent) say that the unborn child is a person by the time he or she can survive outside the mother’s womb.

    Meanwhile, supermajorities believe unborn children have a number of rights, including the right to be born (80 percent), the right to be protected from violence or assault (89 percent), and the right to be protected against substance abuse (90 percent).

    A slight majority (51 percent) said that abortion ends the life of a human being before birth, and 52 percent said they would support the Supreme Court “extending legal rights of personhood to unborn children.”

    I think all of these are important findings. As encouraging as many of these results are, these findings also underscore why human rights shouldn’t ultimately be put to a vote—and why human rights aren’t won or lost simply because majorities shift.

    Human rights are natural rights, meaning inherent in our nature as rational creatures. Our natural rights are naturally accessible to us by our rational, that is, reasoning, capacities.

    A constitutional democracy like ours exists not for the purpose of enshrining ever-shifting majority preferences, but rather for upholding and safeguarding a political order that points to reality and to the rights we possess by our nature.

  • ‘Life After Roe,’ now streaming

    Our “Life After Roe” Symposium yesterday painted a bright portrait of the future of American life after Roe v. Wade. Dr. Kevin Roberts, Dr. Ryan Anderson, and Catherine Glenn Foster led the morning’s conversation, and the entire symposium is now available for streaming:

    Ryan Anderson and Alexandra DeSanctis have a new book coming out later this month that looks like a blueprint for cultural recovery after Roe v. Wade, when the action moves to Congressional and state lawmaking to uphold the human right to life. Check out “Tearing Us Apart: How Abortion Harms Everything and Solves Nothing.”

  • •

    A Symposium on ‘Life After Roe’

    I’ll be at The Heritage Foundation this morning for a joint Americans United for Life/Ethics & Public Policy Center-hosted symposium on “Life After Roe.”

    We’ve been organizing this for a few weeks as a way for advocates and lawmakers to be as proactive as possible for the post-Roe v. Wade era. We’ll need both national and state protective action to affirm and uphold the human right to life, protect mothers, fathers, and children from abortion violence, and work toward a future of abolition.

    The Life After Roe Symposium event page lays it out:

    What does life after Roe really look like? Leading legal, medical, and policy experts analyze the opportunities—and challenges—facing policymakers and the American people in their work to protect unborn children, empower their mothers, and strengthen families.

    The Supreme Court is poised to correct a grave error and relegate Roe v. Wade to the dustbin of history. The pro-life movement will then enter a new phase of building a culture of life. Join us for a symposium featuring panel discussions on one of the most talked-about topics in America right now: What does life after Roe really look like? Leading legal, medical, and policy experts will provide their analysis of the opportunities—and challenges—facing policymakers and the American people in their work to protect unborn children, empower their mothers, and strengthen families.

    Co-hosted by Americans United for Life and the Ethics and Public Policy Center

    Agenda

    10:00 – 10:35 am: Opening Session 

    – Kevin Roberts, Ph.D., President, The Heritage Foundation
    – Ryan Anderson, Ph.D., President, The Ethics and Public Policy Center
    – Catherine Glenn Foster, M.A., J.D., President and Chief Executive Officer, Americans United for Life

    10:35 – 11:20 am: The Legal Landscape of Federal and State Policy

    – Ed Whelan, Distinguished Senior Fellow, The Ethics and Public Policy Center
    – Clarke Forsythe, Senior Counsel, Americans United for Life
    – Denise Harle, Senior Counsel, Alliance Defending Freedom
    – Roger Severino, Vice President of Domestic Policy, The Heritage Foundation (Moderator) 

    11:20 – 11:30 am: Break 

    11:30 am – 12:15 pm: The Reality of Abortion in 2022

    – Dr. Christina Francis, Chairman of the Board, American Association of Pro-Life Obstetricians and Gynecologists
    – Elizabeth Kirk, Director, Center for Law and the Human Person, The Catholic University of America Columbus School of Law
    – Jeanneane Maxon, Associate Scholar, Charlotte Lozier Institute 
    – Rachel Morrison, Fellow, The Ethics and Public Policy Center (Moderator)

  • Congress has a responsibility to uphold the human right to life

    Professor Robert P. George and Josh Craddock recently wrote in The Washington Post that Congress must act to protect preborn children when Roe is overruled, assuming the Supreme Court makes abortion a state-by-state issue:

    As Justice Samuel A. Alito’s Jr.’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization shows, the Constitution confers no right to abortion. Its 14th Amendment, however, entitles unborn children to the protection, indeed the equal protection, of the laws. States that fail to protect the rights of the unborn violate this guarantee.

    The 14th Amendment, ratified in 1868, extended “the equal protection of the laws” to “any person.” Although the court in Roe rejected the argument that the fetus is a person protected by the 14th Amendment, the majority’s reasoning was notoriously poor and its conclusion incorrect. The historical evidence is overwhelming that at the time of the amendment’s ratification, the word “person” had a settled public meaning that included any child living in the womb.

    As Robert P. George, together with Oxford University legal philosopher John M. Finnis, explained in a Dobbs amicus brief calling on the court to acknowledge fetal personhood, elective abortion — the taking of unborn human life where there is no threat to the mother — was, from the earliest centuries at common law, treated as unlawful during all stages of pregnancy.

    The 14th Amendment, similar to the Civil Rights Act of 1866 it was meant to support, codified equal protection of the fundamental rights of persons — including life and personal security — as these had been expounded in William Blackstone’s “Commentaries on the Laws of England” and leading American treatises. The Commentaries began with a discussion of unborn children’s rights as persons across many areas of law. Based on these authorities and landmark English cases, state high courts leading up to 1868 declared that the unborn child throughout pregnancy “is a person” and hence, under “civil and common law,” “to all intents and purposes a child, as much as if born.” By the end of 1868, three-quarters of the states had enacted criminal laws against abortion at all stages. These statutes classified abortion as an “offense against the person,” and nearly all described the unborn victim of abortion as an “infant” or “child.” …

    [A] mistaken argument claims that the unborn cannot be protected by the 14th Amendment because it begins by declaring that “persons born or naturalized in the United States are citizens of the United States.” But that provision establishes which persons are citizens, and therefore entitled to the privileges and immunities of citizenship; it does not say that only citizens are persons. Indeed, it clearly acknowledges persons who are not citizens. And the due process and equal protection provisions of the amendment expressly protect all persons — not just citizens.

    “The Lincoln Proposal: A Constitutional Vision for an Executive Order to Restore Constitutional Rights to All Human Beings,” published in 2020 by Americans United for Life, makes further historically important points about the 14th Amendment with respect to post-Reconstruction constitutional jurisprudence:

    [T]he story of our Constitution—and the Fourteenth Amendment in particular—has been the story of extending the protection of fundamental legal rights to more and more classes of persons, including African Americans, women, Native Americans, resident and nonresident aliens, the developmentally disabled, and illegitimate children. In every case, the affirmation of constitutional guarantees for these classes of persons was based on their mere status as human beings within the Constitution’s juridical reach. Even when the parameters of equal protection and due process are tailored to their subjects, such as the more circumscribed rights held by children and non-citizen aliens, the core of those guarantees are recognized in some way for all members of the human family within the borders of the United States—except for our youngest members.

    “The child in the womb,” observed Professor Charles Rice in his 1971 Americans United for Life amicus brief in Roe, “is a person within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” Although the Court at that time was bent on ignoring this basic reality, it has since accepted the logic and precedent of equal protection for successive classes of persons.

  • Archbishop Cordileone and a public life ordered to reality

    On May 20th, Archbishop Salvatore Cordileone of San Francisco publicly notified U.S. House Speaker Nancy Pelosi that she is prohibited from Holy Communion in her home diocese until she repents and receives absolution for her promotion of abortion:

    A Catholic legislator who supports procured abortion, after knowing the teaching of the Church, commits a manifestly grave sin which is a cause of most serious scandal to others.  Therefore, universal Church law provides that such persons “are not to be admitted to Holy Communion” (Code of Canon Law, can. 915). …

    I am grateful to you for the time you have given me in the past to speak about these matters.  Unfortunately, I have not received such an accommodation to my many requests to speak with you again since you vowed to codify the Supreme Court’s Roe v. Wade decision in federal law following upon passage of Texas Senate Bill 8 last September.  That is why I communicated my concerns to you via letter on April 7, 2022, and informed you there that, should you not publically repudiate your advocacy for abortion “rights” or else refrain from referring to your Catholic faith in public and receiving Holy Communion, I would have no choice but to make a declaration, in keeping with canon 915, that you are not to be admitted to Holy Communion.

    As you have not publically repudiated your position on abortion, and continue to refer to your Catholic faith in justifying your position and to receive Holy Communion, that time has now come.  Therefore, in light of my responsibility as the Archbishop of San Francisco to be “concerned for all the Christian faithful entrusted to [my] care” (Code of Canon Law, can. 383, §1), by means of this communication I am hereby notifying you that you are not to present yourself for Holy Communion and, should you do so, you are not to be admitted to Holy Communion, until such time as you publically repudiate your advocacy for the legitimacy of abortion and confess and receive absolution of this grave sin in the sacrament of Penance.

    Please know that I stand ready to continue our conversation at any time, and will continue to offer up prayer and fasting for you.

    I also ask all of the faithful of the Archdiocese of San Francisco to pray for all of our legislators, especially Catholic legislators who promote procured abortion, that with the help and under the guidance of the Holy Spirit, they may undergo a conversion of heart in this most grave matter and human life may be protected and fostered in every stage and condition of life.

    Mary Eberstadt writes on this news within the context of that generation of Catholic politicians who believe that moral truth and sacramental reality are divorced from politics. Politics, which exists to order public life to the common good, necessarily involves the sorting out of truth claims—with one’s conclusion about the rightness or wrongness of abortion arguably the most obvious moral issue in contemporary political life:

    Archbishop Salvatore Cordileone’s pastoral letter, or notification, to House Speaker Nancy Pelosi that she is barred from receiving Communion in the Archdiocese of San Francisco amounts to a depth charge beneath the surface of the Roman Catholic Church. It makes clear that the phrase “pro-abortion Catholic” is an oxymoron. Pressure will likely increase on Catholic bishops elsewhere to do what Cordileone has just accomplished: articulate what is indisputably church law. …

    First, any clarification of facts is its own virtue. The letter to Pelosi, alongside the archbishop’s accompanying letters to priests and the laity, calmly informs others what Catholicism actually teaches about some subjects. In an age when more and more people are unchurched, this is itself a public service. The letters say, in effect, The catechism professes this. The archbishop’s letter to the laity quotes this utter nonequivocation from Pope Francis: “Every child who, rather than being born, is condemned unjustly to being aborted, bears the face of Jesus Christ.” Also clarified is another teaching worth reiterating at a time of rising secularization: Everyone sins, and there is no such thing as an unforgivable sin. But leading others to sin, repeatedly and impenitently, is uniquely grave. …

    Finally, the archbishop’s notification might mark the beginning of the end for another experiment run amok: the notion that Catholics can simultaneously rattle rosary beads in public while working overtime against bedrock teachings.

    Politics exists to promote, to safeguard, and to manifest realities. A politics that suggests an act like abortion is good will promote, safeguard, and manifest a culture that regards abortion as if it were good.

    A politics that is ordered to reality, however, will not be at war with the obvious good that is human life. A politics ordered to reality will not be ambivalent in uplifting and providing real choices to those most vulnerable to the predations of abortionists. A politics ordered to reality will, in its language, speak clearly rather than ambiguously about what is at stake.

    Fr. Thomas Crean, O.P. writes, “Archbishop Cordileone is not politicising the Eucharist but Eucharisticising politics; for politicians too are subject to Christ’s law.”

  • •

    Reversing Roe and restoring the human right to life

    It looks like the Supreme Court is set to finally reverse Roe v. Wade in the coming weeks.

    I speak with Katie Glenn, Government Affairs Counsel at Americans United for Life, in today’s episode of “Life, Liberty, and Law”. We speak about AUL’s appearance at the U.S. House of Representatives earlier this week as part of the Democrat-controlled House Committee on the Judiciary’s cynically-named hearing, “Revoking Your Rights: The Ongoing Crisis in Abortion Care Access.”

    Abortion activists seek a future where abortion is normalized and even celebrated and where medicine is warped from its healing and curative nature to include intentional killing and harm.

    Abortion activism involves endless misdirection about the nature of abortion as an act. Abortion activism involves handwaving that the child at the center of abortion is merely potential life rather than actual life. Abortion activism involves the highlighting of vanishingly rare and tragic instances of injustices not for the purpose of restorative justice but for the purpose of perpetuating mass-scale injustice.

    We must choose whether the killing and harm at the center of every abortion is public good or a social ill. We must confront rather than avoid forming a moral judgment about abortion: pro or anti, against or for.

    Roe’s existence has let us set aside so much of our individual agency. Roe has let us throw up our hands over the issue. Roe has let us remain indifferent to the needs of mothers, fathers, and children who are owed the support of their friends, neighbors, and fellow citizens. When Roe is reversed, American lawmakers at both the federal and state level must reclaim their agency and affirmatively provide the spectrum of life-affirming choices we’ve owed one another all along the way.

    Katie and I speak about the hearings, what it was like to be on Capitol Hill and in the room, the realities of abortion violence, and what the post-Roe role of lawmakers will be for advancing the human right to life.

  • The post-Roe reforms Americans will need to thrive

    Erika Bachiochi writes on how to navigate a world after Roe v. Wade and nationwide abortion in light of the experience of the early women’s rights activists:

    In 1869 the Revolution, the women’s rights newspaper founded by Susan B. Anthony and Elizabeth Cady Stanton, published an editorial on the unusual actions of Dr. Charlotte Lozier. Dr. Lozier had caused the arrest of Andrew Moran, a man who had traveled from South Carolina to her medical office in New York City, seeking to procure from her an abortion for a young woman carrying his child. “The Dr. assured him that he had come to the wrong place for any such shameful, revolting, unnatural and unlawful purpose,” the editorial explained. Becoming angry, Moran grew abusive, and Dr. Lozier, twenty-two years old at the time, had him arrested. Excerpting from another newspaper, the Revolution reported, Lozier “insists that as the commission of a crime is not one of the functions of the medical profession, a person who asks a physician to commit the crime of ante-natal infanticide can no more be considered his patient than one who asks him to poison his wife.”

    Moran had knocked on the wrong city door that day. Madame Restell, a well-known New York abortionist, would have happily obliged his request. Restell was at that time one of at least two hundred abortionists working in New York City alone, a New York Times article estimated in 1871. The Revolution editorial sought to “expose Restellism,” the term given Restell’s immensely profitable but unlawful line of work. Indeed, Elizabeth Blackwell, the first woman licensed to practice medicine in the United States, lamented Restell’s reputation as a “female physician,” a description that, Blackwell later wrote in her autobiography, “exclusively applied at that time to those women who carried out her vile occupation.” Restell’s practice, according to Blackwell, was an “utter degradation of what might and should become a noble profession for women.” …

    Like the doctors of the American Medical Association (AMA) who successfully lobbied in the mid-nineteenth century for the passage of statutes protective of unborn human beings – in an effort to enhance common law protections in light of contemporary advances in embryology – women’s rights advocates also regarded abortion as “the unwarrantable destruction of human life.” But these women were unconvinced that abortion prohibitions, on their own, would alter the circumstances that caused desperate women to abort. Matilda Gage, a leading women’s rights advocate, captured the sentiment well: “Much as I deplore the horrible crime of child-murder, I cannot believe … that such a law would have the desired effect. It seems to me to be only mowing off the top of the noxious weed, while the root remains. We want prevention, not merely punishment. We must reach the root of the evil, and destroy it.” …

    In the post-Roe era, abortion-rights organizations will continue to fight state by state (and in Congress too), advocating abortion as the lynchpin of women’s freedom and equality. But note the fundamental reversal: the act that women’s rights advocates once considered evidence of women’s unequal status in society is championed as an essential component of women’s equal status today. The act that poor women were “forced to commit” is now the privileged response to female poverty in our day.

    Today, pro-life activists should especially take heed of the early feminists’ advocacy for women harmed by punitive attitudes within the medical and legal establishment. No jurisdiction ever prosecuted women for their abortions, nor should they if Roe falls. …

    The justice we need today would look to both protect and promote the health and well-being of unborn children and their mothers and ensure that all women, especially the poor, have the financial resources, medical support, and workplace accommodations they need to care for their children once they are born. Such care may in some instances include the courageous choice to place a child with an adoptive family. It should demand the father’s participation (which will mean securing good work for working-class men). In the best-case scenario, such affirmative measures would be included in the very bills that restrict abortion, so as not to render them optional or an afterthought.

    Worth reading. The reversal of Roe will mark the end of one dark chapter and the start of a new chapter in American life.

  • •

    When persons are treated as medical waste

    Activists from Progressive Anti-Abortion Uprising reportedly recovered the bodies of 115 human persons earlier this year from a driver for Curtis Bay Energy, the medical waste processing company that services a Washington, DC abortion business.

    These photos are grim, and they are grim because the reality of abortion is grim. These are photos of human persons, not medical waste, and not trash. And yet, what abortion does in closing our hearts to one another is, spiritually, even worse.

    “There is the desert of God’s darkness,” preached Pope Benedict XVI, “the emptiness of souls no longer aware of their dignity or the goal of human life. The external deserts in the world are growing, because the internal deserts have become so vast.”

    The graphic photos that have emerged suggest not only pre-birth abortions, but also post-birth infanticide. The Metropolitan Police Department in Washington, DC has taken possession of these human remains, yet are refusing to perform autopsies.

  • •

    American birth rates, pro-family policies, and paths to glory in everyday life

    I speak with Dr. Catherine Ruth Pakaluk in this week’s episode of AUL’s “Life, Liberty, and Law” podcast on American birth rates, pro-family policies, and “paths to glory” in everyday life.

    When the COVID-19 pandemic hit in early 2020 and Americans entered into what authorities assured us would be “two weeks to slow the spread,” many predicted a baby boom would be the natural result of this time of closeness in quarantine. Yet there’s been no baby boom. And in fact, it looks like family formation and birth rates may, in fact, be continuing to decline as a result of the pandemic and the economic fallout of more than two years of ad hoc state and fiscal policy decisions. We speak about the challenging experiences and trends of the past few years in light of what a poe-Roe cultural and political future might look like.

    Dr. Catherine Ruth Pakaluk joined the faculty of The Catholic University of America’s Tim and Steph Busch School of Business in 2016 and she is the founder of the Social Research academic area, where she is an Associate Professor of Social Research and Economic Thought. Formerly, she was Assistant Professor and Chair of the Economics Department at Ave Maria University. Her primary areas of research include economics of education and religion, family studies and demography, Catholic social thought and political economy.