Posture, Not Policy

I have become increasingly confused by the demand of Catholic thinkers like Germain Grisez (Catholic Politicians and Abortion Funding, 8/30) that we should be steadfastly opposed to abortion. I am appalled at the widespread practice of abortion in the United States, but I find Grisez’s arguments, like those of many church officials, abstract to the point of emptiness.

Does being opposed to abortion mean that they wish to re-criminalize abortion? If, as Grisez suggests, abortion was wrongly made legal by an act of raw judicial power, I assume he would wish it made illegal by reversing that decision. But a simple reversal of Roe v. Wade would not have the effect of making abortion illegal. Roe undercut state legislation on abortion by claiming a constitutionally protected privacy right. Absent the constitutional ruling, the issue would be back with the states who have primary jurisdiction over criminal law. It is almost certain that in the absence of Roe, some state legislatures would establish laws legalizing abortion.

Specific legislation might range from highly restrictive to more permissive. In short, the realistic outcome of reversing Roe would not be the abolition of abortion as a legal option within the United States. Women seeking permissive abortion conditions would choose a particular state. Easy access to abortion would be as it was in the good/bad old days, when couples went to Reno for a quick divorce.

To make abortion illegal in the United States in an effective way, one would need a constitutional amendment banning the procedure, an act akin to the Prohibition amendment. There are those who opt for such an amendment. All one can say is that it is quite improbable that any such amendment could be approved, given the general if troubled support for some sort of legal abortions within the United States.

But let us suppose that somehow abortion would be made illegal. What would the legal penalty be for violating the prohibition? One would think, judging from the rhetoric about the killing of the innocent (Grisez), that abortion must be tantamount to murder, or at least voluntary manslaughter. Would the normal, severe penalties be exacted in that case? Against the abortion provider? Against the woman? If the death penalty or long prison sentences seem too severe and one settled for fines or limited jail terms, what does that say about the moral/legal status of abortion? If not murder, what? Do circumstances count?

Proclaiming opposition to abortion without examining the very real and difficult problems of specific legislation that are presumed to follow from that stance may warm the moral sensibility, but it remains a posture, not a policy.

Dennis O’Brien