Introduction
In Beyond the Abortion Wars Charles Camosy explores many of the ethical contours that underlie the clash of civilizations that Saint John Paul II described as a “culture of life” versus a “culture of death.”Footnote 7 In these pages the author searches for common ground and a way to win the peace. I must point out, however, that he surrenders too much ground to a culture of death. Many of the provisions in his model legislation, the Mother and Prenatal Child Protection Act (MPCPA), are good, but not all. The MPCPA provides that prenatal children conceived in rape or those who pose a mortal threat to their mothers may be legally aborted, but that many other reasons for procuring an abortion currently allowed would be restricted. While this trade-off may qualify as incremental pro-life legislation, what bothers me is that Camosy argues that procured abortion in these hard cases is morally sound. On the contrary, an honorable truce cannot be brokered by leaving behind any prenatal children as expendable casualties in order to move beyond the abortion wars. Peace is the fruit of justice, justice for all. Semper fi.
Common Ground
Camosy and I agree that to be consistent with the Catholic Church's preferential option for the poor, our society and legal system must affirm the following: prenatal children who are killed in the womb are an even more vulnerable population than women who die from illegal abortion; abortions that target vulnerable minorities, such as disabled or female prenatal children, should be classified as federal hate crimes (145–46); if prematurely born children, neonates, are endowed with fundamental rights then prenatal children (prenates) in the womb who are the same gestational age as those neonates are endowed with the same inalienable rights (138); the Roe court freed women “to act like men” (118) and indulge in sexual intimacy without fear of pregnancy, but in so doing “coerces and limits” (121) women who become pregnant into either procuring an abortion or being disadvantaged in the job market with no institutional support to choose what many women truly desire—to be “both mothers and the social equals of men” (137); pimps and sex traffickers who force abortion on their female victims make “a mockery of the idea that women have the ‘freedom of choice’ to have an abortion” (120).
Most of all, I was edified to read that Camosy readily submits his reflections and recommendations concerning abortion to the teaching authority of the Catholic Church (170 n. 24, 181 n. 42). So do I, and so, ask him to reconsider the uncommon ground on which we part company.
Uncommon Ground—Direct Abortions
Camosy criticizes “extremist ‘pro-lifers.’” He thinks anyone extreme who would give prenatal children “more legal protection than other human persons” (143–44). By this he means that a woman whose pregnancy endangers her life must be allowed to direct lethal force against her prenatal child by procuring a direct abortion, just the same as any other citizen has the right to use deadly force in self-defense if his or her life is threatened by an assailant. He notes that the law would allow someone confronting a brainwashed child soldier or a lunatic with a gun the right to use deadly force to defend their own life if necessary even though these assailants are not in their right mind, hence, “formally” innocent. So, he asks, shouldn't the law allow a woman facing a life-threatening pregnancy to procure a direct abortion, to defend her life against her “formally” innocent child who, nonetheless, poses a “material” mortal threat to her life? (67).
On the contrary, the Roe court rejected Camosy's argument: that if prenatal children are recognized as persons within the meaning of the United States Constitution, then they may be aborted in self-defense.Footnote 8 Why? Because, if the personhood of the prenatal child were recognized, then criminal justice would need to inquire whether they possess an ability to form a bad intent, mens rea, or perform a criminal action, actus reus, before allowing an abortionist to abort them in defense of a third party. However, any and all courts would have to take judicial notice of the fact that the prenatal child is incapable of either malicious intent or criminal acts.
On the other hand, child soldiers may, with diminished capacity, intend criminal acts with malice aforethought. A colleague of mine, Richard Stith, explains this difference very well:
But in fact the child soldier and the insane shooter are not formally innocent. They possess mens rea in the narrow sense of purposely intending an attack, just as a rabid dog or a tiger intends to bite. This distinction is familiar to us in criminal law. The insanity defense does not question whether the defendant has mens rea in the narrow sense of purpose (or recklessness, or negligence, as the case may be). Rather, the insanity defense asks whether the defendant could know right from wrong. If he could not know right from wrong, then we do not punish him, but we certainly allow self-defense against his actions…. So the fact that we may perhaps use deadly force against a child shooter or an insane shooter, both of whom intend to kill us, does not even begin to prove that we can use such force against an unborn child who is not yet capable of intending at all. Camosy would need to construct a more closely analogous hypothetical. For example, suppose a young child thought he had a squirt gun but in fact he had a real gun. He comes at you with his finger on the trigger, saying “I'm going to get you all wet, Mr. Scarnecchia!” He does not intend to harm you in any way. Could you nevertheless blow his brains out, if that were the only way to save your own life? It seems to me that the answer is not so obvious as it was in the case of the child soldier.
But even this hypothetical is not sufficiently analogous to the unborn child. The child with the “squirt gun” at least has a physical actus reus; he lacks only the mental element. But the unborn child is not doing anything criminal at all.Footnote 9
Let me suggest another example. Imagine a wide receiver in a football game who turns to catch a pass but instead of catching it gets smacked in the forehead with the football. He is momentarily dazed. The football in the meantime has bounced off his forehead into the air. Coming to his senses, he looks up in the nick of time and catches the falling football. However, being disoriented, he starts running the wrong way down the field toward his own goal line. According to the rules of the game, his own teammates are allowed to take down and tackle him before he scores a touchback for the other team.
Are there any situations that would allow a mother to “take down” her infant child? For instance, what if a woman fled in the night with her infant daughter from a terrorist camp. Exhausted, she lays down to sleep in an open field with her infant daughter by her side. Upon awaking she picks up her rifle and walks a short distance from her child. Only then did she discover that they were in the middle of a minefield. Looking back she sees that her infant daughter is about to roll over in her sleep and detonate a land mine, the percussion of which will kill them both. Would criminal law allow her to raise necessity as a defense if she shot and killed her daughter before the infant turned in its sleep and detonated the mine killing them both? No, criminal law would not allow her this affirmative defense. In civil law, as between two innocent persons, the less innocent person is liable should both suffer a common injury. By entering the minefield of sexual relations, the mother has placed her child at risk. Therefore, she is the less innocent party and civil law would seek to protect the interests of her prenatal child, the more innocent party.
Camosy acknowledges that the law should do no more and no less for prenatal children than it does for postpartum children. However, if the Supreme Court were to recognize the personhood of the prenatal child, then direct abortion could never be recognized as “justifiable homicide” under the current canons of criminal justice (143). Therefore, I urge Camosy to no longer condone the direct abortion of a prenatal child whose life poses a mortal threat to its mother, because a mother who killed her newborn infant in so-called self-defense would be charged with a crime.
Uncommon Ground: So-Called Indirect Abortions
Professor Camosy approves abortifacient morning-after pills Plan B and Ella, and RU-486 (82), as well as inducing the delivery or the cesarean delivery of a preterm nonviable child as licit means to manage a life-threatening pregnancy, and also in cases of rape (74). He argues that all of these modalities do not effect “direct” abortions (which inflict lethal violence on the body of the prenatal child) but merely “indirect” abortions (comparable to the excision of a traumatized fallopian tube in the case of an ectopic pregnancy) because they merely “aim at ceasing to aid” but do not “aim at the death” of the prenatal child (70).
Camosy errs by overemphasizing the motives of the agent to the detriment of the built-in intentionality, structure, or definition of the rational human act. He correctly notes that a hysterectomy of a cancerous uterus with a preterm child in situ is an indirect abortion. Under these circumstances, a woman commits no wrong if time will not permit her to wait until after the prenatal child is viable to have her uterus removed. But he misses the point—it is an indirect abortion not simply because it does not aim at the death of a child and is undertaken for serious and proportionate reasons. Rather, it is primarily an indirect abortion because the built-in intentionality of the surgeon's human act is directed, in this case, at the removal of a deadly “thing” (an organ) and not at the killing of an innocent “who” (a person).
The principle of double effect allows a person to perform actions that have both good and bad consequences provided the following criteria are met: (1) the human action one performs is either rationally understood as good or neutral and not intrinsically evil (a good human act); (2) the intention of the actor is directed to set in motion only the good effect (a good motive or goal); (3) the good human act performed by the actor with good motivation initiates the causation of the good effect before or at the same time but never after the evil effect is set in motion (a good means); (4) there must be proportionately serious reasons for setting in motion the good effect as there are likely foreseeable serious evil effects set in motion by the good human act performed with good motivation and by way of good means. These four criteria are met in the case of the removal of a diseased uterus or traumatized fallopian tube with a live prenatal child in situ, but they are not met in the case of the administration of an abortifacient drug or the induction or C-section delivery of a preterm child (under the principle of proportional results).
The surgeon who performs a hysterectomy with a prenatal child in situ removes a “thing.” The “human act” he performs—one done with intelligence and free will—is immediately directed to what he rationally understands to be the good action of removing a diseased traumatized maternal organ (a good human act). His motive is only to perform a life-saving surgery (a good motive). He foresees that his life-saving surgery will kill the child within the diseased maternal organ or tissue, but the removal of the organ is not accomplished by first killing the child (a good means to a good end). He only performs this surgery that indirectly kills the prenatal child in order to save the life of the mother (proportionate results).
On the other hand, the surgeon who removes a prenatal child from the womb of its mother removes a “who,” a person, from his or her only source of sustenance. The “human act”—one done with intelligence and free will—is immediately directed to what he rationally understands to be the bad action of removing the prenatal child from its only source of sustenance (an evil human act). His motive is only to perform a life-saving action (a good motive). He foresees that his human act of removing the child from its source of sustenance will kill the child in order to end the mortal danger to mother (a bad means to a good end). He only performs this surgery that directly kills the prenatal child in order to save the life of the mother (proportionate results).
The error in Camosy's analysis becomes plain if we consider euthanasia, both passive and active.Footnote 10 The induction or cesarean delivery of a preterm child or the administration of RU-486 to a pregnant woman is analogous to passive euthanasia, that is, euthanasia by omission. In both cases persons die because they are removed from basic life support, from ordinary and proportionate care. In both cases their caregivers cease to aid and thereby directly and deliberately force those under their care to wither and die. Far from just letting someone die, both passive euthanasia and the removal of the prenatal child from its site of implantation deny ordinary care that withers to death those for whom they, the caregivers, have a duty of care. The direct abortion of a prenatal child by means of surgical instruments or chemical poisons is always an evil act of commission and the direct removal of a preterm child from its site of implantation is a direct abortion by omission: “Procured abortion is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phases of his or her existence, extending from conception to birth.”Footnote 11
Conclusion
I would have liked to recommend the passage of Camosy's model legislation, the Mother and Prenatal Child Protection Act (MPCPA), under the rubric of incremental pro-life legislation. But to qualify, the sponsor of the bill would need to make known that she does not approve of abortion in order to save the life of the mother, nor in cases of rape or incest in principle, and that the legislation only permits abortion in these cases because it would have no chance of being passed by the legislature or of being upheld by the courts otherwise, but, despite these flaws, it will limit to some degree the widespread practice of legal abortion (EV §73). Given that Camosy believes that abortion in these hard cases is either “justifiable homicide” or licit indirect abortion, he would not be able to honestly suggest that legislation modeled on the MPCPA was incremental pro-life legislation.
Therefore, I am unwilling to recommend that the MPCPA be used as model legislation to move us beyond the abortion wars. In fact, I see Camosy's principled defense of direct abortion, which serves to legitimize Catholic support for the MPCPA, as an unconditional surrender and an occasion of scandal that advances a culture of death. I would ask Camosy to reconsider his position and leave none of God's children behind, especially the seemingly indefensible—Semper fi.
