SPECIAL: State Abortion Bans and Reversing Roe v. Wade: Helpful or Harmful?
J.P. Hubert Jr. MD FACS
Catholic Biomedical Ethicist
In the wake of the recent abortion ban in which the South Dakota State Legislature banned all abortions except those which "threaten the life of the mother" there has been profuse commentary from abortion advocates and somewhat surprisingly from some pro-lifer's as well. For example, Clarke Forsythe a pro-life legal expert, attorney, and director of the Project in Law & Bioethics at Americans United for Life contends that such bans could be "counterproductive in prudently pursuing the pro-life agenda." In an interview with Zenit, Forsythe said the following:
"Over the past 33 years, an incremental, step-by-step strategy has proven to be the most effective. Despite repeated attempts, sweeping bans haven't worked and can be counterproductive.Given the pro-abortion majority on the Supreme Court, abortion prohibitions before 2009 are premature. The Supreme Court is still dominated by a majority of at least five pro-Roe justices: Kennedy, Breyer, Ginsburg, Stevens and Souter.
We know that only two -- Scalia and Thomas -- have publicly stated that Roe should be overturned, though even Scalia and Thomas are of the view that the abortion issue is a state matter because the Constitution is silent on the issue. We don't know about Roberts or Alito... Given those obstacles and uncertainties, pro-life legislative efforts should focus on legislation that can put fences around Roe, reduce abortions, protect unborn children, protect women from the risks of abortion, encourage alternatives, and educate the public... Given current obstacles, state or federal abortion prohibitions at any point before the 2008 elections will be premature."
While respecting Mr. Forsythe's long standing commitment to the pro-life cause, this author has a different view of advocating for abortion bans in general and the South Dakota legislation in particular.
Moral Clarity not Tactical Concerns:
First, Mr. Forsythe's contentions imply that one should tailor one's public policy position with respect to abortion on the basis of what is deemed possible or "practical" politically rather than on the basis of what is actually morally right. Some have sought to justify Mr. Forsythe's approach by appealing to the late Pope John Paul II who indicated that it was morally permissible to vote or advocate for an initiative which would lessen the likelihood of abortion (rather than make it illegal entirely) if it was the only option available. The actual language employed by the late Pope John Paul II is as follows:
"...A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. Such cases are not infrequent. It is a fact that while in some parts of the world there continue to be campaigns to introduce laws favoring abortion, often supported by powerful international organizations, in other nations-particularly those which have already experienced the bitter fruits of such permissive legislation-there are growing signs of a rethinking in this matter. In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects."
In other words, his Holiness the late Pope John Paul II affirmed that if the only opportunity available is one which does not completely outlaw abortions but one which might make them less prevalent, the Catholic may in good conscience vote for the measure as an interim situation on the way to totally eliminating legalized abortion. However, this does not mean that from the perspective of public policy a faithful Catholic should fail to support the total elimination of legalized abortions. To do otherwise is to send conflicting (mixed) signals which scandalize the faithful who are attempting to form a proper moral conscience and to follow magisterial teaching. It is also to fail in charity that is, the duty to protect the weakest among us (the "least of these" [Mt 25: 40] as the Gospel of Christ teaches and as Pope John Paul II iterated in Evangelium vitae so powerfully).
Utilitarian Calculus Incompatible with Catholic Teaching:
Second, Mr. Forsythe's position is dangerously close in practice to the argument waged by pro-choice "Catholic" Democrats who claim to be personally apposed but publicly in favor of legalized abortion in order not to "impose" their religious beliefs on others. A well articulated comment in that regard appeared in the Catholic World Report:
"For years I have been bewildered by the public statements of Catholic politicians who claim to be "personally opposed" to legal abortion, or physician-assisted suicide, or same-sex marriage, but nevertheless vote in favor of these policies. From a strictly logical perspective, their position is incoherent. ...Christians oppose abortion not because of some peculiar ritual or mystical rule, but they say that abortion involves the taking of a human life. This is a statement of fact, not of religious belief. It is either true or untrue. A politician who thinks the statement untrue would have no compelling reason even to be 'personally' opposed to abortion. (He would find it difficult to defend his own position on a scientific basis, but that is another matter.) A legislator who recognizes that abortion is a form of killing should also recognize his obligation to curb the bloodshed. A purely 'personal' opposition is morally indefensible. Yet Catholic politicians persist in trotting out these same lame arguments." Moreover, the Magisterium has made it clear that Catholic politicians are duty bound to oppose any and all attempts to legalize abortion and that failure to do so is gravely immoral.
"...John Paul II, continuing the constant teaching of the Church, has reiterated many times that those who are directly involved in lawmaking bodies have a "grave and clear obligation to oppose" any law that attacks human life, (emphasis mine). For them, as for every Catholic, it is impossible to promote such laws or to vote for them. As John Paul II has taught in his Encyclical Letter Evangelium vitae regarding the situation in which it is not possible to overturn or completely repeal a law allowing abortion which is already in force or coming up for a vote, 'an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality.' 
In this context, it must be noted also that a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals, (emphasis mine).The Christian faith is an integral unity, and thus it is incoherent to isolate some particular element to the detriment of the whole of Catholic doctrine. A political commitment to a single isolated aspect of the Church's social doctrine does not exhaust one's responsibility towards the common good. Nor can a Catholic think of delegating his Christian responsibility to others; rather, the Gospel of Jesus Christ gives him this task, so that the truth about man and the world might be proclaimed and put into action."
"...When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person. This is the case with laws concerning abortion and euthanasia (not to be confused with the decision to forgo extraordinary treatments, which is morally legitimate). Such laws must defend the basic right to life from conception to natural death." (Emphasis mine).
"...no Catholic can appeal to the principle of pluralism or to the autonomy of lay involvement in political life to support policies affecting the common good which compromise or undermine fundamental ethical requirements."
"...The right and duty of Catholics and all citizens to seek the truth with sincerity and to promote and defend, by legitimate means, moral truths concerning society, justice, freedom, respect for human life and the other rights of the person, is something quite different. The fact that some of these truths may also be taught by the Church does not lessen the political legitimacy or the rightful "autonomy" of the contribution of those citizens who are committed to them, irrespective of the role that reasoned inquiry or confirmation by the Christian faith may have played in recognizing such truths. Such "autonomy" refers first of all to the attitude of the person who respects the truths that derive from natural knowledge regarding man's life in society, even if such truths may also be taught by a specific religion, because truth is one. It would be a mistake to confuse the proper autonomy exercised by Catholics in political life with the claim of a principle that prescinds from the moral and social teaching of the Church. (Emphasis mine).
The social doctrine of the Church is not an intrusion into the government of individual countries. It is a question of the lay Catholic's duty to be morally coherent, found within one's conscience, which is one and indivisible. 'There cannot be two parallel lives in their existence: on the one hand, the so-called spiritual life, with its values and demands; and on the other, the so-called secular life, (emphasis mine) that is, life in a family, at work, in social responsibilities, in the responsibilities of public life and in culture. The branch, engrafted to the vine which is Christ, bears its fruit in every sphere of existence and activity. In fact, every area of the lay faithful's lives, as different as they are, enters into the plan of God, who desires that these very areas be the places in time where the love of Christ is revealed and realized for both the glory of the Father and service of others. Every activity, every situation, every precise responsibility - as, for example, skill and solidarity in work, love and dedication in the family and the education of children, service to society and public life and the promotion of truth in the area of culture - are the occasions ordained by providence for a continuous exercise of faith, hope and charity(Apostolicam actuositatem, 4)'. Living and acting in conformity with one's own conscience on questions of politics is not slavish acceptance of positions alien to politics or some kind of confessionalism, but rather the way in which Christians offer their concrete contribution so that, through political life, society will become more just and more consistent with the dignity of the human person."
A failure to support legislation which is morally exemplary (such as that of South Dakota) on the grounds that it is tactically unwise is to utilize a utilitarian calculus rather than classical Catholic moral theological/philosophical principles as is the so-called "pro-choice" position of "Catholic" Democrats. Pro-life Catholics loyal to the magisterium are wise to recognize the morally bankrupt nature of this position and avoid it given that utilitiarianism/consequentialism/proportionalism were clearly repudiated by Pope John Paul II in his encyclical letter Veritatis splendor. Instead an unapologetic advocacy of the "end to all legalized abortion" in the United States should be the stated position, recognizing that from time to time, lesser initiatives which move in that direction will sometimes represent the only viable option available.
Different Tactics but One Goal:
Third, there admittedly exist among the anti-abortion activist community legitimate differences of opinion about the best way "tactically" to lessen the incidence of abortion, and to overturn Roe v. Wade, Planned Parenthood v. Casey, Doe v. Bolton, Stenberg v. Carhart and the like. What is not in doubt according to Catholic teaching and must be forcefully proclaimed is that all procured abortions are immoral since they intentionally "kill the innocent" (see appendix A for deductive proof by syllogism). Pope John Paul II was crystal clear on this point: "I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral (emphasis mine). This doctrine, based upon that unwritten law which man, in the light of reason, finds in his own heart (cf. Rom 2:14-15), is reaffirmed by Sacred Scripture, transmitted by the Tradition of the Church and taught by the ordinary and universal Magisterium.
The deliberate decision to deprive an innocent human being of his life is always morally evil and can never be licit either as an end in itself or as a means to a good end. It is in fact a grave act of disobedience to the moral law, and indeed to God himself, the author and guarantor of that law; it contradicts the fundamental virtues of justice and charity.
'Nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying. Furthermore, no one is permitted to ask for this act of killing, either for himself or herself or for another person entrusted to his or her care, nor can he or she consent to it, either explicitly or implicitly. Nor can any authority legitimately recommend or permit such an action'."
The following two statements by Pope John Paul II should forever put to rest any notion that there is ambiguity on the part of the teaching office of the Roman Catholic Church with respect to procured abortion:
"Among all the crimes which can be committed against life, procured abortion has characteristics making it particularly serious and deplorable. The Second Vatican Council defines abortion, together with infanticide, as an 'unspeakable crime'."
"The moral gravity of procured abortion is apparent in all its truth if we recognize that we are dealing with murder (emphasis mine) and, in particular, when we consider the specific elements involved. The one eliminated is a human being at the very beginning of life."
"Human life must be respected and protected absolutely from the moment of conception. From the first moment of his existence, a human being must be recognized as having the rights of a person--among which are the inviolable right of every innocent being to life."
"Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law." (Emphasis mine).
"The inalienable right to life of every innocent human individual is a constitutive element of a civil society and its legislation...The moment a positive law deprives a category of human beings of the protection which civil legislation ought to accord them the state is denying the equality of all before the law. When the state does not place its power at the service of the rights of each citizen, and in particular of the more vulnerable, the very foundations of a state based on law are undermined...As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child's rights."
The commandment regarding the inviolability of human life reverberates at the heart of the "ten words" in the covenant of Sinai (cf. Ex 34:28). In the first place that commandment prohibits murder: 'You shall not kill' (Ex 20:13); 'do not slay the innocent and righteous' (Ex 23:7). But, as is brought out in Israel's later legislation, it also prohibits all personal injury inflicted on another (cf. Ex 21:12-27). Of course we must recognize that in the Old Testament this sense of the value of life, though already quite marked, does not yet reach the refinement found in the Sermon on the Mount. This is apparent in some aspects of the current penal legislation, which provided for severe forms of corporal punishment and even the death penalty. But the overall message, which the New Testament will bring to perfection, is a forceful appeal for respect for the inviolability of physical life and the integrity of the person. It culminates in the positive commandment which obliges us to be responsible for our neighbour as for ourselves: 'You shall love your neighbour as yourself' (Lev 19:18)."
That is to say, from a Catholic moral perspective there is no confusion here. Sacred Scripture and constant magisterial teaching are in complete agreement. All procured abortions are immoral irrespective of the circumstances involved since the object rationally chosen is itself morally illicit. Recently, the United States Conference of Catholic Bishops (USCCB) reiterated this teaching with force while stressing the importance of opposing all attempts to normalize abortion through the positive civil law:
"It is the teaching of the Catholic Church from the very beginning, founded on her understanding of her Lord's own witness to the sacredness of human life, that the killing of an unborn child is always intrinsically evil and can never be justified... To make such intrinsically evil actions legal is itself wrong (emphasis mine). This is the point most recently highlighted in official Catholic teaching. The legal system as such can be said to cooperate in evil when it fails to protect the lives of those who have no protection except the law. In the United States of America, abortion on demand has been made a constitutional right by a decision of the Supreme Court. Failing to protect the lives of innocent and defenseless members of the human race is to sin against justice. Those who formulate law therefore have an obligation in conscience to work toward correcting morally defective laws, lest they be guilty of cooperating in evil and in sinning against the common good (emphasis mine)."
His Holiness Pope John Paul II also taught forcefully in Evangelium Vitae regarding the folly of attempting to legitimize abortion by codifying it in the civil law.
"...To claim the right to abortion, infanticide and euthanasia, and to recognize that right in law, means to attribute to human freedom a perverse and evil significance: that of an absolute power over others and against others. This is the death of true freedom: "Truly, truly, I say to you, every one who commits sin is a slave to sin" (Jn 8:34)." "Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection...In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to 'take part in a propaganda campaign in favor of such a law, or vote for it'.98" (emphasis mine).
The unborn child is truly innocent irrespective of the circumstances which gave rise to his/her conception and as a human being/person possessed of inherent human worth and dignity is entitled to life and protection from harm. All persons of good will including Catholic politicians should be committed to insuring that the unborn are protected from harm. Therefore, the goal should clearly and unabashedly be to make all procured abortion illegal while insuring that the civil law protects the right to life of every human person. Various "tactics" or machinations (from the perspective of public policy initiatives) and pro-life advocacy approaches can conceivably be employed simultaneously in the furthering of that goal, but more on that point later.
"Therapeutic" Abortion vs: Child's Death in Saving Mother's Life
Fourth, great confusion often results when the abortion issue is discussed by anti-abortion and pro-abortion advocates. This is because identical terms are utilized which have entirely different meaning for members of each group. For example, the term "abortion" itself is understood by many pro-abortion (anti-life) advocates as referring primarily although not exclusively to the act or process of evacuating the gravid uterus and ending the mother's pregnant state. Most pro-life (anti-abortion) proponents define "abortion" as any act or process in which the intentional death of an unborn child is sought either as a "means" or an "end." In other words, the morally relevant issue for pro-lifer's (the intended death of the unborn child) is what determines that the act or process be referred to as an "abortion." This is certainly the case with Catholic Church teaching on abortion.
The legalistic manuals of Pre-Vatican II moral theology and some magisterial documents thereafter refer to intent as "direct" abortion and utilize the term "indirect" abortion for circumstances in which an unborn child dies unintentionally in the process of attempting to save both the mother and the child. Strictly speaking such a circumstance is really a case of "double effect" and not technically an "abortion" at all. This "indirect abortion" is often referred to by pro-abortion advocates as a "therapeutic" abortion which it certainly is not from the perspective of the unborn child who dies or the mother who wants both her and her child to survive. Careful analysis reveals that it is really a misnomer to refer to what is done in such a case as "therapeutic" or even an "abortion" since the death of the unborn child is not sought either as a "means" or an "end" and the death of the child itself is not necessary in order to "save the mother's life." Rather, the child dies as an unintended and unwanted albeit foreseeable consequence of what is necessary anatomico-physiologically to save the mother and the child from the pathology involved. In any case, these differences of perspective reflect the primary concern(s) of each group of advocates (pro-abortion and anti-abortion). From a practical point of view, the understanding of "abortion" must include the intent to kill the unborn child (to seek or will its non-existence) as well as accomplishing the evacuation of the uterus and putting an end to the pregnant state in order for the term to have any meaning reflective of reality.
"Intentional" Abortion is never necessary to save a Mother's Life:
Fifth, it is vital to recognize that procured (intentional) abortion is immoral irrespective of the reason or potential "good" end sought. Some supporters of legalized abortion do so by alleging it is the only available option (albeit very infrequently based on the assembled obstetrical data), when a pregnant mother's life is at risk. In such cases they posit that the "life of the mother" (not health) can be saved only by performing an "abortion" a circumstance which almost never arises in the developed West due to increasingly effective medical/obstetrical care. In fact, even obstetricians who generally favor legalized abortion admit that what they call "therapeutic abortion" is rarely performed in the United States in order to prevent the death of the mother. As indicated above, this is primarily due to increasingly advanced medical/obstetrical and neo-natal care techniques including the ability to care for profoundly pre-mature infants. Were it ever to obtain however, (such as in undeveloped areas of the world without access to modern obstetrical care where for example C-section is unavailable, e.g. cephalo-pelvic disproportion comes to mind) the moral quandary in question would represent an example of so-called "double effect." It is not an immoral act or an "abortion" properly understood since the death of the innocent child would occur only as an unintended consequence of attempting to save the life of the mother and the child; that is to say the child's death is unwanted and not willed. However, such a scenario is virtually never the case medically in the United States as has been attested to by many Obstetricians and Gynecologists who have been asked to provide testimony to Congress and the U.S. Courts.
Equally disturbing is the contention that abortion can be a legitimate treatment for various non-life threatening medical problems relating to women's health and well-being. The data are clear that abortion, both short and long term is associated with significant physical and psychological problems including an increased incidence of infertility, depression, cancer and subsequent marital and psycho-sexual problems. Thus, legislation or court rulings which site the life or health of the mother as a justification for abortion have more to do with creating a "loop-hole" with which to justify legalized abortion than any legitimate medical necessity.
An example of the traditional magisterial teaching which indicates that it is never morally licit to intentionally kill a child through abortion in order to "save the life of its mother" comes from the teaching of Pope Pius XII:
"Every human being, even the infant in the mother's womb, has the right to life immediately from God, not from the parent or any human society or authority. Therefore, there is no man, no human authority, no science, no medical, eugenic, social, economic or moral 'indication' that can show or give valid juridical title for direct deliberate disposition concerning an innocent human life-which is to say, a disposition that aims at its destruction either as an end in itself or as the means of attaining another end that is perhaps in no way illicit itself. Thus, for example, to save the life of the mother is a most noble end, but the direct killing of the child as a means to this end is not licit."
No Data Prove Abortion Bans are Counterproductive:
Interestingly, Mr. Forsythe did not present any data demonstrating that abortion bans are counterproductive. Rather he simply asserted that they had been unsuccessful in the past and that the incremental approach had been uniformly responsible for the positive limitations which have been achieved in the past several decades since the Roe v Wade decision was issued in 1973. It is difficult to imagine how one could know this with certainty. Clearly, total abortion bans and related legislative activity present a positive opportunity to educate and mold public opinion in the desired direction. Statistically speaking it would be challenging to measure the portion applicable to this activity in the past vs: that which is ascribable to more modest initiatives. Right reason suggests that the more emphasis which is placed on the complete immorality of all procured abortion by stressing the moral, factual and gruesome anatomico-physiological realities involved, the more not less likely it will be that public opinion will eventually be appropriately changed--eventuating in a reversal at the level of the SCOTUS. In any case, "tailoring" pro-life advocacy from the perspective of public policy initiatives based upon perceived political limitations is incompatible with what Catholics are called by the Gospel to be that is, "salt and light." It is also to risk failing in justice and charity (mercy) to our unborn brothers and sisters who are voiceless and dependent upon our holy work. One suspects that opposition to Abortion Bans has more to do with the political sensitivities and visceral uncomfortableness experienced by some pro-life activists than the moral rightness of their approach.
Moreover, contrary to the suggestions of Mr. Forsythe, attempts at estimating the likelihood that certain Supreme Court Justices will support overturning Roe v. Wade and Planned Parenthood v. Casey etc. is fraught with danger. Predictions of how Justices will rule have not been particularly accurate or useful in the past. The more relevant point is-- in order for issues of public policy to change appreciably in a representative constitutional democratic republic, it is necessary to influence public opinion significantly and to build support for change through consistent, well-reasoned, and well-articulated convictions. This does not seem to include questioning the wisdom of advocating for total abortion bans. Doing so seems to imply a certain timidity and vacillation which does not inspire confidence in the moral correctness of the pro-life cause. It also suggests a lack of moral seriousness which the issue rightly deserves. Righteous indignation is clearly indicated in response to legalized killing of innocent human beings, born or unborn.
The pro-life community is diverse and composed of varying groups and individuals many of whom have decidedly different motivations, goals, expectations etc. with respect to limiting and ultimately ending the scourge of procured abortion. The fundamental yet intractable problem where procured abortion is concerned is the fact that it purposely (intentionally) seeks to kill the innocent unborn human being, something which violates the common (golden-rule ethic) morality, the first and second principles of the natural law and Divine Revelation. Under no circumstances can it be justified morally. Even where a mother's life is at risk by virtue of being pregnant, it is never appropriate to purposely seek the death of the unborn child. Rather, everything possible should be done to save both the mother and the child. In the rare circumstance that in doing so the mother survives but the child dies, it is not accurately termed abortion but rather "double effect" since the death of the child was not sought, was unwanted and the death of the child was not the cause of the mother's survival.
It is readily apparent that a just society cannot be maintained in a milieu where civil law(s) codify the intentional killing of innocent human beings. The decision with respect to which human beings can be "legally killed" reduces to a tyranny of the majority or worse yet, that of a handful of individuals (Supreme Court Justices) who are not required to consider the demands of the Natural Moral Law or the principles of Divine Revelation. Their decisions are often completely arbitrary and capricious in fact dismissive of the common (golden rule ethic) morality upon which the American experiment was founded. The latter has become commonplace since the SCOTUS embraced the doctrine of legal positivism (pragmatism) in the first half of the 20th century. Since that time the 2000+ year old common morality has been sundered and in its place a kind of perverse utilitarianism has arisen in which the weak and voiceless are placed at the disposal of the strong and powerful. This is morally reprehensible.
Just as it is clear that faithful Catholics cannot march in "lock-step" with the Republican or Democrat Parties on issues of social justice, it is apparent that serious pro-life Catholics must resist the temptation to settle for the politically expedient with regard to opposing abortion. Catholics loyal to the magisterium are called to work fervently and consistently for a complete ban on all procured abortion. To do less is to fail in justice and charity to the very least among us and to reject the spirit of the Gospel of Christ itself.
Doctor Hubert is a Biomedical Ethicist and Health Care Policy Advisor to Common Good and its Catholic Way project. He is a retired Cardio-Thoracic surgeon with a long interest in ethics particularly bio-medical ethics. As a "high-tech" heart surgeon he was frequently confronted with complex and difficult medical problems and resultant ethical decisions. Dr. Hubert has written extensively in the area of embryonic stem cell research and human cloning for biomedical research including an extensive philosophical treatment entitled; "Justice and Freedom for the Human Embryo: The Philosophy of the Human Person, the Body/Soul issue and Ethics." He has also written on other ethical topics including Euthanasia and issues involving War/Peace and Suicide Terrorism. His other academic interests include the "Creation/Evolution" debate. Recently, he completed a work entitled; The Contemporary Origin's Debate in which he proposed a testable "Origin's model. Dr. Hubert has a special interest in Catholic apologetics particularly as it concerns the evangelization of non-believers with a background in the natural and biological sciences. He is a "revert" to orthodox Catholicism from scientific naturalism with an avid interest in the fusion of faith and reason. Dr. Hubert is a regular contributor to Catholic Way.
 For the purposes of this essay and the sake of clarity, procured "abortion" will be defined as an intervention(s) including surgical and non-surgical (medical) techniques employed for the express purpose of ending a pregnancy by killing the fetus or unborn child. This definition follows the language of Pope John Paul II in Evangelium vitae no. 58 "procured abortion is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth" (emphasis mine).
 The South Dakota abortion ban has since been signed into law by Governor Rounds.
 Forsythe is the co-author of "The Tragic Failure of Roe v. Wade: Why Abortion Should be Returned to the States," fall 2005 issue of Texas Review of Law & Politics; See also "Why Abortion Bans May Not Be the Answer Now: Clarke Forsythe on Judicial Strategies" Chicago, March, 14, 2006 (Zenit.org).
 "Why Abortion Bans May Not Be the Answer Now: Clarke Forsythe on Judicial Strategies" Zenit, March 14, 2006.
 To this author doing so appears to violate the clarity of the classical Aristotelian/Thomistic moral tradition upon which traditional Catholic moral theology/moral philosophy is largely based.
 Pope John Paul II, encyclical letter, Evangelium vitae, 1995, no. 73.
 Diogenes, "Personally Opposed, but...", Catholic World Report, Dec. 2001.
 Congregation for the Doctrine of the Faith, Doctrinal Note. The Participation of Catholics in Political Life, Rome, November 24, 2002, no 4. Internal references are to Evangelium vitae no. 73.
 Congregation for the Doctrine of the Faith, Doctrinal Note. The Participation of Catholics in Political Life, Rome, November 24, 2002, no 4.
 Ibid, no. 4.
 Ibid, no. 5.
 Ibid, no. 6.
 Putting aside for the moment the issue of whether "abortion" properly understood is ever medically necessary in order to protect the life of the mother which it is not.
 "Catholic" Democrats employ a utilitarian calculus when asserting that they are "personally apposed but publicly in favor of legalized abortion" hoping to be supported by what they assume is a majority of the population in favor of legalized abortion and assuming that the obvious contradiction in their position will not be appreciated.
 Pope John Paul II, encyclical letter, Veritatis Splendor, 1993 #' 74-83; See the recent article by Patrick Guinan M.D. "Proportionalism and Catholic Medical Ethics", Social Justice Review, March/April, 2006, 39-41 for a discussion of the repudiation of Proportionalism by Pope John Paul II in Veritatis splendor: "an intentionally evil act cannot be rendered morally good by laudable intentions"; Also see William E. May. Catholic Bioethics and the Gift of Human Life. (Huntington Indiana: Our Sunday Visitor Publishing Division Our Sunday Visitor, Inc., 2000) and William E. May. An Introduction to Moral Theology. Second Edition, (Huntington Indiana: Our Sunday Visitor Publishing Division, 2003) for further details and a discussion of Veritatis splendor and the errors of Proportionalism.
 Doe v. Bolton broadly defined the health rationale for an abortion to include any factor related to a woman's well-being even including economic ones.
 In Stenberg v. Carhart the court ruled 5-4 that a Nebraska partial-birth abortion ban was unconstitutional. Justice O'Connor voted with the majority, who said the problem with the law was it had no exception for the health of the mother.
 CCC # 2270-2274. Note that those who seek abortion do so not only to end the pregnancy but to be certain that their unborn child does not exist! On this point see Germaine Grisez. The Way of the Lord Jesus: Living a Christian Life, vol. 2, (Quincy, Ill: Franciscan Press, 1993), p. 499 "An abortionist intends to kill the unborn baby" and p. 500 "...those who choose abortion or formally cooperate in it usually intend the baby's death"; See also pp. 475 & 476 "Hence scripture makes it clear that divine revelation teaches that killing the innocent is wrong." Grisez summarizes on p. 477 as follows: "Hence, if sacred Scripture is read as it should be, in the light of tradition and the magisterium, intending to kill the innocent is clearly seen to be always wrong."
 Evangelium vitae, no. 57; Second Vatican Ecumenical Council, Dogmatic Constitution on the Church Lumen Gentium, 25; Congregation for the Doctrine of the Faith, Declaration on Euthanasia Iura et Bona (5 May 1980), II: AAS 72 (1980), 546.
 Evangelium vitae, no. 58; Second Vatican Ecumenical Council, Pastoral Constitution on the Church in the Modern World Gaudium et Spes, 51, 1965.
 Evangelium vitae no. 58.
 CCC # 2270; CDF, Donum vitae I, 1.
 CCC # 2271.
 CCC # 2273; CDF, Donum vitae, III.
 Pope John Paul II, encyclical letter, Evangelium vitae, no. 40.
 Despite protestations to the contrary, the "object rationally chosen" in procured abortion is virtually always to intentionally
"kill the innocent human being" irrespective of the "circumstances" or the other subsidiary goals or "intent(s)" which
might be involved, compelling as they might appear to be. According to Catholic teaching as recently reaffirmed by the late
Pope John Paul II in Veritatis splendor # 78, all "3" elements (the intent, the object rationally chosen and the circumstances)
must be licit in order for the Act to be morally licit. Procured abortion also violates the first and second principles of the
Natural Moral Law; (do good, avoid evil and treat your neighbor fairly), from which flow the immutable moral principle;
"it is always and everywhere wrong to intentionally kill an innocent human being"; see CCC #'s 1954-1960 on the
immutability of the Natural Moral Law, particularly 1956; See also Gaudium et spes no. 10.
 "Catholics in Political Life", United States Conference of Catholic Bishops (USCCB) Task Force on Catholic Bishops and Catholic Politicians in collaboration with Francis Cardinal George, OMI, Archbishop Charles J. Chaput, OFMCap, and Bishop Donald W. Wuerl, July 7, 2004.
 Evangelium vitae, no. 20.
 Ibid, no. 73, internal reference is Congregation for the Doctrine of the Faith, Declaration on Procured Abortion (18 November 1974), No. 22: AAS 66 (1974), 744.
 While incest and or rape are commonly raised and are understandably tragic, the resulting human being so conceived is totally innocent and deserves to live on the basis of what he/she actually is--a human being/person possessed of inherent value and dignity befitting one created in the image of God. See my essay listed in the bibliography which appeared in the Social Justice Review in support of the personhood of human embryos. See also Pope John Paul II, Evangelium vitae, 1995.
 Pro-abortion advocates admit that this process or act is designed in such a way that it results in the death of the unborn child but deny that it is their primary motivation. Careful philosophical analysis however refutes their claim.
 Recall that abortion is herein defined as the intentional killing of the unborn child not simply the ending of the pregnant state by evacuating the uterus. Germaine Grisez. The Way of the Lord Jesus: Difficult Moral Questions, vol. 3, (Quincy, Ill: Franciscan Press, 1997) p. 678 referring to Pope John Paul II, encyclical letter, Evangelium vitae, 58-63; from p. 679 "The Church teaches that everything possible should be done to save both the mother and the child, and that killing either of them on purpose always is wrong. Sometimes, of course, it is impossible to save both, and, in trying to do the best they can, doctors do something with a chance of saving one that also leads to the death of the other. That is not killing on purpose, and, even if it leads to the baby's death, the Church's teaching against abortion does not apply to it."
 See for example Natalie E. Roche MD. "Therapeutic Abortion", E-Medicine Instant Access to the Minds of Medicine at http://www.emedicine.com/med/topic3311.htm#section~introduction. "Therapeutic abortions to save the life of the mother or to preserve the health of the mother are rare events." (Emphasis mine). "Therapeutic abortion is defined as the termination of pregnancy before fetal viability in order to preserve maternal health. In its broadest definition, therapeutic abortion can be performed to (1) save the life of the mother, (2) preserve the health of the mother, (3) terminate a pregnancy that would result in the birth of a child with defects incompatible with life or associated with significant morbidity, (4) terminate a nonviable pregnancy, or (5) selectively reduce a multifetal pregnancy."
 In other words, if the infant dies in the process of "saving the life of its mother" (the object rationally chosen), the surgical/medical act performed is morally licit since the child's death is unwanted and unsought yet may represent a foreseeable but unintended and unavoidable consequence of saving the mother's life (ectopic pregnancy with fatal hemorrhage or the gravid and cancerous uterus come to mind). If it were possible in such a case to save the life of the child as well, this would be enthusiastically welcomed contrary to the situation in procured abortion where the "goal" is to be certain that the child is dead! Thus as noted by Grisez, the act in question is not properly considered an abortion in the moral sense even if it ends in terminating the pregnancy in the process of saving the mother's life which would normally also save the child. Note for example cases of so-called "partial birth abortion" where a perfectly healthy full term child can be legally killed simply because the "health" of the mother might be adversely affected if the child should remain alive. Were this not the case, these unfortunate children could be delivered alive and placed for adoption. It is clear that the object rationally chosen in these abortions is to be certain the unborn child does not exist, meaning that it is killed!
 See for example John Bonner, Eamon O'Dwyer, David Jenkins, Kieran O'Driscoll, Julia Vaughan, "Statement by Obstetricians", The Irish Times 1 April 1992. "We affirm that there are no medical circumstances justifying direct abortion, that is, no circumstances in which the life of a mother may only be saved by directly terminating the life of her unborn child."; Also see the statement signed by over 150 physicians (including Dr. Bernard Nathanson, former abortionist) which reads "I agree that there is never a situation in the law or in the ethical practice of medicine where a preborn child's life need be intentionally destroyed by procured abortion for the purpose of saving the life of the mother. A physician must do everything possible to save the lives of both of his patients, mother and child. He must never intend the death of either" available on-line at http://www.prolifepac.com/html/art4lifemom.htm.
 Pope Pius XII, Allocution to Italian midwives October 29, 1951.
 See my "The Fruits of Legal Positivism: Utilitarianism in Action" Intellectual Conservative, December 9, 2005 at http://www.intellectualconservative.com/article4792.html.
From a philosophical perspective it is straightforward to demonstrate that procured abortion is morally illicit:
Deductive Proof that Intentional Abortion is morally wrong
1. It is always morally wrong to intentionally kill innocent human beings, (the major premise, a universally accepted moral given, and part of the traditional common morality for over 3000 years). True beyond reasonable doubt, it is part of the Natural Law Tradition as well.. It is axiomatic to the "Golden Rule Ethic". Codified in Sacred Scripture and Sacred Tradition. All but those who ascribe to moral Darwinism or rigid notions of Utilitarianism in the form of unbridled personal autonomy accept this as objectively true that is, true independent of whether one realizes it or accepts it as such. Tragically this includes the U.S. Supreme Court and many academic elites including much of the contemporary academic bioethics establishment.
2. Procured abortion intentionally kills innocent human beings, (the minor premise). This is a scientific and metaphysical fact which cannot be denied on careful analysis of the relevant data. Also true beyond reasonable doubt. Unfortunately it is sometimes contested. Reams of data effectively demonstrate that human fetuses are human from the moment of nuclear fusion and combination (of genetic material) of the male and female gametes (fertilization or conception). No one seriously argues that fetuses are not morally innocent, only that they have less than full moral status, a position which is indefensible unless one adopts modern Materialism (Naturalism) and moral Darwinism. To do so requires accepting a false (Cartesian) dualism i.e. a false human anthropology. Partial Birth Abortion amply demonstrates that abortion is designed to intentionally kill the child. Some infants who have survived abortion have been killed by attendants or allowed to die without being attended to.
3. Intentional (Procured )abortion is always morally wrong, (the conclusion), which is indisputable if the major and minor premises are true.
 May, William E. Catholic Bioethics and the Gift of Human Life, (Huntington Indiana: Our Sunday Visitor Publishing Division Our Sunday Visitor, Inc., 2000), pp. 57-60, "...There is an inseparable bond uniting this first moral principle of natural law to the first practical principle of natural law which directs us to do and pursue the good and the principles specifying the real goods of human persons that are to be pursued and done."; Finnis, John. Aquinas, (Oxford: Oxford University Press, 1998), pp.140-141, citing Aquinas ST II-II q. 64 a. 6; George, Robert P. In Defense of Natural Law, Oxford: Oxford University Press, 1999).
 See the essay by John P. Hubert Jr. MD FACS entitled: "Justice and Freedom for the Human Embryo in light of The Philosophy of the Human Person, the Body/Soul Issue and Ethics (Personhood cannot be acquired or lost)", Social Justice Review, , 95: November-December, 2004; See also Patrick Lee,. Abortion &Unborn Human Life, (Washington D.C.: The Catholic University of America Press, 1997); Stephen Schwarz. The Moral Question of Abortion, (Chicago: Loyola University Press, 1990).
Aristotle, Nicomachean Ethics, translated, with introduction, notes, and glossary by Terence Irwin, second edition. Indianapolis, Indiana: Hackett Publishing Co., Inc. 1999.
Ashley, Benedict M. Living the Truth in Love: A Biblical Introduction to Moral Theology. New York: Alba House, 1996.
Aquinas, St. Thomas. Summa Theologica, London: Benzinger Brothers, 1911.
Budziszewski, J. Written on the Heart: The Case for Natural Law. Downers Grove, Inter Varsity Press, 1997.
Catechism of the Catholic Church, 2nd Edition, Washington: United States Catholic Conference, 1997.
Congregation for the Doctrine of the Faith, Declaration on Procured Abortion (18 November 1974).
Congregation for the Doctrine of the Faith, Doctrinal Note. The Participation of Catholics in Political Life, Rome, November 24, 2002.
Congregation for the Doctrine of the Faith, Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation, Donum Vitae (22 February 1987).
Finnis, John. Fundamentals of Ethics. Washington, D.C.: Georgetown University Press, 1983.
Finnis, John. Moral Absolutes: Tradition, Revision, and Truth. Washington, D.C.: The Catholic University of America Press, 1991.
Grisez, Germaine. The Way of the Lord Jesus: Difficult Moral Questions, vol. 3, Quincy, Ill: Franciscan Press, 1997.
Grisez, Germaine. The Way of the Lord Jesus: Living a Christian Life, vol. 2, Quincy, Ill: Franciscan Press, 1993.
Guinan, Patrick. "Proportionalism and Catholic Medical Ethics", Social Justice Review, March/April, 2006.
Hubert, John MD. "Justice and Freedom for the Human Embryo in light of the Philosophy of the Human Person, the Body/Soul Issue and Ethics" Social Justice Review, 95: November-December, 2004.
Hubert, John P. MD "The Fruits of Legal Positivism: Utilitarianism in Action" Intellectual Conservative, December 9, 2005 at http://www.intellectualconservative.com/article4792.html.
Kreeft, Peter. The Unaborted Socrates. Downer's Grove Illinois: Intervarsity Press, 1983.
Lee, Patrick. Abortion &Unborn Human Life. Washington D.C.: The Catholic University of America Press, 1997.
MacIntyre, Alister. A Short History of Ethics: A History of Moral Philosophy from the Homeric Age to the Twentieth Century. Notre Dame, Indiana: University of Notre Dame Press, 1998.
May, William E. An Introduction to Moral Theology. Second Edition, Huntington Indiana: Our Sunday Visitor Publishing Division, 2003.
May, William E. Catholic Bioethics and the Gift of Human Life. Huntington Indiana: Our Sunday Visitor Publishing Division Our Sunday Visitor, Inc., 2000.
Pope Paul VI, Pastoral Constitution on the Church in the Modern World, Gaudium et spes, 1965.
Pope John Paul II, encyclical letter, Evangelium vitae, 1995.
Pope John Paul II, encyclical letter, Veritatis splendor, 1993.
Schwarz, Stephen. The Moral Question of Abortion, Chicago: Loyola University Press, 1990.
Wallace, William A. The Elements of Philosophy: A Compendium for Philosophers and Theologians. New York: Alba House, 1977.
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