Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, January 30, 2009

Abortion and the Spanish Republic

On the topic of abortion analogies, Notre Dame law student Paul Krog writes:

I had a thought in regards to the running discussion at MOJ about the vocabulary and moral theology of the abortion debate.  I think Profs. Velasco and Garnett make good points, although I disagree with Prof. Kaveney's insinuation that the most important element of the Scott decision was its determination that a slave was a chattel, rather than its prior determination that he was not and could not become a "person."

Overall, however, while both analogies have their usefulness, neither fits perfectly and both can be counterproductive.  A more apt analogy, albeit one that would require an accompanying history lesson if used for general consumption, is the Spanish Republic immediately prior to the Spanish Civil War.  Hemingway and our visceral reaction against Franco's supposed fascism cloud modern perceptions of the time, but the anarchy of the Spanish Republic maps nicely.  In both cases you have groups of private individuals intent on wreaking violence on a particular group in society (Catholics and the unborn); in both cases the government refuses protection to the targeted group and implicitly supports the violence while issuing occassional platitudes about it being unfortunate; and in both cases startlingly large numbers of the targeted group are killed.  Also in both cases the violence had political benefits and dimensions for the perpetrators and the government protecting them.  The usefulness of the comparison does not, of course, continue into the following period of streetfighting, terror bombing, and mutual recrimination, but the Civil War itself seems to be a distinct, if consequential, event.  

Allowing mobs to butcher priests and burn churches rightfully cost the Spanish Republican government its claim to legitimacy; that was easy for people to see because it happened in the streets.  But we have the luxury of wringing our hands over abortion because it happens in euphemistically named buildings without windows; people are generally inclined to become resolutely incensed over only obtrusively visible violence (see also, Vietnam and the color television).  As long as violence remains out of sight, people will remain content with the status quo, especially if the status quo is convenient, expedient, profitable (which the abortion business is), or gives them an opportunity to voice their support for socially preferred "values" such as "freedom," "choice," "self-determination," and "children will suck your pocketbook dry."  Add in the fact that people in the position to make decisions are absolutely immune from the particular species of violence, and you have a perfect scenario for its continuation.  St. Thomas seems to say that the state is compelled to criminalize murder (Prima Secundae 96, 2).  One does have to wonder what the enduring consequences of its failure to do so in this context are.

Final note: several commenters indicate that the mother of the unborn child is the murderer in the context of abortion, if we presume mens rea.  Is this necessarily right?  The abortionist, after all, is the one who works the proximate cause of the child's death---he kills the child.  Is he, in this context, the mother's agent, or is he the principal actor and the mother merely an accessory to a crime that he plans and intends independently?  Even if the mother's culpability is indistinguishable (which I believe canon law suggests is at least possible), does the Church's pastoral duty require that we not identify the sin in question as murder?   Or given the nature of the confessional (and its limitless supply of forgiveness), does it require that we identify it precisely as that, at least on an individual, if perhaps not on a public rhetorical, level?  Perhaps those are questions for a different discussion.


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