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.

Thursday, September 3, 2009

Catholic Teaching, Senator Kennedy, and Abortion



This posting is not intended to delve into the subject of Senator Kennedy’s views on a variety of issues. Rather, it is an opportunity to bring to the attention of those who visit this site some relevant information about what may have contributed to Senator Kennedy’s change of position regarding the matter of abortion.

I have been reading Albert Jonsen’s 1998 book The Birth of Bioethics. For those unfamiliar with Dr. Jonsen, he most recently taught at the University of Washington’s School of Medicine. He is a Ph.D. holder who studied religious ethics at Yale University in the mid-1960s. At that time, he was a young Jesuit priest. In 1975 he left both the order and the priesthood and married. He has one of the most interesting and credible accounts of how Senator Edward Kennedy and his brother, Robert, had the occasion to encounter a group of priests who provided information to the Kennedy brothers about ethical views on issues such as abortion.

I will state at the outset that I find many of Dr. Jonsen’s conclusions in his book that I have cited regrettable and inconsistent with Catholic teachings on a number of pressing issues. But these disagreements are not the motivation for writing today. It is his account of a meeting he attended in the summer of 1964 at the famous “Kennedy Compound” in Hyannisport, Massachusetts that I discuss. Jonsen’s invitation to attend the meeting according to his account came by way of Fr. Joseph Fuchs, another Jesuit priest, who had taught moral theology for many years at the Pontifical Gregorian University. Then Fr. Jonsen had met Fr. Fuchs on the campus of the University of San Francisco one summer afternoon. According to Jonsen, Fuchs asked him if he would like to attend a meeting that was to take place on Cape Cod to assist Senator Kennedy who was standing for reelection to hear the views of several Catholic theologians so that he, the Senator, could formulate his political stance on the abortion issue. According to his account, Jonsen accepted the invitation and attended the meeting.

Once they arrived in Boston, Dr. Jonsen states that he and Fr. Fuchs were driven “at breakneck speed” to Hyannisport by Fr. Robert Drinan, another Jesuit who was then the Dean of Boston College Law School. In addition to these three priests, all Jesuits, they were joined by two other priests, Fr. Richard McCormick, a fourth Jesuit, and Fr. Charles Curran, a diocesan priest then teaching moral theology at the Catholic University of America. In attendance at the meeting were Senator Edward Kennedy and Attorney General Robert Kennedy. Dr. Jonsen says that he and Fathers Drinan and Fuchs “struggled with the problem posed to us.” However, in Jonsen’s estimation, Fr. McCormick was “particularly articulate.” Jonsen states that to the best of his recollection the theologians agreed with the Church’s teaching that abortion was immoral but were in further agreement that “a rigorously restrictive ethics of abortion into law was unlikely to be enforceable or to achieve its positive goals without significant attendant social evils.” He does not specify in his book what these “significant attendant social evils” were. Jonsen further contends that the theologians present at the Kennedy Compound on that day favored the American Law Institute’s 1962 draft which would withdraw protection from the fetus (during the first twenty-six weeks of its life) and thus allow abortion when a woman’s health was at risk, the fetus had a severe defect, or the pregnancy was the result of rape or incest. This position they advanced did not then nor does it now coincide with the Church’s teaching.

Fifteen years later, Fr. McCormick elaborated in a 1979 his view that most Americans would say that abortion should be legal if the alternative is tragic but unacceptable if the alternative is “mere inconvenience.” He thought that this approach would justify abortion if the mother’s life were at stake, the pregnancy were the result of rape or incest, or the fetus was deformed. He also stated that such a policy would “completely satisfy no one.”

In his “particularly articulate” statement at Hyannisport, Fr. McCormick relied on the work of Fr. John Courtney Murray, another Jesuit priest who had agreed in his writing with Thomas Aquinas that there exists a necessary distinction between morality and civil law by stating that “it is not the function of civil law to prescribe everything that is morally right and to forbid everything that is morally wrong.” In offering this position, Murray had responded to Cardinal Cushing’s request for help when the Massachusetts legislature was considering liberalizing its laws on artificial contraception. In his response to the Boston archbishop, Murray relied on the Thomistic distinction. However, Fr. Murray was very clear that Catholics were not to assume that they could go along with the liberalization in their exercise of conscience for, as he said,


Catholics themselves must be made to understand that, although contraception is not an issue of public morality to be dealt with by civil law, it remains for them a moral issue in their family lives, to be decided according to the teaching of the Church... Catholics might well take this public occasion to demonstrate that their moral position is truly moral, that is, it is adopted freely, out of personal conviction and in intelligent loyalty to their Church.


 It would be hard today to judge just what impact the 1964 meeting between Senator Kennedy and these five clerics had on the formulation of the Senator’s position on abortion. As we know, the Senator was still publicly opposed to abortion as late as 1971. But, it would be mistaken to believe that Fr. John Courtney Murray’s views could, when all is said and done, have influenced Senator Kennedy in such a way that he could change his opposition to abortion to support of abortion. It is possible that the clerical sympathy with the ALI 1962 draft law may have eventually had an influence on the Senator’s thinking that enabled him to change his position. But even though Fr. Murray was of the view that not all moral issues must be the subject of laws and legal regulation, surely some are—rape, incest, homicide, theft, and perjury just to mention a few examples. Avoiding conception may for some be a moral issue that ought not to be the subject of legal regulation. I, for one, think that it can and ought to be, but I digress. But to suggest that abortion is another “moral issue” that should also fall outside of the realm of legal regulation is implausible given the context of Fr. Murray’s work. I do not think that John Courtney Murray would have extended the Thomistic principle to this grave moral issue.

I know that Susan Stabile has written on the matter of Murray’s thought in the context of abortion, and she may wish to offer her thoughts on the matter. I also know that a friend of the Mirror of Justice, Fr. Greg Kalscheur, has also addressed this subject. He may hold and present a different view.

But on this note I’ll end for the time being: John Courtney Murray was a gifted individual who understood issues clearly and made distinctions sharply with deep reasoning backing him up. I do not think he would place artificial contraception and abortion in the same moral category for the first prevents life from coming into being; the second, however, destroys a life in being. That is a distinction with a difference, a difference that would have meant much to John Courtney Murray. For me, and I think for Murray, one death brought about by abortion is one too many, and that should be regulated by the law. Compound the matter fifty million times, and all the more reason exists to address this moral evil with a legal response.


RJA sj


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