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.

Saturday, September 29, 2012

Abortion at the Democratic Convention and at the Upcoming Debates

The always informative Jill Stanek recently posed an interesting question on her blog (here) responding to a column by Jonathan Last in The Weekly Standard (here).  Last notes that at their 2004 convention “Democrats kept abortion talk at their convention to a bare minimum” and they later credited this move with keeping the election close.

This year, by contrast, they put abortion front and center.  Perhaps this was to draw attention away from the economy, or perhaps because it fit so nicely with the Democratic narrative of a “war on women.”  But front and center it was.

Not by name, of course – always draped instead under the innocuous banner of “choice.”  Still, abortion was celebrated from a Democratic podium that featured speakers such as NARAL’s Nancy Keenan and Planned Parenthood’s Cecile Richards, while other speakers such as Deval Patrick, Martin O’Malley and Julian Castro mentioned it so “confidently and constantly . . . that it became something of a litany” (see here).  One might expect Catholics like O’Malley and Castro to be used to reciting litanies, but not of this sort.

No doubt this irony was lost on the Democratic abortion faithful, as was the irony that in a speech by First Lady Michelle Obama centered around motherhood and family, (a speech where she was introduced not by “a political person,” just “a mom” see here), one of the biggest applause lines was reserved for her husband’s commitment to abortion (here at 13:04).  So much for motherhood. 

Indeed, abortion was such a prominent part of the festivities that even the reliably pro-choice Cokie Roberts (also a Catholic) remarked that the convention was “really over the top in terms of abortion” (here), while the reliably pro-life and Democratic Melinda Henneberger (also a Catholic) said that “speech after speech highlight[ed] how wrong [she had] been to wince every time Barack Obama is referred to as the ‘abortion president’” (here).  Although preserving and expanding the abortion license has been an article of faith for the Democratic Party leadership since at least the mid-1970s, the alleluias devoted to abortion at this convention caused some to fittingly describe the event as an “Abortion-Palooza” (see here and here).

All of this may be to Mitt Romney’s advantage.  Polling in several swing states indicates that independent voters are less likely to vote for Obama once they learn how extreme the President is on the subject (see here), something that the press all but ignored in the 2008 election (here).

It will be difficult for the Republicans to go on the offensive on the issue when the Press is in bed with the pro-abort gang (here).  (Indeed, the press has been so one-sided in its coverage of Obama that The Onion has taken to mocking them  -- see here).

Still, Romney had better be prepared to discuss abortion as the issue will almost certainly will come up in the debates.

The question may be phrased in such a way that Romney is meant to defend his flip-flop (i.e. he was solidly pro-choice as Governor of Massachusetts and is now pro-life) and Obama will be invited to spout the same line he normally does (i.e., he supports Roe v. Wade, and will defend a woman's right to choose, blah, blah, blah) without really saying why he believes this is the right position as a matter or morality, public policy or constitutional interpretation.

Nevertheless, here I think Romney has the opportunity to counterpunch.

An obvious counterpunch would be for Romney to bring up Obama’s atrocious votes in the Illinois Senate.  But this would give the President a generous opportunity to obfuscate and mislead as those in his campaign have done (see here), and the Press can’t be counted on to fact check with integrity, and most people – if they were still listening days after the debate – would likely throw up their hands in frustration, no knowing the truth and no longer caring.  So I would not recommend such an approach.

Instead, the counterpunch could come like this.

Romney could say that “Like the vast majority of Americans, I recognize that the being growing in the womb is a human being.  Indeed, that is why considering an abortion is such an anguished decision for most women and why many experience enormous grief afterwards (see here) – they recognize that it isn’t like having a tooth pulled or one’s appendix removed.  It isn’t just a clump of cells but a child – their son or daughter!  The humanity of the developing child is not a moral or theological position, but the conclusion of science.  Why, Mr. President, do you refuse to accept this?  Why are you opposed to what science tells us?"

“During the 2008 campaign at the ‘Compassion Forum’ Mr. Obama was asked when does human life begin and he said ‘That is something that I have not . . . come to a firm resolution on.’  ‘Is it when a cell separates?  Is it when the soul stirs?’ you asked, and you concluded that you wouldn't ‘presume to know the answer to that question.’" (See here).

“Really Mr. President?  Can you honestly tell the American public that when you and Michelle were expecting and she was pregnant with each of your daughters, and you saw the ultra-sound image flicker across the screen, you withheld your judgment then, not having reached a 'firm resolution' on whether the object of your affection was a human being?  Did you say ‘We don’t know if it’s a child yet’ because we wouldn’t ‘presume to know’ whether or not the soul had yet ‘stirred’?  Or did you exclaim with joy ‘That’s our baby girl!’?  Mr. President, I think we all know that the being growing inside his or her mother’s womb is a human being.  The difference is I think that innocent human life should be protected and you don’t.”

Some people might think this is too personal, and intrusive, and would make Obama a victim

Perhaps so.

Still, there are ways Romney could say the same thing in a less personal way addressed to Obama.  He could say “Most women, most men, most Americans, when they see the ultra-sound image – they know it’s not just a clump of cells.  It’s a human being.  Even in the early weeks of the pregnancy the technician can point out features and say ‘Here is the heart, here is the brain, here is an arm or a leg.’  It’s a child, and we know it, even if it doesn’t appear like a fully formed infant at birth.  They know this, and I suspect you and your wife had the same reaction ‘There’s our baby girl!  There’s our daughter!’  Well that reaction isn’t a matter of someone’s subjective judgment, or their religious beliefs as you have implied.  And it isn’t just an emotional response, though it is a recognition weighted with emotion.  No.  That judgment, that conclusion is an empirical judgment – a judgment reflected in the leading texts on human embryology used in America’s medical schools – a judgment that is confirmed with our own eyes.  And I believe that because it is a human being, because it is a human life, it is entitled to protection under the law.”

Responding to the question of abortion in this fashion would of course give voice to a deep truth that lies at the foundation of Catholic social teaching.  To hear this voice in the public square could not help but be a good thing for the American electorate.


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Mitt Romney is a financial guy, a numbers guy, in addition to his political credentials as a former Governor. I wonder if the discussion of abortion on the ground of ethics, morality, or social justice can ever make an American voter change her mind. What are the numbers for the abortion industry? How many doctors bill public and private insurance payers, how many billions per year for testing, primary procedure and follow-up? What is the complication rate for the procedure? Mortality? How many abortions are performed on whites compared to minorities? In the all important cases of rape or incest, how many of these cases are there? What is the distribution of the infants' term when the abortions are performed? Abortion is a medical procedure about which there are no reliable, transparent public numbers. We wouldn't accept this for cardiac procedures, so why is it acceptable here?

Surely, some government agency must track this information. I supsect that the answers would be revelatory and shocking, but it's only a guess. These numbers would put into sharp relief the crtical issues which now seem abstract to the broad electorate.

In the end, public policy is about money, usually OPM ("other people's money") The New York Times has a columnist who calls himself "The Numbers Guy." What are the numbers on the abortion industry? It must be an industry that supports a lot of people for it to generate the kind of rhetoric you cite in your post.

Posted by: Eapen Chacko | Sep 29, 2012 4:20:29 PM

Romney has made it clear he supports abortion in cases of rape and threat to life of the mother. He also supports use of "excess" embryos from fertility clinics for stem-cell research. Of course, since he is opposed to most abortions, he can make the case that he is clearly the better choice for pro-life voters than Obama. But with those two positions, he is in no position to make sermons about life beginning at conception.

If Romney "knows" that what is developing inside a mother's womb is "a human being, a human life," then he supports, in some cases, the killing of innocent human beings. If he dared to make the argument John Breen suggests, he would either have to change his position and oppose *all* abortions and *all* embryo-destructive stem cell research, or there would be a glaring inconsistency in his position that would clearly be indefensible.

Posted by: David Nickol | Sep 29, 2012 10:52:29 PM

I'm a little confused about what you mean, John, when you say, or would have someone else say, "The humanity of the developing child is not a moral or theological position, but the conclusion of science." Isn't the definition of "humanity," particularly as it applies to early-stage fetuses, more (or entirely) a moral or theological question rather than a scientific one?

Posted by: Paul Horwitz | Sep 30, 2012 8:02:13 AM

My religion tells me that "early-stage fetuses" are actually cabbages. I don't see what science has to do with it.

Posted by: Anonymous | Sep 30, 2012 1:22:45 PM

As John Breen notes, the leading texts on embryology being used in U.S. medical schools state with no equivocation that a human being exists from the time of fertilization. I have a son in med school (a school with no religious affiliation) and his embryology text says exactly the same thing. Moreover, even the leading pro-choice philosophers--Singer and Boonin, for example--concede that abortions destroy human beings. At least they have the intellectual honesty to recognize the humanity of what they argue can be intentionally destroyed.

Posted by: Bill Collier | Sep 30, 2012 3:19:32 PM

If that comment is meant to suggest that I am being intellectually dishonest in my comment, which perhaps it isn't, then I think you're overreading it. Of course abortion results in the destruction of a human life, whether directly or by implication. That doesn't make the human status of a fetus at every stage a matter of scientific fact, as I understand it.

Posted by: Paul Horwitz | Sep 30, 2012 6:20:29 PM

It is not necessary to consult an embryology textbook to conclude that a human zygote, embryo, or fetus is human. No one would deny that. One of the current major embryology textbooks is named The Developing Human. The first paragraph of the first chapter begins: "Human development is a continuous process that begins when an oocyte (ovum) from a female is fertilized by a sperm (spermatazoon) from a male. Cell division, cell migration, programmed cell death, differentiation, growth, and cell rearrangement transform the fertilized oocyte, highly specialized, totipotent cell, a zygote, into a multicellular human being."

To say that a zygote is human or to say that an embryo or fetus is a human being is to make quite a different statement than to speak of "the humanity of the developing child." Thanks to Amazon's "search inside the book" feature, one can discover that the word "humanity" does not appear even once in The Developing Human. Ascribing "humanity" to the developing embryo or fetus is basically begging the question, since it is simply another way of asserting personhood, and whether or not (or when) a developing human may be considered a person is probably the most fundamental question in the abortion debate.

I think abortion is probably among the last things Romney wants to come up in the debate.

Posted by: David Nickol | Sep 30, 2012 6:28:10 PM

A human individual can only conceive a human individual. Since it is true a human individual is not a place or a thing, every human individual, including every developing human individual, must be a human person.

Posted by: N.D. | Sep 30, 2012 7:58:48 PM

The comment was meant to show that you're not confused: you think Prof. Breen misstates the issue because biological humanity qua humanity isn't the actual locus of the debate, it's what we mean by "human" in a moral/dignitaran/whatever sense. That's fine. You should just say so rather than throwing around, "wait, I'm confused" and pretending not to know what Breen is talking about.

Posted by: Anonymous | Sep 30, 2012 10:07:25 PM


Consider that Paul Horwitz, in the phrasing of his initial comment, was taking pains to be polite. Then consider how your sarcasm (Sep 30, 2012 1:22:45 PM) and hauteur (Sep 30, 2012 10:07:25 PM) appear in comparison.

Posted by: David Nickol | Oct 1, 2012 6:42:36 AM

David, it is a self-evident truth that there is no such thing as a thing that is human, and no such place as a place that is human, because, from The Beginning, we can know through Faith and reasoning, that every son and daughter of a human person is a human person.

Posted by: N.D. | Oct 1, 2012 8:22:51 AM

Just to be clear, I was actually directing my response at Mr. Collier, not anonymous (and again, perhaps he wasn't referring to me). As for anonymous's comment, I agree with the sentiment in general and perhaps could have been clearer, but I wasn't trying to be disingenuous--diplomatic, yes, but not disingenuous. I do disagree that there appears to be an overstatement about what science says about, as David puts it, "humanity," but I was *also* confused about how John's post got from one to the other. Still, point taken.

Posted by: Paul Horwitz | Oct 1, 2012 9:19:38 AM

If I follow the comments Correctly, Prof. Horwitz agrees that science can tell us that the fetus is "human life."

Prof. Horwitz, however, is saying that science cannot tell us what the moral worth of that life is.

Is this correct?

Posted by: Catholic Law Student | Oct 1, 2012 10:06:08 AM

Mr. Breen, you would presumably oppose legislation that would make masturbation illegal. Can we therefore say that you celebrate masturbation? Should we say that you are committed to masturbation? Should we say that you are pro-masturbation?

To oppose attempts to make abortion illegal is just that. Your descriptions of this opposition show you to be ignorant or willfully deceptive.

Posted by: Kostya | Oct 1, 2012 10:22:10 AM

CLS, I'm not sure that's quite right; even if we set aside the moral worth of human life, I'm not sure that the question what constitutes "human life" is a scientific one at the stage we're talking about. It's more a definitional question, one that probably is inevitably value-laden. Certainly science can tell us a good deal about the development of what virtually everyone would define without argument as human life, and certainly both science and simple common sense can tell us a good deal about the relationship between fetal life and the subsequent birth (or not) of live human beings. I should say that none of this is intended to weigh in on one side or the other of the moral question or the rightness or wrongness of abortion, just to seek clarification (and, as anonymous writes, to suggest a view) about what and how much science can usefully tell us in this area.

Posted by: Paul Horwitz | Oct 1, 2012 10:40:32 AM

Professor Horwitz, what Science has shown is that from the moment of conception, a human being, remains a human being. From the moment of conception, you remain you.

Posted by: N.D. | Oct 1, 2012 12:22:42 PM

Paul Horwitz—

My prior post was not in response to your post. Even if that had been the case, however, I would not have intended any offense to you. I was supporting John Breen’s statement that all of the leading embryology texts identify conception as the beginning of a new human life. A distinct genotypic individual of the species Homo sapiens begins at that point. I believe that personhood, in all its legal and moral ramifications, attaches when that new human life comes into existence because IMO membership in the human species is the only criterion necessary for conferring moral worth and legal protection on a new human life.

My other point was that pro-choice philosophers Peter Singer and Daniel Boonin recognize that a human life begins at conception, but they posit that personhood, and therefore the recognition of a legal and moral right to life, requires more than mere membership in the human species. While I strongly disagree with this argument, Singer and Boonin are to be commended for at least not trying to duck the issue of when human life begins by using ambiguous and manufactured terms (by the IVF industry, for example) such as “potential human” and “pre-embryo” to sidestep the uniqueness of what they nevertheless conclude may be intentionally destroyed.

Posted by: Bill Collier | Oct 1, 2012 12:55:01 PM

Bill Collier, I'd like to engage with you regarding your claim that "membership in the human species is the only criterion necessary for conferring moral worth and legal protection on a new human life." If you are also willing, I'd first ask how you determine species membership. In biology the definition of "species" is contested. Which of the contested definitions do you favor, and why?

Posted by: Kostya | Oct 1, 2012 1:10:00 PM

Bill, I'd like to also ask you to clarify your claim. Are you saying that membership in the human species is merely the only necessary condition for these things, or are you saying that it is a sufficient condition for conferring these things on a new human life? I suspect you mean the latter.

Posted by: Kostya | Oct 1, 2012 1:16:39 PM

It is important to note that there is no Scientific evidence that a human individual has existed who was not, from the beginning, a human individual, nor is there any Scientific evidence of a human individual becoming something other than a human individual, or a being, that was not a human being to begin with, becoming a human being.

Posted by: N.D. | Oct 1, 2012 3:46:32 PM


You say: "It is important to note that there is no Scientific evidence that a human individual has existed who was not, from the beginning, a human individual . . . "

This seems to me to be *so* important, I hope you will be able to provide some links to reliable sources that will back it up.

It does seem to me that if a human individual comes into existence at conception, then monozygotic twins fall outside the generalization you have made here. The split that results in monozygotic twins can take place as long as nine days after conception. How can one nine-day-old human individual, or person, become two human persons by physically splitting? Which individual, Twin A or Twin B, existed at the moment of conception?

Posted by: David Nickol | Oct 1, 2012 4:23:30 PM

David, at the moment of their conception, a human individual exists, even if one human individual is begotten from the other, Are you suggesting that not every twin is a human individual?

Posted by: N.D. | Oct 1, 2012 5:19:11 PM

Since you do not believe that it is a self evident truth that a human individual can only conceive a human individual, perhaps you can provide us with some links of a being that is not human becoming a human being, but then, the truth is, those missing links don't exist, to begin with,

Posted by: N.D. | Oct 1, 2012 5:49:05 PM

Interesting comments. When it comes to abortion, these definitional disputes are half the problem -- people aren't using the same definitions and premises and so they inevitably talk past each other.

-For what it's worth, I consider "human life" a scientific term. It's the term for an entity that is (1) human (and not dog, carrot, ant, etc.) and is (2) has life or is living (that is, has an internal principle of maturation, development, etc.) But I guess some don't consider "human life" to be a scientific term. How about "living human entity"?

-I think the twin scenario is easily explained: one living human entity existed before twinning, and at the moment of twinning, a second living human entity comes into existence. I see it analogous to cloning: before cloning, there is one living human entity, and at cloning, a second living human entity comes into existence. Before the twinning or cloning occurred, there is no reason to think that the entity that exists beforehand is not a living human entity itself.

-the species question is interesting, but ultimately, I think, not very useful in the discussion about the morality of abortion. Species just means "type" or "kind." Now the distinction between what makes X a different type or kind of animal from Y (i.e., a different species) is admittedly fuzzy at lower levels of animals. But it's not fuzzy at the human level. There is no doubt that a human being is different type of thing from a dog, carrot, ant, or even chimp, even if we can't always define species in other instances.

Posted by: Thales | Oct 2, 2012 8:59:48 PM

"the Democratic abortion faithful"

So very helpful. The ultimate importance of letting the individual, even when it is against the popular path, to have the private right of conscience is something that I think Catholics should honor. This includes regarding choices about motherhood. No wonder so many are Democrats.

Some of the private choices made are wrong. Ridicule or labeling like this is not the best approach to address it. If criminal, abortion still occurs, just in a more selective and more dangerous fashion. See Latin America.

Democrats support free choice and various things that make it more likely that a girl or woman will -- if she wants -- to have a child successfully. They also support contraceptive choice to stop many who are unready and unwilling. They also support health care programs to care for people as a whole, including those not ready or willing to give birth to a child. The overall right to choose in that area is something generally accepted, those against it always finding some "exception" that turns out to be "depends on the circumstance."

For those against abortion, realistically and morally, the best choice is support and care. Instead, that is, of gotcha questions of when Obama thinks a "life" is truly a "human person" or whatever. Divorce likewise is something the Church frowns upon but focusing on what really is a 'marriage' so we can determine if we can find a loophole is not the best path or talking of "the divorce faithful."

Ugly stuff really.

Posted by: Joe | Oct 3, 2012 1:13:57 PM

This is the only thing that Romney said that even came CLOSE to the issue of abortion:

"First, life and liberty. We have a responsibility to protect the lives and liberties of our people, and that means a military second to none. I do not believe in cutting our military. I believe in maintaining the strength of America's military."

When I heard him say, "life and liberty," I thought to myself that I may have been wrong that he wanted to avoid any discussion of abortion. But just a few words here would have slipped in an anti-abortion message, and clearly he chose not to say them.

Posted by: David Nickol | Oct 4, 2012 11:59:05 AM