June 24, 2022, Roe v. Wade was struck down. Like many others I boarded a train to D.C. The hour-long ride from Baltimore city to D.C. was agonizing. Roe v. Wade being overturned at a time when abortion has never been more supported in America presents a large concern when it comes to other Supreme Court cases – what is the role of stare decisis. Stare decisis is the legal principle that the Supreme Court justices should look to precedent when deciding on cases. The majority decision outright argues that using stare decisis alone is not legal justification, “The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis…The Constitution makes no express reference to a right to obtain an abortion…” The decision goes on to argue that if Roe is upheld its argument could be used to defend “illicit drug use, prostitution, and the like.” The justice’s decision in Dobbs v. Jackson contains in footnote 46 the statement that people who want to adopt within the United States face a low “domestic supply of infants.” Alito is directly quoting the CDC, who uses the phrase along with “native-born infants.” However, the decision’s usage of the phrase without clarifying that this language is used to describe the adoption of non-American infants promotes racist xenophobic dog whistles. On the face of it, these claims are disconcerting, and the argument has significant ramification for other cases that have utilized similar reasoning and claims under the Due Process Clause – ramifications which Justice Thomas named in his concurrent decision. Justice Thomas names Griswold, Lawrence, and Obergefell as cases which may be reconsidered. These cases ensure birth control access, have made the prosecution of sodomy illegal, and legalized same-sex marriage.
Alito does not go as far as Thomas, and I doubt he will in a written decision. He argues that the difference between abortion and other rights is that it concerns a fetus. Meanwhile the dissent argues that this is a dangerous precedent, which Thomas’ proposals illustrate. Stare decisis has long been both a way to expand rights and also a way to restrict them. The D.C. protest had a contingent of Catholics for Choice, and they gave me a sign which in loud print shouts “Catholics Support Abortion Access!” I took a pin which reads “Catholics for Choice” and placed it on my shirt. There was a unique rage directed towards Justice Barrett, a Catholic woman, whose judicial history showed distinctive moves to overturn abortion rights. Many Justices are Catholic, with six of the nine justices being Catholic. Justice Sotomayor’s decisions are more reflective of my own faith, than that of Barrett, Kavanaugh, and Alito. Due to the religious makeup of the Court, and Barrett’s own discussion of her faith – it is important to examine the Church’s teaching upon the conscience, the body, and self-autonomy. I do not affirm or support the Judges ruling or arguing on abortion based upon religious principles. However, I contend that even as Catholics, they should not support a prohibition on abortion.
The Catechism of the Catholic Church is a book containing the official teachings of the Catholic Church. Pope John Paul II in 1986 formed a commission of twelve cardinals and bishops to develop a singular text that would cover all of Catholic doctrine. The Catechism was published in 1992 and has since been taught in all Catholic religious education classes.1placeholder The Catechism’s teaching on abortion is found in the second chapter of part three. The chapter is labeled “‘You shall love your neighbor as yourself.’” Abortion is clearly defined as a sin because once an egg has been fertilized, the possible person cannot be treated as either a means or end. The Catechism’s position in the history of the Church is relatively new in the Church’s history. It was not until the 1900s that the Church solidified a position that abortion is always a sin.
Despite the Catechism’s newness as a document, it, alongside the Bible and Papal encyclicals, are considered Church doctrine. Despite this status, Catholics are not required to necessarily follow the Catechism, but they are required to know the Catechism. The Catechism holds the position that it may a requirement of a moral person to disobey the Catechism. The Catechism argues that when navigating complex moral issues, a person must first look to their conscience and not Church leaders. This is called the “primacy of conscience.”
The Catechism outlines what the conscience is in the first chapter of part three. The chapter is titled “The dignity of the human person.” The conscience is defined as:
The divine law is the law of God. The conscience is the first voice of God. It is considered the immediate way that God communicates to individuals. The Catechism includes not just what someone plans to do but also the immediate act and the actions of the past. It is a religious requirement that an individual exercise their individual reason and morality. Because of this, a Catholic cannot be dogmatic. They must always be willing to disobey Church law, and in grave cases, human law.
The seeming clarity of the Catechism is not necessarily as clear as some may wish. The role of the conscience has been important to disobeying and challenging the Church’s institutional harms – such as through the participation in slavery. The conscience is the pathway by which the Church can address its own sins. It is a sin to ignore one’s conscience. The Catechism states:
The Catechism plainly states that a person would “condemn” themselves, meaning that they would be in a state of sin, and would need to confess the sin of ignoring their conscience. The Church is often thought of as an institution that does not allow divergence, but this divergence is built into its very teaching. In order to protect the ability of all persons to challenge the Church they must cultivate and develop their own conscience. I was instructed that the way to develop my conscience was through learning and praxis. It is critical to know the intellectual teachings of the Church as well as practice one’s obligations towards one another.
Abortion exists at the nexus of the intellectual teachings of the Church and our concrete obligations towards one another, which are built upon the requirement that one must help individuals in need. If Catholics accept, they have an obligation to the disenfranchised in society, then abortion appeals to this. The demographics of people who have abortion are unmarried parents, late 20s, attended some college, living below the poverty level. The Church is very specific that the reason to oppose abortion is the same as the reason to oppose war and the death penalty – it is important to respect one’s body and all other’s bodies. However, if one’s reason and morality see that access to abortion is necessary for a person to live a full and equal life, and to not experience further disenfranchisement, it is a requirement that one support access to abortion. For the majority of United States’ 56 million Catholics this is the reason for their support of abortion. There are debates within the pro-choice contingency of Catholics – at what point is abortion no longer ethical, is abortion ethical only in the case of rape or incest? Despite those nuances, the majority of Catholics support abortion because a world in which abortion is illegal is going to harm the pregnant person’s body and violate their bodily sanctity. Thus, it is critical for abortion to be legal for all persons.
The matter of whether or not the fetus is a person is not the appropriate question when it comes to abortion. The fetus is a possible life, not a confirmed life. If we are to assess one’s proper actions, it is best to focus on the life at hand – that of the pregnant person’s. If we view a pregnant person’s body as a means, we then violate the very principles laid out for the respect human dignity. A person ought not to be treated as either an ends or a means. The reduction of abortion to a question of fetal personhood passes over the pregnant person’s personhood. It is stands to reason, as laid out within the Catechism, that the pregnant person’s personhood is equally inviolable. Because of this, the Church should affirm access to abortion. The Church cannot assert that both the fetal life and the pregnant person’s personhoods are equally important, without respecting the pregnant person’s choice to use their reason and well-formed conscience when it comes to abortion.
The Catechism as a text informs not just what Catholics believe, but also how we are to act and live within the world. Thus, the primacy of conscience also acts as a driving factor in not only the individual’s relationship to the Church, but also the individual to the State – following this, it stands that the Catholic Justices’ decision-making also is impacted by their conscience. The conscience is guided by one’s reason. The relationship of the judges to the Constitution ought to be formed according to legal precedent and interpretation of the Constitution. A ruling must be considered in light of stare decisis and the principles guiding the nation – one of which is the separation of Church and State. Is it just to overturn centuries of legal practice and challenge national principles? Or is it wiser to rule according to precedent and uphold the boundaries between Church and State? Alexander Hamilton in Federalist 78 argued that judges should not rule according to will, for then they become legislators on a court bench. Hamilton’s warning is well-aligned with the primacy of conscience. A judge is not a legislator. They cannot rule according to their moral beliefs. A Justice, particularly a Catholic Justice, should rule according to what is just and right for the nation overall.
There are many worries over what it means to live in a post-Roe world. The Supreme Court overturned a ruling which may lead to challenging other rights – such as the right to privacy in one’s home, the right to contraception, and the right to marriage. Likewise, other religions such as Judaism and Islam do not have the same contentious relationship to abortion as Christianity. Should individual states’ have abortion allowances to individuals whose faiths or lack thereof do not present a barrier to abortion? The refusal of abortion to adherents of other religions or no religion at all is a significant breakage of the separation between Church and State. The Justices’ decision to enforce their will, rather than utilize stare decisis and uphold the secularity of the State is neither wise nor just.
Church teaching and Church history reflect a history of debate, and not a history of dogmatic agreement. The Church’s Catechism requires debate and challenging oneself and the institution of the Church. Central to the debate is the unwavering obligation to our neighbors, particularly those in need. It is critical that Catholics protect people who experience sexism, misogyny, and other forms of oppression and harm which exist due to their bodies. It requires that we affirm the sanctity of their own body, which is the site of systemic violence. Is abortion part of this? Pro-choice Catholics argue that it is, and the primacy of conscience upholds their argument. Pope Francis himself has reaffirmed the importance of personal conscience over Church teaching, and when challenged the Pope stated, “The primacy of conscience must always be respected.” Pope Francis has placed significant stress on the importance of encounter. If we are to genuinely encounter our neighbors, as themselves and as beings deserving of love and respect, we must respect their conscience.
The problem of what an individual ought to do when confronted with an unjust law has occupied much Catholic thought. Saint Thomas Aquinas and Augustine, both doctors of the Church, firmly state that an unjust law is not a law at all. Reverend Dr. Martin Luther King Jr. referenced Saint Thomas Aquinas in his “Letter from Birmingham Jail.” An unjust law degrades human dignity. The overturning of Roe v. Wade is unjust because forced pregnancy degrades the dignity of the pregnant person. King defines an unjust law as “a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal.” The inability to have an abortion will disproportionally impact the poor. Black, brown, and indigenous people experience higher rates of maternal mortality during birth. Millions of Black, brown, and indigenous people’s lives will be put at risk. Moreover, transgender men may be outed if they become pregnant and are forced to give birth. The Justices may be a religious minority. However, the Justices who ruled to overturn Roe were white with the exception of Justice Thomas. All are cisgender and heterosexual. A post-Roe world is one that further stigmatizes and harms individuals who already experience disproportionate violence and harm. The Justices have made these differences law. It is a moral obligation to not follow an unjust law.
The Catechism articulates a theology driven by intellectual and moral debate and deliberation. However, it is not the solo authority within Catholicism. The authority is God, whose voice is heard best in one’s conscience. These arguments over conscience and our obligations towards one another and the law have moved Catholics and non-Catholics in the pursuit of justice. Our consciences guide us in how we ought to live and relate to one another and the State. The Supreme Court of the United States, both as Catholics and as justices, ought to have upheld Roe v. Wade. Their decision to overturn the monumental ruling presents Catholics and non-Catholics alike with the same problem – what do we do? Foremost, we must listen to our consciences.
Only one part of the Catechism has been revised – Pope Francis in 2018 revised the Catechism’s stance on death penalty, stating that the death penalty is indefensible. His argument against the death penalty’s morality, also forms the backbone for the argument against abortion.