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Abortion and Legislation

 It is hard to find anybody who declares that he or she is in favor of abortion. However, the response changes drastically when the question asked deals with an existential situation: should a woman have the right to terminate her pregnancy or be legally compelled to carry it to term?

The 1973 Roe v Wade Supreme Court ruling mandated a right to abortion based on privacy provisions which the judges claimed were implied in the wording of the United States constitution. Most conservative justices and a majority of Republicans favor overturning Roe, and they seem to have a clear majority in the current Supreme Court to do exactly that.

If this occurs then each state will have to legislate on the availability of abortion in its own jurisdiction. Some will allow the procedure to continue along present lines while others will criminalize it and, presumably, mandate jail sentences for women and medical personnel who disobey the new law.

 Prior to the 2018 referendum which legalized abortion in Ireland, thousands of Irish girls travelled to English cities to terminate their pregnancies. Overturning the Roe decision will have exactly the same impact here. Women will travel to a nearby state to avail of the procedure that would no longer be available where they live.

Nullifying the Roe ruling will not alter the number of abortions in the United States. Using the law to force women to carry their pregnancies to term is doomed to fail. We need to move away from the thinking that court decisions will change the minds of the one-in-four American women who have at least one pregnancy termination before they reach the age of 45.

The Irish experience of trying to use the law to rule out abortion is instructive. In 1983 a group of devout pro-lifers decided that to circumvent the possibility of the parliament passing even a mildly-permissive abortion law, a clause should be inserted in the Irish constitution to obviate that possibility.

Influenced by stories about the role of the courts in the Roe v Wade decision in America, they were also worried about Irish judges and how they might thwart the popular will by interpreting some constitutional wording that would open the back door to the hated A word.  

At that time, no political party in Ireland was advocating changing the law to give women a choice in this area. Even the left-leaning parties did not include a call for new legislation on that subject.

 Still, this determined group, with full-throated support from the Catholic pulpits throughout the country, successfully led a divisive referendum campaign to copper-fasten their beliefs by adding a constitutional ban on the procedure. The meaning of the proposed text and how it could be legally understood in Irish and in English was hotly debated by lawyers on both sides. The amendment was easily carried.

How did it all work out? We had a heart-rending story of a 14-year-old girl, known as the X case, pregnant as a result of rape, who was barred from going abroad for a termination because of the constitutional ban.

 Then there was the poignant story of an Indian-born woman which angered people all over the island and beyond. Savita Halappanvar, heavily-pregnant in Galway, was refused the treatment to save her life because she was told that “we are a Catholic hospital” following the law.

Nobody doubts the sincerity of the people who claimed the high moral ground in the 1983 referendum, but they were completely wrong in thinking that some legal wording could compel a woman who doesn’t want to have a baby to continue her pregnancy.

An estimated 180,000 Irish women went to England for pregnancy termination during the 35 years following the 1983  referendum. Clearly, the legal constitutional change failed to achieve its goal.

In 2018, two-thirds of the people in another plebiscite removed the abortion ban from the constitution mainly because they rejected the clear hypocrisy of Irish women having to go to England for the service. The net result is that abortion is now legally available without question to any Irish woman in her own country.

At a recent major conference on this subject, sponsored by Villanova University, the convener, Patrick McGinley Brennan, a law professor, criticized church leaders “for ignoring canon law” by not clearly stating to President Biden and other Catholic leaders who support the Roe decision that they are “in formal co-operation with evil and thus not fit to present themselves for Holy Communion.”

Fr. Gerald Murray, a canon lawyer in the New York archdiocese and frequent EWTN contributor, accused President Biden of “obstinately persevering in a manifestly grave sin” and so meriting exclusion from the altar rails.

The United States Conference of Catholic Bishops (USCCB) will consider this matter at their June conference. If it is voted on, it is likely that a majority of the bishops will favor restrictions on providing the Eucharist to President Biden and other leading Catholics in public life.

They will have to tread carefully because they are aware that while they can issue a recommendation, the USCCB does not have the power to mandate any action by an individual bishop. Cardinal Wilton Gregory, who presides in the Washington diocese, has declared that he will not oppose the President coming to the altar rails. A new bishop was recently appointed in Mr. Biden’s home area in Delaware, but he hasn’t yet declared his position on the controversy.

Significantly, Francis’ two predecessors, John Paul and Benedict, both officiated at ceremonies where political leaders supporting a woman’s right to choose received communion with the congregation. John Paul included Tony Blair in the full eucharistic service when he was British prime minister and espousing liberal views on a woman’s prerogative in deciding on pregnancy termination. In fact, he wasn’t even a Catholic when he was welcomed at the altar rails.

President Biden subscribes to the teaching of his church on abortion. He argues convincingly that he was not elected to promote the beliefs of any denomination, and he must follow the laws he is sworn to uphold. A majority of Catholics agree with his stand, but big numbers also disagree.

A minority of the bishops, mainly those appointed by Francis, stress that the treatment of the poor and marginalized should  have equal priority in prescribing solutions for the ills of society. They question the church’s total focus on ending a 1973 court decision at a time of so much poverty and inequality in American society and when blatant lies are being promulgated daily, often by avatars of the pro-life cause, about the result of the presidential election.

The deliberations at the June USCCB conference will be carefully watched.

Gerry OShea blogs at


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