January 26, 2013

A Matter of Choice

Forty years ago, the Supreme Court of the United States held in Roe v. Wade that a physician had the right to practice medicine freely absent a compelling state interest, a right that included the decision to terminate a pregnancy. The Court also ruled that under the 14th Amendment, a woman had the right to privacy to make the decision for herself, at least during the first trimester of pregnancy.

Throughout the forty years since Roe v. Wade, there has been a lot of debate over the right to life and the rights of the unborn. The Catholic Church has been an especially ardent advocate of the right to life of the unborn. Many anti-abortion advocates have urged passage of state laws providing that the fetus is a person with full legal rights, a position vigorously supported by the Catholic Church. So the headline in the CNN story -- Lawyers for Catholic hospital argue that a fetus is not a person -- was a bit jarring, to say the least.

The case involved a pregnant woman who went into cardiac arrest in the emergency room of St. Thomas More Hospital in Canyon City, Colorado. Lori Stodghill was 28 weeks pregnant with twin boys when she died on New Year's Day 2006. Her husband brought a wrongful death suit on behalf of Lori and the unborn twins.

Lawyers for the the hospital and its owner, Catholic Health Initiatives, argued that under Colorado state law, a fetus is not a person until it is born alive. The twins were dead when they were removed from their mother, thus they could not be included in the law suit. The court agreed with that argument and eventually decided against the husband on the wife's wrongful death, as well. Icing on the cake ... the hospital sued the husband for $118,000 in legal fees. They graciously offered to drop the claim if the husband would agree not to appeal. Again, sound legal procedure but maybe not such great ethics.

Just as Roe v. Wade centered around competing interests of the state and the physician and the mother, so too the case of Lori Stodghill centered around the competing interests of doctrinal purity and fiscal well-being. In Lori Stodghill's case, a Catholic hospital chose to cite Colorado law that supported its position, certainly a legally defensible choice. The fact that it was a morally indefensible position, at least by the standards of the Catholic Church, well, that was awkward but apparently not insurmountable.

At the end of the day, it really is all about the choices you make, and the hospital chose money over it's affiliation to the Catholic Church, a position that didn't sit too well with the Vatican, which is reviewing the case "to ensure fidelity and faithful witness to the teachings of the Catholic Church."

The issue of abortion is never going to be settled. As anyone who has taken the trouble to actually read Roe v. Wade will discover, the argument over when a fetus is viable -- what used to be called quickening -- and therefore deserving of an added measure of legal protection has been going on for thousands of years. The advent of modern medical imaging techniques has, frankly, made it impossible to deny that there is an argument to be made. But, to paraphrase Paul Harvey, that is not the end of the story.

The problem I have had with the right to life movement remains two-fold. First, there are two lives involved, that of the fetus and that of the mother. Becoming pregnant does not make a woman a mere vessel for the fetus with no rights of her own. In some cases, the right to life of the mother can and should take precedence over the fetus. Certainly it is fair to consider both, depending on the circumstances.

Second, if you believe in a right to life for the unborn, then how much more valuable does that right to life become after birth? Do we get to pick and choose who gets the inviolable right to life and who doesn't? If the fetus has an absolute right to life, does our enemy on the field of battle? After all, he or she was once a fetus. My point is if you argue the sanctity of life then you should extend that to all life. The reality is that we constantly balance competing interests. My personal comfort versus the life of that spider crawling up the wall. My right to bear arms versus the inevitability of accidental and intentional gun deaths.

This brings us back to Roe v. Wade. At the heart of that decision was the recognition of competing interests that would have to be weighed and balanced. There is no absolute answer, only a process whereby we can try and approach a just outcome, one that balances the rights of all concerned. I'll take that over moral certitude any day of the week.

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