Is the fetus a person?

A COUPLE OF YEARS AFTER the passing of the Abortion Reform Act in 1967, Cardinal Heenan, then Archbishop of Westminster, asked my opinion on "why we lost the battle" and what could be done. I offered him two thoughts from my perspective as a journalist. The first was that the more the Catholic church was seen to be trying to bring about the law's repeal, the less likely it was to succeed. It had to be a lay initiative, and not exclusively Catholic.

Second, I suggested the Catholic church should take note of the switch in secular thinking about morality from a sin-virtue basis (sin being primarily an offense against God) to a rights-justice basis (a right being a claim one human being has on another). Until then, the church's emphasis had been on the sin of abortion and the punishment due to the sinner. Why not change the emphasis to the rights of the fetus? That was the contemporary language. People might have stopped believing in God or at least in sin. But they were beginning to talk about rights. Indeed--this was the 1960s--they were bursting out all over.

This was still not long after John XXIII's Pacem in Terris had taken human rights, which the church until then had seen as a rather alien idea, and given them a comprehensive Catholic baptism. As any general would when fresh troops arrive at the scene of what looked like a losing battle, Heenan rushed my idea into the front line with little preparation or rethinking. So the "right to life" banner was unfurled under fire, soon to be matched by the other side's banner, "right to choose." As far as I can see nobody ever did catch up with the intellectual staff work.

Had there ever been a long hard look at the relevance of rights-justice language to the abortion debate before it was pressed into service, however, a number of problems might have been spotted. Fundamentally, the notion that the fetus had some independent "right to life" which society had a duty, to safeguard against all-comers might have seemed too far for one logical leap. It was based on the premise that an unborn child is just as much a human person as a born child, and rights attach to a human person irrespective of its presence inside or outside the womb. In the last three decades this has become the core Catholic teaching on abortion, papally endorsed.

The problem with it is this. In the Anglo-Saxon legal system as far back as anyone can see (and in any other legal system I am aware of, including canon law), fetuses have never been given any recognition whatever as bureau persons. A fetus has never been counted a member of the population, or registered as such. It requires no passport, has no individual identity, no name and address. Legally, it cannot own, bequeath or inherit property. It cannot sue or be sued, be married or adopted. It has no legal relationships. Its death unborn is not recorded (except as a medical event); no coroner is informed. A fetus cannot be a victim of crime nor ward of court. Its consent is never required, even by proxy, for any medical procedure. The murder of a pregnant woman is the same in law as the murder of an unpregnant one, etc.

So in all respects the fetus is still legally not a person. Common and statute law, molded through Christian centuries stretching back to the early Middle Ages and beyond, has made no effort to recognize its personhood or protect its rights. Indeed, it had no such concept. Abortion was a crime, but the criminal justice system was habitually indifferent to the rights of victims.

Nor is the law at odds with the rest of our behavior. We do not name a fetus until it is born. We do not mark or celebrate its date of conception. A woman who miscarries is left to her private grief, often cruelly so. The same is true of religion. A fetus cannot receive the sacrament. Funerals for miscarried fetuses are unheard of, and no church has a rite for them in its official liturgy. Prayers are not said for its soul. No church census, however zealous, ever counted a pregnant woman as two.

But now this long tradition, unchallenged for centuries by theologians and popes, is confronted with the radical claim that the rights of the fetus should henceforth be entitled to full protection of the law. And any Catholic legislator who does not unswervingly demand this may be condemned by imperious bishops to virtual excommunication (as in the case of American legislators like Senator Kerry).

It is possible that the law, society and the church have been mistaken all these years, and that it is high time all of them pushed back the boundaries so as to include fetuses among those with whom we all share a network of personal rights and obligations. Medical science, whether through ultrasound scans or improvements in the survival chances of premature babies, is making us increasingly open to the idea that the born and the unborn child are essentially the same.

But the debate cannot be assumed to be won when it has hardly begun. The implications are enormous. And burden of proof must surely lie on those who would change the status qua.

And none of this did I say to Cardinal Heenan at the time. Perhaps I should have done.

CLIFFORD LONGLEY is o columnist with the Tablet (UK) where this article originally appeared. Reprinted with permission.