ARTICLES

Gray Davis and the Abortion Non-Debate

WHY DOES HE THINK THE POPE AND THE CHURCH ARE WRONG?

By Lance T. Izumi

To craft his new centrist image, California Governor Gray Davis has pledged to end the so-called "politics of division." Pleasing as that may sound, one must ask, exactly what does such a pledge mean with regard to some of the burning issues of our day? According to Davis' own words, it apparently means removing such issues from the table of debate.

Take, for instance, abortion. In his inaugural speech, Davis, who is Roman Catholic, warned: "To those who would seek to deny a woman's right to choose...don't waste the Legislature's time trying to pass bills restricting women's constitutional rights. It simply will not happen on my watch." In other words, since no such bill will be signed, don't even bring up the issue.

The problem, though, is that there are still important public policy questions involving abortion -- questions involving legal and logic issues as well as issues of morality. For example, under California Penal Code Section 187, murder is defined as "the unlawful killing of a human being, or a fetus, with malice aforethought." Yet the same section states that this definition doesn't apply to actions taken under California's Therapeutic Abortion Act.

There is clearly a logical inconsistency here. Consider the well-publicized case of a California woman convicted of second-degree murder for killing the eight-and-one-half-month-old unborn child of a 15-year-old girl. The unborn child died as a result of a car crash caused by the woman, who was legally drunk at the time.

One wonders, what is the difference between this crime and the deliberate killing of an unborn child during an abortion? In both cases, the unborn child is equally dead. Defenders of the distinction might argue that in one case the mother has not consented to the killing of the unborn child, and in the other she has. But this is intellectually untenable: murder hinges on whether there is a murder victim and a killer who intends to kill the victim, and not on whether a third party has consented to the killing.

Still, some might say that comparing the California killing to abortion does not account for the "viability" of the unborn child -- that is, its ability to survive outside the mother's womb. The late-term unborn child in the aforementioned case is different, so the argument goes, from a three-month-old unborn child.

California courts, however, have rejected this distinction. In a landmark 1993 case, People v. Davis, a state appellate court held that a person can be convicted of murder of an unborn child even if the child is not "viable." In the Davis case, an early-term unborn child was killed during a robbery. According to the court's majority opinion, "It surely makes little difference to the woman with child in utero, hoping and expecting to carry the child full term, whether the child is killed at 20 weeks or 25 weeks of existence." The court concluded that it is "entirely within the power of the state to impose upon the killing of any fetus the same penalty as is prescribed for murder of a human being." The California Supreme Court later upheld the appellate court's decision.

Both courts, however, felt obliged to affirm that in a conflict between a woman's "right" to an abortion, and the state's interest in protecting the life of an unborn child, the former outweighs the latter. The courts, though, didn't even try to fill in the logic: how can the same act be in one case murder, and in the other an unassailable right? Legal commentators have criticized this faulty reasoning. Pepperdine University constitutional law professor Douglas Kmiec observes: "It is very anomalous. If someone commits a battery against a pregnant woman, one can be charged with a crime, even a felony such as fetal homicide. Yet, taking that same [fetus'] life is authorized as a constitutionally protected right if it is through abortion. There is no principled way to reconcile this anomaly."

Whether they like it or not, governors and legislators are elected to deal with such knotty problems. If the state chooses to continue to keep fetal homicide on the books as a crime, then legislative proposals to restrict abortion make logical and legally consistent sense. If Gray Davis disagrees, he should be willing to debate the merits of the issue rather than issuing calls to cut off debate.

Yet, avoiding principled discourse has always been Davis' strategy on the abortion issue. During the gubernatorial campaign, Davis often identified himself as a practicing Roman Catholic. However, he never explained why he believes that the Church's teachings on abortion are wrong.

For example, as a Roman Catholic politician, it would be instructive to know what Gray Davis thinks about Pope John Paul II's encyclical Evangelium Vitae. In his encyclical, John Paul II cites the Prophet Jeremiah who said: "The word of the Lord came to me saying: 'Before I formed you in the womb I knew you, and before you were born I consecrated you; I appointed you a prophet to the nations.'" Biblical references such as this, says the Pope, "show such great respect for the human being in the mother's womb that they require as a logical consequence that God's commandment 'You shall not kill' be extended to the unborn child as well." Thus, the Pope logically states that "procured abortion is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth." Therefore, says John Paul II, "we are dealing with murder." Because abortion is murder, the Pope concludes that, "No circumstance, no purpose, no law whatsoever can ever make licit an act which is intrinsically illicit, since it is contrary to the law of God which is written in every human heart, knowable by reason itself, and proclaimed by the Church."

Does Gray Davis disagree with the Pope's position? Most likely he does. But if so, why does he think the Pope and the Church are wrong? What are his rebuttal arguments? Unfortunately, like most pro-abortion Roman Catholic politicians, in his speeches and public comments Davis doesn't tell us. Instead, he hides behind slogans like "a woman's right to choose." Such intellectual cowardice allows him to avoid answering the hard questions -- questions posed by the intellectually formidable position of the Pope and the Church.

Speaking directly to politicians like Davis, John Paul II says: "While public authority can sometimes choose not to put a stop to something which -- were it prohibited -- would cause more harm, it can never presume to legitimize as a right of individuals -- even if they are the majority of members of society -- an offense against other persons caused by the disregard of so fundamental a right as the right to life."

At issue in the abortion debate are diametrically opposed philosophical conceptions of good and evil. The time has come to force politicians like Gray Davis to address this fundamental issue. Letting the Davises of this world to get away with less will condemn us to continue to live in a world governed by evil laws.

Izumi is contributing editor of The California Journal.