Another Pontifical Academy for Life member criticizes overturning Roe v. Wade

Denver, Colo., Oct 21, 2022 / 13:00 pm (CNA).

Roberto Dell’Oro, a member of the Pontifical Academy for Life, has criticized the Dobbs decision, which overturned Roe v. Wade’s strong protections for legalized abortion.

Dell’Oro is a moral theology professor and holds the O’Malley Chair in Bioethics at Loyola Marymount University, a Jesuit institution. He contends that the Supreme Court’s June 24 decision in the Dobbs v. Jackson Women’s Health Organization abortion case violates norms of democratic personal freedom and respect for women’s basic autonomy in a way that verges on the “totalitarian.”

His views suggest a split between pro-life Catholic opinion in the U.S. and members of the pontifical body originally set up with a strong pro-life mission. Last week an economist who is an outspoken advocate for abortion rights, Mariana Mazzucato, was appointed to the pontifical academy.

Dell’Oro, speaking at an Oct. 12 event at the Loyola Marymount University campus in Los Angeles, did voice support for banning abortion as early as the first trimester or, minimally, at the point at which the unborn child can feel pain, about 16 weeks into pregnancy.

Though the Dobbs decision allows those state-level bans and returned abortion law to the states, for Dell’Oro the decision was still flawed.

“In the potential conflict between a woman’s claim to autonomy and a state’s right to determine the future of her pregnancy, the Dobbs decision sides with the latter over the former, rejecting any space of ‘personal liberty’ for women, even in cases of rape or incest,” Dell’Oro said at the O’Malley Chair lecture “Confronting the Dobbs Decision: A Conversation About the Legality of Abortion.”

Dell’Oro is also director of the university’s Bioethics Institute, which presented the event. The institute grants master’s degrees and graduate certificates in bioethics and engages in outreach to medical professionals, researchers, hospital administrators, chaplains, and social workers on ethical problems.

In a subsequent interview with CNA, Dell’Oro emphasized that his remarks at the campus discussion focused on the legality of abortion, not its morality.

Dell’Oro, one of three speakers at the event, argued during the discussion that full moral agency defines a citizen’s status in “a secular, democratic polity,” and so failing to recognize “dimensions that are essential to women’s freedom” risks curtailing “full democratic participation” for more than half of society.

“To impose a choice on women over matters that belong to their most intimate sphere threatens to compromise their integrity, bodily and otherwise, as persons,” he said.

“It also undermines basic requirements of tolerance toward the pluralism of moral perspectives within society. In matters of personal life, a democracy differs from a totalitarian regime because it maximizes, rather than restricts, a space of personal freedom for all citizens, including women,” said Dell’Oro.

Critic: Argument ignores ‘most basic’ right

Dell’Oro’s remarks drew strong criticism from Teresa Collett, a University of St. Thomas law professor who co-authored an amicus brief on behalf of women scholars who asked the Supreme Court to overturn Roe in the Dobbs case.

“By focusing on ‘choice’ and ‘pluralism’ the professor ignores that a democratic republic can only exist if it protects the most basic human rights, the most fundamental being the right to life, which at the very minimum must include the right to be protected against deadly violence of others,” Collett told CNA.

“Neither pluralism nor the invocation of ‘choice’ negates this basic political reality,” she said. “Just as pluralism does not justify state indifference to infanticide or child sacrifice, even when appearing in the guise of religious liberty, it does not justify permitting abortion absent the extraordinary circumstance of pregnancy posing a threat to the mother’s physical life.”

In response to inquiries about his remarks, Dell’Oro depicted his position as a legal compromise.

“I hope that my own personal position as an ethicist is not simply reduced to the compromise position that I articulated with respect to the law,” he told CNA.

“Compromise might be in fact all that you can aim at in the political situation in which we are here in California,” he said. California voters will decide whether to pass a strongly pro-abortion rights ballot measure this November.

In his remarks at the campus event, Dell’Oro contended that Dobbs shows apparent blindness to developments that have helped affirm “women’s moral agency.” These changes contributed to “a maturation in our moral sensibility, in finally coming to recognize women as full moral agents.”

“Such moral agency gives women the freedom to decide whether and when to have children. It determines how they live their lives and how they contribute to the society around them,” he said.

Collett, however, was skeptical. She objected that Dell’Oro failed to identify how to determine whether a particular development is an advance or a decline in a society’s ethos.

“This silence is telling given that he premises his entire critique of Dobbs on the claim that restricting abortion (at least in the first three to four months of pregnancy) is an unjust limitation on women’s autonomy and that insofar as Roe v. Wade created a constitutional right to access to such abortions the case reflected an advancement of the ‘ethos of society,’” she told CNA.

“Political prudence may require acceptance of exceptions for cases of rape, incest, and threats of a permanent and substantial impairment of a major bodily function, but protection of the life of every human being, born and unborn, must be the ultimate goal of our society,” said Collett.

Despite his criticisms of legal abortion, Dell’Oro also criticized maximal pro-life legal protections.

“You can go all the way for the protection of the vulnerable from the moment of conception, but that means that you’re wiping out the agency of women,” Dell’Oro told CNA Oct. 19.

Dell’Oro again sought to make a distinction between morality and law. While the Second Vatican Council rejected direct abortion as a “crime” in Gaudium et spes, and the Catechism of the Catholic Church emphasizes the right to life from conception, Dell’Oro characterized these as “statements concerning the morality of abortion.”

“The Second Vatican Council says something also very important about the problem of the relation between morality and the law,” he said. He invoked the thought of the American Jesuit Father John Courtney Murray. Murray is considered to be an influence on the council’s religious freedom teaching. However, Dell’Oro could not specify where Murray discussed legal abortion.

For Dell’Oro, Murray “understands the space of tolerance that must be granted in matters of personal choices within a pluralistic democratic society.”

“Otherwise, the alternative you have is the alternative of a totalitarian theocratic society. If you want a democratic society to turn into Iran, fine. But then you collapse morality and legality,” he told CNA. “Now, that distinction is certainly ingrained in the documents of the Second Vatican Council and is certainly ingrained in our own Catholic understanding of how morality and legality relate to one another. Now there are unjust laws. But the question is not whether all laws ought to be just. The question is whether some unjust laws can be tolerated for the sake of democratic coexistence and for the sake of moral pluralism. That’s what is at stake here.”

Dell’Oro said the situation of pregnancy, in which another human being is “enfleshed” in another, means that the person bearing the pregnancy needs to be recognized fully as a moral agent. He emphasized the need to empower women considering abortion to “potentially choose in a different direction.”

Academy taking a more ‘pluralistic’ approach

Despite his criticism of Dobbs, in his remarks at the campus event Dell’Oro said the moral response to life “cannot be anything less than life-affirming.”

Everyone who is alive is alive due to their mother “accepting our emergence in her flesh,” he said, adding that he hoped that a woman would respond to her pregnancy as a moral agent “capable of recognizing the dignity of the life that grows in her as well.” Because human dependency on others and responsibility for one another is part of the human condition, she should have the support of society as well, he said.

“The work of sensitizing society around the value of prenatal life remains absolutely intact and absolutely important. This is a compromise which I think the law could begin to set,” Dell’Oro told CNA.

He said he invoked the capacity for fetal pain to focus on its “symbolic meaning,” not as a “theory of moral status.” He recognized that the “freedom to choose” cannot be absolute, and the capacity for fetal pain is a moment “which might wake up a woman’s agency” as she considers whether to have an abortion.

Collett, however, worried that this proposed compromise “ignores the biological fact that every abortion ends the life of a unique separate human being.”

“It is morally deficient,” she said, comparing it to previous compromises that allowed the enslavement of Blacks in the U.S.

“A 15-week abortion ban would save only a tiny fraction, perhaps 1-2%, of babies from death by abortion. While prudence requires us to accept incremental progress where necessary, his position continues to endorse the abortion industry’s refusal to accept the biological reality of the human person,” she said. “To endorse (or even accept it) in the name of pluralism and ambiguity undermines basic principles of justice and equality.”

In June Archbishop Jose Gomez of Los Angeles, president of the U.S. Conference of Catholic Bishops, joined the U.S. bishops’ pro-life activities chairman Archbishop William Lori of Baltimore to praise the Dobbs decision as “the fruit of the prayers, sacrifices, and advocacy of countless ordinary Americans from every walk of life.” They said Roe v. Wade “grievously denied” foundational American truths “that all men and women are created equal, with God-given rights to life, liberty, and the pursuit of happiness.”

The Pontifical Academy of Life said the Dobbs ruling “challenges the whole world.”

“The protection and defense of human life is not an issue that can remain confined to the exercise of individual rights, but instead is a matter of broad social significance,” the academy said in June, calling for the reopening of “a non-ideological debate on the place that the protection of life has in a civil society to ask ourselves what kind of coexistence and society we want to build.”

Speaking to CNA, Dell’Oro described the Pontifical Academy for Life under Pope Francis as rooted in John Paul II’s premises, to an extent, but also going beyond them. Under John Paul II, the academy was “more of a space of an engagement in the pro-life movement in ways that were very much defined a priori by the boundaries of Catholic doctrine.”

Under Pope Francis, he said, the academy is more analogous to other pontifical academies, which accept leading academics and scholars regardless of religious and moral views.

Dell’Oro said that the Pontifical Academy for Life is “the academic space that serves the concerns of the Church in the area of bioethics.” It brings into dialogue the Church’s position, and academy members should be conversant with the positions of secular thinkers and thinkers of other religions.

“Yes, the academy has become a more pluralistic kind of a body. But again, the pluralism of dialogue is not supposed to be one that undermines the position of the Church, but in fact, one that potentially could throw into better relief the singularity of their position,” Dell’Oro said.