Mario Cuomo’s Trouble with Abortion

Catholics, 25 percent of the population, and Jews, only 3 percent, have had a powerful influence on America’s Protestant majority. Both groups have a highly developed tradition, strongly inculcated, that was brought to America. Each resisted for a long time the dilution of its communities by intermarriage. American Protestantism, individualist and improvisational, diffuses its impact in sectarian rivalries. It lives by revivals, starting over from scratch. The strength of Catholicism and Judaism lies, by contrast, in their continuity.

Of these two, Catholics have the stronger structure of authority, prompting Lenny Bruce to call Catholicism the church. This church influences American politics in two ways, on separate tracks. It addresses outsiders, “men [sic] of good will,” with well formulated arguments from a long natural-law tradition, while delivering doctrinal fiats to its own members, who are expected to act from them in the public arena. Thus arguments are used against contraception in public debate, while those arguments and Church tradition are held to bind Catholics.

This double approach has been taken even when the strict teaching authority of the Church (its magisterium) is not involved. Thus Catholic authorities argued in the public realm, mainly through lay people, for the Hollywood Production Code, as a matter of civil decency; and, at the same time, bishops enlisted Catholics in the Legion of Decency, condemning movies with moral authority.¹

In the same way, the Catholic bishops in America say that abortion is not a religious issue when addressing the public at large. In that forum, they rely on natural law, common sense, and probabilist arguments (even if the fetus is only probably human, one should not kill what might qualify as a live human being). But Catholics are told that they must hold to the Church’s position out of loyalty to their ecclesiastical rulers. The two tracks were clearly marked in 1990 when the hierarchy paid millions of dollars to a public-relations firm to make its public case, while bishops in New York state said that the Catholic governor of New York, Mario Cuomo, was endangering his soul and could not speak in diocesan institutions because he did not support a legal ban on abortion.

In earlier presidential campaigns, Edward Kennedy’s in 1980 and Geraldine Ferraro’s as the running mate for Walter Mondale in 1984, Catholics were particularly punitive to their own on the abortion issue. Kennedy’s position, for instance, did not differ from Jimmy Carter’s during the Democratic primaries of 1980; nor, obviously, did Geraldine Ferraro’s differ from Walter Mondale’s in 1984. But Catholics picketed and appealed to their bishops against Kennedy and Ferraro while largely ignoring the stands of Carter and Mondale. Partly, of course, this was just a matter of striking where one could have the most impact. But the situation that made that impact possible was the double standard by which Catholics are reachable—not only by the arguments made to all political candidates but by a special bond that is supposed to limit Catholics in what they can do while claiming membership in good standing with their fellow believers.

Mario Cuomo was not new to these pressures when, in 1990, Bishop Austin Vaughan publicly opined that he might be on his way to hell. Cardinal John O’Connor, Vaughan’s superior in the Archdiocese of New York, had entertained and not rejected a public call for excommunicating Cuomo in 1984, at the time when pressures were being brought to bear on Congresswoman Ferraro. Cuomo was watching O’Connor on television when this occurred. So was his fourteen-year-old son Christopher, who asked if his father was about to be dischurched. Mario Cuomo is a very sincere Catholic, an intensely devoted family man, proud, competitive, and thin-skinned. His wife said, after watching him react to this public challenge: “Boy, did he [the Cardinal] pick on the wrong person.”²

Three months later, at a widely publicized event at Notre Dame University, Cuomo delivered his answer to the Cardinal, a speech he had drafted very carefully. His biographer calls this “a brilliantly argued answer.”³ When, four years later, the Catholic former governor of Arizona ran for president, he was able to answer questions about abortion by subscribing to “the Cuomo position.” Bruce Babbitt told reporters: “Geraldine [Ferraro] got into trouble on the issue because she didn’t have her facts straight. Mario got it right.” Cuomo had cleared the way for other Catholics.

Some compared Cuomo’s Notre Dame speech, which was published in these pages,⁴ with John Kennedy’s 1960 address to the Protestant ministers in Houston. But in some ways Cuomo was in a tighter bind. Kennedy was addressing non-Catholics, who might be opposed to him but would observe certain restraints of our pluralist code. He had the Catholic community rallying behind him, even if he went farther than some bishops would have preferred. He granted the existence of the two different claims on Catholic loyalty but said that if the private exertion of authority conflicted with the public appeal to natural reason, he would resign before putting the purely Catholic appeal above public arguments from the common good. The clearing house, in any case, was his conscience. The only hold the Church had on him was his own free acceptance of Church authority. That was enough for most critics in 1960.

More was demanded of Cuomo in 1984, though he did not really deliver more. The surface difference lay in his exposed position as a Catholic arguing not only with other Catholics but with his ecclesiastical superiors. Mary McGrory, a columnist for The Washington Post, wrote at the time:

Cuomo is the first Catholic politician to pick a fight with a prelate. Not so long ago, such an initiative on the part of a Catholic politician would have been nothing less than suicide.⁵

It was a close call, even so. Cuomo’s speech, kept under careful embargo and worked on to the last minute, was rushed ahead for Father Hesburgh, the Notre Dame president, to read before he would risk introducing the governor. Then the president played a characteristically careful game by welcoming Cuomo to the campus in the name of free exchange yet rushing a criticism of the speech out through a specially syndicated column given national release. Some conservatives on the Notre Dame campus grilled Cuomo at the press conference before his talk. He had arrived late after a harrowing flight through storms in his small governor’s airplane. (Jokes about divine disfavor were bounced about the cabin.) Orange juice jostled onto the one corrected copy of his speech made its pages stick as Cuomo delivered his talk, prying at the edges of the next page as he read the one just uncaked from its fellows. In moving from the press conference to the site of the speech, he was bumped by picketers, one of whom called him a murderer. It was a severe test of the combative man’s equanimity.

Yet he was irenic in the tone of his address. He stood his ground; but he made no advance on the Kennedy position of 1960. He, too, admitted there were separate claims on his conscience. As a Catholic, he accepted “Church doctrine” on abortion (i.e., that it is impermissible). Yet, as a public official, he accepts the political sense of the community, as articulated in the law. If the law allows abortion, and he is elected to uphold the law, he is not himself committing abortions—this preserved his conscience on the matter—but he is also not overriding the majority vote of the authorized legislators: not, that is, forcing his conscience on others, who do not have his reason for submission to his church. He, too, would resign if his legal performance made it impossible to recognize the Church’s claim on his conscience. The Church can continue to make its public case to the legislature, hoping to persuade where it cannot command. If he plays a double role, it is because Church authorities distinguish between the two “tracks.”

Why was that position, satisfactory in 1960, felt to be inadequate in 1984? Some objected that, for one who recognizes the evil of abortion, Cuomo was doing very little to persuade others of that view—as he would do, say, if slavery were the issue. He might, like Lincoln in 1860, have to administer a political entity with slavery legally in place; but he could speak out against slavery, express a hope to see its abolition, lobby and argue and maneuver toward that—none of which Cuomo was doing, at least visibly, for the abolition of abortion.⁶

But, more important, a vast change had occurred in Catholic attitudes toward authority, especially in sexual matters, since John Kennedy spoke in Houston. The Second Vatican Council redefined the Church in public ways as a “people of God” rather than a government of prelates, and, at the same time, Pope John XXIII set up a commission of that people (clerical and lay) to reconsider the traditional position on birth control. When the commission reported against the old ban on artificial means of contraception, the persuasive approach was clearly moving apart from the authoritative approach, even within the Church’s own councils. The commission was made up of responsible Catholics, all raised under the old norms. Paul VI, after he succeeded to the papacy in 1963, expanded the commission, adding bishops and noted theologians (who should have made it a more predictable body). Yet in 1966 a majority of the commission reported in favor of altering the ban on contraceptives. The majority included respected professors like Joseph Fuchs, S.J., of the Gregorian University in Rome. Yet Paul VI, in a momentous step, overruled his own commission by issuing in 1968 the encyclical Humanae Vitae, opposing all forms of artificial birth control. This was a question, the Pope wrote, that could only be answered by “Ourself” (Per Nosmetitsos Humanae Vitae, paragraph six).

It is important to see just why this action mattered so much. It resorted to sheer Church authority where persuasion had failed—and this in a matter not of direct revelation but of natural reason. Contraception is never mentioned in scripture. Church authorities had differed on the subject in the past. This was not a matter that belonged to “the deposit of faith” as preserved in ancient creeds or the purely theological conclusions of doctrine-shaping councils.

Those matters of faith—the nature of the Incarnation, the Trinity, saving grace, etc.—are intimately involved with the Christian revelation. By the logic of the Church’s two forms of address in American politics, those matters should be the principal concern of authoritative pronouncement. Matters of natural ethics are better suited to the “track” of open discourse with all people concerned about morality. For the Pope to use Church authority (though not infallible “defining” authority) to maintain Church discipline on an ethical issue, while confessing that he could not convince Catholics, undermined the very powers invoked.

It is quite wrong to say the laity “rebelled” against a clerical ban on contraception contained in Pope Paul VI’s 1968 encyclical, Humanae Vitae. Fertility studies had shown widespread use of contraceptives by Catholics as early as the Fifties, and in 1963, five years before the Pope’s encyclical, 50 percent of Catholics told pollsters that contraceptives were not immoral.⁷ Even in the Depression of the 1930s, Catholic birth rates had indicated a turn to contraceptives (though observant Catholics may still have been confessing that as a sin).

What changed in 1968 was not the observance of the ban but the attitude toward authority expressed in it. Priests and seminarians, no more convinced than other Catholics by the papal arguments, were forced to teach what they did not believe. They had to accept external compliance as a condition of ordination, maintaining a system of mutual pretense with their bishops—all to satisfy Roman edicts on seminary training and the discipline of the confessional.

This system bred a skepticism about Church authority that manifests itself in ways going far beyond the issue of contraception itself. Some seminarians refused to dissemble as the price of being ordained. Others went through the motions in a way that destroyed respect for the process. The need for outer compliance is one of the many things that has destroyed morale in the priesthood, leading to unprecedented defections and low recruiting.⁸ It also helped to destroy the credibility of the nun’s life as a submission to Church discipline, draining away the teaching pool at Catholic schools. The sudden unpredicted falloff of Catholic regard for and use of the confessional was affected by the rules priests were supposed to impose and uphold there. Either they observed these rules or they refused to—in either case, the moral authority of this intimate tribunal was damaged.

The papacy had tried to use doctrinal authority for an essentially ascetic purpose—the rhetoric of Roman prelates held that contraception was a yielding to modern hedonism and sensuality. This argument has great force for people whose celibate vocation calls for resistance to even normal sexual feelings. It is out of place in married and secular life. The ban on contraception was part of a whole constellation of rulings that show clerical preoccupation with sexual matters—the maintenance of a celibate and all-male priesthood, the policing of reproductive processes (not only as regards contraception and abortion but in bans on sterilization and artificial insemination), the nonlegitimacy of any sexual pleasure not “open to” reproduction (not only masturbation, indulgence in pornography, fornication, and adultery, but even intercourse in marriage that is interrupted, blocked by contraception, or conducted after deliberate sterilization), and censorship of explicit sex.

Most Catholics have concluded that their clerical leaders are unhinged on the subject of sex. Thus a stand taken to defy the world’s permissiveness has backfired and introduced a whole new sexual ethic among Catholics. Until the 1960s, Catholics were measurably more ascetic in their sexual attitudes. Since then, they have become more tolerant than the national average—accepting premarital sex, for instance, in twice the numbers reported for Protestants.⁹ This tolerance has undermined even teachings that liberal priests once thought unchangeable (e.g., the bans on divorce and homosexuality). On abortion, Catholics are no longer very different from most of their fellow Americans, either in belief or in practice.¹⁰ Cuomo was able to use the latter fact in his Notre Dame speech, noting that the bishops were calling for a law that would forbid abortion not only for non-Catholics, who find nothing wrong with it, but for Catholics as well. Where their own teaching has failed with their own people, they would resort to state coercion, just as they tried to use papal coercion to forbid contraception:

Despite the teaching in our homes and schools and pulpits, despite the sermons and pleadings of parents and priests and prelates, despite all the effort at defining our opposition to the sin of abortion, collectively we Catholics apparently believe—and perhaps act—little differently from those who don’t share our commitment. Are we asking government to make criminal what we believe to be sinful because we ourselves can’t stop committing the sin?

Yet Cuomo reasserted his sincere belief that abortion is sin. He still accepted “Church doctrine” as his own personal discipline, even on a matter not directly revealed. He spoke of the Church’s teaching as if “the people of God” were not the Church but only the teaching authorities in that Church. He spoke like John Kennedy, though the contraception dispute had changed Catholic attitudes toward “Church teaching” on sexual matters.

In fact, as a ploy against the bishops, he stressed the similarity of the ban on contraception and that on abortion, and reminded the bishops that they have given up their effort to change the law for everyone on the sale and use of contraceptives:

On divorce and birth control, without changing its moral teaching, the Church [by which he means leaders of the Church] abides by the civil law as it now stands, thereby accepting—without making much of a point of it—that in our pluralistic society we are not required to insist that all our religious values be the law of the land.

Cuomo was not challenging the “Church” doctrine on contraception or divorce, just pointing out that the application of one’s beliefs to political debate—what he called the job of prudentially “translating Catholic teachings into public policy”—varies according to circumstance.

Cuomo’s position was bound to be unsatisfactory. By accepting a “Church teaching” valid for him as a Catholic, he makes some wonder why he does not show enthusiasm for that teaching in public debate. He merely receives it passively in his own case—despite the fact that this particular teaching indicates that murder is being committed. (Abortion is like genocide to those who think human persons are being killed—not a thing one can witness without moral protest.)

On the other hand, for those who question the credibility of clerical decrees on ethics, Cuomo’s docility is the frustrating aspect of his speech. Why should he accept “doctrine” in this case (or in that of contraception, the parallel he invokes)? After all, popes have no special expertise for telling when life begins. They are not “applying” the Bible or some theological truth. If they have a good case to make, one that convinces even Catholics in the public discourse that failed on contraception. If they have a better case on abortion, they must make it, and Cuomo should lend these arguments his eloquence. But he does not argue the matter; he merely accepts (privately) and sets aside (in public) the datum that a fetus is to be treated as a human life from conception. This is very different from his eloquence and enthusiasm in opposing the death penalty, on which he has strong personal convictions.

What this means, of course, is that Cuomo claims to believe the Church’s teaching on abortion, but acts as if he did not. Pro-choice critics are infuriated by his belief; pro-life believers are just as indignant at his actions (or lack of them). Since most of the public is not simply classifiable as pro-life or pro-choice, this may be a shrewd political position; but it damages Cuomo in his claim to be a Catholic intellectual who reaches his conclusions from a well-trained conscience and not as a matter of political expediency.

If popes have no sure answer to the question, When does life begin?, neither does modern science. It depends on what one means by human life. Christian theologians have long said what they mean by that term—they mean the soul that is saved by Jesus’s redemption; but that gets one no nearer an answer to the question when that soul comes into existence. In fact, it was precisely because of Saint Augustine’s theology of the soul that he confessed repeatedly, in his period of episcopal teaching, that he did not know when or how the soul was joined to the body.

Saint Augustine’s theological concerns made him ask most urgently not when life begins but when guilt does. He was certain of two revealed truths—that the sacrifice of Jesus redeems the baptized soul, and that original sin made that redemption necessary. But when and how does the soul join the human race in its communal experience of historical guilt? If God creates each soul directly, can He be blamed for producing defective goods (the soul flawed by original sin)? If the soul is one with Adam, does that mean it descends from his soul as well as his body? But how? Aristotle said animal souls were carried in male semen, but in the Christian scheme this would mean souls are somehow lost when semen does not impregnate.¹¹ Did God create a kind of bank (thesaurus) of soul stuff, from which he could draw in supplying later bodies?¹² If so, then the soul stuff in that treasure house must have sinned in solidarity with the two embodied human souls (Adam and Eve). Baffled by these difficulties, Augustine kept flirting with the suspect view of Origen that the individual soul had already sinned before being consigned to the death-prone bodies derived from Adam.¹³ In agonies of ingenuity, Augustine even made up his own heretical-sounding hypothesis—that the soul of an unbaptized child might return to God while the body goes out of existence forever (“I have not heard of this opinion or read it elsewhere”).¹⁴ After listing the only four hypotheses he could support, Augustine was careful not to favor or exclude any of them (even one approximating Origen’s) because

I have not been able to discover in the accepted books of Scripture anything at all certain on the origin of the soul…. And when a thing obscure in itself defeats our capacity, and nothing else in Scripture comes to our help, it is not safe for humans to presume that they can pronounce on it.¹⁵

When Saint Thomas Aquinas addressed the problem of the fetus’s humanity, he followed Aristotle in thinking there are successive animations (ensoulments) of a fetus—a vital soul (anima) when the embryo grows like a plant in the woman’s body (the umbilicus is the “root” planted in the woman’s body), an animal soul when the fetus initiates its own moves, a rational soul when it reflects on what it does.¹⁶ Evidence of rationality occurs only after birth, so Aquinas is not sure when God infuses the immortal soul. But it is clearly not in the early stages of vital and animal ensoulment—that is why Saint Thomas opposed the doctrine of the Virgin Mary’s “immaculate conception.” Her sinless soul would not have been infused at conception.¹⁷

The evidence of Church belief derivable from baptism shows a similar lack of certitude about when there is a soul to baptize. Thomas was against baptizing the fetus while it was still in the womb, where “it cannot be subject to the operation of the ministers of the Church, or it is not known to men” (or, presumably, capable of a knowing response).¹⁸ There was a wide variety of beliefs and practice on baptizing aborted fetuses, and baptism even after birth was sometimes delayed to wait for clear signs of rationality.

Church authorities have more recently argued that the rational soul is infused at the moment of conception. They were influenced in part by the doctrine of the Immaculate Conception. This is the hodgepodge of considerations Mario Cuomo is bowing to when he accepts without question the “doctrine of the Church” on abortion. He does not advance arguments of his own to repeat, enforce, or explain that doctrine. He simply deposits it in his own little thesaurus of faith, not to be expended outside his home.

There are elements in this theological history that are suggestive. Saint Augustine thinks of the beginning of life as the entry into the social nexus with history called original sin. You become an individual by becoming Adam’s child, one of the people destined to inhabit the City of God or the Earthly City. Saint Thomas’s stress on the lack of interaction with other humans in the enwombed fetus points in the same direction. Saint Augustine argues in The Trinity that persons exist only in interaction with other persons, even in the triune divinity. Modern theorists treat the human component as coming to expression when it acquires a historically specific language system—including the gestures and body language Augustine observed in his baby son Adeodatus and describes with such empathy in Book I of the Confessions.

To say this is not to declare the fetus outside the human community. We humanize each other by our willingness to include others within that basic fellowship—the sick, the deformed, the retarded, the old. We have not become fully human unless we recognize their humanity. It is a mark of the human to extend its own obligations—even to a kindness toward animals. The theologian Cuomo likes to cite, Teilhard de Chardin, thought all of evolution was working toward a general “personalization” of the universe.

A stress on human community would contrast not only with the biological-mechanic approach that some Catholics think of as “natural law,” but with the extreme pro-choice position that says a woman can do anything with the body she “owns.” This view of private property as giving the owner laissez-faire rights is at odds with liberal and left positions on property as entailing social responsibility—as something held within a community, part of a nexus of mutual commitments.

William Buckley, in his early defense of an absolutely private right in property, used to say that he could, with perfect morality, build a great palace on a mountain top and blow it up. If it was his, he could do anything he wanted with it. That was Ronald Reagan’s attitude toward the Panama Canal in the 1970s; “We bought it, we paid for it, it’s ours.”¹⁹ We can keep it, do what we want with it—blow it up, presumably, if that is how we mean to dispose of the thing we bought absolutely.

John Locke treats the self as a “first property” (proprium), but even he said it was given in trust by God—which means one cannot reject the gift unilaterally by suicide.²⁰ When society condemns suicide, it says that even the right to one’s body is not absolute. Disposal of that item affects others—parents, spouses, friends, children, the political community—for whom a person, so long as he or she remains responsible, must have regard. Even the apparently lone person must not be encouraged to give up hopes or claims on the community as if his or her loss were to be considered of no wider concern. Among other things, this would make it too easy for the community to accept no responsibility for the lonely or disaffected.

Those who treat the fetus simply as property sometimes take a proprietary air toward the very discussion of abortion. They say that only women can decide, not only in the specific case of their own actions but on the general values to be upheld. Logically, this should mean that only women who are or have been pregnant can form the moral discourse on this topic. In their own odd way, such feminists recreate the separate “woman’s sphere” that Tocqueville described in nineteenth-century America. Both forms of this separatism are at odds with the citizen values of republicanism, where everyone in the community is invited to ponder together all moral issues. We do not say, in a republic, that only the military can decide on the role of the military in public life—that only the academy can frame educational issues, that only believers can frame religious issues, and so forth. Cuomo seems to be taking an enlightened stand when he apologizes, as a man, for speaking on abortion; but it is a nonrepublican position.²¹

Yet, because the community has its claims, the fetus should have no more absolute a right to life than the woman has an absolute right to her “property.” Pro-life champions who treat (and act for) the fetus at every stage as a full person, with all the rights of one, have their own form of possessive individualism: the putative baby’s rights are equal to the mother’s, sealed off within it, to be played off against the mother’s—hardly a communal arrangement. This, if logically followed up, would mean the state must give full protection to the fetus, even against the mother, by sheltering it from damaging “aggressions” like maternal smoking, drinking, drug use, poor health practices. It would mean mothers must be forced to deliver fetuses whose humanity they and their most trusted associates doubt or firmly deny. Anti-abortion activists take the enforcement of this right into their own hands when, in the name of the fetus, they mount assaults on the fetus’s mother in her attempt to reach an abortion clinic.

If the pregnant woman has social responsibility, it is asymmetrical to give the fetus all of the formed person’s human rights and no responsibilities. The woman is called on to be self-sacrificing in certain social circumstances—e.g., protection of her family or country. The fetus, if given human rights, does not (cannot) balance those with responsibilities. The mother can deny herself for the fetus’s sake. The fetus cannot reciprocate. If we could imagine for a moment, per impossible, the fetus as having any moral claims against it as a responsible person, it would have to recognize that its right to itself is no more absolute than the mother’s, that it would have to sacrifice itself for others, for the common good, for the country.

Trying to pit the rights of the fetus against those of its own mother and her helpers raises problems not only of enforceability—Cuomo says it would be like trying to enforce Prohibition—but of communal morality. Where there is disagreement on whether an object has entered the language system of recognized mutual responsibilities, and that language system of debate and exhortation is not so evil as to justify overthrow—as the slave system or Nazi regime was—then attempts to coerce rather than persuade violate the humane concerns of the community. That is why pro-life comparisons of abortion to slavery or the Holocaust are misguided.

Some religious extremists do, in fact, think modern society is basically evil and corrupt—godless in its government, pagan in its sensuality, morally unresponsive to divine signals. For them, overthrowing the communal arrangements is desirable, though few would use force. But their focus on abortion as merely one symptom of the pervasive evil should have no influence on those who, however uncertain themselves on the abortion issue, do not doubt the good faith of those debating it. It also shows bad faith for religious extremists to use a corrupt government to suppress one practice. They are resorting to tactics meant to undermine the regime itself and not the single practice.

This is not an argument for the disposability of a human life. But precisely because we do not know—any more than the Pope does, or science, or Saint Augustine—when the person begins, to treat the questionable human as having more than normal human immunities and exemptions is morally absurd. It is especially dubious to assume a full partner-to-contract relationship between the individuum in the womb and that part of the human community, the mother, which is its mode of passage into partnership with others.

If Cuomo were to take a communal approach to abortion, little in his practical recommendations would have to change (counseling, adoption, support of mothers and their babies, better social services after birth)—though some things would be different because “Church doctrine” would not be deferred to: better education on contraception would be a Cuomo cause, along with wider distribution of free condoms. The real difference would be a consonance between his practice and his profession that would free him to use argument and rhetoric with a passion and consistency that he has stored in the deposit box with that “Church doctrine” he claims to be preserving.

There is nothing in the approach I have recommended that conflicts with Catholic faith, so far as I am aware. It may even be more consonant with Augustine’s theology of the person—a theology that made it impossible for him to find a single line of demarcation for the joining of the human community. It certainly does conflict with the discipline the Pope and bishops would like to impose on the subject of abortion. But this is the same discipline they have tried to impose on the subject of contraception; and most Catholics, clerical and lay, now recognize that discipline as an elaborate sham. The Church “line” on abortion is also absolute. It is a useful fiction for the bishops. For Mario Cuomo, it is more like a political dodge. I know it is unrealistic to expect a Catholic politician to defy the bishops; but I am not considering the man’s career, just his argument. Those who think with former Governor Bruce Babbitt of Arizona, that “Mario got it right” are probably too sanguine.