January 1983 IV/5


Ten years ago the Supreme Court of the United States ruled that abortion of an unborn fetus at any time during pregnancy was not illegal. Contrary to the opinion of many, this decision did not make abortion legal for the first time in the United States. Prior to this decision, it had been legal in most states when pregnancy had resulted from rape or incest, and in some few states it was legal without restriction. Yet, as anyone who has observed the scene in America will realize, the abortion decision of the Supreme Court caused dissension, division, and even hatred among the American people. I believe that other medical-ethical issues of similar importance and concern are waiting in the wings. For example: Given the increasing cost of health care, will we set an age limit for certain treatments and thus shorten the lives of many? Realizing that some people do not care for their health, will we limit the care offered to repeated drug and ethanol addicts? When and how will we allow genetic experimentation upon human beings? If these medical-ethical issues are not settled in a more expeditious manner than the abortion question, we set the stage for continued strife, become immobilized to handle other issues, and encourage a subtle disintegration of common values, My purpose in this essay is not to solve any of these medical-ethical issues, but rather to suggest a methodology for working toward political and legal policies in regard to these ethical issues in a pluralistic society.

What is a Pluralistic Society?

In a pluralistic society, many groups with different value systems come together to strive for important common goals. In the United States the important goals that unite the society are in the Preamble to the Constitution. These goals are in themselves a value system; together in this society we seek justice, unity, civil peace, security, prosperity, and personal liberty for ourselves and our posterity. In addition to stating consensus about important goals, people in a pluralistic society realize there are other important values, call them second level values, about which some agreement must be reached. In order to foster agreement on values, the legislature is formed; in order to protect the central and second-level values, the judiciary is formed. But both legislature and judiciary are at the service of values, whether central or second-level, not vice versa. Fundamentally then, the various legislatures and courts in the United States are value-measured and receive their power and efficacy when they are faithful to human values of the commonweal.

But reaching consensus on the statement and protection of second-level human values is not an easy process. In unimportant value issues, each person or group can be free to follow a personal value system as long as others are not injured. But in those areas where lack of consensus would lead to a gradual or sudden destruction of the ability to seek and protect the central values of society, there must be some consensus. This consensus must be more than the lowest common denominator. Otherwise we are likely to frustrate the purpose for which we come together. Thus in a pluralistic society, we must reason toward consensus and hold the central value as the measure of our consensus, not the values of any individual group.

All groups should be allowed to enter into the dialogue which will develop consensus concerning second-level values. Thus religious groups have as much right to participate in the dialogue as any other group. However, our statement of central goals ensures that no religious group will be given favor. Moreover, it implies that religious groups must enter the dialogue on the grounds of reason, not on the grounds of faith. Thus, because something is approved or forbidden in the Torah, the Gospels, or the Koran, does not mean that for that reason it should be approved or forbidden in our pluralistic society. Only if values proper to a particular religion can be presented "scientifically," persuasively and reasonably should they be approved as part of the consensus concerning secondary. values. If my religion teaches me that rape is wrong, that does not allow me to insist on religious grounds alone that there must be laws against rape. In order to seek laws against rape, I must prove that rape destroys the meaning of human sexuality and places violence at the center of a relationship which should be founded upon love and consent.

The Forum for Consensus

As even the most secular or legal experts will note, the Supreme Court reached decisions in the abortion cases which were not founded upon any consensus or attempt at consensus in the public forum. Hence, through what one member of the Court called "an act of raw judicial power," the Court sought to impose consensus upon the nation. Thus, a legal decision was made which was not based upon value consensus. As one writer observed in the Wall Street Journal, "A wide range of scholars holding both pro and anti-abortion beliefs quickly pointed out the numerous problems with Roe and Wade. These included mistakes in history, science and law. But the essential difficulty was, as it remains today, that Roe and Wade imposed on the nation a view of the abortion issue lacking constitutional warrant (1/17/83).

But could the Supreme Court have acted otherwise? I submit that courts and legislatures are not capable alone of developing consensus on these difficult medical-ethical questions. Where would they go to find consensus on the issues in question? Was there a forum for developing consensus concerning the following vital questions: When does human life begin? Should the right to life of a woman ever supersede that of the fetus? There were religious views of these questions and views that were supported by science and reason, but there was no forum for people to discuss them and reach some consensus.

Is the situation any better today? One federal commission may serve as a forum for such value determination in the future. The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research has already published some significant studies. But the Commission needs to be enlarged so that it represents a wider cross section of society. Voluntary commissions of this nature would help at the state level, too. At present, there are two bills in the Missouri legislature, one concerning treatment of handicapped infants and the other concerning living wills. Both bills (if at all necessary) would amount to value statements concerning issues upon which there is not yet consensus. I am not naive enough to believe that development of consensus will ever be an orderly and perfectly rational process. But, on the other hand, legal and judicial policies used in the past to develop consensus concerning medical-ethical issues are simply no longer effective.

Kevin O'Rourke, OP

© Kevin O'Rourke, O.P.