Burying the Aborted Dead: Can Pope Francis and Spiritual Progressives Find Common Ground?

Across the world, gay Catholics and allies have been rejoicing over the comments made by Pope Francis in his America magazine interview. Yet looking strictly at the pope’s comments on homosexuality, I see only a more clever iteration of the Catholic church’s “love the sinner, hate the sin” teaching. Frankly, as one who rejects sexual identity labels as nothing more than the social trauma-rooted intellectual residue of the twentieth century, and who embraces homosexuality as an extraordinary erotic gift from Almighty God that is available to all men and women of open mind and open heart, I think the pope’s ever-evolving cleverness on homosexuality is getting way too much attention.
Yet far more interesting and substantive are his remarks on abortion, given in his America magazine interview and subsequent sermon to a group of Catholic gynecologists.

Credit: Creative Commons

To the Catholic gynecologists, Francis said abortion was part of the “widespread mentality of profit, the ‘throwaway culture,’ which has today enslaved the hearts and minds of so many.” Just a day earlier, the pope caused a stir stemming from his America magazine interview when he said, “We cannot insist only on issues related to abortion, gay marriage and the use of contraceptive methods. This is not possible.”

Reviewing the pope’s zigzaggery on this issue, at least in terms of his communication style, a legitimate question could be raised: Could Pope Francis be trying to turn a new page on the Catholic approach to abortion, specifically an approach that would uphold the fundamental sanctity of every human life from the moment of conception, while simultaneously steering conservative Catholics away from their decades-long effort to use the heavy club of state power to control the lives of women who seek elective abortions?

Consider, for example, the way the pope framed the matter of pastoral care for post-abortive women. Francis explained his feelings this way:

I also consider the situation of a woman with a failed marriage in her past and who also had an abortion. Then this woman remarries, and she is now happy and has five children. That abortion in her past weighs heavily on her conscience and she sincerely regrets it. She would like to move forward in her Christian life.

There’s no way around it: If the pope continues to give freewheeling interviews like this one, he is putting himself on a path toward addressing the core hypocrisy of so many of the cardinals who elected him, as well as conservative bishops all over the world: that they may well be all in favor of post-abortive women “moving forward” in their Christian spiritual lives – but not before they have been criminalized by the state.
Needless to say, those in the established pro-life movement, including Catholic bishops, will always say that only abortion doctors, never abortion-seeking women, would be the targets of prosecutorial action by the state. It’s a false argument, a ruse, that most rational Americans who have grappled with the subject of abortion flatly reject: a state cannot classify a certain action as a crime, in this case abortion, and then allow the person initiating the crime to go unpunished. It makes no legal sense, and indeed, would make a mockery the legal system itself.
(As an aside, I once got an adamantly anti-abortion Catholic priest to concede that outlawing abortion could result in women going to prison, which he said he would object to on grounds of “compassion.” When I asked what punishment he would impose on the woman for breaking the law, he said, “Fine them.” I asked, “How much?” He paused, and then said, “$400,000 dollars.” I have no idea how he came up with dollar amount, and at that point I didn’t care any longer.)
Yet one of the most interesting sections of the pope’s America interview was under the heading “Human Self-Understanding.” If one really wants to know why Pope Francis has caused so much consternation among Catholic traditionalists, look no further than that section. It was this statement that I found the most intriguing:

When does a formulation of thought cease to be valid? When it loses sight of the human or even when it is afraid of the human or deluded about itself.

If this statment had been placed more specifically in the context of the Catholic Church’s treatment of abortion and abortion rights, it could provide the framework for a major Catholic church turn of page, not at all about the origin and sanctity of human life from the moment of conception, but how the church copes in a world of modern, autonomous beings.
As a Catholic, as a liberal, as a spiritual progressive, one of the most frustrating things to witness in this world is the extent to which both pro-lifers and pro-choicers, both of whom essentially govern the two poles of abortion discourse, have lost sight of the human and, yes indeed, have become “afraid and deluded” about being human.
Plainly speaking, those who would use the power of the state to criminalize abortion-seeking women – women who pose no threat whatsoever to society – have utterly lost sight of the human. They want punishment for these women, and the doctors performing abortions at the these women’s direction. Justice, this crowd believes, is for them to mete out; God, for this crowd, is little more than a team coach.
Equally tragic, those who in their fervor to keep the government out of women’s lives and off their bodies routinely degrade the lives, and reality, of unborn babies – flatly denying that those babies have little hands and feet, and human heartbeats. For this crowd of little hand and little feet deniers, they are quite literally “afraid of the human” or “deluded” about what it actually is to be human, which includes having hands and feet, and a head.
Hopefully, those of us who believe that abortion-seeking women should never have their lives and liberty threatened by the state, but who also believe that the lives of our unborn brothers and sisters are precious, will stop permitting the two aforementioned political movements to shape the formulation of our moral thought on this subject: collectively, they have all lost sight of the human. They have become “afraid and deluded” about the human.
Treating the physical remains of aborted babies with proper respect, and affording them the proper burials they deserve as children of God, not children of a lesser God, would be one way for the rest of us to assert that we are not afraid of, or deluded about, the reality of the human.
But make no mistake, those who are deluded – the little hand and little feet deniers – will have none it.
For example, in a New Republic article from last December, journalist Ada Calhoun told the gripping story of an Idaho woman, Jennie Linn McCormack, who was criminally charged for having a DIY (Do-it-yourself) abortion about five months into her pregnancy. McCormack wrapped the foot-long aborted fetus, a baby girl, in a bag and then placed the baby girl into a box. At first, McCormack put the box under her bed. But after the baby’s remains began to emit an odor, she placed the box on an outdoor barbecue shelf in Idaho’s frigid winter air.
The police, acting on a tip, found the baby girl’s frozen and decomposed remains. McCormack was criminally charged with violating Idaho’s abortion law. The prosecutor eventually dropped the charges for lack of evidence, though he “made it very clear that he would consider refiling charges if more evidence emerged.”
Sounds like a case that NARAL and the pro-choice movement would be up in arms about, right? After all, all the charges against this women were dropped, and yet a state prosecutor was still threatening her freedom, as if he was her personal god.
Despite the fact that Jennie Linn McCormack had her freedom threatened by the state, according to Ada Calhoun, “the mainstream pro-choice movement has not embraced McCormack.” That lack of an embrace is hardly surprising: any abortion case that focuses public attention on the physical reality of aborted babies will undermine the interests of those who believe that having an abortion is no more morally fraught than having an appendectomy, and who seek to foster that belief system in the culture at large.
Much like their counterparts in the pro-life movement, pro-choicers routinely and grossly underestimate the ability of others to hold together two core moral constructs simultaneously: one, that the lives of unborn babies are sacred, and two, because the lives of abortion-seeking women are also sacred, they should not have their own safety and freedom threatened by the state.
An acknowledgement of the sacredness of unborn human lives – particularly by providing aborted babies with dignified funerals and burials like any other human being – would indeed be a major blow to those who, despite seeing little hands, little feet, and little heads, are so deluded that they would declare such people as nothing more than a “mass of cells.”
And yet by allowing for burials of aborted babies, citizens who have no desire to prosecute women, or to otherwise enmesh the state in women’s lives and bodies with government mandates like transvaginal probes and the like, would be allowed to acknowledge and mourn the loss of unborn human life just as much as the loss of born human life. Abortion, no matter the month of gestation or method, is about death. It is precisely the wholesale segregation of aborted fetal remains from the rest of society that obscures that fundamental reality.
Indeed, the ghastly manner in which the remains of aborted babies are treated in state laws and rulemakings around this country makes the saga from last spring surrounding the burial of the body of the Boston bomber, Tamerlan Tsarnaev, look like a state funeral. It took several weeks before a cemetery in Virginia finally accepted the remains of Tsarnaev: an acknowledgment that the acts of evil perpetrated by this man did not in any way, shape or form negate the fact that his body was created by God, and made in the image of God. No matter the evil path he took in his life, even Tamerlan Tsarnaev could not change that fundamental reality about his physical existence. Thank God there was a Muslim cemetery in Virginia that understood that fact.
Aborted babies are also created by God and made in His image and likeness. And yet in this country, if they are small enough and deemed “semi-solid” they can be flushed down the drainage systems of abortion clinics. Babies too big to be flushed get “compacted” with other aborted babies in so-called biomedical waste bags, before being sent off to an incinerator.
One way to end this ghastly treatment of human remains would be for Congress to incentivize state legislatures to create state-based licensing programs, akin to driver’s licenses, to allow concerned citizens to recover the remains of aborted babies for the express purpose of providing them a dignified burial. Such a program would have no bearing on the status of Roe. v. Wade.
Constitutional law professor, Jonathan Entin, of Case Western Reserve University in Ohio said of such a state licensing concept, “I don’t think that licensing people to access fetal remains would violate Roe v. Wade or, perhaps of greater relevance, Planned Parenthood v. Casey. Such statutes [governing fetal remains disposal] don’t directly involve the government in restricting access to abortions, and both of those cases are about that question. The state would be allowing third parties to access the remains, but this arrangement would not directly prevent women from obtaining abortions.”
In the early nineties, the insightful and fundamentally pro-human being writer, Anna Quindlen, appeared on a televised discussion to address the abortion controversy. Quindlen summed up the abortion rights argument with the key question. Referring to a woman’s right to bodily autonomy, Quindlen asked the men seeking to outlaw abortion, “Gentlemen, whose jurisdiction is it?”
To be sure, the remains of aborted babies end up in jurisdictions too, namely the jurisdictions of state agencies that govern biohazardous waste disposal. I wonder if Pope Francis and spiritual progressives – Jewish, Christian, Muslim and other faiths – could agree that these state jurisdictions should stop treating the remains of these children of God with far less dignity than the scraps from last night’s dinner?
Under such a fetal remains access licensing system, abortion providers would be required, once a fetus has been extracted, to individually place each fetus, irrespective of gestational age – yes, even those babies the size of a grape – into a separate container, never into a biomedical waste bag, and never “compacted” with the remains of other fetuses.
The remains of the babies, again each in their own container, would be collected by officials from state departments of health, and subsequently be brought to department-designated recovery centers – centers that would be at long distances from abortion providers. In other words, the fetal remains license holders would have no proximity to post-abortive women or abortion providers.
There at the recovery centers, members of the public holding the health department-issued licenses would be given access to the dead babies in their containers. The licensees would be required to take state-approved certification courses in the medically-safe treatment of fetal remains.
Moreover, licensees would be required to sign a written oath that they understand that they are authorized to take possession of fetal remains strictly for funerary and burial purposes, which must occur within a set amount of days from the time of access. Just as with state-issued driver’s licenses, those found in violation could have their licenses suspended or revoked.
If state agencies implemented the aforementioned rule that requires the physical recovery of the fetal remains to take place at long distances from each abortion facility, any argument that a woman’s constitutional right to privacy established under Roe v. Wade, and affirmed in Planned Parenthood v. Casey simply does not hold. Renowned constitutional scholar Andrew Koppelman, professor of law at Northwestern University, concurs with that assertion.
Koppelman, a staunch supporter of abortion rights, holds that a constitutional right to abortion can actually be found in the Thirteenth Amendment, the amendment that outlawed slavery. According to his Columbia Law Review article on the subject:
“The Thirteenth Amendment, properly read, declares that one cannot do to human beings the precise things that were done to slaves under antebellum slavery. Those things include compulsory childbearing. An originalist reading of the Amendment focuses on the wrongs that the Amendment sought to break from and forbids their reenactment. The original meaning of the Thirteenth Amendment supports a constitutional right to abortion.”

Asked about a state-based licensing program to access fetal remains that would include a “first claim” provision for grieving post-abortive women, like Jennie Linn McCormack of Idaho, to access the remains of their baby strictly for burial, and then allow other state-issued license holders to claim access should a post-abortive woman decline, Professor Koppelman said, “As long as there were no interference with women’s ability to control their fertility, I don’t see a constitutional difficulty with either of these proposals.”
To be sure, a woman who chooses not to access the remains of her aborted baby for the purpose of burial, and more fundamentally, a woman who simply does not believe that the fetus who came out of her body is an actual person, may very well take offense to someone else recovering those remains. But the government is obligated to protect her rights, her safety, and her privacy; it ought not be obligated to respect the ideology of the broader abortive belief system that the remains of aborted babies, like an appendix, deserve nothing more than to be tossed into biomedical waste trash bags.
Some of us who are horrified by abortion have no desire whatsoever to control women’s bodies, or to push them into back-alley abortions that would most certainly endanger their own lives. Based on the compassion Pope Francis has expressed for post-abortive women, and his deeply felt desire to see these women heal and move on with their lives, and yes, to experience the full fruits of God’s creation safely and securely with their loved ones, my gut tells me this pope wants to move away from a public discourse centered on legal regimes that control women’s lives and bodies.
Indeed, if the decades-long political war surrounding abortion eventually came to an end, with head of the Roman Catholic Church effectively informing his flock that state attempts to control women’s lives and bodies will never yield the compassion this world desperately needs in order to heal and repair, it would be a major spiritual progression.
A de-clouding, if you will.
Once that cloud of political war has been lifted, hopefully all would see reality for what is: We are made in the image and likeness of God, even in our smallest form.
Perhaps then the brutality toward all, in every corner of the world, would end. It’s worth hoping for.