BC Law Talk Promotes Abortion Rights

An October 12 panel hosted by the Boston College Law School’s Rappaport Center for Law & Public Policy and the Center for Human Rights and International Justice spoke in favor of a right to abortion and other related issues of autonomy. In the 90 minute-long panel, four law professors—James Fleming from Boston University and Cathleen Kaveny, Katharine Young, and Ryan Williams from Boston College—defended the modern application of substantive due process to issues of abortion, birth control, sodomy, gay marriage, and euthanasia.

The talk was hosted in the Barat House on Newton campus. Outside the event, a table was set up promoting Fleming’s book, Constructing Basic Liberties: A Defense of Substantive Due Process, which served as the guide for the discussion. 

At 5:30, the panel began its presentation to the mostly-filled room. It began with a general outline of what they believed about substantive due process: that there was an underlying coherence and structure to its development and that the recent U.S. Supreme Court decision Dobbs v. Jackson Women’s Health Organization, which determined that the Constitution does not entail a right to abortion, is a potential threat to other rights that have come about through substantive due process.

Fleming gave a long list of the rights that have been protected through substantive due process. Freedom of conscience, association, the right to live with one’s family, to travel, to marry, to decide to bear children, to the direct education of one’s children, and the right to bodily integrity. He then questioned who could possibly object to the recognition of these things as rights.

Fleming follows what he calls a “morals-based reading” of the Constitution. His reading, however, and the reading of the other panelists, several times ran at odds with Catholic moral teaching. With the Dobbs decision at the forefront of the discussion, abortion was discussed throughout. The Catholic Church has always considered abortion to be gravely immoral and considers that Catholics have a duty to reduce its acceptance in culture and in law. However, the panel did not consider the morality of abortion, or any other of the substantive due process rights, in spite of the morals-based reading approach that Fleming claimed to adhere to regarding the Constitution. 

The entire panel was also highly critical of Glucksberg v. Washington, the Supreme Court case which dealt with the right to assisted suicide. This case was decided unanimously, and stated that there was no right to assisted suicide. It also created a test for determining what rights could be protected under substantive due process, based on whether a particular right had an established history in the United States.

The panelists were especially critical of the test, but also the ruling itself. Fleming argued in favor of what he called “aid in dying,” which he claimed as separate from physician assisted suicide. Medical aid in dying is when a physician prescribes a patient a lethal dose of medication, which the patient then takes. The Church has long opposed suicide of any kind, and the Vatican has called euthanasia a crime, and that lawmakers who approve legislation allowing it are “accomplices of a grave sin that others will execute,” as the Congregation for the Doctrine of the Faith put it in their letter Samaritanus bonus.

None of the panelists referenced Catholic teaching during the panel, despite the fact that Boston College is a Catholic university.