This is a guest post from Justin Menno, doctoral candidate in theology at the University of Dayton, and instructor at Catholic Central High School in Grand Rapids, MI. The following comes from research I was fortunate enough to hear him present at last year’s New Wine, New Wineskins conference.
The controversy surrounding last week’s undercover video of Planned Parenthood’s resident medical director describing what is done to pre-born victims of abortion violence has generally centered on the apparent commercialization of the remains of these victims. Or it has centered on the apparent manipulation of abortion procedures in ways contrary to surgical protocol. Or it has centered on the all-too-apparent indifference to nascent human life by Planned Parenthood’s resident medical director. Each of these responses is merited, and I agree with them all in outline if not exact detail.
But lost amidst these responses, I’d argue, is an even more basic controversy. And this is none other than that of whether abortion providers should be permitted to receive custody of the remains of those they just killed in the first place. In short, they shouldn’t. And I should note that I say this not just as some moral condemnation or rhetorical call to action. Rather, I say this because current practice is contrary not only to the underlying principles of laws pertaining to the treatment and custody of human remains in the U.S., but the general thrust of them. In other words, I’m claiming that insofar as these laws just mentioned are applied consistently and coherently, in no way should anyone who either commits lethal violence against pre-born children or who is a party to their killing be permitted to receive custody of their remains.
To understand why this is so, I first want to pose a couple of questions, and then answer them in brief.
First, it is important to ask how the remains of pre-born victims of abortion are treated in law and practice and then ask how they should be. The tautology that human remains are human remains is straightforward enough. And the derivative principle all human remains should be treated as human remains is just as clear. And by and large, this tautology and principle are recognized in laws throughout the U.S. on the disposition and treatment of human remains. For example, current laws make clear that human remains are a category separate from pathological waste and regulated medical waste, and are in no way to be treated like the latter. In other words, these laws prohibit human remains from being incinerated and subsequently dumped in landfills with these other types of waste or any type of waste for that matter. And since the fetal remains of pre-born victims of abortion violence are human remains, it seems only logical and right that they be treated like all other human remains with the respect and integrity accorded to them in law.
But, alas, abortion law in the U.S. tends to twist and contort even the most reasonable of legal and moral principles. And nowhere is this more evident than in laws pertaining to the custody and treatment of the fetal remains of pre-born victims of abortion violence. These laws, in fact, are much like entering into the Twilight Zone, just with a lot less science, and a lot more fiction.
For the most part, the fetal remains of aborted children tend to be treated in law as a class separate from all other human remains, and so are dispensed from the treatment required of all other human remains. From a scientific standpoint, to call the fetal remains of human beings something other than human remains is sheer nonsense. But it is important note that, even from a legal standpoint, the alternative categorization above would never stand up to scrutiny, especially in terms of contract law.
To understand why, imagine for a moment that Stem Express, the organ harvesting company mentioned in the undercover video noted earlier, received fetal remains from Planned Parenthood. But upon later inspection, the company discovered that they were the fetal remains of pigs or sheep or donkeys. If Stem Express sued for breach of contract, the company would win in court, and most likely, win easily and decisively. And this is because Stem Express had more than a reasonable expectation that would receive the fetal remains of human beings, since Planned Parenthood traffics exclusively in the generation and disposal of the fetal remains of human beings, and not those of pigs or sheep or donkeys.
So, if it is the case that contract law won’t abide the re-categorization of the fetal remains of human beings as something other than human remains, then neither should any other area of law. And because the authority of law rests on its own internal consistency and coherence, it really should behoove all invested in this authority to clarify that the fetal remains of pre-born victims of abortion violence are indeed human remains. And building on this clarification, it should similarly move them to correct the current differential treatment of these remains, and so restore to them the dignified treatment of all other human remains.
Second, based on the above, it is important to ask the related question of who the proper custodian of the remains of pre-born victims of abortion violence is. I’ll reiterate what I mentioned earlier, and that is that no one who either kills or who is a party to the killing of pre-born children should receive custody of their remains. At the very least, this means that abortion providers like Planned Parenthood should not be able to receive the remains of aborted children or be responsible for their disposition. But moreover, it means that any parent or family member or friend who is party to the killing of pre-born children, should likewise not be able to receive the remains of these children or be responsible for their disposition.
The principle underlying the point above is one recognized throughout current law on the custody and disposition of human remains in the U.S. And this is the principle that proper custody in death follows from proper custody in life. In current law, it is recognized that the custody of children or other vulnerable groups can be suspended or even revoked not just on the basis of criminal convictions for neglect or abuse or harm, but on the basis of preponderance of evidence against them. In other words, though criminal law informs custody decisions pertaining to the living, it does not control them. And the same holds true in regard to custody decisions related to the deceased.
In the U.S., there are numerous “slayer statutes” that make clear that anyone who kills or who is party to the killing of a human being is barred from receiving the remains of the one who was killed. The principle behind these statutes is simple enough: that no one can lethally reject someone in life and then claim them in death. And it is important to note that this principle not only undergirds slayer statutes, but law and statutes on the inheritance of assets and property of decedents. No one, for example, can kill someone deliberately and then lawfully claim a life insurance policy on them. And so, if it is overwhelmingly recognized as a matter of law and principle that no one can rightfully receive the human remains of those that they deliberately killed, it only seems reasonable to expect in law that no one should be able to receive the human remains of pre-born children that they deliberately killed.
Now I’m not so naïve as to think that some abortion-rights advocates may dispute what I’ve said here. But should they do so, I’ll note that it only invites the collapse of autonomy-based arguments in favor of abortion. In other words, one cannot claim autonomy from someone in life to the point of justify their killing, and then claim right and proper relation to them in death. Claim the latter and the former cannot be justified. Claim the former and the latter cannot be rendered coherent.
In sum, laws on the treatment and custody of the remains of pre-born victims of abortion violence should be clarified and corrected. And it is with this in mind that I want to close with two further, albeit brief proposals.
First, to all moral theologians and ethicists invested in beginning-of-life and end-of-life debates, I’d like to propose that the category of the human rather than the category of personhood is a more promising and solid criterion for further debate. Now in saying this I don’t mean to suggest that the category of personhood and its application in the debates above is unimportant. It is. Nor do I mean to suggest that the continued demonstration of the strengths inherent to substantial-identity conceptions of personhood and the weaknesses inherent to capacity-based and functionalist conceptions of personhood is unimportant. It most definitely is.
Rather, I propose the above so as to suggest that the category of the human is a better guide to understanding what is owed to us in death, and by reverse extension, what is owed to us in life. In law pertaining to the treatment and disposition of the deceased, there is an important distinction between “human remains,” the remains of my body, and so me, and “personal remains,” the remains of those items that once belonged to me. In light of this distinction, it is important to note that it is the category of the human that is the proper and primary guide to how the bodies of the voiceless ought to be treated. And if it is the case that the final cause of any activity sets the terms and context for its proper exercise, then we might want to consider to how this principle applies in ethics. In other words, we might want to consider how the final act of dignity and respect that is accorded to us in death in virtue of being a human being ought to set the terms and context for our treatment in life in virtue of being a human being.
Second, to all Christian faithful, I’d like to propose a renewed consideration of the corporal work of mercy of burying the dead. It is good to remember that each of these corporal works are not just works of mercy, but works of justice. And it was with this dual light in mind Augustine pronounced the care and burial of the dead to be nothing less than an “office of humanity.”
But even more important to remember, I’d argue, is the fact that our Lord and Savior did not exempt himself even in death from this least work and this least dignity. In so entrusting himself to Mary as “the Word without words” (Verbum sine verbo) in death, he cast light of the humility of this moment. But even more so, he cast light, and cast it ever more radiantly, on the original entrusting of himself to his mother at the beginning of his incarnate life.
And so with Christ’s humility and Mary’s care of him in life and in death in mind, I’d invite all concerned to work toward ensuring the least dignity of burial to the least among us, most especially pre-born victims of abortion violence.