The Supreme Court and the Church: A Conversation With Frances Kissling

The Supreme Court and the Church: A Conversation With Frances Kissling

The Supreme Court and the Church: A Conversation With Frances Kissling

In the wake of the Supreme Court leak, the former president of Catholics for a Free Choice discusses the moral obligation to take care of women in need of abortions.


Bioethicist Frances Kissling, 78, the president of Washington’s Center for Health, Ethics and Social Policy, has spent most of her professional years thinking about and working on issues of women’s rights and reproductive health.

In the early 1970s, when abortion had just been legalized in New York, she was the director of two of the first legal abortion clinics in the United States. Later, she headed up the National Abortion Federation. Then, in 1982, she became the president of Catholics for a Free Choice—now known as Catholics for Choice—a position she held for the next 25 years.

Kissling—who, as a young woman in the 1960s, had briefly entered a convent with the hope of becoming a nun—is currently writing her memoir.

I caught up with her via telephone shortly after Politico published a leaked version of US Supreme Court Justice Samuel Alito’s draft opinion of a forthcoming decision to overturn Roe v. Wade.

An edited and condensed version of the conversation follows.

—Claudia Dreifus

Claudia Dreifus: What was your reaction when you read the Alito draft opinion?

Frances Kissling: On one hand, I wasn’t surprised. But there’s a real difference between expecting a rollback and actually seeing something in front of you.

I reacted as a woman, but also as a Catholic because the decision was, in essence, written by five Catholic lawyers who accept the most conservative version of Catholicism on abortion and who have applied it to secular American law.

They have an approach to the law that is based on natural law theory, which is very close to how the hierarchy of the Catholic Church sees the truth. What the church says about natural law is that every phenomenon, every behavior. is governed by nature and, as such, you can’t argue with nature. And so, in the case of sexuality, a natural law thinker would say, “What is the purpose of sexuality? Well, sex can end in procreation and so sex was given to us to procreate. You cannot interfere with that!” That’s what these folks believe.

Now, I don’t mean to imply that a Catholic must accept these ideas—or even that many Catholics do. Too many people think that only one position exists on everything in Roman Catholicism. That’s not true. There are multiple positions on almost everything and natural law is only one among many. Nor is the idea that a fetus is a person from the moment of conception, infallible dogma. 

Moreover, abortion, like everything else in Catholicism is covered by the right of conscience. Since the church doesn’t know what the fetus is, each of us is free to decide for ourselves and to act on our conscience.

CD: In Alito’s 96-page draft, women or their fate don’t seem to be mentioned at all. Did you notice that?

FK: Yeah. Sure. That was horrifying and predictable. The decision comes from a wing of Catholics who believe that there’s nothing more important than the fetus. Women’s needs are not relevant. Unlike some in their corner, they don’t even pretend to worry about women. Usually, people from that wing have some recognition that the fetus isn’t located in a Tupperware jar.

Amy Comey Barrett is particularly disturbing. Here is a woman who had an opportunity to be involved in the draft and she didn’t have the sense to say to Alito, “We have to put something in here about women.”

Barrett could have advised Alito to take out the draft’s reference to Matthew Hale, a 17th-century jurist who held there could be no rape in marriage, was generally suspicious when women claimed rape and actually sentenced women to death as witches. Referencing a witch burner is another example, I think, of totally how out of touch Alito and his colleagues are with real people.

CD: In the draft, Alito writes that Roe must fall because, among things, the 1973 decision is built on the right to privacy, something not specifically mentioned in the Constitution. If Roe is struck down because of that, what will be the impact on other personal rights—gay marriage, access to contraception? Like abortion, these are based on the 1965 Griswold decision which says that the Bill of Rights implies a right to privacy.

FK: Conservatives of Alito’s stripe say that they only believe in strict interpretations of the Constitution—sometimes. There are things not in the Constitution that they’ve allowed. The issue here is that if abortion and the right to privacy are not in the Constitution, neither are gay marriage or contraception. In his draft, Alito, asserts that they are not trying to overturn gay marriage—all the while saying that the right to privacy doesn’t exist.

No matter what he claims, if you kill Roe because abortion is not specifically mentioned in the Constitution, you’ve opened the door to ending gay marriage. I’m not saying that’s going to happen. But there are plenty of people who’d like to see that happen. The five justices have opened that door.

CD: If, in June, the leaked draft becomes law, abortion access is likely to be left to the individual states. In the early 1970s, in the years immediately before the 1973 Roe decision, the country was in a similar situation. At the time, women could legal abortions in New York, California, Hawaii, Alaska, Washington State, Colorado, and Washington, D.C., but some degree of prohibition was the rule elsewhere.

Interestingly, during that period, you worked as the director of two abortion clinics in New York. What did you see there and what are the lessons for today?

FK: I saw there was tremendous demand. On week-ends, we did about 100 abortions a day. About half our patients came from out of state. I’d get to the clinic around 7:30 in the morning and the parking lot would be filled with cars from Maine to Florida. People had travelled all night to get to us.

Most of the women I’d say were working or middle-class—teenagers, young mothers, women who, for whatever reason, understood they couldn’t have a child at that moment. Their decisions were reasoned and well thought out. No one seemed to take this lightly.

CD: How did they know about you?

FK: Through a referral network: clergy, women’s groups. Planned Parenthood was part of it. We charged around $150 for a first trimester procedure—less or nothing, if the women couldn’t afford it. Poor out of state women, on the whole, didn’t come to us, though. They didn’t have the means to travel. Often, they ended up at illegal providers in their home states.

The thing that really struck me was that the out-of-state patients were, generally, very, very isolated. That was one reason why we organized counseling. Frequently, our counselors were the first people the women spoke with about their situation. This may not seem like anything unusual today, but we tried to offer kindness and dignity. The receptionists were nice to them. After the procedure, the women were given a nice room to recover in. People brought them cookies and milk.

Though they were unlikely to be prosecuted when they returned home—as might be possible in some places after June—the women certainly had fears. They knew they were doing something that their state governments had made illegal. Thus, it was less acceptable and that impeded their ability to talk to people. Illegality creates fear and shame.

CD: I’ve had students who’ve said that a post-Roe future won’t be devastating because abortion will probably remain legal in the blue states. How would you answer them?

FK: Devastating is in the eyes of the beholder. A woman whose starting point is fear that she won’t be able to get a safe abortion, goes through torture. It is true that it will be easier for a woman to identify a legal clinic than it was in 1970, but not all women, especially young women, will be able to navigate the process. Some women can’t travel and they will be a return to unsafe abortions in red states. A woman who has had an abortion in a legal state may have a rare complication when she gets home and will be afraid to go to the emergency room. Some women will die. Many will suffer trauma. But large numbers will move on quietly with their lives.

CD: Given the likely possibility that Roe will fall in June, what should be the next move for pro-Choice activists?

FK: Well, with some differences, we’ll be back in the situation we were in during the early 1970s. I think we have to recognize that the legal and political battles in the red states are pretty much lost and that, with some exceptions, we mustn’t waste resources on more of that. There needs to be serious assessment of whether spending money on lawsuits and lobbying in red states has any chance of success. A rights fight at any cost is not ethically justifiable.

Instead, we ought to be focusing on the millions of women who are going to need abortions and making sure that, at least in the blue states, they can access safe ones.

We’re going to need money to pay for child-care and for travel for women who come from states where it is illegal. We are going to have to pay for more abortions than before. In states where it is legal, we need to lobby with public hospitals to make sure they provide the service and we need to talk to more private doctors about performing it. In legal states, we should make sure that medical schools are teaching the procedure; there’s been a huge decline in the number of doctors who know how to perform an abortion.

It’s going to take decades to undo the damage of overturning Roe. So: The short-term priority should be to make sure that many of the women who want an abortion can get one. The long term battle will be to recover what has been lost, but in the interim, you can’t abandon the women who need abortions now.

There’s a moral obligation to take care of those women.

A previous version of the interview incorrectly stated the year Kissling became president of Catholics for a Free Choice, now known as Catholics for Choice.

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