Americans are proud to be number one in many areas, but we have a blind spot when it comes to recognizing and confronting our weaknesses. We rank, for example, 73rd in maternal mortality rate, 95th in homicide rate, and 97th in access to quality health care. The Social Progress Index, which assesses measures of well-being, rates the U.S. 28th overall.
Another area where the U.S. is less than competitive is our abortion rate. According to World Population Review, out of 57 countries, the U.S. has the 43rd lowest abortion rate. In other words, 42 countries have fewer abortions per 1,000 women of childbearing age. That is a substantial problem in the eyes of many Catholic voters for whom the abortion issue weighs heavily. Indeed, some Catholics vote on abortion alone, regularly casting their ballots for the “pro-life” Republican Party.
In the U.S. 48 percent of registered Catholic voters are Republican or lean toward the Republican Party, while 47 percent identify with the Democratic Party or lean Democratic. Catholics have been swing voters for every election this century. The reason is simple: No loyal Catholic can fully endorse the program of either party. In a New York Times op-ed in 2004, I sketched out this quandary, which forces Catholics to make difficult choices. The dilemma has not changed dramatically in the past two decades.
The most controversial issue remains abortion. Both parties have moved away from the middle. In recent decades Republicans have consistently and increasingly sought legal restrictions, even though making abortion illegal does not decrease abortion rates. Moreover, Republicans have underfunded the economic and social assistance that would have given poor women, precisely those most likely to have abortions, the confidence that they could carry a pregnancy to term and lead a sustainable and flourishing life with a child.
Democrat Bill Clinton’s language—that abortion should be “safe, legal, and rare”—which appealed to many morally conflicted Catholics, was dropped from the Democratic Party platform in 2008. Neither Hillary Clinton nor Joe Biden used the phrase in their 2016 and 2020 presidential campaigns. The last two Catholic presidential candidates, John Kerry and Biden, who have both at times said they were personally anti-abortion but politically for abortion rights, avoided, as best they could, any nuanced discussion of abortion and may have lost a good percentage of the 29 percent of Democrats and Democratic-leaning independents who do not agree with the Democratic Party’s position on abortion. Conflicted Catholic Democrats would do better not simply to support laws that allow abortion but also to advocate openly for support structures, including poverty reduction, affordable health care, parental leave, and child support, so as to give women more options and thereby indirectly contribute to a lower abortion rate.
Even if, in an alternative universe, the U.S. were to adopt the Catholic position that the developing life of an embryo is not essentially different from that of a newborn child, the question would remain, what policies should follow? No meaningful answer is evident in the current landscape of American party politics. But we could learn from other countries, for example, Germany, which has less political conflict over abortion and an abortion rate that is almost one-third the U.S. rate.
Germany’s lower abortion rate is partly the consequence of its constitution, known as the Basic Law. The writing of the Basic Law after World War II was led by a prominent German Catholic, Konrad Adenauer, who also became the country’s first postwar chancellor. Catholic social theory, with its recognition that human beings have innate dignity, profoundly impacted the Basic Law, as did the universalist ethics of German philosopher Immanuel Kant, with his understanding of the human being as not simply a means but also always an end. The dignity of the human person is the cornerstone of Catholic social teaching and Kantian ethics.
The first article of the Basic Law reads in the standard translation: “Human dignity shall be inviolable.” The translation is elegant but inaccurate. The original reads, “Die Würde des Menschen ist unantastbar.” Literally, “The dignity of the human being is untouchable.” In the Basic Law, dignity is the one and only absolute value. “Untouchable” is used only in connection with dignity, whereas unverletzlich or “inviolable,” a lofty but nonetheless lesser term, is used more broadly. In terms of conflicts, dignity always prevails.
The image of the human being in the German Constitution is not that of an isolated individual but of a person embedded in the social fabric. Everyone has the right to the free development of their personhood but only as long as it does not violate the rights of others (Article 2, §1). In Germany, property entails obligations: “Its use shall also serve the public good” (Article 14, §2). Even the concept of intergenerational justice, which both Pope Benedict and Pope Francis have elevated, is included in the Basic Law (Article 20a). In short, the German Constitution is far more in line with the Catholic worldview than is the U.S. Constitution. American Catholics, including Catholic politicians, should be eager to learn from it, including the decisions that have flowed from it.
The Basic Law has contributed to a fascinating compromise on abortion. Germany’s position evolved over time. Twice the German legislature passed liberalizing abortion laws that the Federal Constitutional Court struck down, each time providing guidelines for the legislature to make revisions. The first such legislation was in 1974, one year after Roe v. Wade, when the Social Democrats took power for the first time in the postwar period. The second was in 1992 when a reunified Germany sought to reconcile the West’s conservative abortion laws with liberal laws in the East. The cumulative effect of the combined court decisions and subsequent legislation has led to Germany’s holistic position.
The Court has declared that the fetus represents developing life. Unborn or developing human life—not just human life after birth—is accorded human dignity. As such the state is obliged to view abortion as fundamentally wrong and therefore unlawful.
At the same time the Court recognized that even though life and dignity are paramount, protection of the fetus curtails the mother’s right to self-determination, which is likewise protected. Because the situation represents a conflict and a constraint on the woman, the Court declared that the legislature could forgo criminal prosecution as long as it could by other means satisfy its obligations to do all it could to encourage the woman to continue the pregnancy and help her imagine a life with the child. Instead of threatening the mother with punishment, the state should seek to persuade her from rejecting motherhood. Abortions in the first trimester could, therefore, remain unpunished.
In arguing that the penal code was not the best means for solving the problem, the Court stressed two other strategies. First, the woman must be counseled toward the constitutional goal of preserving unborn life. The state’s view of the dignity of unborn life is to be made clear by a counselor unaffiliated with any physician’s office so as to avoid conflicts of interest. The counseling must proceed with empathy and awareness of the mother’s conflict. Second, the counseling must underscore the social and financial assistance the state would provide the mother, father, and child, including assistance with housing and childcare. The Court affirmed that to make the counseling more effective and to ensure compliance with Article 6, §4, which affirms that “every mother is entitled to the protection and care of the community,” the support structures for mothers and families must be even more substantial and expansive than in the already impressive 1992 legislation. Women needed job security and financial assistance and, given the constitution’s affirmation of equal rights between men and women in Article 3, §2, the Court required that legislation be attentive to both parents.
The resulting legislation, which was approved in 1995, pleased to some extent both conservatives and liberals, and unlike in the U.S., the court decision and subsequent legislation have removed abortion from the realm of partisan electoral politics. With its recognition that the destruction of unborn life is unlawful, the state adopts a strong moral position, which pleases conservatives, who rightly recognize that the moralizing power of law can have a positive effect. Pregnant women who are contemplating an abortion must be informed (in a compassionate way) why the state has adopted its moral position.
On the liberal side, the Court insisted on still greater reinforcement of the already strong social safety net. Here is what the current situation looks like for pregnant women and new parents in Germany:
– universal health insurance;
– a maternity allowance for 14 weeks (set at $15 per day from the state or at one’s previous salary, with the employer paying the difference);
– parental funding (between $351 and $2,108 per month) for either or both parents for up to 14 months total to make up for lost salary (a more flexible option includes up to $1,054 per month for 28 months);
– an allowance of support for each child (from $256 to $293 per child per month until the ages of 18-25, depending on various factors);
– unpaid leave packages per child for up to three years total, with job security, for both parents;
– and guaranteed day care opportunities for children older than 12 months, in some states without charge.
As a result, few women are forced to choose an abortion because of concerns about health care, employment, or finances.
Although Catholic leaders helped develop the Basic Law and participated in early counseling sessions, in 1999 Pope John Paul II decreed, against the will of many German bishops, that Catholic agencies would no longer be allowed to fulfill the counseling conditions outlined in the German compromise. The pope’s abstract moralism reduced the number of Catholic voices at the pivotal stage of pregnant women’s decision-making. Alas, to fulfill the moral obligation of enacting goodness in a pluralistic democracy, we need engagement and compromise, not withdrawal and purity.
Could the U.S. ever move in the direction of Germany’s compromise? Polarization and partisan politics make any kind of compromise difficult. Libertarian impulses, which represent another hurdle, infuse the right but are also visible on the left, as with abortion. The radical elevation of unrestrained freedom (often as a subterfuge for defending my rights over the rights of others) makes common action difficult. We are about as close to a compromise on abortion as we are to agreement on mask mandates and vaccination requirements, or on gun safety, federal regulations, tax reform, and climate change, all issues that are in diverse ways reducible to the tension between the individual and the collective. The American bishops’ critique of any Catholic politician who is impure on abortion also constrains the possibility of compromise, as does the right-wing desire to inflame rather than solve cultural antagonisms.
The child tax credit embedded in the American Rescue Plan, which despite its obvious appeal to family values received no Republican votes, will likely do more to lower abortion rates than any number of Catholic pronouncements on moral purity or restrictive laws in Republican-led states. The most frequent reasons given in the U.S. for abortions involve income security: 49 percent of women getting abortions live in poverty. When a vision of what is moral does not work, incentives and support structures are a reasonable alternative. President Biden’s American Families Plan would extend the child allowance, guarantee free or low-cost childcare, and introduce paid family leave, all policies that exist in Germany in abundance. In fact, the U.S. is the only high-income country in the world without paid parental leave, a policy that, independently of its impact on abortion rates, takes many women out of the workforce, thereby reducing our economic competitiveness.
We would do well to learn more from practices in other countries. In the fifth and final address of On Religion: Speeches to its Cultured Despisers, the Protestant theologian Friedrich Schleiermacher calls Christianity “the religion of religions” because Christianity actively seeks to contemplate, and learn from, other religious traditions. Would that the U.S. could improve its rankings in various substantive areas by becoming number one in learning from others.
Mark W. Roche is Joyce Professor of German, Concurrent Professor of Philosophy, and former Dean of Arts and Letters at the University of Notre Dame.