by Roland Wrinkle
“Fools rush in where angels fear to tread.” Alexander Pope. -I’ve never been called an angel…so, you do the math.
The First Time: Curlender v. Bio–Science Laboratories. Forty-five years ago, I handled a case where a young Jewish couple wound up giving birth to a child afflicted with Tay-Sachs disease. Tay-Sachs disease is the most horrific infant disorder you could ever imagine. The child (identified by a little red dot in her eye) starts developing symptoms after a couple of months and then starts regressing into a nightmare
existence of blindness, deafness, progressive and debilitating neurological pain…until mercifully ending in certain death within five years. A brilliant professor at UCLA came up with an in-utero amniocentesis test that could detect this catastrophic ailment early in the pregnancy so that the fetus could be aborted and its short, life of pain and torture could be avoided. If parents are both Ashkenazi Jews, the likelihood of producing a Tay Sachs fetus was 25%. Phillis and Hyam Curlender were both Ashkenazi Jews. They consulted their pediatrician, who referred them to XYZ Labs for the testing. XYZ was a big corporate, profit-driven outfit which tried to copy the testing developed by the brilliant UCLA professor. But, according to the allegations of our lawsuit, with their eye on potential profits, XYZ testing procedures were horribly flawed. This resulted in the birth of Shauna Tamar Curlender. The parents came to us. Knowing that Shana would not survive until trial, we thought it would be a good idea to video tape her descent into hell at regular intervals. After watching the first tape, we called it all off. My partner and I could simply not bring ourselves to view what was happening.
We brought a lawsuit against XYZ in the name of the child. The tort we alleged was called “wrongful life.” The theory of the case was that the child had a right not to be born. She had a right not to come into this world only to experience escalating pain, suffering and agony until coming to a blessed ending to her “life.” Such a lawsuit had never been recognized in any state in the country. It had uniformly been rejected on the basis that the question for the judicial system to determine in such a case was not a legal one, but a metaphysical, philosophical or religious one. The theory of tort law is for the legal system, through the awarding of monetary damages, to return the injured party, to the extent possible, to the position they were in prior to the negligently inflicted injury. Well, here, that would mean that we were arguing that the child had the right to return to the state of nonexistence.
The Curlender case turned out to be the only case in the history of the country to recognize the tort of wrongful life. We were successful…and, most importantly, recovered what represented punitive damages so that XYZ or any other corporate lab could never do this to anyone else. In recognizing a “wrongful life” cause of action, the Court of Appeal was essentially acknowledging a right not to be born.
Other cases that had tried to establish such a right of action usually involved illegitimacy, or more commonly, children born with Downs Syndrome. In such cases, it was readily and rightly recognized that Downs Syndrome babies, children, adolescents and adults can and do live happy, rewarding and productive lives. Those cases made compelling sense. But not here. The Court of Appeal noted the influence of the then fairly recent case of Roe v. Wade and reasoned: The reality of the “wrongful-life” concept is that such a plaintiff both exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all. The certainty of genetic impairment is no longer a mystery. In addition, a reverent appreciation of life compels recognition that plaintiff, however impaired she may be, has come into existence as a living person with certain rights. Curlender v. Bio-Science Laboratories (1980) 106 Cal. App. 3d 811, 165 Cal Rptr 477
The Second Time. When my wife and I got married, we were under the influence of both Ozzy and Harriet (my dad coached David Nelson at Hollywood High School) and Norman Rockwell. In other words, we made a pact to have two children. However, when our No 2 got to be a couple of years old, we looked at each other and bemoaned the reality that we would never experience the joy of giving birth to another child, never again watching the
magic of an infant holding its head up or walking for the first time and everything that comes with
that. So, we popped out No 3. Same thing happened again, and we popped out No 4. (So, there is
no confusion, we did actually give them names.) Same thing again after No 4 started entering early
childhood. So, we got pregnant a fifth time. But it ended in a miscarriage. We were crushed. We
were devastated. We were indescribably sad. We cried and mourned and, eventually, took it as a
sign that we were not supposed to have any more babies. Although I really can’t explain why, after a
couple of months, we never spoke of it again. It was just too painful. [A Brief Note: You may wonder why I share such intimacies. It’s because, if you are reading this, you are family…and family should not be reluctant to share intimacies with other family members. Think of the Prayer Chain—we share the most intimate of things about our lives.]
I should further add that I was once called to the bedside of a friend’s daughter, to be with, comfort and counsel her and her husband who had just given birth to a stillborn child. Their Christmas cards to this day still wish me a Merry Christmas from the two parents, their three children “and Max.”
Now that I’m finally a believer and read the bible a lot, how do I fit into the current abortion debates unleashed by the overturning of Roe v. Wade? Like this:
The Bible And Jesus Don’t Speak Directly To The Issue of Abortion. The Old Testament doesn’t say God falls on either side of contemporary abortion controversies. Ten passages talk, in fairly gruesome terms, about such things as ripping open the bellies of pregnant women, providing financial compensation (only for the husband) for injuring a woman who aborts, crushing the heads of babies…and the like. But I see these references as being merely descriptive of the culture and the times 3000 years ago—certainly carrying no implication of having the approval of God. In the New Testament, Jesus talks about counting the hairs on our heads and knowing us before we were born, yet, in Matthew’s apocalypse (24.19), regarding the travails of the end times, He warns, “Woe to pregnant women and those who are nursing.”
In OT and NT times, abortions were regularly practiced, and Greek physicians would give advice regarding the procedures and would perform them. Others would forbid any abortion. In other words, there were differences of opinion. Yet the Greek or Hebrew word for “abortion” never appears in scripture.
So, in my judgment, there is no direct guidance provided in any of the 66 books. While life is central to all of scripture and of incalculable value to the God who created all of us, when we are faced with a Sophie’s Choice between two competing lives, the sanctity of life itself is insufficient to resolve the dilemma.
I use two tools or methods to guide my thinking in contemplating this, and other heart-wrenching, issues where scripture doesn’t offer a straightforward answer.
Resource No 1: The Many Circumstances Where Abortion Can Become An Issue Presents A Continuum Where, For Me, Answers Come More Readily At Either Extreme And Where Things Get Really Difficult Toward The Middle.
I have not adopted either a purely Pro Choice or Right To Life position that governs in any and all circumstances. The issue of abortion comes up in an unimaginable array of circumstances. I tend to view such difficult challenges as a continuum where there are situations at each end of the yardstick and then all kinds of circumstances between the two endpoints. For me, using abortion as a method of contraception for the sexually promiscuous and habitually careless shows a disregard for God’s monumental decision to create human life and His choice to put us in charge of the health
and well-being of His entire creation. At the other end of the spectrum, if the birth of a severely defective child would cause the certain death of the mother, it would seem to me that the mother should be able to make that decision. Shortly after the recent Supreme Court decision in Dobbs, the news carried the story of a ten-year-old girl who was raped. It doesn’t feel morally correct to force her to give birth to “her” child. I would be guided by how close the particular circumstances are to either of the two end points.
Not incidentally, I see the accepted and widely used labels of Pro Choice or Right To Life as silly, uninsightful and misleading. I am certainly pro-choice and clearly not anti-choice. It is fundamental to the scriptural truths about creation that God gave us free will. Why do think primeval human beings had the ability to listen to a talking snake and reject God? And do you really think I’m against the right to life? Back to Genesis 1, God breathed life into us. Life is His greatest gift. Unfortunately, biblically informed perspectives on many, if not most, of current contentious issues, are not easily distilled to snappy slogans that can be drawn on a sign. If I were to march around flaunting a placard, it would probably say something like, “Abortion? Have a long and serious talk with Jesus. No easy answers.”
And I am not unaware that such a nuanced way of thinking will necessarily produce a myriad of gut-wrenching decisions fraught with uncertainty. Therefore, here’s the next step.
Resource No 2: When Faced With Such Decisions, Maintain A Constant Conversation and Relationship With God, Ask To Receive The Guidance Of His Spirit And Meditate On What Jesus Would Have Us Do. Simply because scripture does not explicitly endorse or prohibit a particular practice doesn’t mean that we should not go to its teachings and perspectives in order to inform our decision-making on such issues. If the most important commandment is to love our Creator God– with loving our fellow human beings coming in a close second– those concerns should heavily inform our thinking.
“Tool A” When Conversing With God: Prayer. Jesus specifically instructed us to pray that we are doing God’s will (Matt 6.10) and Jesus gave us an indelible and powerful example of what we should do in life and death situations. When he was being tortured and crucified, “He knelt down and prayed, saying, ‘Father, if it is Your will, take this cup away from Me; nevertheless, not My will, but Yours, be done.’ … Then His sweat became like great drops of blood falling down to the ground.” (Luke 22:39– 44). When the great German Christian mystic, Meister Eckhart would pray, he would qualify whatever he brought before God with, “Lord, give me nothing but what you will and do Lord whatever and however you will in every way.” The deeply
influential Augustine agrees: “God’s faithful servant has no desire for people to say or to give to him, or what he likes to hear or see, for his first and his greatest aim is to hear what is most pleasing to God.”
“Tool B” When Conversing with God Concerning Such Decisions, Maintain, And Be Informed By, A Consistent And Continual Conversation With God. According to Eugene Peterson’s paraphrasing of 1 Pet 1.18, in The Message, “Your life is a journey you must travel with a deep consciousness of God.” Psalm 32.8 poignantly tells us, “I will instruct you and teach you in the way you should go; I will counsel you with my loving eye on you.” Similarly, in Psalm 16.7-8 David says:
I will praise the Lord, who counsels me; even at night my heart instructs me.
I keep my eyes always on the Lord.
With him at my right hand, I will not be shaken.
Isaiah calls the messiah figure at 9.6 “Wonderful Counselor.” In John’s Gospel, when Jesus informed his apostles that He would be leaving, he gave them this assurance, “[T]he Holy Spirit, whom the Father will send in my name, will teach you all things and will remind you of everything I have said to you.” (14.26)
When faced with tough decisions, even the most difficult decisions in life, you will receive divine counseling on what to do…but only if you seek and accept that advice.
Caveat: If We Pray Earnestly And Maintain Communion With God, It Does Not Mean That We Will All Wind Up Agreeing On The Position To Take.
None of this means that all God-loving and neighbor-loving Christians must fall on one particular side of such controversies in all imaginable circumstances. Faithful men and women can have honest and heartfelt disagreements on abortion in particular situations and contexts. God gave us free will. “You are free to eat from any tree in the garden. (Gen 2.16) So, when you enter the ballot booth or have conversations about abortion, appreciate that prayer and turning to God may produce different perspectives…honest differences of opinions. Thinking and faithful Christians will change this world. Just listen to God, not the serpent.
SECONDARY, YET IMPORTANT, CONSIDERATIONS
a) Maintain Considerable Modesty If You Have Not Gained Wisdom From Personal Experience. Another personal confession: I was born without a uterus. Half of the members of this church, reflecting the general population, can say the same. As to the other half, about 2 percent between the ages of 15 and 44 have never had an abortion. This means, when we talk about abortion, we are talking about abstractions uninformed by personal experience. I have found that philosophical debates only tend to keep philosophers employed. Critically, personal experience tends to infuse our decision making with wisdom. I have participated in two end-of-life decisions (my mother and my brother). I now have greater insight. It is no longer theoretical to me. Without personal experience to lend wisdom, the conversation is less about anyone’s particular abortion and more about how the generalized issue fits into our broader political, social and cultural views. We are agents of God and God’s will. God has decided that the role of childbearing, birthing and, for the most part, child rearing should be assigned to women. Perhaps we should trust women more as moral agents. Perhaps we should try harder to understand circumstances that we have never encountered but others have.
b) What Actually Happened in Dobbs. The Supreme Court didn’t proscribe or prescribe abortion. It didn’t legislate on abortion. It declared that there is no provision in the constitution that prevents the individual fifty states from regulating or not regulating abortion as their electorate and elected leaders decide. The founding fathers never thought about abortion, let alone addressed it in the constitution. Roe v. Wade was based on a right of privacy. But the federal constitution (unlike the California constitution) has no right of privacy. This simply means that we can vote, on a state-by-state level, to regulate abortion, and to what extent, or to not regulate it at all.
c) The Kingdom of God. Jesus came to proclaim the inauguration of the long-promised Kingdom of God—the renewal of all things (Matt 19.28) when there will be no more suffering, no more pain, no more grief and no death. (Rev 21). It is not just us, but all of creation, that will be restored to its original “very good” state. (Gen 1) This means that, in the fully realized Kingdom of God when Jesus returns, we won’t be in wheelchairs ravaged by the aging process, we won’t be afflicted by, well, afflictions. Infants who never made it to their first birthdays will not suffer from a lack of development or growth. We will be
“us” …but us with no pain, suffering or disability. How will God handle a fetus that didn’t make it to birth and viability? I have no idea. But that’s God’s business. We simply have to trust (the Greek word pistis, translated often as faith means trust) that God not only knows what He’s doing, but that He will set all things right.
Until then, I trust, and believe with every fiber of my body, that God is doing the right thing for Shauna Curlender, Max and our No 5.