What does Texas have to do with Ohio?

By: John M. Grondelski, Ph.D., originally published in The Catholic World Report, November 4, 2023

Texas counted the unborn Carlin Holcombe as a victim of the November 5, 2017, mass shooting at the First Baptist Church in Sutherland Springs, Texas. Under Ohio’s Issue One, would Carlin be a victim?

Do you remember Sutherland Springs?

Maybe not. We’ve grown so inured to atrocities that a six-year-old mass shooting probably long ago receded out of most people’s memories—if they don’t live in its vicinity.

To recap: six years ago, on Sunday, November 5, 2017, a man entered the First Baptist Church in Sutherland Springs, Texas, shooting and wounding 22 people, shooting and killing 26 people.

Or was it 25?

Among the victims of the shooting spree was the Holcombe Family. John (60), Karla (58), Marc (36), Crystal (36), and Noah (1).

Except that Crystal was eight months pregnant. Her unborn child even had a name: Carlin.

Texas counted Carlin as a victim and said 26 people died that Sunday in Sutherland Springs.

Now, God forbid this barbarity take place again, in Ohio. But let’s engage in a thought experiment.

On Tuesday, November 7, 2023, Ohio voters will decide Issue One, which declares abortion through birth is a constitutionally protected “choice” in Ohio.

Under Issue One, would Carlin be a victim?

Who knows?

Issue One declares that “every individual has the right to make and carry out one’s own reproductive decisions, including … abortion.” Now, when it comes to the unborn child, is he a “person” or not?

Issue One is unclear. Is he a “person” whose personhood doesn’t count, or at least is preempted by the decision to have an abortion? Or is he not a person at all? Is he a never a person, sometimes a person, or always a person? Issue One doesn’t answer that question, at least clearly.

So, if a shooter shot Carlin Holcombe in Cincinnati, could Ohio charge him with murder?

You can’t be killed if you’re not a person. And, when it comes to the abortion decision, you’re not a person (at least not a person who counts) under Issue One.

But could you be a person for a murder charge? Crystal Holcombe clearly had made a “reproductive decision” to bear a child. So, does that make Carlin a person before birth? Did he “become” a person for legal purposes because his mother wanted to carry him to term? Or would Carlin remain a “non-person” until birth, in which case he could not be included among the victims of the mass shooting?

Or, under the logic of Issue One, Carlin is sometimes a “person” (if his mother wants him) and sometimes not (if she doesn’t)?

Does anybody think peek-a-boo personhood, manifesting and vanishing, is an inconsistency?

Carlin Holcombe was a month away from birth. Had the child not been shot, the child would probably have been born normally. The child was viable.

Or was the child?

Let’s engage in a further thought experiment. Let’s say a child like Carlin had been injured, rather than killed, by the shooter. Let’s say the bullet caused some significant injury, paralysis or a brain injury. What if Carlin’s mother survived and, finding out her baby was injured, decided she did not want to raise a handicapped child and so decides on an abortion.

Under Issue One, she could. Arguably, given the extremely elastic definition of “health” that has been applied in abortion cases since Doe v. Bolton, having to raise a paraplegic child might be deemed inimical to maternal “health,” thus waiving the ostensible ban on post-viability abortions to which Issue One gives lip service. So, the mother could have an abortion.

So, could the child be a victim for purposes of the state’s prosecution of the shooter, but not a person for purposes of his mother’s abortion decision?

Last question: Is what the child suffered at the hands of the shooter an “injury” or “damages?” Persons suffer injuries; property suffers damages. Can Carlin be “injured” by being shot for purposes of compensation from the shooter’s estate but incapable of “injury” in terms of the decision to terminate the pregnancy that ends Carlin’s existence?

Or did the shooting only result in “damages,” in which case the damaged fetus is essentially chattel property?

Americans are concerned not just about mass shootings but a general rising crime wave. More and more Americans, especially in urban areas, are afraid outdoors. In that environment, crimes involving pregnant women and their unborn children cannot be excluded. Neither, then, can the criminal and tort aspects of those situations be ignored.

Many Americans are ambivalent about abortion. They instinctually feel uneasy about abortion-on-demand, but also hesitate to draw out the full implications of that reserve. The result is this kind of incoherence: can somebody be a “person” only sometimes? Is personhood a transitory, “it depends” quality?

Or do we recognize the inconsistencies such thinking nevertheless enmeshes us in, with real and serious legal consequences?

Because, six years after Sutherland Springs, we still have to answer the question: did 25 people die that day … or 26?

John M. Grondelski (Ph.D., Fordham) was former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey.