Evangelium Vitae 73: The Catholic Lawmaker and the problem of a seriously
unjust law
L'Osservatore Romano
September 18, 2002
By: Angel Rodriguez Luno
Ordinary Professor of Moral Theology
Pontifical University of the Holy Cross (Rome)
Angel Rodriguez Luno, Professor of Moral Theology at the Pontifical
University of the Holy Cross in Rome, spelled out his proposal in an article on
the need for theologians to help people to understand correctly the Holy
Father's view on why lawmakers can sometimes support imperfect legislation on
abortion.
He focused on section n. 73 of the 1995 Encyclical Evangelium vitae, a
passage that says public officials under certain conditions can support
legislation that limits - but does not ban - abortion. "When it is not possible
to overturn or completely abrogate a pro-abortion law, an elected official,
whose absolute personal opposition to procured abortion was well known, could
licitly support proposals aimed at limiting the harm done by such a law and at
lessening its negative consequences at the level of general opinion and public
morality. This does not in fact represent an illicit cooperation with an unjust
law, but rather a legitimate and proper attempt to limit its evil aspects".
Angel Rodriguez Luno deals with the principle that justifies voting for an
imperfect law.
1. Introduction: partial repeal or reduction of harm?
Number 73 of the Encyclical Evangelium vitae treats the problem of
conscience faced by members of a legislative assembly when their vote would be
decisive for the passage of a more restrictive law on abortion to replace a more
permissive law already in force or coming up for a vote. The solution given is
well known. In such a hypothetical case "when it is not possible to overturn or
completely abrogate a pro-abortion law, an elected official, whose absolute
personal opposition to procured abortion was well known, could licitly support
proposals aimed at limiting the harm done by such a law and at lessening its
negative consequences at the level of general opinion and public morality. This
does not in fact represent an illicit cooperation with an unjust law, but rather
a legitimate and proper attempt to limit its evil aspects" (John Paul II,
Encyclical Letter Evangelium vitae [25 March 1995], n. 73).
The basic intention of this solution is sufficiently evident when considered
in its context. Moral theology has the task of explaining its foundation more
completely, so that this section of the Encyclical may be understood without
confusion and be applied correctly to analogous moral questions. One might ask,
for example, if the moral liceity of the solution depends entirely on the
subjective intention of limiting harm and, if so, whether one must then consider
as morally licit every strategy aimed at reducing or minimizing harm,
independent of the means used. One can also ask whether it would be licit, based
on the theory of the lesser evil, to be responsible for the passage of a law or
the application of a strategy which, while being unjust in the abstract, would
effectively reduce evil and thus be considered hic et nunc as
morally acceptable or defensible.
In order to answer such questions, let us first examine the context in which
the solution of Evangelium vitae 73 needs to be situated. Then we will
look at some precedents in order draw out its foundation and possible
applications.
2. The context: the correct attitude with regard to seriously unjust laws
By seriously unjust civil laws we mean laws which substantially injure the
goods or rights that belong to the common good of the body politic, for example,
fundamental human rights, public order, justice, etc., as well as laws which
deprive such goods or rights of their necessary protection. (Civil laws could be
unjust for other reasons, which need not be considered here. On the entire
topic, the reader can consult Angel Rodriguez Luno, Etica General, 4 ed.
[Pamplona: Eunsa, 2001], 271-273). Not only are those laws seriously unjust
which allow the state to attack a human right, but also those through which the
state fails in its duty to prohibit and punish, in a reasonable and
proportionate way, the violation of fundamental human rights by others. It is
clear that the law must contain certain penalties in order that the exercise of
fundamental rights is in fact a reality in a given state. If the state does not
protect fundamental rights from the illegitimate exercise of human freedom, the
result will simply be domination by those who are more powerful (cf. on this
point P. Haberle, Le liberta fondamentali nello Stato
costituzionale [Rome: La Nuova Italia Scientifica 1993], 47). This last
situation is the case with laws allowing abortion; these are the principal
subject of this paper.
The position to be adopted in the face of seriously unjust laws is a classic
topic in Catholic moral theology (cf. St Thomas Aquinas, Summa Theologiae,
I-II, q. 96, a. 4, [c]; A. Gunthor Chiamata e risposta: Una
nuova teologia morale, 6 ed. [Cinisello Balsamo: Paoline, 1989], vol. I, n.
360; vol. III, nn. 230-243; E. Colom and A. Rodriguez Luno, Scelti in Cristo
per essere santi: Elementi di Teologia Morale Fondamentale [Rome: Apollinare
Studi, 1999], 288-291). In short, it can be said that such laws do not bind in
conscience; indeed, there is a moral obligation not to follow their provisions,
to oppose them civilly (by means which would include conscientious objection),
not to vote for them, and not to cooperate in their application. But there is,
above all, the duty of doing everything legitimately possible to repeal such
laws. Evangelium vitae takes up these principles in numbers 72-74.
(Evangelium vitae sets out the teaching of St Augustine and of St Thomas
Aquinas on unjust laws, and quotes the Declaration on Procured Abortion
of the Congregation for the Doctrine of the Faith [18 November 1974], 22),
adding in the final paragraph of number 73 that if it is not possible to repeal
the law, there is a duty to try to lessen its negative effects. (For the
reader's convenience, we include here the entire text of the final paragraph of
Evangelium vitae 73: "A particular problem of conscience can arise in cases
where a legislative vote would be decisive for the passage of a more restrictive
law, aimed at limiting the number of authorized abortions, in place of a more
permissive law already passed or ready to be voted on. Such cases are not
infrequent. It is a fact that while in some parts of the world there continue to
be campaigns to introduce laws favoring abortion, often supported by powerful
international organizations, in other nations - particularly those which have
already experienced the bitter fruits of such permissive legislation - there are
growing signs of a rethinking in this matter. In a case like the one just
mentioned, when it is not possible to overturn or completely abrogate a
pro-abortion law, an elected official, whose absolute personal opposition to
procured abortion was well known, could licitly support proposals aimed at
limiting the harm done by such a law and at lessening its negative consequences
at the level of general opinion and public morality. This does not in fact
represent an illicit cooperation with an unjust law, but rather a legitimate and
proper attempt to limit its evil aspects").
Of course, civil and political action aimed at lessening the negative effects
of a seriously unjust law must respect the general principles of morality. Here
it is helpful to mention two such principles, which are precisely those that
give rise to the questions above. The first states that "although it is true
that it is at times lawful to tolerate a lesser moral evil in order to avoid a
greater or in order to promote a greater good, it is never lawful, even for the
gravest reasons, to do evil that good may come of it - in other words, to
have as the object of a positive act of the will something which intrinsically
contradicts the moral order ... even though the intention is to protect or
promote the welfare of an individual, of a family or of society in general"
(Paul VI, Encyclical Letter Humanae vitae [25 July 1968], n. 14). This
principle means that a moral evil may not be the direct object of the will, even
when it is a lesser evil. No one may licitly carry out the command to kill ten
innocent people in order to prevent the killing of thirty. What is intrinsically
evil cannot be the direct object of the will, no matter what the cost.
The second principle concerns cooperation: "it is never licit to cooperate
formally in evil. Such cooperation occurs when an action, either by its very
nature or by the form it takes in a concrete situation, can be defined as a
direct participation in an act against innocent human life or a sharing in the
immoral intention of the person committing it" (John Paul II, Encyclical Letter
Evangelium vitae, n. 74). It is not morally possible to collaborate in the
creation or application of a seriously unjust law, for example, those which
permit or promote abortion or euthanasia (cf. John Paul II, Encyclical Letter
Evangelium vitae, nn. 72-74).
The solution given in Evangelium vitae 73 is the application, to a
particular problem of conscience, of the general duty to oppose seriously unjust
laws and to work, to the extent possible, for their repeal. It must be
interpreted in the light of the two moral principles just mentioned, which
Evangelium vitae either presupposes or explicitly reiterates.
3. An historical precedent
Evangelium vitae states that problems of conscience, like the one
treated at the end of number 73, "are not infrequent" (John Paul II, Encyclical
Letter Evangelium vitae, n. 73). Many could be mentioned. One example
would be the referendum on abortion held in Italy in 1981.
On 28 March 1980, the Italian Radical Party began collecting signatures for a
referendum in favor of the modification of Law 194/78 in order to make it more
completely and openly favorable to abortion. Faced with the prospect of having
to choose between the existing Law 194/78 or one which would be worse, the
Italian Pro-Life Movement began collecting signatures for two referenda: one
giving maximum protection to human life by eliminating every possibility for
abortion, except in the case of conflict with the life of the mother, and
another which represented the minimal position: it condemned abortion in general
terms, but allowed legal abortion in two cases: grave threat to the life of the
mother and verified pathologies which constitute a grave risk to her physical
health. As expected, on 4 February 1981, the Constitutional Court of Italy
declared that the minimal referendum of the Pro-Life Movement was admissible,
but the one giving maximum protection was not, since it contradicted an earlier
decision of the Court of 18 February 1975 (n.27).
The question of conscience then arose regarding whether someone who was
absolutely opposed to abortion could vote in favor of the minimal referendum as
drafted by the Pro-Life Movement. The Italian Conference of Bishops offered an
important clarification on 11 February 1981: "The referendum proposed by the
Pro-Life Movement is morally acceptable and binding for the consciences of
Christians since it seeks, by overturning some elements in the current abortion
law, to restrict, as much as possible, its extent and to reduce its negative
effects. It does not follow, however, that the remaining elements in the civil
law in favor of abortion may be seen as morally licit and may be followed" (The
text of the statement is quoted in A. Palini, Aborto: Dibattito sempre aperto
da Ippocrate ai nostri giorni [Rome: Citta Nuova, 1992], 68).
It should be noted also that certain persons, who presented themselves as
Catholics, but who wanted Law 194/78 to remain as it was before, criticized the
initiative undertaken by the Pro-Life Movement. Their argument went straight to
the most difficult element of the question: "The electorate is called to choose
between different types of abortion which, on account of the origins of the
different proposals, might be called Catholic abortion, radical abortion, and
abortion defined by parliamentary mediation". According to them, if the
referendum of the Pro-Life Movement were to prevail, Italy "would be the first
and perhaps the only country in the world in which abortion was introduced ...
with the active participation of Catholic voters" (Raniero La Valle, in Paese
Sera, 27 February 1981. Raniero La Valle had been elected Senator as an
independent in the lists of the Italian Communist Party).
This specious argumentation was criticized in the issue of La Civilta
Cattolica of 2 May 1981. The journal clarified in the first place that the
terms of the Pro-Life Movement's referendum did not correspond to the preference
or free choice of its backers: "For those who are against abortion on principle
it is not a question of 'choosing'. 'Choosing' implies the freedom to select the
solution which best corresponds to one's own principles. In the present case of
the referendum, those who are against abortion do not 'choose' freely. Rather,
they are forced to support a proposal which does not fully correspond to their
principles, but which in the current historical situation is the one which will
save a larger number of human lives". The fact that the Pro-Life Movement had
wanted to present another proposal giving the maximum protection, which was
declared inadmissible by the Constitutional Court, made this argument very
clear.
The article went on to offer a clarification regarding the nature and
morality of the Pro-Life Movement's referendum. It was not the creation of a
restrictive law allowing abortion, but rather the partial repeal of an existing
law, the partial and incomplete nature of the repeal being independent of the
will of those promoting the solution: "If, as in our case, it is not possible to
propose a total repeal, it is morally licit to propose the partial repeal,
which, even though it does not eliminate all cases of abortion, greatly
restricts their number. This is precisely what the minimal proposal of the
Pro-Life Movement accomplishes. It is not really a positive proposal which seeks
to create a law permitting abortion, but rather a proposal which abrogates parts
of an already existing law. Of course, the repeal that is sought is only
partial, since it leaves therapeutic abortion in place, but the fact that the
sought-for repeal is partial does not arise from a desire to keep therapeutic
abortion in place, but is necessitated by the terms of Sentence 27/1975 of the
Constitutional Court. It is therefore a proposal for repeal 'to the extent
possible'. Here, since it is a question of a goal which is extremely important,
that is, the protection of human life, it is morally licit to do what is
possible to reach this goal, even if one is forced to 'permit' (or better to
endure) something which is objectively evil, in our case, the continuation of
article 194 permitting therapeutic abortion".
Two reflections on these facts are apposite. First, the referendum was aimed
at abrogation; that is to say, the promoters of the referendum were asking the
electorate, in both form and in substance, for an act of repeal, that is, for
the elimination of part of Law 194/78. The electorate was not asked in any
way to approve the articles which could not be abrogated. If formal logic
can be trusted, the negation of an evil is simply a good, which has no further
need of justification. In this case, it would be totally useless and
inappropriate to introduce the theory of the lesser evil or the principle of
double effect (voluntarium indirectum). The abrogating act which was
sought was good and dutiful, "binding on Christian conscience", as the statement
of the Italian Bishops' Conference explained. The option of not backing this
referendum or not voting for it, limiting oneself to voting against the
referendum of the Radical Party, would have contributed to the strengthening of
Law 194/78, something which a Catholic could not desire and should try to
prevent.
The second reflection begins with an important distinction found in the
communication by the Italian Bishops' Conference: the moral liceity of
supporting the referendum which would partially repeal Law 194/78 absolutely
does not imply that, if this obtained the votes of a majority of the voters,
"the remaining pro-abortion provisions of the civil law could be seen as morally
licit and may be followed". The law that remains after the repeal would be
considered by Catholic morality as an unjust law in all its effects, to be
changed as soon as possible; one may not cooperate in the application of such a
law and health care workers must present conscientious objection. From the fact
that the partially abrogating act was licit and dutiful, it does not follow that
the resulting legislation is hic et nunc just. The only point that can be
concluded is that those who repealed what was capable of repeal are neither the
authors nor in any way responsible for the immoral provisions which remain in
effect. They are authors and are responsible simply for the fact that the
abrogated articles no longer exist.
4. The teaching of Evangelium vitae 73
Evangelium vitae 73 intends to offer a moral judgment on a specific action,
not a general judgment on all actions that might be inspired by the subjective
intention of limiting the harm caused by a seriously unjust law. Therefore, it
is helpful to delineate precisely the elements which define the action under
consideration and which distinguish it from other possible actions that might
seem at first sight identical or analogous. The notes that distinguish the case
under consideration are the following:
- a more permissive abortion law is already in effect or is being voted on;
- it is not possible to overturn or completely abrogate the abortion law
already in effect or being voted on;
- the absolute personal opposition to abortion on the part of the lawmaker is
known to all, thus preventing any confusion or scandal;
- there is the intention not only to limit quantitatively the harm, but also
to lessen the "negative consequences at the level of general opinion and public
morality". This means that the effects of one's choices on the consciences of
others, as well as on the collective conscience of a people, and thus the
attitude or ideology expressed by the law, need to be taken into consideration;
- the lawmaker is in a situation in which his vote is determinative.
Not to vote for the more restrictive measure given the number of voters and
votes would imply supporting the more permissive law, making oneself responsible
for its passage, since such support could easily be avoided. This condition is
essential. If it is possible to repeal some elements of the prior law without
participating in the final vote on the resulting text, such a final vote must be
avoided. If the more permissive law will be overturned even though the lawmaker
abstains, then he must abstain; if the permissive law will be overturned solely
if he votes against it, then he must vote against it. If there is the complete
certainty that the more permissive law will pass in any case, then he should
vote against both proposals.
This being the case, Evangelium vitae 73 states that it is
morally licit to support the more restrictive law. (The Latin text of the
Encyclical Letter says "suffragari licite posse") and that this "does not
in fact represent an illicit cooperation with an unjust law". What is the basis
for this moral judgment? The judgment of the Encyclical is not based on the
principle of double effect (voluntarium indirectum); Evangelium vitae
does not refer to this category of moral reasoning because it would be
inapplicable in this case. The first condition for the liceity of an act that
has indirect negative effects is that the action in itself is good or at least
indifferent; in our case, however, it is precisely the liceity or non-liceity of
the act itself which is at issue. If the act of voting in favor of the more
restrictive law were in itself morally illicit, the principle of double effect
would not make it licit. If, on the other hand, it were shown that the action
was, by its object, good or at least not morally evil, then, if there were
negative collateral effects, the rule of double effect should be applied to
determine if, all things considered, the action may be done or not.
The theory of the lesser evil is similarly inapplicable. This theory, at
least in its more popular presentations, is highly questionable and above all
unsuited to the construction of good argumentation. To state that an action can
be licitly willed because it is an evil, even though it is a lesser evil,
offends the basic principles of a sound theory of human action. What may be
willed and desired is only what is good. In any case, Evangelium vitae
states that contributing with one's vote to the elimination of part of
the immoral elements of the more permissive law is a good, but it does not say
that the more restrictive law is a good or that it is desirable,
acceptable or defensible in its quality of being a lesser evil. The more
restrictive law authorizes or favors abortion in certain cases; thus it must be
considered a seriously unjust law, without authentic juridical validity (cf.
John Paul 11, Encyclical Letter Evangelium vitae, n. 72), with which one
may not formally cooperate either in its legislative approval or in its
practical application. However, it might be objected - in the legislative stage,
doesn't our lawmaker formally cooperate with the more restrictive law, which is
still a law that is evil? As seen above, Evangelium vitae excludes at the
minimum any illicit cooperation, that is to say, formal cooperation or
unjustified material cooperation. It remains to understand why this is so.
It is thus clear that the solution given in Evangelium vitae 73 is
based on a judgment concerning the moral object of the act by which the lawmaker
gives his support to the more restrictive law, always under the conditions
mentioned above. The moral object of the lawmaker's act is the elimination of
all the unjust aspects of the prior law which here and now he is able to
eliminate, without thereby becoming the cause of the retention of the other
unjust elements, which he neither wants nor accepts, but which he is unable to
eliminate (cf. J. Finnis, Le leggi ingiuste in una societa democratica:
Considerazioni filosofiche, in J. Joblin - R. Tremblay, I cattolici e la
societa pluralistica: II caso delle "leggi imperfette" [Bologna: Edizioni
Studio Domenicano, 1996], 99-114. Finnis correctly explains that the real
meaning of the action of a member of a legislative body can only be understood
in the light of the procedural context and the existing legal situation: "For
example, a law of the type: 'Abortion is legal up until the sixteenth week' is
an unjust law. But legislation of the kind: 'Abortion is legal up until the
sixteenth week' might be proposed either (a) to permit abortions which were
prohibited before or (b) to prohibit abortions which prior to the law were
permitted between the sixteenth and twenty-fourth weeks. The decision to support
the proposed law (a) is substantially different from the decision to support
proposed law (b). Indeed, that which is decided - the object of the deliberation
of supporting the proposed law - is different in the two cases. In case (a) it
consists in supporting the permission of abortion, in case (b) it consists in
supporting the prohibition of abortion, or at least all abortions which the
lawmaker at that moment has the opportunity to prohibit" [107]). That which is
made the direct object of his will is that which he is able to do eliminate part
of the unjust provisions of the law, something which is undoubtedly good - and
not what is beyond his power: the elimination of the remaining unjust
provisions. Ad impossibilia nemo tenetur: no one can choose impossible
things and no one is required to prevent what cannot be prevented (cf. St Thomas
Aquinas, Summa Theologiae, I-II, q. 13, a. 5: Utrum electio sit solum
possibilium; see also In decem libros Ethicorum Aristotelis ad
Nicomachum Expositio, lib. III, lectio 5.). No one is responsible for things
which are impossible to prevent.
In the situation described, the moral liceity of the lawmaker's action is not
based on the notion that it would be morally possible to make oneself
responsible for a smaller number of abortions in order to avoid a larger number
(an idea that some erroneously call the theory of the lesser evil), but on the
fact that the lawmaker is not morally responsible for any intrinsic disorder,
because nothing which is intrinsically disordered is willed by him. The object
of his will is the elimination of as much injustice as he is able to eliminate.
This is a good which has no further need of justification. In synthesis, the
nature and the sole authentic meaning of the lawmaker's action is that it is the
partial repeal of an unjust law, always under the condition that it is partial
solely because total repeal is not possible.
Certainly a law remains, which, while more restrictive, is still unjust. But
the persons responsible for this injustice are those who supported it, thinking
that it was right, and who make it impossible for the lawmaker who respects
human life to obtain the total exclusion of direct abortion. The evil, both
greater and "lesser", is done by others, those whose program the lawmaker was
unable to thwart. The lawmaker eliminates the evil elements of the law to the
degree possible and this limitation of evil is the only thing which he wants and
which he does. By his action, he limits the evil done by others, but the
remaining lesser evil is done by others, not by the lawmaker mentioned in
Evangelium vitae 73.
The contents of Evangelium vitae 73 have nothing to do with the
position of those who think that compromise solutions are acceptable based on
the idea that a woman who wants an abortion should be able to have one within
certain limits, and who would approve a restrictive law despite being able
hic et nunc to obtain much more. Such persons want both what the law
prohibits and what it allows. The difference is not only subjective in the worst
sense of the word, but is also objectively verifiable: being able hic et
nunc to obtain greater respect for human life, they do not pursue this goal
because they think that in a pluralistic society a certain permissiveness is
proper on the question of abortion; it is like saying that a little injustice is
not harmful. In this hypothesis, the moral object that is directly willed is
completely different from that willed by the lawmaker mentioned in the
Encyclical.
Of course, this presupposes that the lawmaker has proceeded in a way that the
nature of his action is clear to all, in order to avoid confusion and scandal.
Confusion is highly improbable if the more restrictive law is formally the
partial repeal of an earlier law. When this is not the case, it cannot be
excluded that people who are not very well informed might not correctly
understand the lawmaker's actions. In any case, there is a certain danger that
his action will not be understood correctly by everyone; this should be assessed
as a possible indirect and unwilled negative effect, which needs to be
attentively weighed, but which does not change the moral object of the act. As
the Encyclical Veritatis splendor states, "The morality of the human act
depends primarily and fundamentally on the 'object' rationally chosen by the
deliberate will [...] In order to be able to grasp the object of an act which
specifies that act morally, it is therefore necessary to place oneself in the
perspective of the acting person. The object of the act of willing is in fact a
freely chosen kind of behavior. [...] By the object of a given moral act, then,
one cannot mean a process or an event of the merely physical order, to be
assessed on the basis of its ability to bring about a given state of affairs in
the outside world. Rather, that object is the proximate end of a deliberate
decision which determines the act of willing on the part of the acting person"
(John Paul II, Encyclical Letter Veritatis splendor (6 August 1993], n.
78).
5. Applications of Evangelium vitae 73
In the years since the publication of the Encyclical Evangelium vitae
many have asked whether it is possible to extend the solution contained therein
to similar situations or at least to those which are analogous to the case given
in n. 73. We will consider three possible scenarios (In proposing these three
scenarios, we follow the presentation by Tarcisio Bertone, "Catholics and
pluralist society: 'imperfect laws' and the responsibility of legislators" in
Evangelium Vitae: Five Years of Confrontation with the Society, ed. J. Vial
Correa and E. Sgreccia [Citta del Vaticano: Libreria Editrice Vaticana, 2001],
214-217).
a) First scenario
The first scenario would be when, on account of a change in public opinion or
in the political forces in a legislature or parliament, a politician or a group
of politicians see the possibility of taking the initiative in promoting the
repeal of the more permissive articles and more negative elements of an already
existing law. If the conditions indicated in Evangelium vitae 73 are
present (see above n. 4), this case does not pose particular moral problems.
Substantially it is a question of the scenario described in Evangelium vitae
73, with the sole modification that it is the lawmakers themselves who take the
initiative in the attempt at repeal. It seems clear that one may licitly
take the initiative in promoting a repeal that, if promoted by others, it would
be licit to vote for. If the proposal for repeal is aimed at obtaining the most
protection for unborn human life which hic et nunc can be obtained, then
it is clear that the object of their act is the defense of human life and the
limitation of the evil here and now possible, without implying any necessary
approval or responsibility for what cannot be prevented.
b) Second scenario
The second scenario would be when, on account of a change in public
opinion or in the political forces in a legislature or parliament, a politician
or a group of politicians see the possibility or proposing a new law on
abortion, more restrictive than the law currently in force and more restrictive
than the law which other groups will propose. If the proposal foresees some
cases in which abortion is depenalized, it can be asked whether it is morally
licit to be the promoter of such a law by participating in a public opinion
campaign in its favor or by voting for it, etc.
It is not easy to give an unequivocal answer to this question. Such a
legislative proposal, promoted for example by people who are publicly known as
Catholics, could be the most intelligent way to limit evil, in the greatest way
possible here and now, but it could also be or could be interpreted (and this is
important on the level of general opinion and public morality) as the expression
of an attitude of compromise. This attitude might be described as follows:
Catholics are absolutely opposed to abortion; non-Catholics are to varying
degrees in favor of abortion; since the state is home to all, it is not right to
claim that the law should reflect unilaterally either the Catholic or the
non-Catholic position, because the law must by its nature be a compromise, a
mediation between opposing viewpoints. This reasoning is clearly erroneous,
because the protection of human life is not simply a requirement of Catholic
morality, but part of the ethical and political character proper to the modern
democratic constitutional state. (Quite significant in this regard was the
interview with Norberto Bobbio published in Corriere delta Sera on 6
April 1981, in which he said: "It amazes me that secular nonbelievers leave to
believers the privilege and honor of standing up for the principle 'thou shalt
not kill"'. Equally important was the article he published in La Stampa
of 15 May 1981, in which he responded to criticism of this interview by Giorgio
Bocca: "It would be helpful to remind him [Bocca] that the first great political
thinker who formulated the thesis of the social contract, Thomas Hobbes, held
that the only right which is not forfeited by those who enter into the social
contract is the right to life". For further information on this question, see A.
Palini, Aborto: Dibattito sempre aperto da Ippocrate ai nostri giorni
[72-75]). Every law which allows abortion approves a criterion of
discrimination, according to which it is not enough simply to be a human being
in order to enjoy an inalienable right to life; other elements are also
necessary (being wanted, being healthy, etc.) and so, in practice, the right to
life becomes a concession of civil law. This discrimination, which is lethal for
those who suffer it, is seriously unjust and, with the passage of time, will
call into question a basic principle of social life. A restrictive law which is
the expression of this political attitude of compromise would always have
negative effects, at least on the level of general public opinion and morality,
and would truly give rise to Catholic abortion, that is, to
abortion which "some Catholics" believe should exist legally in a pluralistic
society like our own. (The only hypothetical situation which perhaps would allow
for compromise is that of the extremely rare cases of certain and imminent
danger of death of the mother, since the state probably cannot coercively
require heroic ethical behavior. But here also great prudence is required. In
reality, such cases, which may still exist, will not be true cases of direct
abortion if the physician acts wisely. They will not, therefore, be what today
is called "therapeutic abortion" [on this question, see Angel Rodriguez Luno,
La valutazione teologica-morale dell'aborto, in E. Sgreccia - R. Lucas,
Commento interdisciplinare alla "Evangelium vitae" - Citta del Vaticano:
Libreria Editrice Vaticana, 1997], 421-423. However, to ask that the civil law
enter into these distinctions is perhaps too much.), an opinion which seems to
me unacceptable.
However, if the promotion of the new law does not correspond to this
conception and what is possible is done to exclude this interpretation in public
opinion, I believe, in light of what has been said above, that it would be
morally licit to propose a new law on abortion, which is more restrictive than
the one currently in force, but which depenalizes some cases of abortion, but
only if three conditions are simultaneously present (1) those given in
Evangelium vitae 73 [see above, n. 4]; (2) the promotion of the new law
permits the obtaining of the greatest protection for human life which here and
now, after evaluating all the circumstances, is possible; (3) it would not be
possible to arrive at an analogous level of protection of human life through a
simple repeal. The reference to results must not cause disorientation: it does
not mean that everything is good that produces good results, but rather that
there has to be certainty that the negative aspects still present in the new law
are here and now so unavoidable as to be unattributable to the promoters of the
new law.
The greatest protection for human life should not be understood in a purely
quantitative sense, though this is very important, but also from the social and
public policy perspectives. From this standpoint, the following elements may be
important, for example: that in the presentation of the more restrictive
proposed legislation, the intention of obtaining complete protection for unborn
human life is expressed in some way and therefore the process is deliberately
left open to the possibility of securing further improvements; that abortion is
recognized as an action contrary to law and therefore illegal in general terms,
even if it is depenalized in certain cases; that the depenalization results from
the application of general principles of law (state of necessity, etc.) and not
from the concession of a special statute to certain types of abortion; that the
depenalization is accompanied by legal provisions encouraging pregnancy
(economic assistance, adoption assistance, laws concerning working women, etc.);
that broad interpretations of the law are prevented, both in the area of
healthcare as well as in the judiciary; that conscientious objection is
regulated in a way that does not prevent conscientious objectors from trying to
dissuade people from abortion; that penalties are established for healthcare
personnel who break the law, as well as for employers who create difficulties
for pregnant employees, etc.; that abortion is not regarded, for the purposes of
payment, as a therapeutic operation, etc.
c) Third scenario
This is the situation of a country where abortion is illegal. Changes in
public opinion, the position of political groups, and other factors make it
reasonably certain that within a short period of time it will be impossible to
prevent the approval of a very permissive law on abortion. The following problem
then arises: would it be morally licit to take the initiative, with the
intention of forestalling a further worsening of the situation, by promoting a
law which depenalizes abortion in just a few cases - rigorously defined - and
which would also contain serious provisions aimed at preventing abortion?
In my opinion, the answer should be negative. The fundamental reason is that,
in this case, the backers of the law would be morally responsible for a
seriously unjust law and one which also represents a worsening of the prior
legal situation, even if it might be relatively positive in comparison with a
possible or probable future legal situation. One should not take the initiative
of making oneself responsible for something in itself morally wrong in order
that others do not do something worse. (This is required by the moral principle
presented in Humanae vitae, n. 14 and cited above [footnote 7]). If the
political situation makes it impossible to prevent the approval of such a law on
abortion, it would be better to follow the strategy of avoiding a direct
confrontation: by dialogue, by participating in the discussion in the
legislative assembly or parliament on the provisions of the law as proposed by
others, by seeking to reduce as much as possible the negative aspects of the law
and by voting against it in the final vote on the entire legislation. All this
should be done in a way that makes one's personal opposition to abortion clear
to everyone.
It is not unimportant to recall that in every individual case these general
evaluations must include an attentive analysis of the circumstances, the
possible consequences, and the potential for giving rise to scandal or
confusion. Public statements by persons who in some way represent the Church
(Bishops, etc.) call for particular prudence, so that certain criteria or
prudential positions are not interpreted erroneously as doctrinal positions in
favor of laws which do not guarantee complete protection for human life. If it
is licit to do what is possible to lessen evil, it is also always obligatory to
form consciences adequately in the social and political areas.
