Revised version of paper given to the Meeting of Pro-Life Groups and others conducted by the Australian Catholic Bishops Conference, Canberra, 15 May 1998(V Rev Dr) Anthony Fisher op ev
The complementary roles of priests and laity in the formulation of public policy were set out in principle by the bishops of the Second Vatican Council in their Constitution on the Church in the Modern World, Gaudium et Spes (‘GS’):
Secular duties and activities belong properly although not exclusively to the laity… Lay-people should know that it is generally the function of their well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city; from priests they may look for spiritual light and nourishment. Let the laity not imagine that their pastors are always such experts, that to every problem which arises, however complicated, they can readily give him a concrete solution, or even that such is their mission. Rather, enlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the laity take on their own distinctive role. (GS 43)
Regarding what they called "the difficult but very noble art of politics", the Fathers of Vatican II praised "the work of those who for the common good devote themselves to the service of the state and take on the burdens of office." They counseled politicians that "with integrity and wisdom, they must take action against any form of injustice and tyranny" (GS 75). Law-making had an important role here, to recognize the duties and protect the rights of all persons, families and groups in the community (GS 75). In this context the rights of the unborn child to life and the responsibility of law-makers to protect that life were reaffirmed by the Council (GS 27, 51) and have since been repeated very often by the popes and bishops, as well as many faithful Christians, clerical and lay, Catholic and Protestant. But no politician can do everything and good laws will only take us so far in the building up of a civilization of life and love.
While I will focus on the duties of the Catholic politician with respect to abortion law reform here, much of what I say will apply mutatis mutandis to other pro-life legislators. And while I will formally be addressing the noble profession of politicians, much of what I say will I hope help inform those who advise and lobby them.
2. What is forbidden to the Catholic politician with respect to abortion law reform
I now want to outline five positions that seem to me to be clearly ruled out by Catholic teaching on the role of the parliamentarian with respect to abortion, especially as articulated in Evangelium vitae (‘EV’).
2.1 Catholic and pro-abortion
The first is the claim that one can be a Catholic in good conscience and pro-abortion. There are more of them in the US, but even here in Australia one occasionally meets people who openly declare themselves opposed to Catholic teaching in this area and yet are believing, even practicing, members of the Church. Being pro-life, it is asserted, is not a core belief for Catholics in the way that, say, the Trinity or the sacraments are.
The Catholic tradition has, however, consistently and unequivocally condemned abortion as a grave moral and social wrong, both because it is a direct killing of an innocent human being and because it is an attack on the mother, on parenthood, relationships, community. Pope John Paul likewise authoritatively spoke for the Catholic tradition when he defined that "direct abortion always constitutes a grave moral disorder, since it is the deliberate killing of an innocent human being" and that "no circumstance, no purpose, no law whatsoever" can ever make it licit (EV 62). He echoed the Second Vatican Council which had declared: "All offences against life itself, such as abortion... are criminal. They poison civilization, and they debase the perpetrators even more than the victims... Life must be protected with the utmost care from the moment of conception: abortion and infanticide are abominable crimes." (GS 27, 51)
The reference to crime here is primarily a moral category, but it also points to another Catholic teaching in this area: that the civil law must protect basic human rights including the right to life from conception. Thus in its Declaration on Abortion Quæstio de abortu (‘QDA’) the Congregation for the Doctrine of the Faith observed: "It must be clearly understood that whatever may be laid down by civil law in this matter, human beings can never obey a law which is in itself immoral, and such is the case of a law which would admit in principle the licitness of abortion. Nor can they take part in a propaganda campaign in favour of such a law, or vote for it..." (QDA 21; cf. EV 73). Likewise John Paul II has condemned the ‘sinister’ trend in legalising attacks on life in the name of individual rights. The decriminalisation of abortion is, he argues, ‘a disturbing symptom’ but also ‘a significant cause’ of grave moral decline and the denial of true human rights (EV 4, 20, 68); it turns the supposedly democratic state into ‘a tyrant State, which arrogates to itself the right to dispose of the life of the weakest and most defenceless members’ (EV 20, 70). He draws the radical conclusion that
laws which authorize and promote abortion… [are] radically opposed not only to the good of the individual but also to the common good; as such they are completely lacking in authentic juridical validity. Disregard for the right to life, precisely because it leads to the killing of the person whom society exists to serve, is what most directly conflicts with the possibility of achieving the common good. Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law. (EV 72)
At this point someone will plead the primacy of conscience and Catholic teaching that individuals must follow their consciences even when they are wrong (e.g. Vatican II, Dignitatis Humanæ §2). It is therefore important to understand the difference between conscience and personal preference or arbitrary private intuition. The moral character of actions is determined by objective criteria, not merely by the sincerity of intentions or the goodness of motives (GS 51), and all people are called to form their consciences accordingly.
The more a correct conscience prevails, the more do persons and groups turn aside from blind choice and try to be guided by the objective standards of moral conduct. Yet it often happens that conscience goes astray through ignorance which it is unable to avoid, without thereby losing its dignity. This cannot be said of the person who takes little trouble to find out what is true and good, or when conscience is by degrees almost blinded through the habit of committing sin. (GS 27)
How then do we form a right conscience? Catholics seek to inform their consciences according to reason which grasps the natural law accessible to all; this is clarified, confirmed and possibly supplemented by divine revelation mediated by Church teachings. They believe that by "their faith, aroused and sustained by the Spirit of truth, the People of God, guided by the magisterium, and obeying it, receives not the mere word of human beings, but truly the word of God." (Lumen gentium §12) Given the consistency and gravity of Church teaching in this area, ‘(conscientiously) Catholic and pro-abortion’ makes about as much sense as ‘(conscientiously) Catholic and anti-Eucharist’ or ‘Catholic and pro-rape’.
2.2 Abortion as a ‘religious’ issue
It is commonly asserted that attitudes to abortion are ‘religious’, especially if they are the attitudes of religious people, and that they are therefore properly to be kept to the private sphere and not to influence public policy including the voting and other activity of legislators. In response to this the Church asserts that its teaching in areas like abortion is accessible to natural reason unaided by faith, even if truth in this area is clarified and decisively confirmed by revelation mediated by the Church. Catholic teaching on human rights questions such as abortion is no more arcane or mysteriously religious or sectarian than its teaching against slavery, apartheid or unjust wars. To characterize these matters as religious and personal is an evasion amounting to ethical relativism.
Of course, Catholic teaching on abortion is also a religious issue, since it is believed by Catholics not only on the basis of the persuasive moral reasons against abortion but also on the authority of the Scriptures, the Christian tradition and the living magisterium of the Church. The seriousness of abortion is all the greater when it is realized that it involves the killing of a being made in the image of God, that this is contrary both to practical reason and to God’s will, and that it involves renunciation of a sacred trust.
It is true that there is profound disagreement in the community about the abortion issue, and that the Catholic Church and other Christian communities have not been uninfected by this disagreement. This does not however reduce such issues to issues of personal choice. The morality of slavery or apartheid have been the source of considerable disagreement, but no-one seriously proposes that these issues were therefore beyond moral judgment or appropriately left to each individual slave-owner or white supremacist to decide. Thus the Pope has pointed out that the responsibility for abortion falls not only on the mother and the doctor, but also, among others, upon ‘the legislators who have promoted and approved abortion laws’ (EV 59, 90).
Called to serve the people and the common good, they have a duty to make courageous choices in support of life, especially through legislative measures. In a democratic system, where laws and decisions are made on the basis of the consensus of many, the sense of personal responsibility in the consciences of individuals invested with authority may be weakened. But no one can ever renounce this responsibility, especially when he or she has a legislative or decision-making mandate, which calls that person to answer to God, to his or her own conscience and to the whole of society for choices which may be contrary to the common good. Although laws are not the only means of protecting human life, nevertheless they do play a very important and sometimes decisive role in influencing patterns of thought and behaviour. I repeat once more that a law which violates an innocent person’s natural right to life is unjust and, as such, is not valid as a law. For this reason I urgently appeal once more to all political leaders not to pass laws which, by disregarding the dignity of the person, undermine the very fabric of society. (EV 90)
2.3 Permissive abortion out of respect for constituents
Some will immediately respond that it is all very well for Catholic parliamentarians to carry their faith even into their political lives and follow their consciences, but they must also (and perhaps first) respect the consciences of their constituents, many of whom do not share their views on these matters. They must avoid imposing their religious and moral beliefs upon others, especially with all the power of state law and policy. [Of course this rather begs the question about the much more radical ‘imposition’ that abortion itself is upon at least one of the parties involved.]
But as Robert George has pointed out, professing to be anti-abortion yet pro-choice is a classic political example of having it both ways (op. cit.). And as the Congregation for the Doctrine of the Faith has observed: "It is true that it is not the task of the law to choose between points of view or to impose one rather than another. But the life of the child takes precedence over all opinions. One cannot invoke freedom of thought to destroy this life." (QDA 20) And as Pope John Paul points out in EV, "the legal toleration of abortion can in no way claim to be based on respect for the conscience of others, precisely because society has the right and duty to protect itself against abuses which can occur in the name of conscience and under the pretext of freedom." (EV 71) Those whose religion part-motivated their struggle against slavery or the genocide of Australian Aborigines were not fairly charged with religious intolerance or imposition; and those whose faith supports their action with respect to abortion law are no more guilty of imposing their religion upon others than are their doctrinaire libertarian or secular opponents.
2.4 Rule by majority opinion
Some Catholic politicians take the view that majority opinion is what counts. Most Australians apparently want abortion more or less on demand; so do most of their elected representatives; it is the job of a representative in a democracy to enact public opinion whatever his or her private views. In EV the Pope very persuasively answers this misconception. As he observes, "the democratic ideal, which is only truly such when it acknowledges and safeguards the dignity of every human person, is betrayed in its very foundations" when legislators engage in a "tragic caricature of legality" in passing permissive abortion laws (EV 20).
Democracy, the Pope reminds us, is not infallible; it should not "be idolized to the point of making it a substitute for morality or a panacea for immorality... The value of democracy stands or falls with the values which it embodies and promotes." If it fails to observe "the objective moral law which, as the natural law written in the human heart, is the obligatory point of reference for civil law" it easily becomes hostage to those "most capable of manoeuvring not only the levers of power but also of shaping the formation of consensus" (EV 70). Thus majority votes for abortion do not make it right any more than majority attitudes towards capital punishment, immigration or Aboriginal land rights; political leaders have a duty to lead, not merely to follow. Were they to collaborate in a social prejudice which excludes the unborn from respect and protection, they would be harming rather than serving the State, because they would be undermining the very bases of respect for law and the legitimacy of the state. Legalising abortion ‘contributes to lessening respect for life and opens the door to ways of acting which are destructive of trust in relations between people’; such laws are contrary to the good of individuals and the common good; indeed there is reason to doubt whether they are valid laws at all (EV 72). Thus no parliamentarian can hide behind majority opinion, renouncing the duty of forming and following his or her own conscience, even in the public sphere (EV 69). Thus while governments might sometimes tolerate things the prohibition of which would cause greater harm, they "can never presume to legitimize as a right of individuals—even if they are the majority of the members of society—an offence against other persons" (EV 71). Indeed, ‘there is no obligation in conscience to obey [= acquiesce in, accommodate to] such laws; instead there is a grave and clear obligation to oppose them’ (EV 73).
2.5 Not all immoral activities are proscribed
Another view that might be put is that not all immoral activities can or should be proscribed at law. Catholics believe that adultery and lying are intrinsically immoral but they have not, in general, sought to make these activities criminal. So, it might be argued, abortion should best be decriminalised: after all, it is impossible to stop; women will seek abortions anyway, and possibly achieve them by more dangerous methods. Yet few would seem to be comfortable with extending this principle to the perennial problems of physical, psychological and sexual abuse of children: since it is going to happen anyway, whatever the law says, better to decriminalise it and provide a sterile environment!
As EV points out, it is a primary function of the criminal law to ensure that all members of society enjoy respect for their innate rights, such as the right to life: if the law does not act here, where can it act? The Declaration on Abortion observes:
It is true that civil law cannot expect to cover the whole field of morality or to punish all faults. No one expects it to do so. It must often tolerate what is in fact a lesser evil, in order to avoid a greater one. One must, however, be attentive to what a change in legislation can represent. Many will take as authorization what is perhaps only the abstention from punishment. Even more, in the present case, this very renunciation seems at the very least to admit that the legislator no longer considers abortion a crime against human life, since murder is still always severely punished. (QDA 20)
Likewise Pope John Paul has observed that:
Certainly the purpose of civil law is different and more limited in scope than that of the moral law…The real purpose of civil law is to guarantee an ordered social co-existence in true justice, so that all may "lead a quiet and peaceable life, godly and respectful in every way" (1 Tim 2:2). Precisely for this reason, civil law must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law must recognize and guarantee. First and fundamental among these is the inviolable right to life of every innocent human being. … Although laws are not the only means of protecting human life, nevertheless they do play a very important and sometimes decisive role in influencing patterns of thought and behaviour. (EV 71)
3. What is permitted to the Catholic politician with respect to abortion law reform: Evangelium vitæ §73
Having reviewed several, not uncommon, positions which are, in my view, excluded for Catholic politicians, I come now to consider what a faithful Catholic parliamentarian can do. Here I will presume a situation where abortion is presently de jure illegal but de facto available, more or less on demand, either because the law is not enforced by the police, the prosecuting authorities and/or the courts, or because, while illegal according to the letter of the law, previous or expected permissive interpretation of the law by the courts has made it more or less impossible to convict under the present law. Catholic and other pro-life legislators now face a bill, already presented or soon to be presented to parliament, which will seek to restrict, codify or even extend that very permissive abortion régime. The question they face, therefore, is whether they should or may oppose such a bill at all stages, whether they should or may support such a bill at certain stages, or whether, while opposing the bill as a whole, they should or may propose or be party to amendments to the bill to make it better than it would otherwise be.
In EV 73 Pope John Paul II notes:
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 authorised 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 favouring 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 co-operation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.
This text has occasioned some debate amongst faithful Catholics and their pro-life friends. To some it appears a contradiction: how can anyone who believes all abortion is wrong support "just a little abortion"? Has a spirit of appeasement or pragmatism crept into Vatican politics? Are we engaging in evil in the vain hope that good may come, trading some lives for others? Has despair of ever having sound laws and practices in this area resulted in a sell-out?
I think not, but I recognise that understanding Catholic teaching in this area, like Catholic teaching in many areas, requires a certain amount of arduous and dispassionate thinking. And in the heat of political debate, in the face of urgency, amongst morally unsophisticated parliamentarians and public, all led by an unhelpful media, people may be inclined to dismiss such thinking as a luxury or unnecessarily convoluted. I believe this view is wrong, if understandable. A parallel might usefully be drawn, perhaps, with respect to Catholic teaching on the just war. It is complex and will not always deliver up a single clear answer on which wars are just ones and which ways of fighting them are just. But that does not excuse us from doing the hard thinking. Too much is at stake to simply embrace "my country right or wrong" or dogmatic pacifism. The same in true in our present battle.
The applicable moral principles in this area are those concerning intention and object in the moral act (explored by the Pope at length in his earlier encyclical, Veritatis splendor) and formal and material co-operation in an evil instigated by another person(s) (described in EV 74); there are also several virtues at stake which I will treat at the end of my paper. Intentionality is at stake because if the politician’s goal is the liberalisation of the abortion régime that is an immoral object; but if their goal is tightening up that régime, or reducing a proposed liberalisation of it, thereby saving some babies, then their object here is not immoral but the means may or may not be. The leading Catholic writer on these matters, Professor John Finnis has explained the application of these principles to abortion law reform as follows:
The always illicit vote is [the vote] for a law as permitting, precisely to permit, abortion. This is always illicit, even if one is personally opposed to abortion and is voting for it only to keep one’s seat and prevent euthanasia or genocide laws, or only to equalise the position of the poor and the rich. The kind of vote which [EV] judges can be licit has as its object not to permit abortions now illegal but rather to prohibit abortions now legal or imminently likely otherwise to become legal. For example: the existing law or the threatened alternative bill says abortion is lawful up to 24 weeks, and the law the Catholic legislator is voting for says abortion is lawful up to 16 weeks. Even though it is a vote for a law which does permit abortion, it is chosen by this legislator as a vote for a law which restricts abortion. That this restrictive law I am voting for also permits abortion is only a side-effect—when we consider the act of voting in the perspective of the acting person—even though the side-effect of permission is as immediate as the object of restriction.
3.2 Co-operation in another’s evil
Another problem is that amongst the effects of the pro-life parliamentarian’s harm-limitation activities might be that however well-intentioned they have the effect of assisting the liberalisation of abortion or some other evil effect: this occasions concern about what theologians call co-operation in another’s evil. Formal co-operation in another person’s wrong acts is itself always wrong. This kind of co-operation might occur in either of two ways. First, where one shares the principal agent’s wrong purpose or aim: in this case the co-operator’s proposal, what he or she chooses to do, includes something (and perhaps everything) objectively wrong in the principal agent’s proposal. An example would be when a legislator who favours permissive abortion does not initiate a permissive bill but determines to support it with his vote or in other ways. A second kind of intentional co-operation is where the other person’s wrongdoing is the means to the co-operator successfully carrying out his or her own project, whatever that might be. An example would be someone who hopes to gain something else from the passage of such a bill, such as appeasing certain opponents, keeping his or her seat, horse-trading support for some other legislative objective etc. And in this case the politician may be guilty of formal co-operation even if he or she disapproves of abortion, finds the whole business repugnant, says so publicly, or tries to dissuade others from being pro-abortion: he or she still gives permissive abortion support as a means to some ulterior purpose.
Material co-operation, on the other hand, is where a person does something knowing or risking that it will have the undesired side-effect of facilitating another person’s wrong act. Here an agent intends as his or her own end and chooses as his or her own means things which neither are nor include the immoral ends of the principal agent; the co-operator does not make the principal agent’s immoral act his or her own, as it were; rather he or she (at most) accepts that results as an undesired side-effect of carrying out her own otherwise reasonable proposal. The difference between intending-and-foreseeing and not-intending-but-foreseeing has a long history in Catholic thought. Examples of unintentional co-operation might include: a taxi-driver who brings people to, or an engineer who keeps the utilities working in, a hospital where abortions are done, where the driver or engineer only does this work to make a living and further the other good things done there. Certainly they co-operate in the wrongful activity; without them it might even be impossible; but they do not intend it and make it no part of their purposes. So too a pro-life politician might aim to restrict a permissive abortion law in some way but in the process unintentionally but foreseeably give that law and the practice of abortion some respectability, even support.
Material co-operation is sometimes permissible; othertimes it would be irresponsible for the agent to accept the side-effects of his or her acts. What are the reasons that might persuade a Catholic parliamentarian to engage in such material co-operation? One must examine these carefully and honestly, taking them seriously without overstating them. The most important one will be any babies the legislator believes might be saved, and any mothers and others who might also benefit. Politicians themselves can might also have much at stake, as might those who rely upon them. And they might have various prior commitments and other responsibilities to take into account. So the politician must ask: how important are the benefits expected from this activity, how extensive, how certain and for whom?
What are the relevant side-effects which would count against such material co-operation? Again, the parliamentarian must examine these carefully and honestly, not ignoring them simply because they are unintended or minimizing them because of the benefits he or she hopes to achieve by pursuing this course of action. The most obvious bad effect of material co-operation is that it assists in another’s wrong-doing, in this case the evil of liberalising abortion. Thus the legislator must ask: what kind of loss or harm will result from the liberalisation of abortion with which I am unintentionally co-operating, or from any other side-effects of my own activities? How extensive will the harm be, how certain is it to occur, and who will suffer it? Will my refusing to co-operate prevent the wrong—or will it go ahead regardless? Am I in a position to stop it or at least reduce the harm done? In what ways can I at least express my disapproval and try to convert hearts and minds to my way of thinking?
Another bad side effect of material co-operation is that it may corrupt the politician concerned. A person may find their strength of will on these matters affected by having, even once, co-operated materially in the evil of liberalising abortion. They may become blasé about it, dulled to the evil side-effects, and happy enough to admit them as their own intention in the future. Or they may find themselves trapped in the company and schemes of others they thought allies who do not in fact share their scruples; the desire for solidarity and success may then carry such a person along into formal co-operation with evil in the future, whether with respect to abortion legislation or some other moral ‘compromise’.
A third bad effect of material co-operation can be that it corrupts others. A known Catholic who supports some measure with respect to abortion may be misunderstood by others to be abandoning his or her Church’s opposition to all abortion; he or she might thereby ‘give scandal’ to others who do not appreciate the distinctions between intentional ends and foreseen side-effects, formal co-operation and material co-operation, etc. This might seriously impair the witness she could and should be giving to others. And his or her example might encourage others not only to co-operate materially, but even to co-operate formally, i.e. to advance even more permissive abortion or to regard abortion less seriously. Thus it will sometimes be required to take a stance against an activity by privately or even fairly publicly refusing to co-operate even materially, even at the risk of one’s political career; or, if one is co-operating materially, at least to take as active a part as is practicable in otherwise protesting against the practice of abortion.
I want now to consider three possible positions which a Catholic politician might take on abortion law reform which might conceivably satisfy the various principles and conditions I have so far outlined.
3.3 Opposition to a permissive abortion bill at all stages
Sometimes Catholic or other pro-life parliamentarians form the view that, whatever its terms, abortion law reform is likely to have the net effect of making abortion even more freely available and more commonly practiced, or at least of confirming and codifying an already shameful situation; they might be persuaded that any restrictions will be ignored in practice, much as the present law is; they might judge that the restrictive bill or restrictive amendments are unlikely to be passed or, if passed, will be at the expense of some worse changes in other respects or in other areas; they might suspect that by giving support to such a bill their witness against abortion will be severely impaired and people will be scandalized; or they might conclude that by refusing to be party even to restrictive amendments they will help to ensure the defeat of the more radical bill already proposed. While recognizing that they have a prima facie duty to support efforts to save all or (where this is impracticable) at least some babies from abortion, and also recognizing one might support imperfect but restrictive bills or amendments with this in view in good conscience without intending any evil, some politicians may nonetheless judge that the inevitable, likely or seriously possible side-effects of even that degree of involvement by them would be so grave that the most prudent course would be opposition to such bills from start to finish of their legislative progress. This would seem to me to be not inconsistent with EV as a whole.
Those pro-lifers who oppose restrictive bills or restrictive amendments to permissive bills on these prudential grounds should be absolutely clear in their own minds (and possibly in their statements) that they are not opposing all imperfect abortion legislation per se, nor that they are accusing all pro-life supporters of such bills or amendments of intending permissive abortion, of formal co-operation in evil, of being willing to trade life for life, or even of imprudence. Rather, they make their own best judgment that by refusing to be party even to such efforts they will serve best the ultimate goals of creating a just and loving society, of saving babies and their mothers, of opposing the further corruption of our culture and our social fabric, and so on.
Finnis (op. cit.) has suggested that because the mission of the Church, especially that of the bishops, is to bear witness to the truth in a clear and unequivocal way, it may well be imprudent for bishops to support particular legislative strategies such as restrictive bills or amendments: an unsophisticated public, unaccustomed to the sorts of distinctions explored herein, led by the nose by a pro-abortion and anti-Catholic media, may well misunderstand the bishops to have accepted that some abortion is necessary, inevitable etc. This will again be a matter for prudential judgment in the particular circumstances, though no excuse for silence or other inaction on the Church’s part. My own counsel to the bishops in public controversies like this one would be that, rather than supporting any particular political strategy amongst the several permissible ones, they reaffirm and explain the evil of all abortion, the duty of the state to protect all its unborn citizens, the duty of Catholic and other politicians to do what they can to bring this about, and the permissibility of harm-limitation laws and amendments in certain circumstances as enunciated in EV.
3.4 Support for some (restrictive) abortion law reform in a permissive situation
An alternative position which a Catholic politician might adopt which also seems to me also to fall within the terms of EV 73 is that he or she will support an abortion bill which, she believes, will contribute to the lessening of abortion and the protection of at least some babies. Indeed on the basis of EV taken as a whole a parliamentarian might form the view that she has a strong duty of rescue towards the unborn which can best be satisfied by the gradual erosion of a de jure or de facto permissive abortion régime through, among other things, abortion laws which at least include some restrictions.
In an advice offered during the Western Australian controversy, Finnis suggested that if a legislator judged that Western Australian law is already widely permissive of abortion because it would be read as such by superior courts were it ever tested, the politician could in good conscience vote for a bill which, if enacted,
would accord real legal protection to some class of unborn babies who today are without that protection, even though the same Bill openly and plainly affirmed and ensured that some (perhaps many or most) other unborn babies remain unprotected (and are stripped of even ‘paper’ legal protection). That is to say, members holding the view I have described could cast such a vote (and agree in advance to do so) without immorally co-operating in the use of the legislative process to deprive human persons of their inalienable moral and human right to life.
There are many kinds of restrictions to permissive abortion laws which pro-life parliamentarians may support if they have reason to believe such restrictions will, if passed, be effective. They include:
· restricting the stage of foetal development beyond which no abortions will be permitted (e.g. 12 weeks);
· restricting the reasons for which an abortion will be permitted (e.g. threat the woman’s life; rape; threat to the woman’s health);
· specifically prohibiting abortion on certain other grounds (e.g. sex selection);
· restricting who may perform abortions (e.g. only doctors);
· restricting where abortions may be performed (e.g. only in public hospitals);
· licensing and otherwise restricting the number and activities of abortion clinics;
· restricting Medicare or insurance funding for abortion;
· restricting access to particular methods of abortion (e.g. banning ‘partial birth’ abortion and RU486);
· requiring that more than one doctor certify that the abortion is appropriate;
· requiring that adequate counselling of the women involved be undertaken;
· instituting strict informed consent provisions, including requiring that women seeking abortion receive adequate information about the unborn child, the risks of abortion, and alternatives to abortion;
· requiring parental or guardian consent to or at least notification of abortion performed on under-aged women and court-consent to abortion performed on mentally handicapped women; and
· requiring a ‘cooling off period’ between the time at which the doctor(s) certifies that an abortion may be performed and the actual abortion;
· provision for exemption on conscientious grounds of doctors, nurses, pharmacists and counsellors from any requirement that they perform, refer for, prescribe, dispense or otherwise co-operate in abortion; and
· provision that no Church or other private institution can be required to allow such procedures on its premises.
To be licit, a Catholic legislator’s support for a bill must be aimed not at permitting abortion in all other circumstances (even though this is a foreseen side-effect), nor at lending respectability to abortion performed within these restrictive circumstances: his or her goal must be to place some obstacles in the way of abortion on demand in the (not unreasonable) hope that some abortions will thereby be prevented and some babies saved. The elimination of all induced abortion must remain her goal; legislative attempts to restrict abortion where, despite or because of the present law, it is in fact commonly practised, may be supported if they are likely to increase the protection of some unborn children, even if they do not prohibit all abortions. Of course, some supposedly Catholic or pro-life politicians may disingenuously support such provisions with the real goal of enabling more liberal abortion under the thin veneer of ‘moderation’ and moral respectability, or as a way of evading taking an open stand for or against abortion, or because they are willing to trade some lives for others. Genuinely pro-life supporters of such moves, however, will only support them if they are convinced that they will amount to a real restriction on the present availability of abortion. Here there are important judgments of prudence and wisdom to be made about what actions will actually save babies, who else will be affected (e.g. doctors who no longer have the protection of the de jure prohibition of abortion against claims in tort for failure to provide an opportunity for an abortion), what messages will be conveyed to a morally unsophisticated public by an unhelpful media and what overall effect such moves will have upon culture an society.
The following things seem to me to follow:
1. Those engaging in such harm-limitation legislation must voice a clear and public opposition to all abortion, and make it clear that in supporting such a bill they are not retreating from their judgment that the present permissive situation with respect to abortion is a serious violation of human rights.
2. This strategy should not be adopted unless one judges that the new law would be interpreted more literally and enforced rather more rigorously than existing statutes and that in supporting the new law one is not wasting a real chance of persuading the police, prosecuting authorities and courts to interpret and enforce the present law more strictly.
3. This strategy should not be adopted unless one judges that the net effect will be to increase, not diminish, the present protection of the lives of unborn children.
The suggestion that a Catholic or other pro-life legislator might co-operate even materially in the passage of an imperfect abortion law will strike some as scandalous. Some people respond in a knee-jerk way to any harm-limitation measures short of absolute prohibition and actively work to undermine them; they may even defame those who support them. It must be clearly explained that the reason that support for legislation which prohibits some but not all abortions is morally licit in certain circumstances is that to strive to protect some lives does not mean one does not care about the rest. We are always obliged to refrain from evil; but there are limits to our opportunities, and therefore obligations, to accomplish good. Sometimes working to save some babies is all that a politician with the best will in the world can practically do. At the same time, of course, parliamentarians and their advisers should be careful not to conclude too hastily that more effective legislation is impossible.
- Support for restrictive amendments but opposition to the permissive abortion bill as a whole
A third posture that a Catholic legislator may adopt that seems to me to be consistent with EV 73, would be publicly to oppose the bill at the beginning, on the basis that it is aimed at permitting abortion; to then vote for various restrictive amendments in the committee stage; but to oppose the final bill because it will, in toto, liberalize or confirm the de jure situation regarding abortion. Here the politician is facing a law "ready to be voted on" and does his or her best to improve that law.
As with the Catholic legislator who votes for a restrictive bill, one who supports restrictive amendments must aim not at permitting abortion in all other circumstances (even though this is a foreseen side-effect), nor at lending respectability to abortion performed within these restrictive circumstances: his or her goal must be to place some obstacles in the way of abortion on demand in the hope that some abortions will thereby be prevented and some babies saved. The elimination of all induced abortion must remain his or her goal; by introducing or supporting amendments aimed at ‘tightening up’ an otherwise very permissive abortion bill the passage of which into law seems imminent, may be supported if he or she believes they are likely to increase the protection of the at least some unborn children, even if not all.
Once again it is possible that some supposedly Catholic or pro-life politicians will disingenuously support such restrictive amendments with the real goal of enabling more liberal abortion under the thin veneer of ‘moderation’ and moral respectability, or as a way of evading taking an open stand for or against all abortion, or because they are willing to trade some lives for others. Genuinely pro-life supporters of such moves, however, will only support them if they are convinced that they will amount to a real restriction on the provisions of a bill which will be enacted and otherwise allow even easier abortion. And again there will be important judgments of prudence to be made about what actions will actually save babies, who else will be affected, what messages will be thereby, and so on.
Similar prudential considerations would apply to those outlined regarding the previous proposal:
1. Those supporting such harm-limitation amendments must voice a clear and public opposition to all abortion, and make it clear that in supporting the amendments they are not retreating from their previously expressed opposition to the permissive bill.
2. This strategy should not be adopted unless one judges that unless one so voted, a worse bill will soon be enacted.
3. This strategy should not be adopted unless one judges that the amendments will be interpreted more literally and enforced more rigorously than existing statutes and that in supporting the amendments one is not wasting a real chance of persuading the authorities to interpret and enforce the present law more strictly.
4. This strategy should not be adopted unless one judges that the net effect will be to increase, not diminish, the present protection of the lives of unborn children.
One matter about which there has been considerable debate even among faithful Catholic parliamentarians and other pro-lifers is the stage in the political process at which a legislator should engage privately in canvassing amendments or announce publicly his or her willingness to discuss or support restrictive amendments. Sometimes the earlier amendments are canvassed, the greater the likelihood that they will eventually be accepted, that other helpful amendments will be proposed, or that the promoters of a bill will be discouraged from persevering altogether. At other times, the earlier such amendments are proposed, the more likely they are to generate organised opposition from the proponents of a more permissive régime and the more likely they are to grant some respectability to the bill as a whole, thereby giving a boost to the proponents of permissive abortion. These are again matters of prudent judgment for the politicians concerned, taking into account their best assessments of the present and likely future situation, the principles enunciated above so far, and the process of discernment sketched briefly below.
4. The virtues of a Catholic politician
4.1 The virtues of faith and prudence
I have argued that in the present circumstances five commonly espoused positions are ruled out for the faithful Catholic parliamentarian but three may be permissible: which of these three is to be preferred will depend upon the fine detail of particular legal and political situations, the commitments and opportunities which present themselves to a particular legislator in all the circumstances, and his or her best prudential judgment of what will work—without asserting some perfectionist position which excludes the possibility of ever supporting imperfect laws, and without being willing to engage in any intrinsically immoral means to such a goal. Whichever course were chosen, it should follow upon discussion with pro-life friends and allies; positive alternatives to abortion of one kind or another would also usefully be canvassed, though there might be differences about these also. But as Finnis noted in his advice, one would not be surprised if people of "good faith, moral probity, and legal competence" honestly disagreed about the status quo, the net effect of the passage of such imperfect legislation, or other matters involving judgments of prudence.
At several points in my paper I have appealed to that earthly wisdom which is the virtue of prudence and that supernatural wisdom that is faith and a gift of the Holy Spirit. Only by these great virtues and gifts can a person quickly and reliably apply the various appropriate principles with sensitivity to the range of people and values at stake. I have outlined several important principles today which the virtuous lawmaker must bring to bear in his or her task. Two more, which I have hinted at along the way, would be these: we must never be willing to do even a little evil in order to bring about even a very great good; and we must with imaginative impartiality apply the Golden Rule to our problem, asking ourselves, for instance, would I, were I one of the babies at risk, or one of the mothers seeking an abortion, or one of the other politicians engaged in this great debate, regard my action or inaction as fair. Having tried one’s best to think these matters through and exclude thereby all unreasonable choices, a politician might conclude that there are still two or more paths open to her: then she must go for what seems best to her within the context of her particular temperament, gifts, opportunities, commitments and vocation.
If we are to have faith and prudence ourselves, we must cultivate certain attitudes of heart and mind: prayerfulness above all, a willingness to take counsel, humility, docility to truth, respect for our allies and a eagerness to learn from, work with and console them, self-criticism, imaginative impartiality and love for all. Of these habits of the heart St James wrote:
Who among you thinks he is wise and understanding? Let him demonstrate this by a good life in the humility that comes from prudence… The wisdom which comes from above is first of all pure, then peaceable, gentle, compliant, full of mercy and good fruits, without inconstancy or insincerity. And the fruit of righteousness is sown in peace for those who cultivate peace. (Jam 3:13-18)
4.2 Unity of purpose; diversity in strategies; charity in everything
Vatican II taught that Christians "must recognize the legitimacy of different opinions" in political matters (GS 75).
Often enough the Christian view of things will itself suggest some specific solution in certain circumstances. Yet it happens rather frequently, and legitimately so, that with equal sincerity some of the faithful will disagree with others on a given matter. Even against the intentions of their proponents, however, solutions proposed on one side or another may be easily confused by many people with the Gospel message. Hence it is necessary for people to remember that no one is allowed in the aforementioned situations to appropriate the Church’s authority for their own opinion. They should always try to enlighten one another through honest discussion, preserving mutual charity and caring above all for the common good. (GS 43)
There will always be differences in legislative strategies, and such differences may be quite legitimate. Down through the ages even great saints have differed over what course was wisest in particular situations; therefore we must be loath to judge our confreres in the battle against abortion who differ from us on prudential matters; nor can we rightly claim for ourselves a monopoly on prudence or on the authentic interpretation or application of principles about which there has as yet been no definitive clarification. Above all we must avoid the tendency to consider a person or a group less committed to the pro-life effort because they have a different legislative strategy to our own, or to attribute to them malign motives. Now that abortion is back on the legislative agenda in other states, it will be crucial to unify our pro-life forces as far as possible, just as was done fairly successfully at the time of the Andrews Anti-Euthanasia Bill. To rework an aphorism of John XXIII, let us have unity of purpose, even when we have a diversity of strategies, but charity in everything.
At an international bioethics conference in Cambridge last year, Professor Finnis observed that at the root of the present disarray and demoralisation in Western Church and society is the practical elimination of transcendent hope. "It is obviously a precondition of sustainable engagement in public policy debates that one keep bright one’s hope, and keep clear and form the presuppositions of that hope" (op. cit.). I pray that in living out the imperative to be "unconditionally pro-life" Australia’s political leaders, Catholics, pro-life activists, and their sympathisers, will always hold fast to that hope even when the political scene is difficult to negotiate and potentially demoralising. For in the end we know that we side with Him who came so that we might have life, and have it to the full (Jn 10:10).
Anthony Fisher op, "On the duties of a Catholic politician with respect to abortion law reform, with particular reference to Evangelium vitae §73"
In this paper it is argued that the following positions are inconsistent with Catholic teaching on the rôle of a legislator with respect to abortion:
- A politician can in good faith be both ‘Catholic’ and ‘pro-abortion’;
- Because attitudes to abortion are ‘religious’, a politician ought to keep his views on this matter to the private sphere and not allow them to influence his/her law-making;
- A politician who is personally opposed to abortion can be ‘pro-choice’ out of respect for constituents with different view;
- Laws should reflect majority opinion on abortion, whatever that might be;
- Not all immoral activities are properly proscribed, and abortion is an example of an activity best unregulated by the criminal law.
In Evangelium vitæ §73 Pope John Paul II notes:
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 authorised abortions, in place of a more permissive law already passed or ready to be voted on… 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 co-operation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.
This text, and a correct understanding of intention, the object of the moral act, formal and material co-operation in another’s evil, clarifies that if a politician’s goal (or means to his or her goals) is the liberalisation of abortion or the achievement of that end by others, that is an immoral object and/or formal co-operation, and always wrong. But if the politician’s goal is tightening up an otherwise permissive abortion régime or proposed liberalisation of it, thereby saving some babies, then his or her object is not immoral, even if some undesired effects are foreseen or risked; his or her co-operation in the evil of others, if any, is material at most. In such a situation several important considerations must be taken into account when judging whether the act is permissible and wise.
Consistent with Catholic teaching the paper identifies three possible positions for a Catholic politician with respect to abortion law reform, depending upon certain prudential considerations which are outlined:
- The politician might oppose a permissive abortion bill at all stages;
- The politician might support a restrictive if imperfect abortion law bill in a permissive situation;
- The politician might support restrictive amendments to a permissive abortion bill but oppose the bill as a whole.
It is proposed that those undertaking any of these strategies must voice a clear and public opposition to all abortion, and make it clear that in adopting their particular strategy they are not resiling from this; and they must have formed their best judgment that this strategy is the one most likely to save the most unborn children possible in the circumstances.
In this situation it is vital that Catholic politicians have and cultivate the virtues of faith, hope, charity and prudence, and that they engage in an appropriate course of moral discernment. We should not be surprised if people of good faith and right reason disagree about the appropriate strategy in these circumstances; but we should try to maintain unity of purpose and charity towards pro-life allies who differ from us on appropriate strategy. In being "unconditionally pro-life" politicians stand Him who came so that we might have life, and have it to the full (Jn 10:10).