under the patronage of St Joseph and St Dominic

By the rivers of Babylon there we sat and wept, remembering Zion;
on the poplars that grew there we hung up our harps. . . Ps 136

MSGR LUÑO'S VIEW OF EVANGELIUM VITAE § 73

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Professor Ángel Luño of the Pontifical University of the Holy Cross in Rome published a paper in the Italian edition of L'Osservatore Romano in September 2002 giving his interpretation of the text of of His Holiness, Pope John Paul II, in n.73 of his 1995 encyclical Evangelium Vitae entitled: Evangelium Vitae 73: The Catholic Lawmaker and the Problem of a Seriously Unjust Law .   The paper was reproduced in the English edition of the Vatican newspaper of 18 th September 2002 [1].   Professor Luño was subsequently accorded the title Monsignor .   Monsignor Luño's paper has been described by the Secretary of the Congregation for the Doctrine of the Faith as 'a legitimate interpretation of the text. and. certainly not in contradiction to Catholic teaching' .   That view is, with respect, untenable.

Preliminary

In doubtful moral situations, in the modern world, the principle of harm minimisation--that one should aim first at limiting the harm which may be done--is often exalted beyond its station to a sort of supreme principle of action.   So did John Stuart Mill exalt it when he regarded the prevention of harm to others as the only purpose for which power could rightfully be exercised over any member of a civilised community against his will [2].   He was wrong in this as in other matters.

The highest moral principle is that good should be done and evil avoided.   That principle is otherwise expressed in the terms of its immediate corollary--it is not lawful to do evil that good may come of it (cf. Romans 3:8).   The highest principle of all is that of charity, that we should love God first above all things and our neighbour as ourselves. The principle of harm minimisation is subject to each of these.

Evangelium Vitae §73

Pope John Paul II adverts to the principle of harm minimisation in his encyclical Evangelium Vitae at n.73 when he refers to proposals aimed at limiting harm caused by existing or proposed legislation.

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. [emphasis in original]

Many who counsel parliamentarians faced with a bill to remove long standing laws outlawing abortion appeal to this passage in Evangelium Vitae §73 as if, the conditions for its operation being fulfilled, it provides an exception to the principle that it is not lawful to do evil that good might come of it.   It is not so.

Pope John Paul is not enunciating any new doctrine.   He is simply applying the Church's long held principles to one of the difficult moral situations facing modern man in a world dominated by atheistic secular humanism.   He is not exalting the subsidiary principle of harm minimisation beyond its proper sphere.   He is not departing from the fundamental moral principle.   Indeed, he says the very contrary in the previous paragraph of Evangelium Vitae §73.

The Pope's words are directed to a particular situation, namely, 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.   Disagreement over its interpretation has arisen, inter alia, out of the phrase adjectival to this sentence-- already passed or ready to be voted on.   This addition has led many to argue that Evangelium Vitae §73 allows a parliamentarian to vote for restrictive amendments to a bill which seeks to remove laws outlawing abortion on the basis that such a bill is a more permissive law. ready to be voted on .

Can a parliamentarian whose absolute personal opposition to procured abortion is well known, faced with a situation where it is not possible to overturn or completely abrogate a pro abortion law or a bill for such a law, licitly vote for an amendment which would still allow abortion but in a lesser degree?

No parliamentarian can licitly vote for a bill which, when passed into law, would do evil.   He cannot vote for a bill to permit wholesale abortion.   He cannot vote for a bill which would permit some abortion.   He cannot vote for a bill which would allow one abortion.   He cannot vote for a bill which would accept that abortion is lawful.   Because in each case, he would be voting for something intrinsically evil and he may not do evil that good may come of it .

Amendments To Pro Abortion Legislation

Amendments can be proposed to an existing Act, or to a bill for an Act, in a great variety of ways.   For this reason it is essential that the parliamentarian concerned regard with the greatest care the terms in which an amendment is proposed.   What matters is the words which are to be used .   Words are signs of understandings, which are signs of things, ie, realities.   It is the thing--the reality--signified by the words which binds the person who adopts them.

If there is proposed a bill to amend an existing law prohibiting abortion by allowing abortion without restriction, a parliamentarian may, provided he avoids the danger of scandal by observing the directives enunciated by His Holiness, vote on an amendment to that bill which will import restrictions provided the terms of the amendment do not acknowledge that abortion is lawful.

So, for example, an amendment to such a bill seeking ab extra [3]--

•  to outlaw partial birth abortion;

•  to outlaw abortion on the grounds of economic hardship;

•  to outlaw abortion for reasons of psychological distress;

•  to outlaw abortion for women whose pregnancy has exceeded a certain period; or,

•  to outlaw abortion for a certain class of women--

would seek to impose a restriction on the intrinsic evil allowed by the proposed law without endorsing that evil.   However for such an amendment to be acceptable, it must not in any way embrace the pro abortion mentality of the bill.   So, to take the fourth of the instances cited above as an example, if the amendment was to say--

Notwithstanding the other provisions of this Act, a woman whose pregnancy has exceeded sixteen weeks and who undergoes an abortion is guilty of an offence

--the parliamentarian could licitly vote in favour of it.   It says nothing about abortion generally; it expresses no adoption of the pro abortion mentality; it adopts no other of the pro abortion provisions of the bill.

However, if the amendment said--

No woman who undergoes an abortion is guilty of an offence unless her pregnancy is proved to have exceeded sixteen weeks

--the parliamentarian could not licitly vote for it because the words in this formulation allow explicitly that some abortion is lawful.   What abortion?   Abortion where the pregnancy has not exceeded sixteen weeks.   Such an amendment would not be from without .   It would seek to refashion the bill from within by adopting its pro abortion philosophy.

It may be said that a distinction such as this is not a real distinction but nominal one only.   Whichever formulation is used, it may be argued, the effect is the same--abortion after sixteen weeks of pregnancy is unlawful.   Why then insist upon the former?   The reason is that the words signify two different realities : on the one hand, non acceptance of the lawfulness of abortion; on the other, the acceptance of that evil [4].

Other amendments to an existing Act, or to a bill for an Act, by their very nature would be morally unacceptable. Thus amendments which sought to impose as a condition upon a woman seeking to undergo an abortion--

•  a requirement that she be provided first with information about the unborn child;

•  a requirement that, if under 18 years of age, she must have her parent's consent;

•  proof that the woman would suffer serious danger to her physical or mental health if the abortion was not performed;

•  that more than one doctor certify her abortion is necessary;

•  mandatory counselling; or,

•  a mandatory cooling off period--

would each allow, the condition being fulfilled, that it would be lawful for the woman to kill her unborn child.   In other words, each would endorse the evil law in its terms .

Yet other amendments, such as those which would seek to outlaw abortion at certain places, or at certain times, would not fall within the contemplation of Evangelium Vitae §73 because they would not be 'aimed at limiting the number of authorised abortions' but rather at regulating its incidence.

A parliamentarian may vote, then, for an amendment provided it fulfills these strict criteria.   Then his conduct will constitute licit support for 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 .   Then his conduct will not in fact represent an illicit cooperation with an unjust law but rather a legitimate and proper attempt to limit its evil aspects .

A Parliamentarian Must Act

In Evangelium Vitae §90, Pope John Paul II says this--

[C]ivil leaders. have a duty to make courageous choices in support of life especially through legislative measures. No one can ever renounce this responsibility, especially when he or she has a 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.

When the bill itself comes up for a vote, then, the parliamentarian must act.   His action may be to vote for it, if he is able licitly to do so; to vote against it, if it is immoral; or to abstain from voting, if morally he can neither support nor reject it.   It is to be noted here that abstaining for good reason from voting is not the same as refraining from action.

The Ends of the Moral Act

The moral act must be considered not merely materially but as it is specified by its formal object.   As St Thomas says: moral acts take their species according to what is intended.   Moreover, the object of the act may be embodied in the very nature of the act itself as the procreation of new life is the inherent end of the act of intercourse, though husband and wife may perform it for a different end.   A distinction has to be drawn, then, between the natural, or inherent, end ( finis operis ) and the intended end ( finis operantis ) of any moral act.   Where there is discrepancy between the natural end and the intended end both ends must be morally good .

The intention of the parliamentarian in voting ( finis operantis, intended end) may be morally good. But it is not enough to consider his intention alone.   The act he performs and the end embodied in that act, the finis operis (inherent end), must also be morally good.   The parliamentarian may approach the vote on an amendment of a bill or on the bill itself intending to do good.   He may intend alone the restriction on free abortion.   He may intend only to help fashion a less evil law.   But if either the amendment or the bill condones abortion in the slightest degree the act of voting in favour of it, because of what it contains , betrays his intention.   In other words, the intended end ( finis operantis ) may be good, but the natural or inherent end ( finis operis ), the permission of abortion in whatever degree, is evil and colours his act inevitably as something evil.

It is for these reasons that Pope John Paul says in Evangelium Vitae §73, in the paragraph immediately preceding the extract which is the subject of this study--

In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to take part in a propaganda campaign in favour of such a law, or vote for it . [emphasis added]

Monsignor Luño's Paper

After the publication of Monsignor Luño's paper, he was interviewed by the Zenit Newsagency.   The interview was published on the Zenit website on October 3 rd 2002 [5].   Monsignor Luño sought in this interview to illustrate how the principles he had enunciated in his paper should be applied.   He said--

Let us think of the legislative assembly of a country in which a very permissive law of abortion is in force.   That assembly has 100 parliamentarians, divided in three groups.   Group A, with 40 members, accepts the current law and does not want to change it for any reason at all.   Group B, with thirty members, thinks that abortion should be legal in some cases, but regards the current law as too permissive and in need of modification--however, B is not willing to approve a law that prohibits any type of abortion.   Group C, with 30 members, is opposed to any type of abortion.   If in such a situation, a few parliamentarians of Group C, who are Catholics, present a motion to the assembly that abrogates all the articles of the law in force to date that those of Group B are willing to eliminate, in such a way that if it is approved abortion in many cases will be illegal, which up until now were legal, although it will continue to be legal in very restricted cases, the parliamentarians of Group C. have before them three possible ways to act: to vote against the motion, to abstain, or to vote in favour.

If they vote against the motion, they are responsible for the very permissive law continuing in force, and this is not acceptable for Catholic morality.   If they abstain, the motion for abrogation does not get a majority and is not approved and, consequently, they become responsible in some way for the very permissive law continuing in force, which is not morally acceptable either.   If they vote in favour of the motion, the latter gets the necessary majority vote, the previous law remains partially abrogated, and the resulting new law is far more strict.   What I have written on the basis of what Evangelium Vitae No 73 has said is that parliamentarians who have presented the motion for abrogation have acted well, and are morally correct, and that Catholics of Group C may, and generally, must, vote in favour of the motion for abrogation, so long as their position of complete opposition to any form of abortion remains clear.

The foundation of the moral judgement of Evangelium Vitae is that the moral object of the action of the parliamentarians who have presented the motion for abrogation, and that of the action of the totality of Group C, is not to uphold the articles that remain in force and which they do not have the possibility of abrogating.   Rather, the moral object of their action--what they really do--is only to abrogate the articles of the previous law that it is possible to abrogate, and to avoid upholding with their vote the previous more permissive law.   This is not collaboration with a pro-abortion law-it is not 'cooperation in doing evil'--but the exercise of the duty to abrogate, to the degree possible, a gravely unjust law.

It was not clear from the terms of the interview what factual situation Monsignor Luño had in mind.   Did his 'motion to abrogate' seek to modify the existing evil law from without by imposing restrictions so as, without embracing the pro abortion mentality of the existing law, to make abortion illegal in certain circumstances?   Or did it seek to impose conditions that had to be satisfied in order for abortion to be legal?   Or did it propose to replace the existing permissive law with another which was less permissive but which allowed that abortion was still legal in given circumstances?

If his hypothetical motion had fallen into the first of these categories, there could have been no objection to what he is reported to have said.   However, a reading of his paper in L'Osservatore Romano shows that he does not trouble to make the distinctions set out above.   His mind is that a proper interpretation of Evangelium Vitae §73 would allow that, given the conditions for its operation apply, a parliamentarian ('the lawmaker') may licitly vote for a law which permits some abortion.   This is what he says in his paper--

Finnis (Professor John Finnis of Oxford) 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".

The factor excusing the parliamentarian voting in favour of a law permitting some abortion, according to Monsignor Luño, is that the conditions under which he is placed are such that he is unable to eliminate the unjust provisions entirely.

This being his view, the following criticisms of his solution to the hypothetical problem posed in the Zenit interview apply.

Criticisms

In the first place, to assert that the parliamentarians who voted against, or abstained from voting on, the hypothetical motion would be responsible (or 'responsible in some way') for the very permissive law continuing in force, is false.   If, to avoid doing some evil act, a parliamentarian must vote, or abstain from voting, and one of the effects of his action is to allow the status quo, he is bound so to act no matter how evil the status quo may be .   For he may not do evil even to reduce evil.   If by killing one innocent man I could save ten, I would not be justified in doing so [6].

Secondly, the assertion that the conduct of the parliamentarians concerned in voting against, or abstaining from voting on, the hypothetical motion would be 'not acceptable for Catholic morality' begs the moral question.   There is no principle which would permit a man to vote to support the replacement of one intrinsic evil with another.   The parliamentarians concerned would not be morally responsible for the intrinsic evil in the status quo.   However, if they voted for it, they would be morally responsible for the replacement evil.

Thirdly, that the parliamentarians who have put forward the hypothetical motion should be praised as having acted well and as being morally correct is, with the greatest respect, reprehensible.   They may not promote a bill whose content is intrinsically evil.   That the effects that may flow from the new law might be less evil than those under the status quo is not to the point.   They would still be evil.

Fourthly, the assertion that Catholics who are faced with such a situation 'may, and generally must' vote so as to support such a bill is erroneous.   They may not, nor must they, vote for a bill which would permit the killing of any unborn child.

Fifthly, the attempt at justification of the conduct of the parliamentarians who presented the hypothetical motion and those who supported them by regarding 'what they really do' fails to acknowledge the necessary distinction between the natural, or inherent, end ( finis operis ) and the intended end ( finis operantis ) of their actions.   This has been dealt with above.   Both ends must be morally licit.

Because Monsignor Luño places such emphasis on this last point, more will be said about it.   In his article in L'Osservatore Romano he has this to say about the parliamentarian voting in favour of the law permitting some abortion--

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.

What effect would an argument along these lines have in a court of law if used to defend a pro life activist charged with blowing up an abortion clinic?   If he claimed that he only wanted thereby to limit the evil of abortion and it was put to the court on his behalf-- This limitation of evil is the only thing which he wants and which he does-- would the court accept the argument?   It would not.   Would it absolve him of fault for the damage he had done?   Of course not.

Monsignor Luño attempts to justify the conduct of the lawmaker (the parliamentarian) by denying the reality of what he does--committing evil in order to minimize harm--and attributing to him a nobility of motive which somehow excludes responsibility for the consequences.   It does not matter what the pro life activist intends, if he blows up an abortion clinic he commits evil and he is responsible for the evil he has done.   It does not matter what the lawmaker intends, if he votes for an evil law his will is crystallised in the law produced and he shares responsibility for any intrinsic disorder in that law.

The effect of the failure to make this necessary distinction means that Monsignor Luño subordinates the supreme principle of morals to the subsidiary principle of harm minimisation which is, and has always been, contrary to Catholic teaching.

As set forth above, Pope John Paul II endorses the application of the supreme principle of the moral law explicitly-- In the case of an intrinsically unjust law, such as a law permitting abortion. it is. never licit to. take part in a propaganda campaign in favour of such a law, or vote for it.   His remarks about limiting harm cannot be seen as derogating in the slightest from this endorsement.

Resolution Of The Issue

The debate about whether one may ever licitly do evil that good may come of it has been festering since at least the 1960s when 'progressive' moral theologians sought to undermine the anticipated Papal insistence on the Church's constant teaching on contraception.   Pope Paul VI's explicit rejection of the proposition in §14 of Humanae Vitae in 1968 did not put paid to these attempts.   The dissent flourished and, since the only rational basis on which it could flourish was through the compromise of the supreme principle of morals, the mood amongst many moral theologians was to effect that compromise de facto , even as they continued to uphold the principle de jure .   Since the Pope uttered these words in Evangelium Vitae §73 in 1995, they have sought to find in them recognition de jure of this compromise.

For the sake of certainty in matters of moral judgement the issue needs to be resolved.   This can only occur if the meaning of the Pope's words is clarified.   What is needed is a formal ruling on the doubt ( Dubium ) by the Congregation for the Doctrine of the Faith or by His Holiness.   A Dubium in the following form suggests itself--

Michael Baker

[1]  It may be viewed at the EWTN website: cf. http://www.ewtn.com/library/prolife/unjustlw.htm

[2]   Cf. J.S. Mill, On Liberty , Ch.1.

[3]  I use the expression ab extra , as I use the expressions from without and from within hereafter, for emphasis.   They signify the two contrary approaches the parliamentarian may take to the evil law: the one, utterly opposed to what the law stands for; the other, embracing the evil it proclaims.

[4]  The force of the importance of words is nowhere better illustrated than in Robert Bolt's play, A Man For All Seasons, where there occurs an interchange between Sir Thomas More, Lord Chancellor of England, his daughter, Meg, and his son in law, Will Roper.   The author has the latter draw to the attention of Sir Thomas a new Act to be passed through parliament, the Act of Succession, pursuant to which an oath is to be administered to persons throughout the kingdom requiring them to acknowledge the lawfulness of the King's new marriage and of its offspring.   This is what is said-

More : An oath!   On what compulsion? Roper: It's expected to be treason!
More : What is the oath?
Roper : It's about the marriage, sir.
More : But what is the wording?
Roper : We don't need to know the [ contemptuous ] wording--we know what it will mean!
More : It will mean what the words say!   An oath is made of words.   It may be possible to take it.   Or avoid it.

Sir Thomas, the future saint, knows that the destiny of his immortal soul may depend on the words contained in the oath he will be bound to take.   The Catholic Church maintains with St Thomas More, that a man may, by his words, take himself to heaven or to hell!

[5]  Can a Catholic Support a Law That Allows Some Abortions? , interview 3 rd October 2002, Code: ZE02100325.   The interview can be located in the Zenit website Archives section.

[6] The apparent exception to a breach of the moral principle manifested in an act which complies with the rigorous conditions of the Principle of the Double Effect is no exception at all since what is intended is not the evil, but the good effect: the evil is an unintended, if inevitable consequence.   The Principle of the Double Effect-- It is not lawful to do an act wherefrom flow two effects, one good, the other evil, unless four conditions are satisfied: 1) the act itself is good, or morally neutral; 2) the good effect alone is intended; 3) the good lost by the evil effect is not greater than the good of the good effect; and 4) the good and evil effects flow at least with equal immediacy, but not the evil effect prior to the good.