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Evangelium Vitae 73 and the Supreme Principle of Morals[1]

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Humanae Vitae

Pope Paul VI laid down magisterially in Humanae Vitae the permanent teaching of God’s holy Church on the serious duty of transmitting human life and the right uses of the act of procreation.  His teaching did not alter what the Church had constantly taught on the subject but it explored new issues.  The reaffirmation of the Church’s teaching was needed, for, as the Pope said—

the recent evolution in human society has resulted in changes which have provoked new questions which the Church could not ignore, for these concern matters intimately connected with the life and happiness of men.[2]

Pope Paul VI had been forshadowed by Pope Pius XI in Casti Connubii, 31.12.1930, a more comprehensive encyclical, which elaborated on the great dignity of the sacrament of matrimony and its insolubility as a consequence of its institution by God.  That encyclical was also precipitated by the issue of the licitness of contraception, the endorsement by the Lambeth Conference of the Bishops of the Church of England in July 1930, of a resolution permitting methods other than abstinence ‘to limit or avoid parenthood’.  That encyclical made it clear that contraception is first an attack on marriage[3].  The date of its issue leaves one with the impression that Pope Pius XI was determined to issue a resounding response to the Lambeth statement within the same year it was made.

At the heart of the reasoning behind the encyclical Humanae Vitae is the morally inseparable connection of the unitive and the procreative elements in the marriage act.  The act both unites husband and wife powerfully and renders them procreative in accordance with that natural ordination placed in them by God in virtue of their marriage.  Should that connection be allowed to be broken, the great forces that unite society would be turned to its harm and destruction.

Pope Paul warned of the evils which would flow from methods and plans for the artificial restriction of the birth rate through contraception.  He listed three: 1. The opening of the way to marital infidelity and a general lowering of moral standards; 2. The loss of the reverence due by men towards women and the subjection of women which would follow; 3. The danger of the power passing into the hands of public authorities who cared little for the precepts of the moral law.[4]  Each one of those prophecies has come to pass.

Experience shows the wholesale disregard which has been shown for the teaching of Pope Paul VI, both in the world in general and, it must be said with great anguish, within the Catholic Church.  The failure to follow that teaching has brought in its train the evils the Pope warned about and others.  We see them around us wherever we turn.  Indeed, there has grown up a culture of death, as Pope John Paul has called it, and we, living in the midst of it, have found ourselves faced with moral dilemmas which previous generations have not had to face, perhaps since Roman times.

Here in Australia, in every State and Territory, there is the forsaking of moral principle in favour of the gratification of the will of the individual.  We see laws, stringent in themselves, ignored by police, government and the courts because the moral principles which underlay their passage and enforcement have, first, been compromised, and then, considered no longer relevant.  Reasons are advanced (since men always need to justify their conduct by reasons which are at least apparently logical) for this conduct.  Inevitably, they are grounded on the perception of new ‘human rights’[5].

It is inevitable that the continued presence of these stringent laws on the statute books troubles the consciences of men.  It is inevitable also, that they will move to do away with them, asserting that they are outmoded; no longer relevant; or, that they conflict with these newly realised ‘rights’.  When this happens, the Catholic layman will be troubled as to what he can, or may, do in respect of these legislative proposals lest he find himself cooperating in evil.

Elsewhere, laws are passed which give reign to these newly alleged ‘rights’ while trespassing on, or destroying, the true human rights of others.  It often happens that those whose rights are interfered with in this way are the weak and the helpless.  Again, the Catholic layman will find himself having to address the issue of the appropriate action to take for fear of doing evil.

In Humanae Vitae n.14 Pope Paul VI said—

Though it is true that sometimes it is lawful to tolerate a lesser moral evil in order to avoid a greater evil 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 (cf. Romans 3:8)—in other words, to intend directly something which of its very nature contradicts the moral order, and which must therefore be judged unworthy of man, even though the intention is to protect or promote the welfare of an individual, of a family or of society in general.

In this statement Pope Paul VI was simply reiterating the constant teaching of the Church that one may never depart from the supreme principle of morals––do good; avoid evil.

Evangelium Vitae

In the fulness of time, in March 1995, in his encyclical Evangelium Vitae [The Gospel of Life] Pope John Paul II sought to provide assistance for those faced with the moral dilemmas which have flowed from this disobedience of the Church’s moral teaching.  In particular, in n.73 of that encyclical, he addresses the moral dilemmas which may confront civil leaders, parliamentarians and those in analogous situations—

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 organisations, 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]

A Faulty Interpretation of Evangelium Vitae 73

Arguments have been put forward by moral theologians around the world in recent times which would interpret these words so as to allow a Catholic parliamentarian to vote in favour of pro-abortion legislation where his intention thereby was to limit the harm done by a law and to save the lives of a number of unborn children who would otherwise be aborted if such legislation was not passed.[6]

The reasons given by these theologians justifying their position appear to be reducible to three:

1)                    that it is required to minimise the harm done by an unjust law;

2)                    that what is involved is justifiable material cooperation by the lawmaker in the illicit conduct of others; or,

3)                    that the moral object of the lawmaker is the elimination of as much injustice in the prior law as he is able to eliminate and, accordingly, nothing of the evil that flows can be attributed to him.

I will address each of these in turn.

Harm Minimisation

Dr Anthony Fisher says in his paper On the duties of a Catholic politician with respect to abortion law reform, with particular reference to Evangelium vitae #73[7]:

[A]… position which a Catholic politician might adopt which . . seems to me also to fall within the terms of EV 73 is that he or she will support an abortion bill which, [he] 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 [he] 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.

He quotes with approval advice given by Professor John Finnis of Oxford University in 1998 on the amendment of Western Australian law to permit abortion, that a politician there 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 cooperating in the use of the legislative process to deprive human persons of their inalienable moral and human right to life.

There is an order among principles; the inferior are subject to the superior.  All are subject to that principle which is supreme.  Insofar as ‘harm minimisation’ is treated as a principle governing action, it is subject always to the supreme principle of the moral law that one may not do evil that good may come of it.  These views of Dr Fisher and Professor Finnis ignore the supremacy of that principle.  By all means the lawmaker must act so as to minimise harm in legislation.  But he may not do it by himself engaging in evil acts.

Justifiable Material Cooperation

An instance of this reasoning is to be found in the paper of Professor Ángel Luño published in L’Osservatore Romano in September 2002[8].  He cites an argument published in the Italian journal La Civiltá Cattolica of 2nd May 1981 concerning the 1981 referendum in Italy which sought to replace the pro-abortion law 194/78 with a law providing much more limited access to abortion[9]:

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 lawmaker has no choice, so the argument goes.  If he is to reduce the harm being done by the existing law, he must vote for the least of the evils he is presented with.  He is compelled, if he wants to save the lives of some unborn, to vote with the pro abortion lawmaker.  Since he does not have as his object the end of the pro abortion lawmaker, his cooperation is not formal.  It is material cooperation, and since he is subject to compulsion, his cooperation is justifiable.

In the first place, the lawmaker is not compelled.  He does have a choice which does not involve the doing of evil.  ‘But,’ these theologians may respond, ‘if the lawmaker does not vote with the pro abortion lawmakers, many unborn children will die who otherwise would not die.’  Perhaps that is true—perhaps!  But the lawmaker may not vote to authorise the killing of even one unborn child in the hope that thereby he may save the lives of others.

Secondly, his conduct is not cooperation in the wrongdoing of another but that of a principal in his own wrongdoing.  Those who advance this argument are confused as to what is meant by cooperation.  The everyday use of that expression does not suffice for its moral categorisation.  Cooperation in the moral sense is said about a discrete act.  Moreover, the sub-categories formal, material, remote, proximate, have specialised meanings which are not necessarily identical with the common usages of those terms.

I will explain with an analogy.  A woman catches a cab to go to an abortion clinic to abort her unborn child.  The discrete act is the killing of her unborn child.  The woman is a principal in wrongdoing.  Her boyfriend is with her.  He wants the abortion too so he is cooperating. He intends the same end as the woman intends through her wrongful act.  Because he intends the same end, his cooperation is formal. The cab driver who knows that the address to which he is driving them is that of an abortion clinic is cooperating materially.  The acts of cabbie and of boyfriend are subordinated to the one act of the woman, the aborting of her child.

Now also in the cab is another woman.  She has gone along out of fellow feeling with the first woman but she, too, is pregnant and intends also to have an abortion.  The second woman is not cooperating with the first woman in the moral sense; she is a principal in the wrongdoing of her own abortion.

The lawmaker who votes for a pro abortion law is a principal in wrongdoing.  His discrete act is the vote he casts.  The allegedly pro life lawmaker who, moved by the reasoning of Dr Fisher, Professor Finnis or Professor Ángel Luño, agrees to vote along the same lines as the pro abortion lawmaker, is committing a discrete act.  The discrete act is the casting of his own vote.  It is not an act subordinate to the act of the pro abortion lawmaker just as the second woman’s act of aborting her own child is not an act which is subordinate to the act of the first woman.  It stands alone. He is not cooperating with the pro abortion lawmaker in the moral sense.  He is acting as a principal.  He is morally responsible for the vote he casts independently of the morality of what the pro abortion lawmaker does.  He might be ‘cooperating’ in the everyday sense of that word, but he is not cooperating in the moral sense.  To use the language of the criminal law, he is a principal in wrongdoing; he is not an accessory.

Nobility of Object—the Moral Object Alone is Determinative

Professor Ángel Luño says of the conduct of the pro life lawmaker who votes for a pro-abortion law—

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.[10]

This reasoning is, with the greatest respect, just so much nonsense!  Consider the phrase––this limitation of evil is the only thing which he wants and which he does––for it highlights the lack of logic.  The limitation of evil may be the thing he wants.  But it is not the only thing that he does!  He also votes to authorise the killing of the unborn.  Couldn’t the same reasoning be advanced to defend a man who blows up an abortion clinic to stop abortions taking place––this limitation of evil is the only thing which he wants and which he does?  Limiting the evil is not the only thing that he does.  He also destroys property and puts lives at risk.  In fairness to him, Professor Luño was using hyperbole to reinforce a point but a literary and rhetorical device has no place in an argument which aims at determining a moral issue.

In the law we have a saying—A man is presumed to intend the reasonable consequences of his acts.  That maxim expresses what is merely common sense.  If one of the reasonable consequences of my acts is that I am authorising the commission of some evil, of course it must be taken that I have intended it and, if it is prohibited by the law, I can be prosecuted for doing it no matter how noble may be my intention.

Consideration in the Light of Humanae Vitae 14

It seems to me that those advocating such conduct have not considered sufficiently the importance of that principle enunciated by Pope Paul VI in Humanae Vitae.  They have, moreover, misinterpreted and misapplied the words of Pope John Paul.  Here is Humanae Vitae n.14 once again:

Though it is true that sometimes it is lawful to tolerate a lesser moral evil in order to avoid a greater evil 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 (cf. Romans 3:8)—in other words, to intend directly something which of its very nature contradicts the moral order, and which must therefore be judged unworthy of man, even though the intention is to protect or promote the welfare of an individual, of a family or of society in general.

Isn’t the act of voting in favour of a law permitting abortion an act ‘intending directly something which of its very nature contradicts the moral order’?  Doesn’t it fall within Pope Paul VI’s proscription in Humanae Vitae that this may not be done ‘even though the intention is to protect or promote the welfare’ of others?  How is the welfare of those unborn children the parliamentarian thinks he may be saving any different to that envisaged by Pope Paul in his statement of principle?  And if it be insisted that the saving of those unborn children constitutes a grave reason for taking such a step, how is the proponent of such a view to avoid Pope Paul’s teaching that such conduct is never lawful ‘even for the gravest reason’?

In Evangelium Vitae n.73, in the paragraph immediately prior to that quoted above, Pope John Paul restates the principle enunciated by Pope Paul in the context of defective modern legislation —

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.

I have added the emphasis.

Given the proximity of this clear statement of principle to the paragraph in question how it could be asserted that in supporting proposals aimed at limiting the harm done by a permissive law His Holiness was qualifying that principle.  When Pope John Paul says of a law permitting abortion: ‘it is never lawful to vote for it’, are we not to take him at his word?  In the modern television argot might we not say to these moral theologians––What part of ‘never’ do you not understand?

Principle of Documentary Interpretation

Professor Dennis Pearce, Senior Lecturer in Law at the ANU, wrote in 1974––

The starting point to the understanding of any document is that it must be read in its entirety.  A writer will not expect his audience to read only selected passages and he will therefore make different passages dependent one upon another.  The courts have frequently said that the same approach is applicable to the interpretation of an Act.[11]

That statement, which applies to legislation within the Common Law systems of England and Australia, is no less applicable to a papal encyclical.  The document must be read as a whole.

A study of Evangelium Vitae’s 105 clauses reveals an unbroken condemnation of any act attacking innocent human life and a corresponding prohibition of any such act.  Here is a selection––

25.  It is not only the voice of the blood of Abel . . which cries to God, the source and defender of life.  The blood of every other human being who has been killed since Abel is also a voice raised to the Lord.

41.  … the deepest element of God’s commandment to protect human life is the requirement to show reverence and love for every person and the life of every person.

44.  … the life of every individual, from its very beginning, is part of God’s plan.

52.  Life is entrusted to man as a treasure which must not be squandered…

53.  … no one can, in any circumstance, claim for himself the right to destroy directly an innocent human being.

57.  The deliberate decision to deprive an innocent human being of his life is always morally evil and can never be licit either as an end in itself or as an means to a good end.

63.  The killing of innocent human creatures, even if carried out to help others, constitutes an absolutely unacceptable act.

90.  I repeat once more that a law which violates an innocent person’s natural right to life is unjust…

Can it seriously be suggested that one paragraph of one clause in this encyclical may be interpreted in such a way as to contradict that unbroken condemnation and corresponding prohibition?

Condemnation of the Thesis that the Moral Object Alone is Determinative

In Veritatis Splendor [The Splendour of Truth], his encyclical of August 1993, Pope John Paul II reiterated the fundamentals of the Church’s moral teaching.  He addressed certain defective theories of morals there including a group of such theories he called ‘teleological’.  Telos means ‘an end’ in Greek and this group of theories maintains that in the determination of the moral goodness of an act what matters is the object the person is pursuing; in other words, the intention of the one acting.  After insisting that a good intention was not itself sufficient in order for an act to be morally good—that it was also necessary that the means chosen be good—His Holiness said this:

One must therefore reject the thesis . . which holds that it is impossible to qualify as morally evil according to its species—its ‘object’—the deliberate choice of certain kinds of behaviour or specific acts apart from a consideration of the intention for which the choice is made or the totality of the foreseeable consequences of that act for all persons concerned.[12]

He went on in the following paragraph to say—

Reason attests that there are objects of the human act which are by their nature ‘incapable of being ordered’ to God, because they radically contradict the good of the person made in his image.  These are the acts which, in the Church’s moral tradition, have been termed ‘intrinsically evil’ (intrinsece malum): they are such always and per se, in other words, on account of their very object, and quite apart from the ulterior intentions of the one acting and the circumstances.[13]

The Pope repeats this teaching in Evangelium Vitae 75––

… the choice of certain ways of acting is radically incompatible with the love of God and with the dignity of the person created in his image.  Such choices cannot be redeemed by the goodness of any intention or of any consequence.

How can the thesis that it is the moral object alone which is determinative of the morality of the act of the lawmaker stand in the face of these condemnations?

St Thomas Aquinas, the Church’s Common Doctor, says: moral acts take their species according to what is intended[14].  Many acts are morally indifferent.  The act of swinging my arm may be carried out for a morally good end, as e.g., for exercise, or for a morally bad one, to strike this innocent man.  Other acts have the object 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.  It is this distinction which His Holiness was applying in paragraph 80 of Veritatis Splendor quoted above.

The husband and wife who perform the act of intercourse but use contraceptive means to frustrate its natural end may misguidedly think this will serve the good of their marriage.  That may be their intended end (finis operantis).  But the finis operis, the end embodied in the thing they do—the prevention of the possibility of conception—is evil and causes the act itself to be morally evil notwithstanding their subjective intentions.

Now consider the position of our parliamentarian/lawmaker.  He may approach the vote on an amendment 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 the amendment or the bill condones abortion in the slightest degree the end embodied in the thing he does—voting to permit abortion—is evil and causes the act itself to be morally evil.  The thing he does, because of what it contains, betrays his intention.  His 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.

Apparent Confirmation in Doctrinal Note of 24.11.2002

The interpretation of the words of Pope John Paul II I have advanced is apparently confirmed by the terms of the Doctrinal Note on Some Questions regarding the Participation of Catholics in Political Life issued with the approval of His Holiness by the Congregation for the Doctrine of the Faith last November and published on 16th January this year.  The relevant section of it runs––

[L]egislative proposals are put forward which, heedless of the consequences for the existence and future of human beings with regard to the formation of culture and social behaviour, attack the very inviolability of human life.  Catholics, in this difficult situation, have the right and duty to recall society to a deeper understanding of human life and to the responsibility of everyone in this regard.  John Paul II, continuing the constant teaching of the Church, has reiterated many times that those who are directly involved in lawmaking bodies have a ‘grave and clear obligation to oppose’ any law that attacks human life.  For them, as for every Catholic, it is impossible to promote such laws or vote for them.

The Note then goes on to quote the Pope’s words in Evangelium Vitae n.73 we have already considered, and concludes with these significant words––

In this context, it must be noted also that a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals.

The Supreme Principle of Morals Applied to Draft Legislation

No parliamentarian/lawmaker 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 even by implication 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.

What Can be Done

So what can the lawmaker do in conformity with this permission of Pope John Paul?  What can he do ‘to limit the harm’ done by such a law and ‘lessen its negative consequences at the level of general opinion and public morality’––while yet refraining from voting in favour of such legislation?

The first thing to note is that whatever he does, he must not endorse pro abortion legislation even by implication.  He should treat such legislation as if he was dealing with tar or some other noxious substance, taking care not to sully his hands.

The second matter for consideration is that he may not ignore the legislation in the hope that it will go away, or that there is nothing he can do about it.  He has a moral duty to perform.  Pope John Paul says in Evangelium Vitae 90––

Civil leaders… have a duty to make courageous choices in support of life, especially through legislative measures… No one can ever renounce his 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.

He must always vote against legislation which asserts that abortion is lawful.

I will preface the third consideration he must bear in mind by a short aside.  In the play A Man for All Seasons which details the life and death of the first lay Lord Chancellor of England, Sir Thomas More, there is an interchange between Sir Thomas, his daughter, Meg, and his son in law, Will Roper.  The author has them draw to the attention of Sir Thomas a new Act to be passed through parliament, the Act of Succession[15], pursuant to which an oath is to be administered throughout the kingdom acknowledging the King’s new marriage and 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.

Our lawmaker could introduce, or support, amending legislation which would seek to reduce the availability of abortion, for instance, by redrawing the parameters in an existing law to make them more restrictive.  But he must exercise the utmost care over the words in which the amending legislation is to be expressed.  Before he endorses them he must ensure that the words will place him outside the mindset of the evil Act.  Let me illustrate.

Assume that existing legislation allows a woman to abort her unborn child up to twenty weeks of pregnancy.  The state of the society is such that it is not possible to obtain a majority of votes in the parliament for any proposal to outlaw abortion completely.  A bill is proposed to amend the law so as to reduce the period of pregnancy within which she is permitted to abort her child to sixteen weeks.  It is likely to gain a majority of votes.  Our lawmaker’s vote may be decisive.  His absolute personal opposition to procured abortion is well known.  Can he vote for it?

The answer depends on the words in which the amending bill is expressed.

If the amending bill was to say––No woman who undergoes an abortion is guilty of an offence unless her pregnancy is proved to have exceeded sixteen weeks and no doctor who performs an abortion is guilty of an offence unless the pregnancy of the woman on whom he performs the abortion is proved to have exceeded sixteen weeks––he could not licitly vote for it.  Why not?  Because the words in this formulation state explicitly that some abortion is lawful.  What abortion?  Abortion which takes place prior to sixteen weeks of pregnancy.

However, if the amending bill was to say––Notwithstanding the other provisions of this Act, a woman whose pregnancy is proved to have exceeded sixteen weeks and who undergoes an abortion is guilty of an offence and a doctor who performs an abortion on a woman whose pregnancy is proved to have exceeded sixteen weeks is guilty of an offence––the lawmaker could licitly vote in favour of it.  Why?  Because there are no words in this formulation which state that any abortion is lawful.  It asserts that some abortion will be prosecuted, namely, abortion occurring after sixteen weeks of pregnancy.  It is an improvement on the status quo which allows abortion to twenty weeks of pregnancy.  If it is silent on the evils of other abortion that cannot be laid at the feet of our lawmaker.  But lest it be thought that by supporting this bill he is somehow supporting abortion, that is, to avoid scandal, he has to ensure that his position of absolute personal opposition to abortion is well known.

The two formulations illustrate the issue.  The first seeks to refashion the evil Act from within by adopting its philosophy and helping to reshape its expression.  The second seeks from outside the evil Act to limit some of its harmful potential.

The test is—Do the words which the lawmaker is asked to endorse state that any abortion is lawful.

Provided a proposed amendment to an existing pro abortion law passes that test, the lawmaker could vote to outlaw abortion for economic reasons; or for psychological reasons; or so as to outlaw partial birth abortions or abortions on demand.

Fourthly, he must vote in such a way as to resist the removal of existing legislation which outlaws abortion.  For instance, in New South Wales, sections 82, 83 and 84 of the Crimes Act, 1900, outlaw abortion comprehensively.  They are not enforced.  But the problem posed by that failure is not a legislative one, it is a moral problem.  That problem can only be addressed by moral means.  It cannot be addressed by legislative ones.  The burden here is for bishops and priests to address with the support of the Catholic laity.  It is not for parliamentarians.  Every effort should be made to retain such legislation in place in the hope that the moral tone of the society may be raised so that it will again be enforced.

What Cannot be Done

It follows from what I have said that there are amendments which might be proposed to pro abortion legislation which by their very nature are 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.

I repeat––it is essential that the parliamentarian/lawmaker consider most carefully the words proposed before he gives them his support.

Yet other amendments such as those which would seek to outlaw abortion at certain places or at certain times, or seek to license or otherwise restrict abortion clinics from operating, or seek to restrict Medicare funding for abortion, 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 the incidence of abortion.  They would not thereby fall outside the terms of what a Catholic parliamentarian could vote on but the same conditions would need to be fulfilled for his vote in favour to be morally licit––the words of the proposed amendment must not accept even by implication that abortion is lawful.

The Italian Referendum in 1981[16]

In his paper published in L’Osservatore Romano in September last year, Evangelium Vitae 73: The Catholic Lawmaker and the Problem of a Seriously Unjust Law, Professor Ángel Luño gives an instance of an historical precedent to illustrate what he says Pope John Paul was referring to in EV 73 by the expression problems of conscience… not infrequent which 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.  The illustration he gives involves the circumstances surrounding the referendum on abortion in Italy in 1981 referred to above.

In 1978 a law was passed in Italy (194/78) which permitted abortion to a woman during the first trimester of her pregnancy in circumstances involving alleged serious danger to her physical or mental health and also, beyond that term, in other limited circumstances.  The Italian Constitution allows, in Article 75, that a popular referendum shall be held to decide on the total or partial repeal of a law whenever it is requested by 500,000 voters or by five regional councils.  In 1980 the Italian Radical Party began pushing for a referendum seeking to modify the law so as to allow abortion on demand.  This is what Professor Luño says happened––

Faced with the prospect of having to choose between the existing Law 194/78 or one whch 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 admissable, but the one giving maximum protection was not…

Professor Luño’s language is imprecise.  He seems to be saying that each of the two referenda did something positive in relation to abortion: one eliminated every possibility except in the case of conflict with the life of the mother; the other allowed legal abortion where there was grave threat to the life of the mother or where there was grave risk to her physical health.  That is, he gives the impression that each endorsed abortion in some way.  Elsewhere in the paper, however, he speaks differently.  He says: the referendum was aimed at abrogation; that is… the elimination of part of law 194/78.  Regrettably, the terms of the referendum are not available for scrutiny.  But if it is true that the referendum sought to repeal a provision, or provisions in Law 194/1978 permitting some abortion, then his endorsement of what was done is justified.

On 11th February 1981 the Italian Conference of Bishops made the following statement:

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 favour of abortion may be seen as morally licit and may be followed.

There was criticism of this statement by many Italian Catholics including criticism by an Italian Senator, Raniero La Valle.  He is quoted by Professor Luño as having said, that 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.  Whether this criticism is justified depends, as has been stated above, on the terms of the referendum.  If it sought to eliminate provisions which permitted some abortion, the referendum was justified and the fact that it would leave other pro abortion provisions in place could not amount to ‘introducing’ abortion and the statement of the Italian Conference of Bishops was right.  It would be otherwise, however, if the referendum had involved the people voting for a law which permitted any abortion.

The referendum to repeal the 1978 law was rejected by two thirds of Italy’s eligible voters.  The 1978 law remains.

A Philosophical Problem

The failures to understand the need for subordination amongst principles and of the realities of instrumental and final causality which characterise the thinking of these moral theologians and of the Italian bishops and, to be blunt, their inability to think straight, demonstrates a more fundamental problem—their lack of metaphysics.

What is metaphysics?  The term comes from the name of a work by Aristotle which was the subject of a long commentary by St Thomas Aquinas, the Church’s greatest philosopher and theologian.  Metaphysics is the heart of the true philosophy of reality, the true explanation of the ultimate causes of things.  It is the philosophy of Aristotle refined and christianised by St Thomas.

Of every thing on the face of the earth the following distinctions can be made—

·        what it is (its essence, or nature) is really distinct from the fact that it is, its existence;

·        within it is an ordination unto some end placed there by its author––to put it in the technical terms of philosophy, there are two extrinsic causes which determine it, an efficient cause and a final cause;

·        it has two basic components, its form and its matter, which is the same as to say that it has two intrinsic causes, a formal cause and a material cause: in living things the form is its soul, or vital principle;

·        how it acts depends on what it is, i.e., on its essence, or nature; in other words, do follows be––agere sequitur esse;

·        there is a proportionality between its nature, its powers, the acts that it performs and that end;

·        there is, thus, an internal order that governs it and places it in a more universal and external order ordained and established by the author of creation.

In this setting of reality some things are more superior and others more inferior and the inferior ones are for the sake of the superior, that is, there is a necessary subordination among things.  Of these––

·        man is the highest because he is primarily not something material but something immaterial, i.e., not composed of matter: immaterial being is of an infinitely higher order than material being;

·        man, alone among them, is an end in himself because, alone among them, his soul cannot die.

These are some of the categories of the philosophy of St Thomas.  They are interdependent.  Deny one of them and you no longer have metaphysics but some philosophy of your own contriving which does not accord with reality.

The Catholic Church has long been the guardian of St Thomas’s philosophy[17] but that guardianship has been forsaken in large measure in the last fifty years in favour of the evanescent attractions of modern philosophy.  Pope Pius XII in Humani Generis (August 12th, 1950) warned of the evils which would flow from this forsaking of the Church’s philosophical patrimony.

Applying Metaphysical Considerations

1.         Just as in the order of creation, so in the order of principles, there is a subordination.  Some principles are more important than others.  Christ, Our Lord, reflecting what God had revealed through Moses[18] stated the first principle of all––You must love the Lord your God with all your heart, with all your soul and with all your mind[19].  He also stated the second––You must love your neighbour as yourself.  There is no principle governing human acts which is more important than these.  Every act we perform must conform itself to them.

In the moral order the supreme principle is Do good; avoid evil and its immediate corollary is You may not do evil that good may come of it[20].  There is no principle governing the morality of human acts which is more important than this.  Every other moral principle must be subordinated to it.  It is folly, then, to claim reliance on some subsidiary principle, such as the principle of harm minimisation, as providing a reason for departing from that supreme principle.

2.         The things of this world may be divided into two categories—those that admit of more and less, and those that admit only of Yes and No.  You can have more or less wood on the fire, but you can’t have more or less of a dog in the backyard.  A woman can have more or less pie for dinner, but she can’t be more or less pregnant.  You can have more or less water in a bucket, but what you’ve got in the bucket can’t be more or less water.[21]  It is folly to apply the categories of quantity to something which is absolute.

Human life is something absolute.  You cannot speak of more and less when dealing with the evil of abortion because the subject matter is human life.  It makes no sense, then, to say––that you are more against abortion than you are in favour of it––or say that some abortion is necessary for the good of society––or maintain that it is licit to vote for some abortion if your motives are good ones––or say, as one of our Australian moral theologians is reported to have said about voting in favour of pro-abortion legislation with a view to saving the lives of some unborn, ‘better half a loaf than no loaf at all’.  There is only one attitude to abortion: it must be rejected utterly[22].

As a final remark on the philosophical issues, I draw to your attention a great irony.  Pope John Paul’s first encyclical was Redemptor Hominis [The Redeemer of Man][23].  In it His Holiness sought to recapture what is meant by man[24].  If the views of these theologians are any indication, it is precisely on this question, on the understanding of what man is, that they have failed.  The guidance His Holiness sought to give them does not seem to have borne fruit.

Humanae Vitae Again

At n.18 of his tremendous encyclical, Pope Paul VI says this—

It should cause no surprise that the Church, any less than her divine Founder, is destined to be a ‘sign of contradiction’.  She does not, because of this, evade the duty imposed on her of proclaiming humbly but firmly the entire moral law, both natural and evangelical.  Since the Church did not make either of these laws, she cannot be their arbiter––only their guardian and interpreter.  It can never be right for her to declare lawful what is in fact unlawful, because this, by its very nature, is always opposed to the true good of man.

We have become submerged in the squalor that has followed on the systematic disobedience of the world to the teaching of God’s Church on the family and on procreation.  The separation of the unitive from the procreative qualities of the marriage act has brought in its train not only contraception, but abortion, the subjugation and abuse of the fertilised embryo through in vitro fertilisation and by making it the vehicle of scientific research, the encouragement of the evil of homosexuality.  These things have become engraved in the mindset of the age, first as acceptable behaviour, then as ‘rights’ which have achieved legislative support, when each of them conduces not to the good of man but to his great harm.

The Church cannot tolerate any of these evils.  She cannot let them pass without comment.  She cannot close her eyes to them.  But neither can she justify conduct which seeks to condone in the least the evils they bring in their train.

Colin Harte, an English moralist who generally supports the view I have espoused today, though not as to its legislative application, says this about the Pope’s teaching in Evangelium Vitae n.73—

One can say, without exaggeration, that the ramifications of the teaching of this section will be as momentous in the area of social and political morality as the teaching of Humanae vitae has been in the area of conjugal morality[25].

I would respectfully agree but go further.  In my view it is not a different issue.  It is the same issue––Can one do evil that good may come of it?  It is the mindset accompanying the widespread tolerance within the Church (not by the Church but by her members) of the intrinsic evil of contraception which has brought many of our moral theologians and bishops to the point that they can advance it as reasonable that the Church should allow evil that good may come of it, that is, that she should permit the supreme principle of morals to be compromised.

The Church will never allow that compromise.  She cannot because she is of God.

Michael Baker
20th July 2003
100th Anniversary of the death of Pope Leo XIII

[1]  I am indebted for his comments on this paper and its preparatory work to Bern Sadler and, for reminding me of the capital importance of the distinction between finis operis and finis operantis, to Fr John Walter, parish priest of Riverwood, NSW.

[2] Humanae Vitae n.1

[3]  Casti Connubii, 31.12.1930, n.53 et seq.

[4]  Humanae Vitae, n.17

[5] In August 1996 Mr Justice Roderick Meagher of the New South Wales Court of Appeal, in an extra judicial address in Darwin, made some pungent comments on the effect at law of these new ‘rights’––‘They are not immediately recognisable as having defined features.  In this, they do not resemble ordinary proprietary rights, like rights to possess, to enjoy the benefit of an easement over another’s property, a right of support.  They seem to be of a different quality to, say, a parent’s right to inflict condign chastisement on his or her child.  They seem to be unlinked to obligations or responsibilities.  They mean whatever each proponent wants them to mean.’  Civil Rights: Some Reflections, The Kriewaldt Address given at Darwin, 29th August 1996.  The material cited is from a revised version of the Address published at 72 ALJ 47.

[6]  Among them Professor John Finnis of Oxford University, Dr Anthony Fisher O P of Melbourne and Professor Angel Luño of the Pontifical University of the Holy Cross, Rome.  This paper will confine itself to comment on their views.

[8] Evangelium Vitae 73: The Catholic Lawmaker and the Problem of a Seriously Unjust Law, reproduced at

[9]  Regrettably, Professor Luño lumps together two situations which are specifically distinct: 1) voting with pro abortion lawmakers in favour of their pro abortion legislation because this is perceived as ‘reducing the harm’ of even worse pro abortion legislation that otherwise might ensue; and 2) voting to repeal provisions in a pro abortion statute which will have the effect of limiting the number of abortions which may be carried out under the legislation.  The first is morally illicit.  The second morally licit.  It would seem that the Italian referendum involved the second scenario.  The terms of the referendum are not available for perusal.  Professor Luño seeks to draw a principle from the conduct over the Italian referendum and to apply it willy nilly to the morally illicit situation exemplified in 1).

[10] Evangelium Vitae 73: The Catholic Lawmaker and the Problem of a Seriously Unjust Law, reported at

[11]  D.C. Pearce, Statutory Interpretation in Australia, Butterworths, Melbourne, 1974, p.25.

[12]  Veritatis Splendor, n.79

[13]  Ibid, n.80

[14]  Summa Theologiae, I-IIae, q.1, a. 3.  This teaching is adverted to by Pope John Paul in Veritatis Splendor n.78 though the footnote cited there should be sourced to this reference.

[15]  cf. Henry VIII, J.J.Scarisbrick, London, 1981, p.324

[16]  This section of the paper has been modified from the original after comment from Bern Sadler.  He pointed out that my assessment of Professor Luño’s analysis of the 1981 Italian referendum could be in error.  Any offence to the Italian Conference of Bishops given in the original paper is withdrawn with sincere apologies.  [Michael Baker, 20 July 2004]

[17]  Cf. Innocent VI (1352-1362) “His teaching above that of others, the canons alone excepted, enjoys such an elegance of phraseology, a method of statement, a truth of proposition, that those who hold to it are never found swerving from the path of truth, and he who dare assail it will always be suspected of error.”  Sermon concerning St Thomas, quoted in Aeterni Patris, below; John, XXII (1316-1334) “He alone enlightened the Church more than all other doctors; a man can derive more profit in a year from his books than from pondering all his life the teaching of others.” quoted by Pius XI in Studiorum Ducem n.10 hereafter.  Leo XIII, Aeterni Patris, 4.8.1879, “ . . the chief and special glory of Thomas, one which he has shared with none of the Catholic doctors, is that the Fathers of Trent made it part of the order of the conclave to lay upon the altar, together with the code of Sacred Scripture and the decrees of the Supreme Pontiffs, the Summa of Thomas Aquinas, whence to seek counsel, reason, and inspiration.”  Pius X, Pascendi 8.9.1907, “To deviate from Aquinas, in metaphysics especially, is to run grave risk.”  Pius XI, Studiorum Ducem 29.1.1923, n.11 “We so heartily approve the magnificent tribute of praise bestowed upon this most divine genius that We consider that Thomas should be called not only the Angelic, but also the Common or Universal Doctor of the Church; for the Church has adopted his philosophy for her own, as innumerable documents of every kind attest.”  Pius XII, Humani Generis 12.8.1950,  nn.16, 31: “The Church cannot be bound to every system of philosophy that has flourished for a short space of time. . the things that have been composed through common effort by Catholic teachers over the course of the centuries to bring about some understanding of dogma are certainly not based on any such weak foundation. . . If one considers all this well, he will easily see why the Church demands that future priests be instructed in philosophy according to the method, doctrine and principles of the Angelic Doctor, since . . the method of Aquinas is singularly preeminent both for teaching students and for bringing truth to light; his doctine is in harmony with divine revelation . .”

[18] Deuteronomy 6:5

[19]  Matthew 22:37

[20]  cf. Romans 3:8

[21]  Wherever it is question of some natural substance, mineral, vegetable or animal—what it is, its essence or nature, does not admit of more and less.  It is absolute.  Such things, in virtue of their nature, are stable, unchanging and abruptly distinct from all others.  On the other hand are those that admit of more and less.  Size, weight, volume, colour or complexion, appearance, proximity, time, place, temperature, situation and the way something has itself, may all vary or fluctuate.  These admit of more and less.  The distinction between these two categories of things is founded on the metaphysical distinction between substance and accident, between that which possesses that mode of being called ‘be in self’ and that which has that mode of being called ‘be in other.  Note that the word ‘substance’ here has a specialised meaning.  It is not used as it is used in common parlance, as some sort of matter without specifying just what, but as the underlying supposit which manifests itself in some nature or essence.

[22] Once you deal with something absolute as if it admitted of more and less, be it in only the most exceptional case, you are condemned thereafter to treat it as something qualifiable.  By that one act you have (potentially) allowed every breach thereafter.  Dr Alex Bourne in England in 1938 regarded himself as morally bound to abort a girl raped by four guardsmen.  He was prepared to be tried for doing so.  Hard cases make bad law and the decision in Rex v Bourne ([1939] 1 K.B. 687) acquitting him was bad law because the legal doctrine of precedent meant that thereafter no unborn child in England could count on the protection of the law for its preservation.  Significantly, many years later Alex Bourne regretted the part he had played in the distortion of the law.  He joined the U.K. Society for the Protection of the Unborn Child.

[23]  Redemptor Hominis 4.3.1979

[24]  . . man is the primary route that the Church must travel in fulfilling her mission: he is the primary and fundamental way for the Church, the way traced out by Christ himself, the way that leads invariably through the mystery of the Incarnation and the Redemption.  Redemptor Hominis n.14

[25]  Colin Harte, "Challenging a Consensus: Why Evangelium Vitae Does Not Permit Legislators to Vote for 'Imperfect Legislation'," in Luke Gormally, ed.,
Culture of Life-Culture of Death (London: The Linacre Centre, 2002):
322-342, at 341-342.