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What Is "Legal"? On Abortion, Democracy, and Catholic Politicians | Fr. James V. Schall, S.J. | February 16, 2007

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"We must question certain legislative choices made by the parliaments of today's democratic regimes. The most immediate example concerns abortion laws. When a parliament authorizes the termination of pregnancy, agreeing to the elimination of the unborn child, it commits a grave abuse against an innocent human being utterly unable to defend itself. Parliaments which approve and promulgate such laws must be aware that they are exceeding their proper competence and placing themselves in conflict with God's laws and the law of nature." -- John Paul II, Memory and Identity, 2005, p. 135.

"The true sense of the teaching authority of the pope consists in his being the advocate of the Christian memory. The pope does not impose from without. Rather, he elucidates the Christian memory and defends it. For this reason the toast (of Newman) to conscience indeed must precede the toast to the pope, because without conscience there would not be a papacy. All power that the papacy has is power of conscience." -- Josef Cardinal Ratzinger, On Conscience, 2007, p. 36.


On a Sunday, which was also the Feast of Our Lady of Lourdes, I was riding the #35 Bus down towards the National Gallery where I was to meet visiting friends. It was mid-morning. I was not paying too much attention. Along Pennsylvania Avenue, going towards the National Capitol and the Supreme Court, I noticed a placard on the panel behind the driver's seat. I looked at it a couple of times without it much registering to me. But finally, I looked at it more carefully. It only had two brief paragraphs with a web site designation, which I did not copy down.

On the placard was the image of a rather forlorn young girl. Beside her were, in bolder letters, the two paragraphs. The upper one was entitled "Myth" and the lower one, naturally, "Fact." What was the "myth?" I was suddenly alert in part because I had just read on Zenit that the British Prime Minister had insisted that Catholic institutions must follow "the law" that soon will mandate adoption by gay couples, whatever "religious" objections Catholics might have to this proposal. The "myth" was to become a "fact" in London, enforced by a sovereign legislature that acknowledges nothing above its self-defining will. The same issue was also in place in San Francisco.

In any case, the "myth" on the #35 Bus was the following: "That abortion is legal only during the first three months of pregnancy." What struck me was the almost triumphant emphasis on the word "legal." If it is "legal," it must be permitted, must be all right, must be good policy in a good polity. Indeed, it must be a "right." The law sanctions what is "right." It makes it "right" by deciding what it will enforce. Not to conform to the law is "wrong," a "wrong" done to someone. Whether a "wrong" is done to what is aborted deliberately goes unnoticed. And this latter failure or lack of good in the action of the lawmaker is the source of his inner moral evil.
What was the "fact?" This fact was even more startling. It read: "Abortions are legal during all nine months of pregnancy for virtually any reason." Here what struck me was not just the word "legal" but also the word "virtually." That is, it would be very difficult, if not impossible, even for the finest legal mind, to come up with a situation in which an abortion would not be, yes, "legal." In other words, no "reason" is really needed, nor does "reason" having to do with what is aborted make any difference to the law.

This placard, I suppose, by some stretch of the imagination, could have been construed to be an "anti-abortion" message. It might be designed to tell those few in our society who were either clueless or naive that such "any-reason-goes" approach to abortion is really the law in the United States. The actual intent of the placard was, I think, rather more perverse. It was to inform and encourage people, still dull enough not to know that "virtually" no restriction on abortion exists in the United States, to go ahead and avail themselves of this "legal" procedure, as it is not quite so innocently called. Most people, after all, already know this unpleasant "legal" fact. Indeed, how anyone could not know this "fact" is beyond me. It has been the "law of the land" for some decades now.


If this "legal" fact is so well known, why is Schall bothering with it at this late date? What really struck me about this bus panel, however, as I said, was the emphasis on the word "legal." This "legality" is what the sponsors of the placard wanted to get across. Those who prepared this unpleasant placard were clever--too clever. They deliberately called attention to the "legality" of the act, not its "rightness." Legality and rightness need not follow on one another, however much they should. For all too many the question of "rightness" is settled by the question of "legality." Indeed, this is what positivism and historicism are about, the denial of any law but the legislated or the current one in a society.

Yet, if a thing is "legal," what could possibly be wrong with it? Indeed, the law will protect those who exercise this "legal" right to abortion. No one need fear civil sanction; only inner or eternal ones, whatever they are, need be feared. Often lawmakers will even provide payment for abortions. In logic, any political body that identifies what is "right" with what is "legal" is already a totalitarian system that will have to enforce the "law" against those who maintain, with Augustine, that "an unjust law is no law."

As I thought about this placard, I recalled how something becomes "legal." To be legal, something must be approved by various legislative and judicial procedures of a general or constitutional code. Aquinas says that a law must come from the proper authority. Obviously, abortion laws come from duly constituted authorities in a given society. A positivist legal system means one checked by nothing but itself, by its own laws, which it can itself change. To be "legal" means "this is what we do and allow to be done." We do not ask whether it is "objectively" right or wrong. That latter question, it is claimed, is not the concern of the law. If the law said that abortion was not legal, as it once did, then the law would strive to prevent its being performed. In such a system, what is done or not done has no other interest but the statement of the law.


With a class of mine, I had been reading John Paul II's last book, Memory and Identity, which is a remarkable book. The principal import of Pope Wojtyla's argument addresses the question of whether there are any "limits" to evil in the world. The 20th century was filled with terrible evils that resulted in the loss of millions of lives. John Paul II saw these things with his very eyes. He thought that the "philosophic roots" of these massive killings were to be found in certain strands of European philosophy. Both Popes Wojtyla and Ratzinger maintain that abortion arises out of the same philosophical background as other modern ideologies. What is particularly worrisome in their minds is that this kind of totalitarianism that kills unborn human beings "legally" is "democratic" in origin--granted that the Marxist and fascist ideologies also killed their own children.

John Paul II argued, in a very powerful reflection, that the "limits" of evil are to be found in the "divine mercy." What he meant by this limitation, as I take it, was that God could and indeed would forgive what was forgivable. This position implies that there are things that can be forgiven. Those that cannot he refers to as the sins against the Holy Ghost mentioned in Scripture. What is "unforgivable" even by God? And what does this have to do with abortion and those, especially legislators and judges, who are personally involved in fostering it? The case of the latter is different, in a fundamental way, from that of the woman who undergoes the procedure as a personal act contrary to her nature however sinful that may be. Laws are formulated in minds and can see consequences. They are rational acts of polity. They are expressions of principles and worldviews.

To put it ironically--granted that some theologians want to save everyone, no matter what--God would forgive a repentant Stalin or Hitler, neither of whom, to be sure, ever showed any signs of such repentance. But God cannot forgive what is not asked to be forgiven. That would be a denial of free will itself. A free being who does not acknowledge that there is something to be forgiven cannot be forgiven. Political vice, especially, encloses souls in themselves. John Paul II saw at work here not so much the vice of injustice or even of murder, but that of pride.

I have never seen any reliable estimate on the total number of "legal" abortions that have taken place in the world since this practice became politically acceptable and often enforced. China, India, and Japan had widely known abortion policies. All of Europe and the States have witnessed large-scale abortions of their own children, to the point of widespread depopulation. What would be a conservative estimate of this total? Certainly the number is in the hundreds and hundreds of millions throughout the planet in the past fifty or sixty years. I saw one figure for 1995 that said the total of legal and illegal abortions in that year worldwide was about 46 million. So extrapolating from that figure, my estimate is probably in the ballpark.

Theologically, we wonder about the ultimate status of these aborted children. They are created in and for the exact same eternal destiny as the rest of us who escaped abortion. As far as I know, no country has yet permitted the erection of a monument to aborted babies, at least to acknowledge their humanity, though I believe several have been proposed.

Christians naturally associate this slaughter of the unborn with the Holy Innocents who were killed after Christ's birth. Though these latter were already born, Christians associate the killing of these innocent babies before they ever have a chance in the world with those killed by Herod who was trying to eliminate the Messiah, conceived as a threat to himself. Sometimes, when we look at the vehemence and dishonesty with which the abortion movements and procedures have taken place both in practice and in law, we cannot help but wonder if there is not something diabolical about it, something that does in fact relate to the birth of the Messiah as a human child among us.


Pope Wojtyla, in this book, addresses the issue of the relation between legislatures and abortions. What is at stake is whether abortion can be, even must be, chosen as a "good" or a "right." It makes considerable difference whether the issue is one of a private person or of the government of a country and its representatives facilitating it. Laws do affect morality and the being on which it is based.

The issue becomes more graphic when legislators or politicians who are Catholic claim, in a variety of ways, that what they do is for the common good, or that they do not wish to impose their morality on others. But they insist that they have no conflict between their "beliefs" and what they do at law. They are responsible to their voters. Not a few Catholic legislators and judges are, in fact, given perfect or near perfect scores by pro-abortion groups for their support of their agenda. Many are tempted to think that this sort of dichotomy must be all right if bishops make no great issue of this situation. Legislators seem to have no problem with such support and living a Catholic life. They make distinctions that apparently allow what is forbidden privately to be legitimate in their official stances.

John Paul II began by noting certain "choices" that were made by "democratic" regimes. He was not talking about China's notorious one-child law that has, over the years, killed so many babies, especially girls. He was talking of democratic regime as democratic, as freely deciding what they would or would not do. Alas, the bottom line is that a democratic regime, as such, is no guarantee that its laws will be just simply because its laws bear a democratic form and are enacted by democratic procedures.

It is important that John Paul II used the word "choice." He was thus speaking of alternatives that did not have to be put into effect. They were freely chosen by free men and women in a free state. The so-called "right to choose" includes precisely a choice. No choice simply stands by itself. It always has an object of choice. In the case of abortion, the "object" chosen is a human child in "virtually" any stage before birth, including the horrendous "partial" birth procedure. The legislature or government "chooses" to facilitate such action by making it "legal." "Legality" is in itself also "educative." Laws, as Aristotle said, should lead to acts of virtue, but they can also lead to vice.

Abortion laws are the specific example of the dangers of democracy in the Pope's mind. A parliament thus "authorizes" the "termination of pregnancy." It agrees that the "elimination of the unborn child" is acceptable, that the unborn child has no "legal" protection of its own existing reality and being. To allow this "authorization," the legislators, who are the ones with the free wills, must either deny that the child is what it is--a human child--or deflect their attention away from the child. Thus, they maintain that they are dealing with some other good or "right" that is the result of this killing of the child. What "good" could this be? "Virtually anything," of course, but the usual reasons are convenience, health, irresponsibility of the average person, birth control backup, poverty, work; education--the list of "reasons" given is amazing.

When a parliament agrees to this procedure, agrees to make it "legal," however, it approves the "termination of an unborn child." The Polish Pope rightly insisted on using blunt language that tells the truth of what is going on. This "termination" is what happens. The child is killed in the womb. Books, videos, and movies that are easily obtainable show this actual "legal" and "medical" killing, though they are almost never allowed to appear on television or be shown in schools. Most people understand that if people really saw what happens in an abortion, they would realize that something much more heinous than "legality" is going on. Yet this country and others have many people who perform these "operations" for income and seem to have little qualms about them. This too must be reflected upon.

This action, the Pope indicates, is a "grave abuse" against a real human being. Who does the abusing? Not merely the mother and the doctor, but--and this is the Pope's focus here--the legislators in facilitating the action. The "innocent human being" is utterly "unable to defend itself." (I have seen photos of babies being attacked by abortionists. The babies seem to be trying to escape the knives). Who is primarily responsible for defending such innocent human beings? Certainly the parents, certainly the doctors, but also certainly the legislators above all since their laws greatly hinder or facilitate the procedure. The first object of government is the safety of all human beings under its jurisdiction, including the unborn.

What follows from these premises? Parliaments that "approve and promulgate such laws" must be aware that they exceed their proper "competence." "Parliaments" or legislatures, of course, are not themselves individual human persons. What "approve" or "disapprove" are individual legislatures who bear the direct responsibility of their "choices" which have objects. Parliaments do not make what it is to be a human being. The parliamentarians, executives, and judges who exceed this "competence" place themselves in "conflict with God's laws and the laws of nature."

Notice that the Pope says specifically that "they place themselves in conflict." The Pope is not here "imposing" some alien revelational doctrine on governments. To be sure, if government officials follow a theory that permits them, in effect, to act like gods, who make their law into absolutes, they are simply carrying out the logic of their position that nothing limits their "choices," not even the lives of actual human beings. The inner "conflict with God's laws and the law of nature" does not come from the outside their own souls. It defines the soul of the legislator, judge, or executive who makes the choice.


What about the "lesser evil?" Did not even Socrates say that we sometimes have to choose the lesser evil? What about a legislator who had a choice between a law that increased abortion and one that halved its numbers, with no other practical alternative? Could, assuming the facts, he vote for the lessening of evil? Every one grants that widespread evils probably can prudentially only be eliminated gradually, as St. Thomas said. What has to be clear is the first obligation of naming the evil for what it is, not pretending or implying that it is all right, while working in every way to eliminate it in a most feasible manner. But the political enablers of the abortion culture have, following modern philosophers, called it a "right," whose sole justification is in the law, in "legality." If it is a "right," must it not be good and wrong to oppose it?

This latter rhetoric of "rights" is where much confusion often originates, even in religious circles--especially in religious circles. When it comes down to it, opposition to abortion, especially among Catholics, does not primarily arise from religious argument. Religion merely affirms what we already know, namely, that abortion is irrational as such. The use of "rights" as the primary way to think about the protection of the unborn has itself often become something that fosters abortion. How so? If abortion is a civil "right," duly passed by the legislature, and we are for "rights," are we not contradicting ourselves? The word "right," however, is a modern term in political science beginning largely with Hobbes in the 17th century. It has its own specific meaning. When we wonder how abortion became a "democratic" cause, the answer is largely because we have implicitly accepted the modern notion of "rights" as the primary way we think about these things.

In this sense, a "right" is whatever the individual has the power to do to protect himself from violent death or to promote his concept of happiness, whatever it is. Governments, following Locke, are set up to protect these "rights." We collectively yield to the government the power to protect our "rights" from the abuse of others. We enable the government to define and enforce whatever it thinks necessary. A "right" becomes "whatever the ruling body decides it will protect or enforce." A ruling body can be "democratic" and still claim, in theory or in practice, to acknowledge no law but itself.

Thus, in this scheme, we see nothing of that presupposition in John Paul II's remarks of a possible conflict between what is legislated and what is the object of legislation. The "innocence" or well being of the unborn is not a factor if it is not made a factor by legislation. "God's law and the laws of nature," on the other hand, indicate that legislative law or positive law has outer limits that are not defined by a legislature but by what the thing is. Thus, it is perfectly possible for a decree or law or decision that is "legal" to be also "immoral" or "unjust."


The late Father Ernest Fortin was one of the best minds in modern academia. He used to point out that the modern scheme of "rights" was not the same as the classical understanding of virtues or natural law. But, what is pertinent to my point here, Fortin also remarked again and again that, say in the discussion of abortion, the classical authors, say Aristotle or Aquinas, were, surprisingly, not particularly interested in the aborted child, its status, or dignity. They understood perfectly well what it was and did not try to pretend that it was something else. What concerned the classical authors was not what abortion did to the child (it killed him) or his so-called "rights." The child was an innocent human being to be sure, whose transcendent status they understood. Rather, what concerned them was what abortion did to those who performed it, approved it, or legislated it. The classic writers were concerned with the souls of the persons involved in the crime itself, not the victim. What it did to them both now and hereafter was their concern. God would take care of the aborted unborn. Their killers at every level still had to make peace with their deeds. After all, the eternal status of any innocent person unjustly killed is already in the hands of God, but their own status is still in their hands.

What I would conclude from these remarks about the "legality" of "virtually" any reason for abortion is that the principle "political" issue is not best seen when we look at the issue from the point of view of the "rights" of the unborn child. I do not intend to downplay the "being," the what is, of what is conceived as human in any stage of its existence. The real problem lies in the souls of those who choose, who legislate and decide. The bishops who say that their primary task in this area is to "teach" have a point. But, as Aristotle often maintained, when it comes to the moral virtues, information and teaching are not enough.

The real concern is the souls of those who enable these deeds to be "legal." The concern is not just with the teaching but with the eternal destiny of those who chose this way. This choice is the point of John Paul II's comment on sins against the Holy Ghost. People have to allow themselves to see the evil they do. They can and do morally blind themselves. This "not allowing" one's self to see the truth is also a free act and the reason a politician is responsible.

Benedict XVI, in a new and short book, On Conscience, which Ignatius Press has just published, has a profound discussion of how he came to understand conscience as arising from within a being created by God to attain his own end. In the course of this discussion, Josef Ratzinger tells of meeting a fellow theologian who argued that Hitler and Stalin might well have been sincere in their holding to their ideology. Therefore, they might well be innocent and have saved their souls.

What Benedict strives to show is that the exercise of papal or religious authority addressed to such issues is not something arbitrary from the outside. Rather, authority is designed by God to focus our attention to what is already within us. In this sense, those politicians who tell us that they are simply upholding "rights" or following their "consciences" are refusing to look deeper into themselves. They do not recognize that what they are doing is forming their own lasting being by refusing to acknowledge the objectivity of the wrong they do to others.

The last words that I will recall here are those of John Paul II: "Parliaments which approve and promulgate such laws must be aware that they are exceeding their proper competence and placing themselves in conflict with God's laws and the laws of nature." Parliaments have no souls, only parliamentarians do. The sin against the Holy Ghost is the sin that freely chooses not to see. Such souls, not even God can save.

Related IgnatiusInsight.com Links/Articles:

Author page for Joseph Cardinal Ratzinger (Pope Benedict XVI)
Author page for Pope John Paul II
Secularity: On Benedict XVI and the Role of Religion in Society | Fr. James V. Schall, S.J.
John Paul the Great | William Oddie
What Is Catholic Social Teaching? | Mark Brumley
Introduction to Three Approaches to Abortion | Peter Kreeft
Excommunication! | An interview with canon lawyer Dr. Edward Peters
Some Atrocities are Worse than Others | Mary Beth Bonacci
Personally Opposed--To What? | Dr. James Hitchcock
Mixed Messages | Phil Lawler

Fr. James V. Schall, S.J., is Professor of Political Philosophy at Georgetown University.

He is the author of numerous books on social issues, spirituality, culture, and literature including Another Sort of Learning, Idylls and Rambles, On the Unseriousness of Human Affairs: Teaching, Writing, Playing, Believing, Lecturing, Philosophizing, Singing, Dancing, and A Student's Guide to Liberal Learning. His most recent book is The Life of the Mind (ISI, 2006).

Read more of his essays on his website.

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