Last week I pointed out that, in the Catholic tradition, the role of the state is not to prohibit immorality or reward morality. Consequently, an argument that abortion is wrong is not, in itself, an argument that abortion should be legally prohibited. Still less is it an argument for excommunicating those who decline to prohibit abortion.

There are, however, other and stronger arguments advanced to support banning or restricting abortion, and I want to look at some of them this week.

The rights-based argument…

The argument which is most commonly advanced – by far – is the rights-based argument:

• The law, it is said, should protect and defend the human rights of the individual.
• The unborn child is an individual.
• His or her human rights can only be adequately defended by banning abortion.

A few points are worth noting about this argument.

"Natural law" rights…

First, it is a "natural law" argument. It sees rights not as something that civil law gives us, but as something we have inherently, because of our nature. Civil law should recognise and defend these rights, but it does not create them.

This is a position that most Christians are quite comfortable with, but it is not confined to Christians. Many non-Catholics, non-Christians, agnostics and atheists enthusiastically agree that we have natural, inherent human rights. That is what enables us to say, for example, that:

• the persecution of Jews is inherently wrong, even if the law permits or requires it, and
• a law which persecutes Jews is an immoral law/

I think this is at least part of the reason why this argument is advanced in the public debate. It starts from principles which are shared by people of all religions and none in most Western societies. It should, therefore, lend itself to building a broad consensus in favour of legal restrictions on abortion.

But, generally speaking, it doesn't. Why not?

"Human" rights…

	Not everyone shares the view that the unborn child possesses the natural rights of a human individual simply because he has human genes.

The argument treats the unborn child as a human individual – usually, from the moment of conception. This is contentious, since the unborn child lacks many characteristics which some people think of as defining "human", especially at the very early stages of development. Not everyone shares the view that the unborn child possesses the natural rights of a human individual simply because he has human genes.

The view that the unborn child has natural rights from the moment of conception may appeal to you for countless reasons – you find it intuitively right, it is coherent because it avoids the problem of where to "draw the line" between the human and the not-yet-human, you accept the authority of those who advocate that view, or any of a host of other reasons.

But if you aren't persuaded by those reasons, then an argument for banning abortion which depends on that view is simply not going to convince you.

My point here is not to prove that one view of humanity is right, and the other wrong. My point is that there can be no proof of this, either way. If you don't accept the theological or philosophical underpinnings of one of these views, nobody can prove to you that you must accept them.

Conflict of Rights…

Abortion involves a conflict of rights. Whatever rights the unborn child does or does not have are seen to conflict with rights which the mother has – rights of privacy, of bodily integrity, of dignity, of autonomy.

I am not saying that the mother's rights must "trump" the child's, or the reverse; I am saying that, in a rights-based analysis of abortion law, this conflict must be addressed. Glib, one-dimensional answers are, again, unlikely to win over those who start from a different theological or philosophical standpoint..

I suspect that the failure to find a generally satisfactory reconciliation of the conflict between the rights of the mother and the rights of the unborn child is another reason for the limited success of the "human rights" argument for banning abortion.

A "Catholic" Argument?

The final point to note about the rights-based argument, and one which is not often made, is that it is not firmly rooted in the Catholic tradition.

Catholic discourse on morality has never really revolved around 'rights' and acts which infringe them. Rather, I think, it revolves around relationships, and acts which damage them – relationships within the community, and relationships between the individual and God.

Likewise, Catholic teaching on the role of the civil law also doesn't talk much in terms of defending human rights. So far as the proper role of the state is concerned, Catholic teaching focuses not on the rights of the individual but on the "common good".

The common good and human rights…

Although the idea of the common good again goes back to Aquinas, Augustine and beyond, it is still very much at the centre of Catholic teaching on the role of the state. The Vatican Council emphasised more than once that the duty of the State is to pursue the common good. In a democracy, citizens should "use their free vote to further the common good", and political parties "must promote those things which in their judgment are required for the common good" (Gaudium et Spes 75).

"Common" refers primarily to the community, not the individual, which means that the protection of the human rights of the individual is not the primary goal of the State. The State is concerned to protect the rights of the individual where this serves the common good; i.e. where it benefits the community.

Of course, the common good and the protection of the human rights of the individual are not opposed; in fact they are closely linked. Everyone would accept that the common good is served if human rights are acknowledged, respected and enforced, and that it suffers if this is not the case.

But while this is true as a general principle, in our lived experience it's a principle that suffers from countless tensions, exemptions and qualifications.

Take a topical example…

• Recently, to prevent the Australian cricket tour of Zimbabwe the government has threatened to withdraw the passports of participants.
• If the government were to do this, those affected would be prevented not only from touring Zimbabwe, but from travelling anywhere outside Australia for any reason.
• Whatever your views on the rights and wrongs of a cricket tour of Zimbabwe, this raises an important question of human rights; is it right that the Australian government should have the arbitrary power to prevent a citizen from leaving the country? This, after all, is the kind of thing the Soviet government used to do to its Jewish citizens wanting to migrate to Israel.

The government has to balance, on the one hand, its humanitarian concern for the people of Zimbabwe and its desire to protect the reputation of Australia against, on the other hand, the rights of individuals to decide where, when and for what reason they will travel. So human rights may conflict not only with other rights, but with other considerations which affect the common good.

The Catholic view…

Recognising the legitimacy of different opinions

Church teaching recognises the complex decisions, the balancing of competing rights and the diversity of honest opinions that are involved in directing civil law to serve the common good:

"Christians must … give an example by their sense of responsibility and their service of the common good. In this way they are to demonstrate concretely how authority can be compatible with freedom, personal initiative with the solidarity of the whole social organism, and the advantages of unity with fruitful diversity. They must recognize the legitimacy of different opinions with regard to temporal solutions, and respect citizens, who, even as a group, defend their points of view by honest methods." (Gaudium et Spes 75)

Different opinions exist on political questions not only within society at large, but also between Catholics. A Catholic should be slow to claim that his view on some question is the only view that a faithful Catholic may hold:

"It happens rather frequently, and legitimately so, that with equal sincerity some of the faithful will disagree with others on a given matter. Even against the intentions of their proponents, however, solutions proposed on one side or another may be easily confused by many people with the Gospel message. Hence it is necessary for people to remember that no one is allowed in the aforementioned situations to appropriate the Church's authority for his opinion." (Gaudium et Spes 43)

The church also recognises that it is not primarily the vocation of a bishop to engage in the political process, or to tell those who do engage in that process how they should discharge their role of seeking the common good:

"Secular duties and activities belong properly although not exclusively to laymen … It is very important … that there be a correct notion of the relationship between the political community and the Church, and a clear distinction between the tasks which Christians undertake, individually or as a group, on their own responsibility as citizens guided by the dictates of a Christian conscience, and the activities which, in union with their pastors, they carry out in the name of the Church. … The Church and the political community in their own fields are autonomous and independent from each other." (Gaudium et Spes 43 and 76)

Where does all this get us? I think we can summarise the relevant principles as follows:

• The principle that human rights should be recognised and protected is an important, even essential, one if a government is to serve the common good.
• the practice of it is a complex and nuanced affair, frequently involving conflicts between competing rights, or between competing notions of rights, or between human rights and other aspects of the common good.
• It is the duty of the State, as best it can, to reconcile those conflicts.
• The right reconciliation is the one which best serves the common good.
• That is a judgment which those in government have to make.
• In a democracy, it is also a judgement which citizens have to make when they vote.

Get to the point! What about abortion?

	House of Representative in the Australian Federal Parliament

A law which would effectively prevent or reduce abortions seems to serve the common good. But a law which would drive abortions underground, or would drive women seeking abortions to travel to neighbouring countries, or which would be divisive, would polarise opinion, would reinforce the views and convictions of pro-choice advocates, would be seen to be imposed for "theocratic" reasons, or would be so controversial as to be vulnerable to campaigns for amendment, repeal or reversal might well not serve the common good.

In real life it will not be easy to say that a law will have all these bad effects, and no good effect, or that it will have only good effects, and no bad effect. The truth is that any law regulating abortion – even a complete ban – is likely to have both good and bad outcomes. The legislator has to make the best call she, or he, can.

The legislator's task is further complicated by the fact that he or she has to deal with what is possible. Holding out for what they think would be the best conceivable law may be the wrong thing to do, in terms of serving the common good, if there is no realistic possibility of obtaining it, and if the legislator sacrifices or compromises his ability to influence the law which is in fact passed.

And what about excommunication?

So far as excommunication goes, it seems to me that voting the "wrong" way on an abortion law is certainly not, in itself, the kind of "obstinate perseverance in manifest grave sin" that is required by canon law a ground for excommunication.

If the legislator is honestly and conscientiously attempting to serve the common good then what he is doing is not sinful at all; it is precisely what Catholic teaching on his vocation as a legislator calls for him to do.

If we disagree with his judgment about how to serve the common good, the proper response is to vote against him, not to excommunicate him. The fact that his bishop might have made a different judgment about how to serve the common good in this instance is neither here nor there; that is not the vocation of the legislator's bishop.

The truth is, of course, that the motivation of the legislator may not be all that lily-white. Perish the thought, but the legislator may adopt the stance he or she does to secure personal or party political advantage. Or she, or he, may think – and even say – that abortion is just fine and dandy, nothing wrong with it at all.

But I don't think it's a good idea for bishops – or anyone else – to be making public moral judgments about the state of an individual's conscience and soul based on his public actions and publicly reported statements.

Quite apart from anything else, the point of a pro-life campaign – indeed, the point of a pro-life faith – is not to establish who is a Catholic and who is not. The focus should be on what kind of societal attitude we, as a community, will take to abortion, and to those who seek abortions. Given that, I struggle to see how the common good can be served by excommunications. They put Catholicism at the centre of the stage, and they proclaim judgmentalism when what is needed is love. How is that going to help anyone?

NAVIGATION: Click HERE to go back to PART I

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Peregrinus can be contacted at: Peregrinus <peregrinus@catholica.com.au>

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