I have had a good look at your critique of Msgr. Luño's views. Sorry to have to disappoint you, but without having read either his original article or that of John Finnis, and purely on the basis of your own critique of their views, I have to agree basically with them, not with you. I don't find your case convincing.

The only thing where I would disagree with Luño is where he says (long quote on your p. 6) that voting against the motion under discussion, or even abstaining, would be morally unacceptable. The Pope doesn't go that far. he just says a legislator MAY licitly vote for that kind of motion (Latin: “suffragari licite posse”), not that he MUST do so, as Luño claims.

…I think Luño interprets [John Paul II’s statement in EV #73] quite correctly. (I don't agree with Finnis on everything either: I have argued face to face with him over capital punishment, which he claims is intrinsically evil, contrary to 2,000 years of magisterial teaching and the plain sense of both Old and New Testaments.)

First of all, I don’t think it’s plausible to claim that the “true” interpretation of EV #73 would be one which ascribes to the Pope the intention to limit legitimate 'harm limitation' of this sort to the very narrow range of circumstances set out on your p. 3, appealing to subtle distinctions of wording (your two italicized formulae, beginning “Notwithstanding . . .” and “No woman… “ respectively), and a distinction between “from without” and “from within” (your footnote 3). If the Pope had had in mind those kinds of subtleties, he would have explained them.

Your case depends totally on the premise that the motion contemplated by Luño for the Group C legislators is “intrinsically evil”, under the given circumstances. I don't think you have established that premise. You claim that the finis operis (of voting for the motion under those circumstances) is that of permitting some abortions (which would indeed be intrinsically evil), while only the finis operantis (reducing the number of abortions) is morally good.

But I don't see that the finis operis here can be correctly be described as that of permitting some abortions. Regardless of the subtleties of wording you elaborate on p. 2 (and which don't strike me as being significantly morally different, I would say that the finis operis cannot be discerned simply by looking at the proposed legislation in abstraction, but rather, as Finnis argues, only within its legal and historical context. Given that context, the finis operis, the specific intention of the VERY ACT of voting for that legislation (which, regardless of its precise wording or legal form, is morally speaking an amendment to existing legislation) is not the permission, but precisely the prohibition, of certain abortions (certain abortions, that is, which have hitherto been permitted). And a finis operis of PROHIBITING abortions is certainly not intrinsically evil. I cannot see that the remaining abortions which are still not penalized by this kind of legislation are part of the finis operis of a member of Group C who votes for this motion. They are rather, an unavoidable evil which his act tolerates.

Of course, the finis operis and finis operantis of a given action can sometimes coincide. They don't HAVE to be different. Think of someone who snatches up a toddler who is at the point of falling to his death from a balcony. In that case both the finis operis and the finis operantis are one and the same: saving a human life. In the case that concerns us, the two would perhaps be very close, though perhaps not quite identical. I see it this way: finis operis = prohibiting abortions which have hitherto been permitted; finis operantis = saving, as a result of that prohibition, many unborn lives.

As regards your dubium, I’m afraid I can understand why it may have been received with some annoyance at the CDF. It seems to me really rather “loaded” or tendentious, though I guess that was not necessarily your intention. I will refer to your first citation from EV 73 as (a) and the second as (b) - even though (b) actually precedes (a) in the encyclical itself.

It seems to me obvious that, since (b) includes the word “never”, the answer to your question - i.e., does (a) “permit an exception”? - would HAVE to be “no”. For it would be nonsense for the Pope to say in one breath that something can "never" be done, and then in the next breath say that there is an “exception” in wich it CAN be done. So, in that way, your question is formulated so as to DEMAND a negative answer. A little like submitting a dubium as to whether 2 + 2 can sometimes make 5. But a simple “no” answer to your dubium would probably be interpreted by you and your collaborators as a vindication of your own position against Luño and Finnis. When in fact no such conclusion would logically follow. That is why say your dubium, as formulated, seems “loaded”.

The really pertinent question is not whether the Pope means that there can be “exceptions” to a norm which he explicitly says is exceptionless (of course he doesn't!). The pertinent question for a dubium, in my estimation, would be, “What exactly does the Pope MEAN by the kind of law which he says is intrinsically unjust and so can NEVER be voted for, namely, ‘a law which permits abortion’ (Latin original: ‘lex… quae abortum permittit’)?” Does the Pope have in mind here: (1) only those laws which “permit” abortion in the sense of “legitimizing” it, i.e., which INTRODUCE permission for abortions which were not allowed previously? Or does he mean (2) all those laws mentioned in (1) AND ALSO any laws which continue to allow some abortions which were previously allowed, while prohibiting others which were previously allowed?

I’d bet my bottom dollar that if you submitted that dubium, and if the CDF decided to answer it, the answer would be a clear response in favour of (1) above. First, because option (2) would go against the natural sense of what the Pope permits in the last paragraph of #73 - your citation (a) in your dubium. That is, it would seem to make the encyclical incoherent on this point. And also because the verb “permittit” in the second paragraph needs to be interpreted in the light of the first paragraph. The second paragraph begins “If, therefore (Latin: Si ergo), it is a question of an intrinsically unjust law…”. The word “ergo” indicates that what has already been said must now be taken into account. Now, in the very first lines of #73 the Pope specifies what “no human law” can do by saying that it cannot “legitimize” abortion or euthanasia. I don't have an English translation available here, but the offical Vatican edition of the Spanish version has “legitimar”, which means “legitimize”. That is an accurate translation of the Latin verb “ratum facere”. As Latin dictionaries show, that indicates an official CHANGE of status: to “ratify”, “confirm” (in the sense of making official what was hitherto unofficial) or “make valid”. Now, you don’t “MAKE valid” what is already valid. So I would say “permittit” in the second paragraph of EV #73 has to be understood in the light of “rata facere” in the first paragraph. In short, what the Pope means to say are intrinsically unjust, and so can never be voted for, are laws which “permit” abortion in the sense of INTRODUCING permissions for abortions which were previously forbidden by law.

As well as disagreeing with you, Michael, I also have to say, I'm afraid, that your position seems to me potentially very harmful to the pro-life cause. To the extent that you succeed in persuading people -especially Catholic legislators - that you are right, you will impede pro-life legislation that ought to be carried out, on the basis of a scruple that the Pope, rightly understood, has rejected in EV #73.

With every best wish and blessing,

…

THE RESPONSE

Father,

I should first say where I agree with you and then pass on to where I disagree. I agree that Msgr Luño goes too far in saying that EV 73 requires that a legislator must, instead of may, vote for a certain motion. I note that EV 90 says that a legislator has a duty to act in support of life, and perhaps Msgr Luño was thinking of that admonition in expressing himself so trenchantly.

My Thesis

What follows assumes draft legislation of the type endorsed by Luño and against which I have argued, legislation which embraces the pro abortion mentality. I agree that my case depends… on the premise that the motion contemplated by Luño for the Group C legislators is intrinsically evil under the given circumstances. I insist it is intrinsically evil––under any circumstances.

My general comment on your critique is that it is not a matter of ascribing to the Pope an intention, but of rather of reading his words so that they are consistent with Catholic doctrine. It really doesn’t matter what his intentions were. What matters is what the words say. Accordingly, it doesn’t help the debate to assert If the Pope had had in mind those… subtleties [which I say are essential to be made in interpreting his words in a Catholic context] he would have explained them. Not necessarily. John Paul II is no Pius XII, the last great Pope/moral-theologian the Church has had. If he had been, the Pope would be solving the moral problems of the day every week, as did Pius XII.

You are in error in your analysis of the finis operis.

What is the opus? It is the reality signified by the words in the legislation the legislators vote for. What is that? Ignoring features which are irrelevant for the purposes of the present debate, it is the legislative permission to kill the innocent. That that permission to kill might involve the death of fewer unborn than might occur under existing legislation, that it may in this sense constitute ‘an improvement’ on what has gone before, is not to the point. It remains the killing of the innocent. Ergo, the motion is intrinsically evil.

The opus is not a matter of opinion, but of fact. It is something objective, not subjective. The motion (draft legislation) is not morally good; it is not morally indifferent; it is death dealing, and therefore, evil.

The opus is contrasted with the operans––the doer, actor, operator––in respect of whom it can be said, ‘here is something subjective, not objective’. The subjective intention of the operans is the finis operantis. Now, your analysis introduces a subjective element where there should be none, when you say—I would say that the finis operis cannot be discerned simply by looking at the proposed legislation in abstraction, but rather, as Finnis argues, only within its legal and historical context. You fall into the same trap, with respect, that has bedevilled Luño, Finnis and Fisher—the confusion of objective and subjective. The subjective element belongs to, and only to, the finis operantis. It has no part to play in the finis operis. This reflects the order of conscience, for to be true, the individual (ie, subjective) conscience must always measure itself against an objective standard, which standard is not changeable at the (subjective) whim of the moral agent.

To insist on the point: When husband and wife have intercourse, the finis operis of their joint act is the production of new life. No subjective view of what they do can change that. That is what it is ordered to. We cannot say (to paraphrase, with some parody, your sentence above)—the finis operis cannot be discerned simply by looking at what they do in abstraction, but rather, only within its legal and historical context. What they do is a fact. The end of what they do is also a fact, determined by Almighty God, and built into the act. Husband and wife have no say about the finis operis of their act. Neither, despite the desperate efforts of trendy moral theologians, does anybody else! Similarly, when a legislator votes for a law which says ‘killing some unborn children is legal’ no matter what his intention may be,he is doing intrinsic evil.

You rightly say a finis operis of prohibiting abortions is certainly not intrinsically evil. But when you address the issue you are not talking about the finis operis but the finis operantis. The words you use betray you. You say—the VERY ACT of voting for that legislation… is not the permission, but precisely the prohibition, of certain abortions (certain abortions, that is, which have hitherto been permitted). You think you are referring to the end embodied in the words of the legislation the legislator is passing. You are not. You are referring, just as Finnis, Luño and Fisher before you, to the intention of the legislator in passing the legislation.

You go on in a similarly subjective vein thereafter when you say—

I cannot see that the remaining abortions which are still not penalized by this kind of legislation are part of the finis operis of a member of Group C who votes for this motion. They are rather, an unavoidable evil which his act tolerates.

[I assume you meant to say in the first sentence––the remaining abortions which are rendered legal by this kind of legislation are part etc...] It is misleading to speak of ‘the finis operis’ of a person. The finis operis is not ascribed to the agent but to the work. It is independent of the agent and so your phrase the remaining abortions which are still not penalised by this kind of legislationare… an unavoidable evil which his act tolerates—does not refer to the finis operis but to the finis operantis. To persist ad nauseam, the Group C legislator is prepared to tolerate the evil of the remaining abortions as part of his intention in passing the legislation and he thinks this is enough to render the act morally licit. But the permission to kill the innocent which is embodied in what he does is, despite his intention, morally evil.

The remainder of the first part of your critique turns on the same issues so I will not go further.

The Dubium

I’m glad you agree that the answer to the dubium would have to be No. Of course it was cast to get that answer––because that is the only answer. Nor will the Church, in due course, give any other, as we will see.

I am bemused by your assessment as to how a dubium should be phrased. There are two objections to what you propose. First, a dubium is, by definition, a doubt or uncertainty about the meaning of some word, phrase or expression of the Church’s teaching or laws. No dubium can be raised about the meaning of the draftsman who may have drafted it. So, if you phrased it: ‘What did the Pope mean by…’ it would be rejected, and rightly. The CDF cannot know what goes on in the mind of the Pope. Nor should it be asked. It is for the Pope to teach. The CDF is there to clarify, to correct error, even if it ensures that its judgement on a dubium has the Pope’s endorsement before publication.

Secondly, the CDF would never accept a dubium in a form which required an answer other than Affirmative or Negative. At best you will get a commentary, but only after the Affirmative or Negative. Consider the responses to the dubia, for instance, in Densinger nn. 2148 to 2182, and those listed in Appendix II to the Code of Canon Law Annotated (Ed. by Caparros et al., Wilson & Lafleur Limitée, Montreal, 1993).

It doesn’t matter what the Pope meant by his teaching in the third paragraph of EV 73. As Thomas More says in the play, It will mean what the words say. This is the Pope’s teaching. It is indefectible. What the Catholic world needs is an authoritative interpretation of what the words say so as to remove the obscurity which characterises it. I repeat, it cannot mean that one may do evil that good may come of it because that would be against the constant teaching of the Church since St Paul.

To persist with my point: assume that the Pope meant by the words in EV 73 that in very narrow circumstances one could do evil that good may come of it. He will never say that. He cannot, because of the Divine guarantee spelt out in D.1839 ensures that the Holy Spirit will not let him. What is needed is the correct understanding—the Church’s teaching—not of what he meant, but of what he said. Here I insist on the distinction between the Pope and the Church. The Pope is there to serve the Church. He is not an authority in his own right; he is an instrument of the Church. He will never, as such instrument, teach error. However, he may, in his own right, teach error as he has, as other popes before him have, done in the past.

Your next couple of sentences run––

The pertinent question for a dubium… would be, “What exactly does the Pope MEAN by the kind of law which he says is intrinsically unjust and so can NEVER be voted for, namely, ‘a law which permits abortion’ (Latin original: ‘lex…quae abortum permittit’)? Does the Pope have in mind here: (1) only those laws which ‘permit’ abortion in the sense of ‘legitimizing’ it, i.e., which INTRODUCE permission for abortions which were not allowed previously? Or does he mean (2) all those laws mentioned in (1) AND ALSO any laws which continue to allow some abortions which were previously allowed, while prohibiting others which were previously allowed?”

It seems to me that in this paragraph you invert the order of logic. For, instead of insisting that the particular moral problem should be judged according to universal principle, you imply that the universal principle should be reduced to the particular moral problem. You say, in effect, that the statement of moral principle in the second paragraph of EV 73 (Never do evil that good may come of it) should be judged by the ambivalent statement of practice in the third. This again, is what Luño et al are saying, that the supreme moral principle may be subverted.

Your Interpretation Of EV 72 & 73

On the hypothesis that a dubium in the form quoted above was put to the CDF, you say it would rule in favour of (1) only, because option (2) would go against the natural sense of what the Pope permits in the last paragraph of n. 73… That is, it would seem to make the encyclical incoherent on this point.

There is a logical fallacy in this statement, for it assumes what you are undertaking to prove: namely, that the Pope by his words would permit a legislator to vote in favour of pro abortion legislation in certain circumstances. Next, the ‘natural’ sense of the Pope’s words cannot infringe against the Church’s moral teaching, which would be the case if it was read in the ‘natural’ sense you assert, because it would allow that evil may be done that good may come of it. Thirdly, it would not ‘seem to make the encyclical incoherent on this point’. The encyclical can be read coherently––internally coherent, and coherent with Catholic doctrine––if the distinctions I have insisted on are observed.

The end of your interpretation (finis interpretatoris!) appears in your final sentence––

[W]hat the Pope means to say are intrinsically unjust, and so can never be voted for, are laws which ‘permit’ abortion in the sense of INTRODUCING permissions for abortions which were previously forbidden by law.

In other words, the Pope’s condemnation in para 2 of EV 73 of an intrinsically unjust law does not extend to laws permitting abortion already in force because these laws are already valid and, to quote you, you don’t make valid what is already valid. This ignores the Pope’s specific endorsement in EV 72 of teaching of Pope John XXIII and of St Thomas to this effect: a law which is contrary to reason is not in fact a law but rather a corruption of law––iam non erit lex, sed legis corruptio. Put in words of one syllable, such laws are not valid. Accordingly, your interpretation fails at its source.

But your whole approach to the question of interpretation is, with respect, upside down. One doesn’t start with the words and try and work out what they mean; or try and fit them into some preconceived assessment of ‘what the Pope meant’. One starts with Catholic principle and requires the words to comply with that Catholic principle. The Pope is, after all, writing as the one to whom it is given to interpret and apply the laws of God; the guarantor of unity and strength in the Church; the confirmer of his brethren; the steward of the Kingdom of God on earth and governor of God’s Church .

As Professor Denis Pearce of the ANU said in 1974, [t]he starting point to the understanding of any document is that it must be read in its entirety. I’ve dealt with this in my paper on the superflumina website Evangelium Vitae 73 & the Supreme Principle of Morals. There is an u nbroken condemnation throughout Evangelium Vitae’s 105 clauses of any act attacking innocent human life and a corresponding prohibition of any such act. 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? To allow such interpretation would, truly, be incoherent.

My Position Is Potentially Harmful To The Pro-Life Cause

The logical fallacy of assuming the truth of what you intend to prove recurs in this final paragraph. For you assume that pro life legislation that ought to be carried out will licitly involve ‘pro lifers’ supporting pro abortion legislation. It recurs again when you say that EV 73, when rightly understood, shows that the Pope has rejected my interpretation. That ‘right understanding’ of what the Pope has said is the very point in issue.

Your assertion that my position seems… potentially very harmful to the pro life cause also proceeds on a false assumption, namely, that the solution to the problem lies in this tainted pro life legislation that ought to be carried out. The issue here in Australia, as in many countries, has not been that the existing legislation was in favour of abortion and needed amendment to reduce the evil. Existing legislation was against abortion but the legislation was neglected and not enforced. There was nothing wrong with the existing legislation. What was wrong was that it was not enforced. The answer to that wrong was not a legal answer, but a moral one––to address the appalling moral ethic. That could only be done by the bishops. What was needed to be done, then, by pro life forces was not to precipitate pro abortion legislation, as happened in Canberra, but to stir the bishops to action to preach and to act so as to defend morality. But the pro life forces, with one exception, Human Life International, did not do it.

The consequence of the bishops’ failure was that the forces of secular humanism succeeded in introducing pro abortion legislation. Then the issue arose of what could be done, by way of negotiation or amendment, to reduce the evils of the proposed legislation.

Votes have been put to remove the laws outlawing abortion in three legislatures in this country in the last few years, those of Western Australia, the ACT and Tasmania. In each case Catholic politicians, or allegedly Catholic politicians, have, for reasons promoted by allegedly pro-life bodies in this country (and in one case with the tacit support of the local Catholic Archbishop) voted in favour of pro abortion legislation, in the hope that by doing so they would reduce the evils effected by such legislation. What has been the result? In the ACT there is now abortion on demand; in Tasmania it is effectively the same; in WA abortion is legal up to 20 weeks, and beyond that the woman must have the support of two doctors from a panel––for all practical purposes, abortion on demand, too. Since the passage of the WA legislation, as many as five abortion clinics have been opened in that State. How much worse could things be in these three jurisdictions after the allegedly ‘pro life interventions’ with these ‘’Catholic’ politicians?

Given these results, how do you say my interpretation of the Pope’s words has the potential to harm the pro life cause? Forget about everything else: how could it make it any worse, for heaven’s sake?

I insist to the contrary, that if the CDF was to answer the dubium I have posited, ‘No’, the bishops would know that no longer would they be entitled to support the assertion that the Pope’s words could be interpreted in such a way as to allow Catholic politicians to support pro abortion legislation. The Archbishop referred to above was swayed by arguments advanced by an officer of NSW Right to Life with the support of Finnis. He is a careful bishop. He would never have been so swayed had he had the benefit of the ruling I desire. He might have been in doubt. He might have been moved by Finnis’s arguments that the Pope was only addressing permitting abortion, whereas the proposed amendments were seeking to prohibit abortion, in that they were seeking to allow less abortion than otherwise. But in the end, he would have been convinced by the fact that the Pope’s words precluded absolutely any vote in favour of any law permitting abortion and would have decided against the Right to Life position and have counselled Catholic politicians accordingly.

Perhaps this view of Finnis is what you are adverting to when you say––a simple ‘no’ answer to your dubium would probably be interpreted by you and your collaborators as a vindication of your own position against Luño and Finnis. When in fact no such conclusion would logically follow. If we lived in an age when men thought clearly, I am of the view nothing more than a dubium in the form I have suggested would suffice. For greater caution, however, I think I should follow the advice implicit in your criticism, which has also been given me explicitly by a number of others, and add further questions for answer. I append my proposed amended draft. You will see that it addresses a third view which is even more trenchant than mine, that of Colin Harte, of England, and of Paul Hanrahan, my colleague, here in Sydney.

* *

Catholics are entitled to know the truth in moral matters that their actions may be rightly informed. The Catholic Church is the organ that gives them that truth. The Church does not fail, but the Church’s ministers fail––every day! It is the right of Catholics, and indeed, of every man, to know the truth. It is the obligation of the ministers of the Church, from the Pope down, to give it to them. If they, the ministers of the Church, will not give them the truth, we, Catholic laymen, have no less a duty to urge them to do so.

Michael Baker

DUBIA

1. Whether the words of His Holiness, Pope John Paul II, in n.73 of his encyclical Evangelium Vitae––

. . 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

––permit an exception to the principle of the moral law endorsed by His Holiness in the previous paragraph of n.73 of Evangelium Vitae––

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 ?

2. If the response to 1. is in the negative, whether the Pope’s words permit an elected official, as a means of limiting the harm done by such a law, to vote for an amendment to the offending law whose words would permit abortions, albeit less abortions than those permitted by the offending law, and thereby have the effect of prohibiting some abortions?

3. If the response to 2. is in the negative, whether the Pope’s words permit an elected official, as a means of limiting the harm done by such a law, to vote for an amendment to the offending law whose words would not permit abortions but which would prohibit a category of abortions permitted by the offending law?

4. If the response to 3. is in the negative, whether the Pope’s words preclude an elected official from voting on the offending law in any way other than to vote for its repeal?

5. If the response to 3. is in the negative, whether, saving the response to 4., the Pope’s words limit the proposals that an elected official may licitly support to matters ancillary to the offending law such as: just legislation providing for the rights of doctors, nurses and hospital staff not to take part in abortion procedures; the removal of state funding of abortions; the removal of licenses to operate abortion clinics; and the like?