What Is a Catholic's Obligation to Democratically Enacted Pro-Death Laws?

Or any Bible-believing Christian? St Augustine said 'I think a law that is not just, is not actually a law' and Thomas Aquinas said the same in the Summa Theologica.

From  Catholic World Report

By John M. Grondelski, PhD

Injustices such as abortion remain injustices and cannot be made just, irrespective of political or social consensus.

Seeking to rescue Pontifical Academy for Life (PAV) President Archbishop Vincenzo Paglia from his remarks over assisted suicide, the neo-ultramontane papal positivists of “Where Peter Is” featured a discussion with Mike Lewis trying to spin Paglia.

I’ll cut through Lewis’s efforts to explain Paglia’s (and the PAV’s) constant “communication” problems and his explanation for Francis’s gutting of the Academy in 2016. I’m most interested in his comments on the differences in the situation of abortion in the United States and Italy, because his rationale (which is probably not unlike Paglia’s) holds problematic implications that are not fully fleshed out and relevant for a U.S. setting.

Lewis argues that the U.S. and Italian prolife movements are inherently different (and the latter less politically focused and arguably weaker) because of how abortion came to be legal in both countries. As Lewis rightly points out, the abortion-on-demand regime foisted on America by Roe v. Wade was a judicially-imposed Diktat that short-circuited democratic legislative processes. In Italy, Law 194 was enacted by the Italian Parliament and signed by the President in spring 1978 and affirmed by Italian voters in a direct referendum in 1981.

Lewis cites a key factor in the American debate that has long been identified by prolife scholars (e.g., Mary Anne Glendon in her magisterial Abortion and Divorce in Western Law in 1989): the Court’s imposition of abortion. Roe’s pretending there was a “Constitutional right” to abortion led to almost fifty years of judicial micromanagement of the most minute aspects of abortion policy (e.g., whether a state could mandate the burial or cremation of fetal remains vice their disposal as “medical waste”). That micromanagement led to fifty years of legislative resistance to the Court’s usurpation that finally buried Roe last June.

The simplistic version of the argument that criticized Roe’s judicial imposition of abortion claimed that liberal abortion laws were less fraught and more stable in Europe because of the “democratic” nature of their enactment.

There’s something to be said for that argument. But there are also aspects that make the comparison to the American situation questionable.

For one, Roe imposed abortion-on-demand through birth on America. Granted, the ruling played with trimester subterfuges and a supportive media hid the truth, but federal courts repeatedly made clear that they would impose abortion up through the moment of birth. (Remember that the Court first struck down, before it upheld, a third trimester partial birth abortion ban). No European law “democratically enacted” went that far. Law 194, for example, allowed abortion only in the first trimester and only under very restrictive circumstances in the second. That was far removed from Roe. Indeed, I would assert that, when major Western European countries were legalizing abortion in the 1970s-80s, no parliament would have been able legislatively to enact Roe v. Wade.

For another, it’s a bit deceptive to claim that American v. European abortion policy was a function of courts v. legislatures. The whole reason Law 194 came before the Italian Parliament in spring 1978 was because the Italian Constitutional Court had already struck down part of the country’s absolute ban on abortion. So there was a judicial finger on the scales of the Italian debate, too.

Prescinding from the judicial versus political context of the debate, however, I want to flesh out an argument about the latter. So what that abortion was legalized politically?

Yes, the political decision to legalize abortion created different dynamics than a judicial decree. Yes, it can be argued this is a “democratic outcome” we should all “respect.” Yes, given the likely constellation of political forces for and against abortion in many places, there is a greater incentive for the pro-abortion side to maintain the status quo than for the pro-life side to upset it: unborn children don’t vote in elections. Their silent death screams don’t make the news.

I want to focus here on the Catholic’s moral response to the situation.

It seems to me that the implicit argument here is that because abortion was legalized politically and appears to enjoy a certain political consensus, Catholics should “move on.” Yes, they might occasionally lament the destruction of the unborn (muttered quickly amidst a litany of other wonderful things pro-abortionists also support that can be used to give them “prolife” credentials, especially with a seamy garment of life). But we should just “get beyond” the fixation on abortion.

No.

For folks who profess loyalty to and claim to be defending Vatican II, the Council is pretty clear that abortion is an “unspeakable crime” (Gaudium et spes, 51). That’s pretty strong language, which suggests that the Council Fathers didn’t think abortion was just another social ill that, alongside climate change and recycling (neither of which the Council mentions), merits Catholic attention. The Council (Gaudium et spes, 27) even puts abortion between “genocide” and “euthanasia” as “infamies,” at the top of a list whose further down crimes include human trafficking.

So, is a Catholic supposed to say “well, a democratic vote decided that abortion (and euthanasia) aren’t crimes and eminently speakable, so let’s ‘move on.’”

No.

It seems to me that a Catholic has a twofold obligation, even in the face of the “democratic enactment” of unspeakable crimes:

First, he has an obligation to change that law, because injustice is not transformed by the magic alchemy of a majoritarian vote. Injustice remains injustice and cannot be made just, irrespective of political or social consensus. The Catholic who is “salt of the earth and light of the world” (Mt 5: 13-14) is called to stand effectively (i.e., more than verbally) in defense of innocent life, perhaps especially when the political order is infected with a culture of death. That is the Catholic’s prophetic witness, something Vincenzo Paglia often overlooks in his purely political (and generally wrong) calculations.

Second, he has an obligation to challenge that political order to explain its inherent self-contradiction in which it has put itself. Every legitimate political order serves the common good. There is no more basic common good than life and no more basic function of a society than to protect life. That is not a uniquely Catholic or even sectarian claim: Thomas Hobbes, John Locke, and Thomas Jefferson all asserted it as the foundational basis on which a society could claim allegiance. So, a society that fails in that duty is in self-contradiction. That self-contradiction is not resolved by appeal to parliamentary majorities because, as Benedict XVI noted (in addresses to the Bundestag and European Parliaments) a truly democratic order recognizes that fundamental human rights are off-limits even to majoritarian decision (the same concept Jefferson recognized in speaking of “inalienable rights”).

Far, then, from retreating from the field over questions of protection of life on the excuse that its destruction was democratically ratified, a real Catholic recognizes the need to keep that question perennially on the agenda, challenging society at every opportunity to fulfill its fundamental obligation towards life.

Politics is rarely a static field: political contexts are almost always fluid. There may be political forces that want to pretend a question is “settled,” but that is rarely the case. If we went by that criterion, all the elite and thinking classes claimed Roe was settled and we should “move on” (a position not unlike the views of some American “liberal Catholics” that always had a distaste for real prolife politics). Ordinary, everyday Catholics in the United States refused to accept that position, writing, petitioning, voting, and Marching for Life every winter. 49 years later, Roe found its place, next to Dred Scott and Plessy, in the trashcan of Constitutional miscarriages of justice.

One thing is certain: if we don’t protest, death will prevail, because the unborn don’t vote and the euthanasia crowd makes the noise. We Catholics keep the life agenda on the political agenda.

We need clarity on this point because, in the wake of Dobbs and efforts by referendum to write abortion into various state constitutions, it is likely to be used by Catholic Lite to excuse failing to maintain Catholic witness and real political pressure against such outcomes. Trying to create Mario Cuomo 2.0, the likely argument will be that the “political judgment” of the “common good” suggests we “move on” (which oh so conveniently puts much of that Catholic Lite back in the good graces of politicians with whom Catholic defense of the right to life is the one uncomfortable burr in the saddle).

Keeping that pressure up demands engaging a question pro-abortionists want at all costs to keep off the agenda and which some pro-life politicians would happily evade: when does life begin? A society whose fundamental duty is to protect life cannot feign agnosticism about that question, and its scientific foundation (I emphasize scientific, because no small part of Catholic Lite would like to pretend it is merely philosophical) remains unchanged, whether contradicted by judicial ukase or democratic legislative majority.

Dobbs reopened abortion as a political question, not in the sense that killing is right or wrong depending on who gets 50+% of the vote but in the sense that the courts no longer artificially constrain the possibility of protecting life through assertion of an ersatz right. We should not err in believing that the political status of abortion is a mere political judgment call; it is, first and foremost, a moral duty that reaches to the foundational justification of any society, but especially one that claims to be just.

While Evangelium vitae (#73) countenances a prolife legislator voting for an imperfect law rather than an outright permissive one, one must not overlook the point the sentence makes clear: “when it is not possible to overturn or completely abrogate a pro-abortion law.” That is not a static, frozen-in-place criterion; it is dynamic, and up to Catholics to keep the situation ever fluid until the law can finally do the “possible” and fulfill its most basic task: that humans be comprehensively welcome in life and protected in law, especially from “unspeakable crimes.”