the u.s. catholic bishops and abortion legislation: a

the Cary M. Maguire Center

for ethiCs & PubliC resPonsibility

southern Methodist university

dallas, texas

An OccAsiOnAl PAPer

VOlume 28

The U.S. CatholicBishops and AbortionLegislation:A Critique fromWithin the Church

Charles E. Curran

Volume 28.indd 1 1/10/13 2:31 PM

Consistent with our mission to raise awareness about ethical issues, theMaguire Center’s Occasional Paper Series features in-depth treatments oftopics of importance in applied ethics. The series is part of the Center’smodest effort to recover and encourage the Renaissance tradition of publicessay and discourse. In the spirit of Machiavelli’s The Prince, these papers arewritten not so much for the gatekeepers in academic disciplines but forprinces—people who can act on the messages they contain. We are delightedto publish this occasional paper by Charles E. Curran titled “The U.S.Catholic Bishops and Abortion Legislation: A Critique from Within theChurch.”

Thomas Wm. MayoDirector

Charles E. Curran

Charles E. Curran is the Elizabeth Scurlock University Professor ofHuman Values at Southern Methodist University. He was the first recipient ofthe John Courtney Murray Award for Theology and has served as presidentof three national professional societies—the American Theological Society,the Catholic Theological Society of America, and the Society of ChristianEthics. Professor Curran has authored and edited more than fifty books in thearea of moral theology. They include most recently: The Social Mission of theU.S. Catholic Church: A Theological Perspective (2011), Catholic MoralTheology in the United States: A History (2008), Loyal Dissent: Memoir ofa Catholic Theologian (2006). In 2010 he was elected to the AmericanAcademy of Arts and Sciences.

Copyright 2011, Charles E. Curran. All rights reserved.

The U.S. Catholic Bishops and AbortionLegislation: A Critique from Within the Church

This paper will address the position of the U.S. Catholic bishopson abortion legislation. Four preliminary remarks help situate thediscussion. The paper will not address church involvement in thepublic and political areas from the perspective of the FirstAmendment. Second, the paper presupposes the position taken bymost mainstream Christian churches—that the Gospel and the churchhave something to say about public life and the good society. Third,some of what will be said here is somewhat applicable to the leadersof all Christian churches, and even to the preacher in addressingthe members of a particular church about social issues. Fourth, theanalysis and criticism will come from within the Catholic traditionitself. The paper accepts the moral teaching of the hierarchicalmagisterium of the Catholic Church that direct abortion is alwayswrong. The paper will disagree with the way Catholic bishopshave addressed the issue of abortion law, but only from within theparameters of the Catholic tradition itself.

The consideration will develop in three sections. The first partwill focus on what the Catholic bishops themselves have said abouthow as bishops they should address specific issues of Americanpublic policy and what are the obligations of Catholics with regardto this teaching. The second part will describe the growth anddevelopment of the specific positions they have taken on abortion law,while the third part will analyze and criticize these positions fromwithin the Catholic tradition itself.

How Should Bishops Teach on Public Policy Issues?

As a matter of fact Catholic bishops and leaders of most otherchurch denominations throughout the history of our country haveadvocated for particular public policies. From within the perspectiveof the Catholic Church itself, the primary issue concerns how certainand authoritative is the teaching proposed by bishops on a specificpublic policy issue: are all Catholics called to follow this teaching, oris there room for disagreement within the Church in these matters?Some have referred to this issue as involving the rightful freedom ofthe believer within the Church.

2

The U.S. Catholic Bishops and Abortion Legislation

The U.S. bishops explicitly addressed this issue in writing theirpastoral letters on peace and the economy in the 1980s. In writingtheir letter on peace which developed through three different drafts,they explicitly wanted to be more specific than papal teaching hadbeen in this area. At the same time, other national groups of bishopswere also addressing the issues of peace, deterrence, and war.The Vatican under Cardinal Joseph Ratzinger convened a meetinginvolving representatives of the different bishops’ conferences writingsuch letters and Vatican officials. One of the problems was the realpossibility that different bishops’ conferences would take differentpositions on some of these specific issues such as no first use of eventhe smallest nuclear weapon. The memorandum from the meetingcalled for the bishops in their letters to distinguish clearly betweenmoral principles and their application to concrete realities whichinvolve the assessment of factual circumstances. The authority of thebishops on prudential judgments or the application of principles doesnot bind all Catholics. There is room for legitimate diversity in theChurch in the area of prudential judgments.1

In keeping with this memorandum the U.S. bishops’ documentThe Challenge of Peace (1983) distinguishes different levels ofmoral discourse and teaching authority—universally binding moralprinciples (e.g., no direct killing of noncombatants), the teaching ofthe popes and Vatican II, and the application of moral principlesinvolving prudential judgments based on specific circumstanceswhich can be interpreted differently by people of good will. Suchprudential judgments are not binding in conscience on Catholics butshould be given serious attention by Catholics in forming their moraljudgments.2 The pastoral letter on the economy in 1986 made thesame distinction. The bishops in this letter make many prudentialjudgments that do not have the same authority as the declaration ofprinciples.3

The basic reasoning behind distinguishing these different levelsof moral discourse and different levels of teaching authority isevident. All recognize that prudential judgments, taking into accountmany different circumstances and their interpretation, cannot claim toarrive at moral certitude. Thus the teaching of the bishops in theseareas recognizes that other Catholics and people of goodwill might

3


come to different conclusions. A contemporary example of thiswould be immigration reform. I basically agree with what thebishops have said, but I would also claim, invoking the position ofThomas Aquinas, that some more specific principles can also admit ofexceptions.4 But such a discussion lies beyond the parameters of thepresent topic.

Another question arises: should bishops support particularcandidates or even political parties? Here the bishops have been bothclear and consistent. Prior to every presidential election beginning in1976, the Administrative Board of the bishops’ conference has comeout with a document on how Catholics should address the comingelection. They have made it very clear from the beginning that theydo not endorse any political candidates.5 In the document precedingthe 1988 presidential election, they made one significant change.In 1984 some individual bishops certainly gave the impressionof opposing a particular political candidate. The document for the1988 election insisted that the bishops neither endorse nor oppose apolitical candidate.6 In addition they have consistently maintainedthat they do not seek the formation of a religious voting bloc.

The reasoning behind positions against supporting a particularpolitical candidate or party and not wanting to form a voting bloc areobvious. The bishops have recognized that on one particular issuethere is legitimate room for diversity among Catholics. A candidatetakes stands on all the issues involved in political debate. In suchcircumstances there is clearly much room for the freedom of thebeliever and no one in the Church can authoritatively demand thatall Catholics support a particular political candidate. All the more sothe bishops do not want to form a voting bloc or support a particularpolitical party.

U.S Bishops on Abortion Law

There is no doubt the primary involvement of the U.S. Catholicbishops in public life in the last part of the twentieth century andthe first decade of the twenty-first century focused on abortion. Thebishops as a national body and as individual bishops in their owndioceses have spent more time, energy, and money on abortion thanon any other single issue.

4


Three reasons explain this emphasis. First, the Catholic moralposition has consistently and for a very long time taught that directabortion is morally wrong. The teaching recognized a very fewconflict situations in which indirect abortion could be acceptable fora proportionate reason, but these situations were very narrow and didnot even include abortion to save the life of the mother.

Second, in the last fifty years abortion has been the mostcontroversial public policy issue in our country. In the 1960s, effortswere made to legalize abortion in a number of different states, but thebishops as a whole did not publicly insert themselves into oppositionto these attempts. In fact a number of the early opponents to relaxingabortion laws in the 1960s were Catholic laity who even complainedabout the lack of support from clergy and bishops.7 With the SupremeCourt’s Roe v. Wade decision in 1973, abortion became a very publicnational issue and the United States bishops became the best-knownopposition to this court decision. Beginning in the 1976 presidentialelection, abortion often became a very significant issue in politicalcontests. In the political arena, controversy also arose between thebishops and many Catholic politicians who were pro-choice.

Third, in this political context the public media paid moreattention to the bishops’ position on abortion law than to any otherposition they took on public policy matters. As mentioned previously,the U.S. bishops had taken what could only be called politicallyliberal positions in their pastoral letters in the 1980s on peace and theeconomy. These pastoral letters received considerable media coverageat the time, but after a while they were no longer news. However, theabortion issue remained on the front burner since it came up in everynational and state election, and also involved the controversy betweenCatholic bishops and some Catholic politicians. But there have beensignificant changes and developments in the position of the bishopsover the years with a trajectory toward a hardening of their position.

In the years immediately after Roe v. Wade in 1973, the U.S.bishops adopted a plan calling for three efforts: 1) an educational,informational program to heighten opposition to abortion directed atCatholics and at the general public; 2) a pastoral effort to support andsupply the needs of all pregnant women; 3) a public policy effort

5


aimed at a constitutional amendment providing “protection for theunborn child to the maximum degree possible.”8

Within the staff of the bishops’ conference and among thebishops themselves, some feared that the emphasis on abortion,especially the call for organized political activity, would make theCatholic Church into a single-issue voice and put into the shadowsCatholic teaching on many other issues involving peace, socialjustice, and opposition to violence-wielding right-wing regimes inSouth America. This group was influential in having theAdministrative Board of the bishops’ conference issue a document onpolitical responsibility before the 1976 presidential election.9 Thisdocument insisted the bishops did not want to form a voting bloc ortell Catholics how to vote. Voters should examine the candidates on afull range of issues, and with a consideration of the candidates’integrity, philosophy, and performance. The document lists eightissues in alphabetical order, beginning with abortion, but does notgive priority to any of these issues.10

In the 1980s the bishops as a whole moved towards acomprehensive and consistent approach to all the life issues underthe leadership of Cardinal Joseph Bernardin. Bernardin had beenthe first general secretary of the bishops’ conference (1968-1972);the president of the conference (1974-1977); and the chair of thecommittee that wrote the pastoral letter on peace. In 1983 he becamechair of the bishops’ Committee for Pro-Life Activities. Beginningwith the Gannon Lecture at Fordham University in 1983, and innine subsequent public lectures, he developed his consistent ethic oflife approach. War and abortion are intimately connected. Catholicmoral teaching is based on the dignity of the human person and theprinciples based on this foundation of human dignity apply across theboard to all life issues. But Bernardin was also very conscious of thepolitical ramifications of his position. He did not want either politicalparty to hijack the Catholic Church for political purposes. TheCatholic position on many social issues fell on the liberal side asunderstood in contemporary American politics, and the opposition toabortion fell on the conservative side. Emphasizing the primacy ofabortion tilted the Church toward the Republican side.11

6


However, some influential individual bishops did not agree. At apress conference in New York in 1984, Archbishop John J. O’Connorsaid, in reference to a question about Mario Cuomo’s position onabortion, that in his personal opinion a Catholic could not inconscience vote for an individual who favors abortion. Later that yearhe publicly disagreed with Congresswoman Geraldine Ferraro, aCatholic who was running as the Democratic vice presidentialcandidate, over the issue of abortion law. Also, Archbishop BernardLaw of Boston, before the 1984 election, called abortion the criticalissue and claimed that Catholic politicians were wrong in claimingthat they could support free choice as a public policy while beingpersonally opposed to abortion.12

Things changed in the 1990s. The documents before the 1992 and1996 presidential elections repeated the general approach of the pasturging Catholics to consider candidates in light of the full range ofissues based on the consistent ethic of life, but abortion is nowdescribed as the fundamental human rights issue of our day.13 At theirsemi-annual meeting in November 1998, the U.S. bishops issued alengthy document, “Living the Gospel of Life.” Abortion andeuthanasia are pre-eminent threats to human dignity because theydirectly attack life itself, the most fundamental of human goods.All other rights are illusory if the fundamental right to life is notdefended with maximum determination. You cannot build a houseof rights on sand. The failure to protect and promote life at its mostvulnerable stages renders suspect any claim to “rightness” in othermatters. The document mentions “the consistent ethic of life,” butdramatically changes the meaning originally proposed by CardinalBernardin. The consistent ethic of life means that opposition toabortion does not mean indifference to those who suffer frompoverty, violence, and injustice. But being “right” in all these otherareas, including racism, poverty, employment, education, housing,health care, and capital punishment, can never excuse a wrong choiceregarding direct attacks on innocent human life.14

In the first decade of the twenty-first century a new aspect of theabortion issue came to the fore. Some individual bishops declared thatpro-choice Catholic politicians should not receive communion at theEucharist and that they should be refused communion if they present

7


themselves. In September 2003, the bishops set up a blue-ribboncommittee to study the relationship of bishops and Catholicpoliticians. On the basis of a preliminary report of the committee, thebishops declared that killing an unborn child is intrinsically evil andto make such an intrinsically evil action legal is wrong. The Catholiccommunity and Catholic institutions should not honor pro-choiceCatholic politicians or provide them with a platform. But thebishops as a whole could not agree on denying communion topro-choice Catholic politicians and left the matter to the decision ofthe individual bishop in his own diocese. A solid majority of bishopsopposed the denial of communion to Catholic politicians.15

The document in preparation for the 2008 presidential electiondiffered markedly in length and substance from the previous ones.The intentional taking of human life is intrinsically evil and a legalsystem that violates the basic right to life is fundamentally flawed.No prudential judgments are involved in the case of abortion. Thebishops repeated their new understanding of the consistent ethic oflife, which is a middle position between the two extremes of makingall issues morally equivalent and the opposite extreme of reducing theCatholic approach to only one or two issues. One must oppose thedestruction of innocent human life, but one cannot ignore otherthreats to human life and dignity—racism and discrimination,the death penalty, unjust wars, torture, poverty, health care, andimmigration, which all involve serious moral challenges. However, inthese areas prudential judgments are needed to apply specificprinciples to particular issues. The applications of principles andprudential judgments made by the bishops do not have the samemoral authority as statements of universal moral teachings, butCatholics should still listen carefully to them.16 Thus the bishops nowgive a reason to show why their opposition to legal abortion is theprimary social issue and differs from all other social issues that theyhave discussed.

They go on to insist that Catholics are not single issue voters, butthey nuance this somewhat. A candidate’s position on a single issue isnot sufficient to guarantee a voter’s support. Yet a candidate’s positionon a single issue that involves an intrinsic evil, such as support forillegal abortion or racism, may legitimately lead a voter to disqualify

8


a candidate from receiving support. A Catholic voter cannot votefor a pro-choice politician if the voter’s intention is to support thatposition. But a Catholic who rejects this unacceptable position maydecide to vote for the candidate for other morally grave reasons.17

The historical record thus clearly shows that the U.S. bishopshave changed their approach to abortion law over the span of fortyyears. They now clearly state that abortion is the primary issue. Theyalso have explicitly stated the reason why this issue is primary anddiffers from all the other areas of social issues that they haveaddressed. Other issues of public policy and law involve prudentialjudgments, but in the case of abortion laws they deal with somethingthat is intrinsically evil and does not involve prudential judgments.Catholics have certitude on the abortion law issue.

Analysis and Criticism

In my judgment, the U.S. bishops claim too great a certitude fortheir position on abortion law and fail to recognize that their ownposition logically entails prudential judgments so that they cannotlogically distinguish it from most of the other issues such as the deathpenalty, health care, nuclear deterrence, housing. Consequently, theyare wrong in making abortion the primary social issue for the CatholicChurch in the United States. This section will develop four reasons toprove the thesis that the bishops have claimed too much certitudefor their position on abortion law—the speculative doubt aboutwhen human life begins; the fact that feasibility and possibility arenecessary aspects involved in discussions about abortion law; theunderstanding and role of civil law; and the weakness of the intrinsicevil argument.

Speculative doubt about when human life begins

In the Catholic tradition and to this day hierarchical Catholicteaching recognizes speculative doubt about when the soul is infusedor when the human person comes into existence. Thomas Aquinas isthe best known theologian who held for delayed animation, althoughhe still opposed abortion. Others dispute why Aquinas held hisposition. One approach emphasizes that Aquinas’s position wasbased on the faulty biology of his day. Aquinas and his scientificcontemporaries knew nothing about the female contribution to

9


procreation with fertilization occurring in the union of the spermand the ovum. The Latin word for the womb was nidus—the nest.The sperm was deposited in the nest and then had to grow anddevelop. With the advent of modern biological knowledge, Aquinaswould have changed his own position.18 But an opposing viewsees Aquinas’s position of delayed animation as based on hisphilosophical understanding of hylomorphism, which sees matter andform as the constitutive causes of a being. The matter has to besuitable and capable of receiving the form. From the very beginning,the matter of what we now call the fetus is not apt or suitablefor receiving the human soul. Some growth and development arenecessary before the human soul can be infused.19

The 1974 Declaration on Procured Abortion from theCongregation for the Doctrine of the Faith explicitly acknowledgedthe speculative doubt. The Declaration purposefully leaves asidethe question of the moment when the spiritual soul is infused. “Thereis not a unanimous tradition on this point and authors are as yetin disagreement.” The document recognizes this as a philosophicalproblem, but it suffices that the presence of the soul is probablebecause one cannot take the risk of killing a human person.20 PopeJohn Paul II in his 1995 encyclical Evangelium vitae also recognizedthe speculative doubt. However, from the standpoint of moralobligation, the mere probability that a human person is involvedwould suffice to justify an absolutely clear prohibition of an attackaimed at killing the embryo.21 Supporters of this position have oftenused an analogy to explain why the benefit of the doubt must be givento treating the early embryo as a truly human being. If a hunter seessomething moving in the brush and she is not sure if it is a deer or ahuman person, the hunter cannot shoot. The benefit of the doubt mustbe given to the human person.22

On the contemporary scene, Nancy Pelosi said on televisionthat she was an ardent Catholic and pointed out that the doctors ofthe Church such as St. Augustine were not able to determine whenlife begins. The chairs of two important committees of the U.S.bishops responded that there were disputes about animation inthe Middle Ages, but contemporary scientific knowledge aboutfertilization occurring with the union of the sperm and ovum makes

10


the older biological theory obsolete. (Note that they say nothingabout the philosophical theory.) The two bishops contended thatfrom the moment of conception, each member of the human speciesmust be given the full respect due to a human person.23 In lightof what was mentioned above, their conclusion is accurate but nottotally forthcoming.

Thus the most accurate way to state the Catholic moral teachingis that direct abortion even of a fertilized ovum is always wrong, butyou cannot say it is murder. There is doubt about the reality of theearly embryo. Thus the Catholic teaching on the morality of abortionis not as certain as its teaching on other issues such as murder, torture,or adultery. In making the moral case against abortion, there is needfor a further argument based on the principle that in doubt one mustgive the benefit of the doubt to the existence of a truly human being.

Feasibility and possibility

Second, the role of feasibility and possibility are present inall questions of law and public policy. An old saying says that thetwo things one should not watch are sausage making and lawmaking! Politicians in our country from the president on down haveto recognize this reality and often have to be willing to settle for halfa loaf rather than none.

To their credit, the U.S. bishops have recognized some roleof feasibility and possibility in passing a law against abortion. Inthe 1975 Pastoral Plan for Pro-Life Activities and in two laterpublications of the same basic plan, the bishops call for protectionfor the unborn child “to the maximum degree possible.”24 In 1981the president of the bishops’ conference testified before Congress insupport of the Hatch amendment. The Hatch amendment did notattempt to repeal Roe v. Wade, but would send the issue of abortion tothe Congress and to the states to decide. Strong pro-life supportersand many Catholics among them were upset with the position takenby the bishops. They wanted to repeal Roe v. Wade and would settlefor nothing less. Under the Hatch amendment, many states andprobably even Congress itself would still allow many abortions to belegal. The president of the conference mentioned that the possibilityof passing the Hatch amendment was a reason for supporting it.25

11


The feasibility and possibility of passing a law is without doubt aprudential judgment, and as the bishops themselves have recognizedCatholics can and do differ over such prudential judgments. There isno certitude or even agreement about where to draw the line aboutwhat is feasible and possible.

Recently two Catholic scholars from different politicalpersuasions have argued on the basis of their pro-life positions tosupport pro-choice Democratic presidential candidates. In 2004,James R. Kelly, a Catholic sociologist at Fordham University, wrotean article explaining why he as a pro-life Catholic was going to votefor John Kerry, the pro-choice Democrat. Kelly had come to theconclusion that while the Republican party in general had supportedthe pro-life position, they had done little or nothing to bring it aboutin practice. He concluded that nothing would happen to change thepresent policy in the future. He was voting for Kerry preciselybecause he (Kelly) was pro-life. Kerry and the DemocraticParty would work to help poor people, and statistics showed that adisproportionate number of poor women had abortions.26

In 2008, a similar position was taken by Douglas Kimec. Kimecdescribed himself as a conservative Catholic who accepts theChurch’s teaching condemning artificial birth control and also asa conservative Republican who had worked in the Reaganadministration. He was going to vote for Obama because Obamawould do more to limit the number of abortions than his opponent.27

In theory one has to admit the role of feasibility and possibility inthe discussion of abortion law as the Catholic bishops themselveshave recognized. In practice two Catholics from different politicalperspectives have concluded that support for the pro-choiceposition can prevent more abortions in reality than support for thepro-life position.

The understanding and role of civil law

In the Catholic tradition, there have been two differentapproaches concerning the role and function of civil law—theolder approach strongly influenced by Thomas Aquinas and thenewer approach developed in the Declaration on Religious Freedomof Vatican II.

12


Thomas Aquinas understood civil law in light of natural law.Civil law either republishes the natural law (e.g., murder is a crime)or makes determined what the natural law leaves undetermined. Thusthe natural law says automobile drivers should drive safely but thecivil law determines speed limits. Human law is truly law and obligesonly to the extent that it is derived from natural law. What is opposedto natural law is not a law but the corruption of law.28

Aquinas, however, recognizes that morality and law are notidentical. Civil law is ordered to the common good. Thus civil lawshould not legislate all the acts of all the virtues, but only those thataffect the common good. In civil society today, for example, thereis not and should not be a law against lying but there is a lawagainst perjury. Aquinas also takes a further step based on hisrealistic understanding of human nature. Human beings are notperfect. Human law should suppress the most grievous vices fromwhich most people are able to abstain, especially those harmful toothers, because such laws are necessary for the good of society.29

In another context Aquinas approves of Augustine’s practiceof tolerating prostitution and not having a law against it. Civillaw, imitating the way God has acted, can tolerate an evil suchas prostitution in order to achieve a greater good or to avoid agreater evil.30

Vatican II did not treat head on the question of civil law, but itaddressed this question in the Declaration on Religious Freedom. Inso doing, the document followed the theory proposed earlier by theAmerican Jesuit, John Courtney Murray. Paragraph seven of theDeclaration on Religious Freedom discusses the juridical questionof the role of law with respect to religious freedom and all politicalfreedoms. The basic principle is that the usages of society are to be theusages of freedom in their full range. This requires that the freedomof the person be respected as far as possible and curtailed only whenand insofar as necessary.31 John Courtney Murray in his commentaryon the document insists that secular experts may consider this to bethe most significant sentence in the entire declaration. Freedom is theend and purpose of society and the political method par excellencewhereby the other goods of society are to be achieved.32

13


Society however has the right to protect itself against abuses. Thecriterion determining the proper intervention of coercive law is thepublic order which has a three-fold content—an order of justice, ofpublic peace, and of public morality.33 The document and Murray inhis commentary do not give any illustrations of such interventions,but it is not difficult to recognize how these criteria have functionedin American jurisprudence. If your religion calls for child sacrifice,civil authority on the basis of protecting justice in the form of basichuman rights can and should prevent such sacrifice. If your religioncalls for a 200 piece band to parade around a neighborhood at twoa.m. on Sunday, the public peace is greatly disturbed. The criterion ofpublic morality insists on the public aspect. One illustration of this inU.S. history, which is not without contention, was the SupremeCourt’s decision to prevent Mormons from practicing polygamy.34

The pope and bishops have used the Thomistic approach indealing with the legality of abortion. In my judgment the religiousfreedom approach is the correct approach and since the SecondVatican Council (1962-65) should be used today by all in theCatholic tradition. Two significant differences come to the fore ifone approaches abortion legislation from the religious freedomperspective. First, the religious freedom approach can be used toaccept the present legal situation of abortion in this country or couldalso justify working to change the existing law.

The religious freedom approach starts with the principle of asmuch freedom as possible and as little restraint as necessary, withthe criterion of public order justifying how and when the stateshould restrict freedom. Even those who hold that abortioninvolves the killing of a human being could argue there is noconsensus on the issue in our society today. As a result, one couldgive the benefit of the doubt to the freedom of the woman. Theprudential recognition that it is impossible to change the presentlaw today makes the argument for accepting the present law on thebasis of the religious freedom approach even more cogent.

On the other hand, one could use the religious freedom approachto justify arguments to change the existing law on the basis of thejustice component of public order. The primary function of justice is

14


to protect basic human rights including the right to life and thereforethere should be a law against abortion. For our present purposes,the fact that the religious freedom approach could justify eitherposition regarding abortion law means that in light of the Catholicunderstanding, neither the bishops nor anyone else can claim certitudeas to how Catholics should decide about abortion legislation.

A second important difference coming from the use of thereligious freedom approach is that pro-choice necessarily is not thesame as pro-abortion. The natural law approach maintains thatpro-choice goes against the natural law teaching condemning abortionand therefore is by definition pro-abortion. The religious freedomapproach recognizes the freedom and choice of the individual.Precisely in the area of religious liberty and the discussions in RomanCatholic theology in the centuries preceding Vatican II, the oppositionto religious freedom arose because accepting religious freedommeant, protecting, promoting, and accepting false religions.35 Butthe change in Vatican II recognized that one must respect the freedomof the person to choose in matters of religion. In this case, one isnot supporting a false religion, but rather the freedom of the personto choose.

A theological analogy is apropos. God has given human beingsour free will. All of us will use free will at times to commit sin. ButGod does not advocate sinning! A legal analogy is also helpful. Somepeople, including conservative Catholics such as William F. Buckley,have argued that we should decriminalize hard drugs.36 They are notnecessarily advocating the use of hard drugs, but they see thisdecriminalization as best for society. By promoting pro-choicelegislation with regard to abortion, one is not necessarily alsopro-abortion, even though many women will use their freedom toabort. Earlier this paper mentioned a number of Catholics whosupport pro-choice legislation precisely because they are anti-abortion. A truly pro-choice position will in actuality reduce thenumber of abortions. The more recent religious freedom approach tocivil law thus shows that Catholics can take different positions onabortion laws and that to favor the freedom of the woman is notnecessarily the same as being pro-abortion.

15


The intrinsic evil argument

Recently the bishops have made the argument that since abortionis an intrinsic moral evil, it thus differs from all other legal issuessuch as immigration, death penalty, human rights, or the first use ofnuclear weapons. This is a faulty argument. The primary problem isthat intrinsic evil is a moral term and not a legal term. The fact thatsomething is an intrinsic moral evil has nothing to do with law orlegality. Aquinas himself following Augustine was willing to acceptno law against prostitution, which according to Catholic teaching isa morally intrinsic evil. Many states in our country do not havecriminal laws against adultery, but Catholic teaching insists thatadultery is an intrinsic moral evil. No Catholic bishops havecampaigned to have criminal laws against adultery. Thus the very factthat something is an intrinsic moral evil does not mean there shouldalways be a law against it. The Catholic bishops have very recentlyused this argument that there should always be a law against abortionbecause it is an intrinsic moral evil in order to distinguish theirposition on abortion law from their position on almost all otherpublic policy issues. The weakness of this argument once againundermines the position of the bishops wanting to see the publicpolicy position on abortion as differing from public policies on mostother issues.

To sum up my position, I will cite the quotation with whichthe respected French Jesuit Paul Valadier in his very recent bookconcludes his chapter on political morality. “It is not the absence ofall compromise but compromise itself that constitutes true morality inpolitical matters.” (My translation from the French) The author of thepassage cited by Valadier is Cardinal Joseph Ratzinger.37

In conclusion, the bishops have claimed too much certitudefor their position on abortion law since decisions about the legalityof abortion involve prudential judgments. Consequently, on thebasis of their own understanding of the nature of prudentialjudgments, the bishops logically cannot give priority to abortion overall the other social issues. Unfortunately by giving such certitudeand priority to their position on abortion law, the bishops havedownplayed and de-emphasized many other aspects of their teachingon social justice.

16


Endnotes1 Jan Schotte, “Rome Consultation on Peace and Disarmament: A Vatican

Synthesis,” Origins 12 (1983): 691-95.2 United States Catholic Bishops, “The Challenge of Peace: God’s Promise and

Our Response,” nn. 9-10, in Catholic Social Thought: The DocumentaryHeritage, ed. David J. O’Brien and Thomas A. Shannon (Maryknoll, NY:Orbis, 1992), 494.

3 United States Catholic Bishops, “Economic Justice for All,” n. 20, in CatholicSocial Thought, ed. O’Brien and Shannon, 576.

4 Thomas Aquinas, Summa theologiae, 4 vols. (Rome: Marietti, 1952), Ia IIae,q. 94 a. 4.

5 Administrative Board, United States Catholic Conference, “PoliticalResponsibility: Reflections on an Election Year,” in Quest for Justice: ACompendium of Statements of the United States Catholic Bishops on thePolitical and Social Order, 1965-1980, ed. J. Brian Benestad and Francis J.Butler (Washington, DC: United States Catholic Conference, 1981), 14-21.

6 Administrative Board, United States Catholic Conference, “PoliticalResponsibility: Choices for the Future,” in Pastoral Letters of the UnitedStates Catholic Bishops, 1983-1988, ed. Hugh J. Nolan (Washington, DC:United States Catholic Conference, 1989), 526-30.

7 James R. Kelly, “Learning and Teaching Consistency: Catholics and the Rightto Life Movement,” in The Catholic Church and the Politics of Abortion, ed.Timothy Byrnes and Mary C. Segers (Boulder, CO: Westview, 1992), 153.

8 National Conference of Catholic Bishops, “Pastoral Plan for Pro-LifeActivities,” in Quest for Justice, ed. Benestad and Butler, 160.

9 Timothy A. Byrnes, Catholic Bishops in American Politics (Princeton:Princeton University Press, 1991), 69.

10 Administrative Board, United States Catholic Conference, “PoliticalResponsibility: Reflections on an Election Year,” in Quest for Justice, ed.Benestad and Butler, 14-21.

11 Joseph Cardinal Bernardin et al, Consistent Ethic of Life, ed. Thomas G.Fuechtmann (Kansas City, MO: Sheed and Ward, 1988); Joseph Bernardin,The Seamless Garment: Writings on the Consistent Ethic of Life, ed. ThomasA. Nairn (Maryknoll, NY: Orbis, 2008); Byrnes, Catholic Bishops, 114-15.

12 Richard P. McBrien, Caesar’s Coin: Religion and Politics in America (NewYork: MacMillan, 1987), 145-58.

13 Administrative Board, United States Catholic Conference, “PoliticalResponsibility: Revitalizing American Democracy,” Origins 21 (1991): 317-18; Administrative Board, United States Catholic Conference, PoliticalResponsibility: Proclaiming the Gospel of Life, Protecting the Least AmongUs, and Pursuing the Common Good (Washington, DC: United StatesCatholic Conference, 1995), 12-14.

14 United States Conference of Catholic Bishops, “Living the Gospel of Life,” atwww.usccb.org/prolife/gospel.shtml.

17


15 United States Catholic Bishops, “Catholics in Political Life,” Origins 34(2004): 97-99.

16 United States Conference of Catholic Bishops, Forming Consciences forFaithful Citizenship: A Call to Political Responsibility from the CatholicBishops of the United States (Washington, DC: United States Conference ofCatholic Bishops, 2007), 7-12.

17 Ibid., 11-13.18 Germain Grisez, Abortion: The Myths, the Realities, and the Arguments (New

York and Cleveland: Corpus, 1970), 282-85. 19 Joseph F. Donceel, “Immediate Animation and Delayed Hominization,”

Theological Studies 31 (1970): 76-105. 20 Sacred Congregation for the Doctrine of the Faith, “Declaration on Procured

Abortion,” footnote 19, in Medical Ethics: Sources of Catholic Teachings, ed.Kevin D. O’Rourke and Philip Boyle (St. Louis: Catholic Health Association,1989), 39.

21 Pope John Paul II, Evangelium vitae, n. 60, in The Encyclicals of John PaulII, ed. J. Michael Miller (Huntington, IN: Our Sunday Visitor, 2001), 727.

22 H. Noldin, Summa Theologiae Moralis, vol. 1: De Principiis, 23rd ed., ed.Godefridus Heinzel (Innsbruck: Rauch, 1960), 219.

23 Catholic News Service, “Bishops Say Pelosi Misrepresented AbortionTeaching in TV Interview,” www.catholicnews.com/data/stories/cns/0804350.htm.

24 National Council of Catholic Bishops, “Pastoral Plan for Pro-Life Activities:A Campaign in Support of Life,” at www.usccb.org/prolife/pastoralplan.shtml

25 “Bishops Support Hatch Amendment: Capitol Hill Testimony,” Origins 11(1981): 359ff.

26 James R. Kelly, “A Catholic Votes for John Kerry,” America (September 27,2004): 13, 16-17.

27 Douglas W. Kimec, Can a Catholic Support Him? Asking the Big Questionabout Barack Obama (New York: Overlin, 2008).

28 Aquinas, Ia IIae, q. 95, a. 2.29 Aquinas, Ia IIae, q. 96, a. 2. 30 Aquinas, IIa IIae, q. 10, a. 11. 31 Declaration on Religious Freedom, n. 7, in Documents of Vatican II, ed.

Walter J. Abbott (New York: Guild, 1966), 687.32 John Courtney Murray, fn. 20, Declaration on Religious Freedom, n. 7,

in Documents of Vatican II, ed. Abbott, 686. The official footnotes in thisedition are in italics. John Courtney Murray added the footnotes which are inregular type.

33 Declaration on Religious Freedom, n. 7, in Documents of Vatican II, ed.Abbott, 686-87.

34 Reynolds v. United States, 98 U S 195 (1878).35 See, for example, Joseph Clifford Fenton, “Toleration and the Church-State

Controversy,” American Ecclesiastical Review 130 (1954): 330-43.36 William F. Buckley, Jr., “The War on Drugs is Lost,” National Review (Feb.

12, 1996): 35-38.


37 Paul Valadier, La part des choses: Compromis et intransigeance (Paris:Lethielleux, 2010), 124. Valadier’s source for the Ratzinger quotation isJoseph Ratzinger, Église, oecumenisme, et politique (Paris: Fayard, 1987),200.

18

THE CARY M. MAGUIRE CENTER FOR ETHICS AND PUBLIC RESPONSIBILITYThe leaders of Southern Methodist University believe that a university

does not fully discharge its responsibility to its students and to thecommunity at large if it hands out knowledge (and the power which thatknowledge eventually yields) without posing questions about its responsibleuses. Through the Cary M. Maguire Center for Ethics and PublicResponsibility, SMU strives to foster the moral education and publicresponsibilities of those whom it empowers by:l Supporting faculty research, teaching, and writing in ethics that crossdisciplinary, professional, racial/cultural, and gender lines;l Strengthening the ethics component in SMU’s undergraduate andprofessional curriculum;l Awarding grants to SMU students who wish to study issues in ethics orengage in community service.

SMU also believes that a university and the professions cannot ignorethe urban habitat they helped to create and on which they depend. Thus, whilenot an advocacy group, the Maguire Center seeks to be integrally a part of theMetroplex, attending to the moral quandaries and controversies that beset ourcommon life. To that end, the Center:l Has created an Ethics Center Advisory Board of professional andcommunity leaders;l Organizes local seminars, colloquia, and workshops featuring SMU andvisiting scholars;l Publishes occasional papers and books based on the Center’s endeavorsthat will be of interest to both academics and the general public.

FOR MORE INFORMATION:Cary M. Maguire Center for Ethics and Public ResponsibilitySouthern Methodist UniversityPO Box 750316Dallas, TX 75275-0316214-768-4255www.smu.edu/ethics_center

number 1 “The Private and Public Intellectual in the World and the Academy”James K. Hopkins

number 2 “Managed Care: Some Basic Ethical Issues” James F. Childressnumber 3 “Journalism as a High Profession in Spite of Itself” William Lee Millernumber 4 “The New Media: The Internet, Democracy, Free Speech and the

Management of Temperance” Richard O. Masonnumber 5 “‘Look, her lips’: Softness of Voice, Construction of Character in King Lear”

Michael Holahannumber 6 “Pilgrimage and the Desire for Meaning” Bonnie Wheelernumber 7 “Politics as a Calling” Joseph L. Allennumber 8 “Compassion and Sympathy as Moral Motivation” Steven Sverdliknumber 9 “Three Approaches to the Ethical Status of Animals” Alastair Norcrossnumber 10 “A Realistic Vision of a Just and Effective Urban Politics” Ruth Morgannumber 11 “A New Democratic Politics” Ernesto Cortes Jr.number 12 “Civic Prospects: Civic Engagement and the City” Stephen L. Elkinnumber 13 “Teaching Online Journalism Ethics” Philip Seibnumber 14 “When ‘Takings’ Happen to Good People: The Fifth Amendment

Takings Clause and the Issue of Distributional Justice” Jeffrey M. Gabanumber 15 “A Model for Moral Leadership: Contemporary Applications” Albert C. Piercenumber 16 “That’s All a Mule Can Do: The Ethics of Balancing Work at Home

and on the Job” Rebekah Milesnumber 17 “Moral Visions and the New American Politics” J. Matthew Wilsonnumber 18 “Moral Tales: Ethics and Enlightenment Fiction” Kathleen Wellmannumber 19 “Corporate America and Its Ethical Choices” Linda Eadsnumber 20 “Questioning Our Principles: Anthropological Contributions to Ethical

Dilemmas in Clinical Practice” Carolyn Sargent and Carolyn Smith-Morrisnumber 21 “Saving the Past for Whom? Considerations for a New Conservation Ethic

in Archaeology” Michael Adler number 22 “The Founding and Defining of a University” Marshall Terrynumber 23 “Politics, Culture Wars, and the Good Book: Recent Controversies

Over the Bible and Public Education” Mark A. Chanceynumber 24 “Counteracting Ambition: Applying Corporate Compliance and Ethics to the

Separation of Powers Concerns with Domestic Surveillance” Paul E. McGrealnumber 25 “Confessions of an Expert Witness: Rhetoric, Politics, and Ethics at the

International Criminal Tribunal for Rwanda” Mark Lawrence McPhailnumber 26 “Ethical Dilemmas for Defense Attorneys in War-Crimes Trials”

Jenia Iontcheva Turnernumber 27 “Ethics and Business: An Inherent Conflict” Wayne Shawnumber 28 “The U.S. Catholic Bishops and Abortion Legislation:

A Critique from Within the Church” Charles E. Curran

the Cary M. Maguire Center

for ethiCs & PubliC resPonsibility

southern Methodist university

dallas, texas

An OccAsiOnAl PAPer

VOlume 28

The U.S. CatholicBishops and AbortionLegislation:A Critique fromWithin the Church

Charles E. Curran

Volume 28.indd 1 1/10/13 2:31 PM