Editor: In October 2010 Catholic Insight published the article by laywer Geoff Cauchi “Why, as a Catholic, I cannot support Bill C-510.” In our November edition we printed two letters of criticism and added a much longer letter of disagreement on our Website. We have now received a response from the author.

Mr. Cauchi wrote as follows on January 10: "I know I have taken a long time to specifically answer the 3 letters to the editor published in C.I. (November 2010), but I now attach responses to them. Because of their length, I recommend that you not publish them in the print edition, but rather put them on your website and merely refer to them in the print edition."

I

Sean Murphy:    (November, 2010, Volume XVIII, No. 10 –

Letters to the Editor – Website edition only)

                I am not personally acquainted with Sean Murphy, but understand that he is a retired RCMP officer who writes on Catholic issues from time to time.   A critic can easily pack a lot of false premises and assumptions, half-truths, and errors, into a few short sentences.   Unfortunately, to unpack, expose, and answer them in such a way as to avoid further confusion often requires many paragraphs.   I will attempt to keep my reply focused on the more essential points, but the reader will see that, even so, the text of my reply is longer than my original article.  Readers wanting even more detail may contact me at gcauchi@rdcdlaw.com for a copy of my more detailed paper on the controversy over the true meaning of Evangelium vitae 73 (EV 73).

                Judging by his comments that are of a strictly legal nature, I venture to guess that he does not have a law degree, as they are devoid of any kind of legal reasoning that a reasonable Canadian Judge would seriously entertain.   He seems to accuse me of “cultivating” an “absurd” interpretation of the Bill.   In my article, I provided the reader with very specific authoritative references to support my strictly legal opinion as to how a Canadian court would likely interpret the legislative intent of Bill C-510.   This is what lawyers do when they provide “legal opinions”.   Moreover, because Canadian courts ignore the subjective motivations of individual legislators and their supporters, and try to objectively determine the legislative intent of the Legislature, as a collective, competent legal advisors also ignore them.   

                In the early 1980’s, I was just a young law student.   The Canadian Bishops had publicly opposed passage of the then-proposed Charter of Rights and Freedoms because its text did not explicitly recognize the inalienable right to life of all unborn children.   But after Prime Minister Pierre Trudeau convinced him that the Charter’s proposed language would not be an obstacle to parliament passing a law banning abortion,  Archbishop Gerald Carter of Toronto publicly announced that the Bishops were dropping their opposition to the passage of the Charter, as drafted.    I recall thinking, at the time, that the language of the Charter was truly silent on the subject of abortion, that the word “everyone” in right to life clause could possibly be interpreted as including the unborn, and the “saving” clause in section 1 could potentially “save” from being struck down any abortion banning law that might otherwise be found to infringe upon any alleged competing right of a pregnant woman.   However, I also remember thinking that the Bishops were nevertheless imprudent in withdrawing their opposition.   I had recently read the West German Abortion Law decision of 1975, in which the Federal Constitutional Court had an important debate over whether the word “everyone” included the unborn.    That, together with the existence of then unchallenged section 251 of the Criminal Code, rendered the possibilities described above very remote.   Sure enough, Canadian courts subsequently took the position that “everyone” in the Charter does not include the unborn.   As a result, our Charter, although not a law about abortion, now must be regarded as an “intrinsically unjust” law.   In judging whether or not a particular civil law is “intrinsically unjust”, it would make no sense for the Church to refuse to defer to the local secular courts’ understanding of its explicit text.  The local courts’ interpretation is thus an intrinsic part of the legislation. 

                On the other hand, it is my position that the subjective personal views of Mr. Bruinooge and Mr. Murphy are extrinsic to Bill C-510, and would be irrelevant to the Magisterium if it were asked to judge whether or not the bill is an “intrinsically unjust” law.  Mr. Murphy may prefer that Canadian courts take a different approach to statutory interpretation, but, unlike the current de facto abortion on demand legal environment, that is a “legal reality” that we must all accept, as it addresses purely temporal or contingent questions having no moral aspects whatsoever.   The Congregation for the Doctrine of the Faith laid out in Doctrinal Note (2002) this important distinction.   I have simply observed Jesus’ own direction to render unto Caesar what is Caesar’s, and to God what is God’s, and followed Saint Thomas More’s own example.

                Mr. Murphy’s comments about “secondary and undesired side effects” are truly peculiar and irrelevant when it comes to the question of statutory interpretation.    When you vote for or support a Bill, you vote for or support all of the provisions of the Bill.   If you don’t like some of them on allegedly principled grounds, you are compromising those principles when you decide to support a Bill with those offensive provisions intact, which then begs the question as to whether your initial stated opposition was actually a mere policy preference, and not a personal conviction.   Moreover, all provisions of a Bill have direct effects; just because you would prefer (but don’t insist) that some provisions not exist does not mean that their effects are mere side-effects of the other provisions, or that you did not intend them to be.   Most professional politicians will have the integrity to admit that when they vote in favour of a piece of legislation they do not consider “perfect”, they are making compromises.   I can’t recall ever hearing a professional politician hide behind the canard that, although he voted for a bill, he did not intend to pass or will into being those aspects of it he didn’t particularly like.      

                Ultimately, Mr. Murphy does not have a problem with me; his problem is with the Ontario Court of Appeal.  The courts would have regarded Bill C-510 as reflecting a legislative intent that freely choosing an abortion, or helping someone obtain an abortion, is not “socially undesirable behaviour.” [i]  Nevertheless, Mr. Murphy protests my stubborn refusal to “play along to get along” and accept language in the Bill that Canadian courts would say affirms the “legal reality” of de facto abortion on demand in Canada, asserting the “practical necessity” of “taking into account” this “reality” in the drafting Bill C-510.  

                As a matter of law, if a parliamentary draftsman advised the PPLC that it was “necessary” to include in Bill C-510 its immoral qualifications and exceptions in order to create a law that could withstand a constitutional challenge or a challenge on the basis of vagueness, then I think they got very bad legal advice, probably from someone who was not pro-life.   Why are there no explicit exceptions or qualifications, including those for supposedly Charter-protected forms of speech, attached to the general words “compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing” in the existing Criminal Code offence of “intimidation” (s. 423)?   It is therefore bogus to say that one must include language that explicitly or by necessary implication acknowledges or concedes that abortion is lawful in order to “take” the de facto abortion on demand legal environment and the Charter “into account”.

                I have since provided the PPLC with an alternative form of a bill that arguably could have accomplished its goals without contradicting the “fundamental contents of faith and morals”.  After they reviewed it, I could not understand why some critics at the PPLC still insisted that such a bill must explicitly “support” the current abortion legal environment, but when CBC News published Mr. Bruinooge’s own admission (on the day Bill C-510 was defeated) that he himself “supports” the current law (or absence of a law on abortion), the reasons became clear to me.  It was never a question of “necessity” for the PPLC; it was always a matter of policy preference.   Any self-respecting pro-lifer can no longer view the PPLC, under its current leadership, as a reliable partner in the pro-life cause.   

                From a purely theological perspective, if my refusal to accept the offending language in Bill C-510 was wrong, then Mr. Murphy must, if he is to be consistent, criticize the Church for recognizing Sir Thomas More and Bishop John Fisher as saints.   Both submitted to execution rather than swear to acceptance of a statement of law that contradicted Church teaching, even though that statement merely re-stated existing civil law.   He must also criticize JP II for having praised, in Veritatis splendor  91.3, the “countless other martyrs” who “accepted persecution and death rather than perform the idolatrous act of burning incense before the statue of the Emperor (cf. Rev 13:7-10).  They even refused to feign such worship, thereby giving an example of the duty to refrain from performing even a single concrete act contrary to God’s love and the witness of the faith.”  He must also think JP II was wrong for having written the following:  “[No] human lawgiver can therefore assert:  It is permissible for you to kill, you have the right to kill, or you should kill….How can one morally accept laws that permit the killing of a human being not yet born in the mother’s womb?  The right to life becomes an exclusive prerogative of adults who even manipulate legislatures in order to carry out their own plans and pursue their own interests.” (JPII, Letter to Families (1994), n. 21).    He must also now reject the Church’s teaching that lying, duplicity, and dissimulation are intrinsically evil forms of conduct.   I could cite, literally, dozens of other statements of JP II and other Magisterial authorities that, logically, Mr. Murphy would have to reject as being in error. 

                Mr. Murphy fails to listen to the Magisterium when it says that Catholics “need to be reminded that the approval or legalization of evil is something far different from the toleration of evil.”[ii]  Merely “taking into account” the societal acceptance of abortion is “toleration” of evil; writing it into one’s own proposed statute or supporting such a statute is “approval” of evil.   In effect, he is asking Catholics to ignore Jesus’ own warning in Mark 8:38: “ For whoever is ashamed of me and of my words in this adulterous and sinful generation, of him will the Son of man also be ashamed, when he comes in the glory of his Father with the holy angels.”   

                I am accused of “isolating some particular element [of Catholic doctrine] to the detriment of the whole of Catholic doctrine”, and to support this accusation Mr. Murphy parrots back at me the quotation from the Congregation for the Doctrine of the Faith’s (CDF) Doctrinal Note (2002) I used as the “headnote” for my article, and that contains these very words.   Here he seeks to imply that I give too much weight to one particular moral principle – the supreme principle of morals --- at the expense of other moral principles, such as “necessity”, “double effect”, the “lesser evil”, “unintended side effects”, and “material cooperation with evil”.   I do no such thing.  

                The Magisterium does indeed teach elsewhere that elected Catholic officials have a positive duty to be morally coherent,[iii]  and that all Catholics have a positive duty to “witness to the whole moral truth” when it comes to subjects like abortion.[iv]   It is to this teaching to which I have tried to be faithful.   But the particular quotation I used from the Doctrinal Note does not attack invoking an absolute negative moral precept to cancel out a “liberating” feature of a positive moral precept; instead, it warns against pursuing narrow “social justice” goals that might benefit particular individuals, at the expense of the “common good”, which the Church understands must include the defense of the inalienable right to life of every human being (see EV 72.2).   The sentence that immediately follows the quotation, which I did not quote in order to economize on words (thinking readers would readily understand the proper context),  reads as follows:  “A political commitment to a single isolated aspect of the Church’s social doctrine  [emphasis added] does not exhaust one’s responsibility towards the common good.”    Here, I was trying to show that the political commitment some Catholics had to obtaining greater legal protection for oppressed pregnant women does not morally justify supporting legislative text that, in the process, denies a fundamental truth taught by the Catholic Church; moreover, it does not justify lying, duplicity, or dissimulation, all of which are considered by the Church to be intrinsically evil forms of conduct (i.e., never justified, regardless of the circumstances or the actor’s subjective reasons).    The pursuit of any political goal, no matter how laudable it may be, does not justify “throwing” the inalienable right to life of some unborn children “under the bus” in order to achieve it.      

                This is a classic case of doing evil in the hope of accomplishing some good.   Mr. Murphy says that I was wrong to rely upon and/or give primacy to what Australian lawyer Michael Baker has rightly called “the supreme principle of morals” --- the moral doctrine that the “end does not justify the means”, and its corollary, “one may never do evil so that good may result from it” (Catechism, #1753-#1761).    Without citing any authority to support his position, he simply says that it does not apply in this particular case.   I guess Mr. Murphy forgot about #1789, which says: 

                “Some rules apply in every case:

                -One may never do evil so that good may result from it;

                -the Golden Rule: `Whatever you wish that men would do to you, do so to them.’........”

                I dare say that in invoking the supreme principle of morals in my article, I was in good company with St. Augustine, who, in his famous work On Lying, invoked it as his first and primary attack on the thesis presented by a group of priests that duplicitous lying in the form of publicly proclaiming heresies one did not believe in one’s heart was morally justified in an attempt to infiltrate, and thereby expose and convert, a group of heretics known as the Priscillians.

                As far as the universal application of the Golden Rule is concerned, I venture to guess that Mr. Murphy would not have supported Bill C-510 had it been coupled with a provision that would have exempted all adult males named Sean who live in British Columbia from the protection of the murder provisions of the Criminal Code.

                From this single error --- his failure to appreciate the “supremacy” of the “supreme principle of morals” ---- flows Mr. Murphy’s flawed understanding of the proper scope and application of all of the other subsidiary doctrines he mentions.    He has it exactly backwards, thinking that the supreme principle of morals must somehow bend to the demands of the other doctrines.   All the subsidiary moral doctrines that have potential application apply only where the concrete act in question is a “good” act, or at least a morally neutral one.   He wrongly assumes that I have not considered these principles.   I have, and more.   In fact, there is no conflict between these principles; but we cannot even discuss the possible application of the subsidiary principles without first proving that the concrete act in question is not “intrinsically evil”.   In this case, Mr. Murphy presumes something that he has not yet proved.   That is why, for example, the CDF answered critics of the Church’s absolute prohibition of the use of the technique of embryo reduction (which it called “intentional selective abortion”) in the following manner:   “The ethical justifications proposed for embryo reduction are often based on analogies with natural disasters or emergency situations in which, despite the best intentions of all involved, it is not possible to save everyone.  Such analogies cannot in any way be the basis for an action which is directly abortive.   At other times, moral principles are invoked, such as those of the lesser evil or double effect, which are likewise inapplicable in this case.  It is never permitted to do something which is intrinsically illicit, not even in view of a good result: the end does not justify the means.” (Dignitas Personae (2008), n. 21.3).  

                In the longer articles I have written on Evangelium vitae 73, I take great pains to show that all of these various moral principles can only be reconciled with each other if the “positive judgment” reflected in the Politician’s Rule is based on the premise that the individual proposed remedial law is itself not “intrinsically unjust”.   The politician is temporarily given a “pass” for not achieving the full repeal of an existing unjust law in one fell swoop; not given permission to pass individual remedial legislative measures that are, in and of themselves, intrinsically unjust.   Even if, for example, the Church’s doctrine on “material cooperation with evil” was the best explanation for  EV 73.3 (the “Politician’s Rule”) (which is disputed among Catholic theologians and moralists), the doctrine presumes an act that is itself good or at least morally neutral, and, in any event, JP II was dismissing the notion of alleged “cooperation”  (the latin original is best translated as “collaboration”, which is a non-technical term) with those persons who passed the existing unjust statute, not dismissing any objection to one’s collaboration with those involved in passing the remedial law.   In voting for, or supporting, the remedial law, the actor is acting as principal and not as anybody else’s agent.   EV 73.2 (the “No Exceptions Statement”), independent of any other principle, specifies conduct that is never, in itself, licit.   Contravening this precept may, but need not, involve “cooperating” in the evil act of anyone else. 

                Perhaps Mr. Murphy believes that he is entitled to assume that Bill C-510 is not an “intrinsically unjust” law because (a) the onus is on me to prove the opposite; and (b) the Magisterial documents that I cited often do not use the precise words “intrinsically unjust” to describe the kinds of civil laws in question.  

                I dispute the first point; I think the onus should be on him to prove that support for Bill C-510 does not come within the plain meaning of the words in the No Exceptions Statement.   What parts of the words “never” and “intrinsically” does he not understand?   Look them up in the Oxford Dictionary.   The No Exceptions Statement is an absolute and universal negative precept.   It applies all the time and in all places, without exception.   JP II expressly said, in Veritatis splendor  67.2, that when we are faced with a situation governed by such a precept, we have no choice but to refrain from the action which it forbids.    No “problem of conscience” can possibly arise in this situation.   The scenario he describes in EV 73.3, giving rise to a “problem of conscience”, presents a completely different moral question.   Addressing this question, as JP II himself said to the attendees of a CDF symposium in 1994, was NOT about seeking a compromise between the moral law and the civil, but about determining “how to do good”.   “Doing good”, in this case, means doing now what is both practically and morally possible on the way to the eventual full repeal of the existing unjust statute.   Mr. Murphy, and others, do not appear to appreciate that JP II knew and understood well the clear distinction between non-absolute positive moral precepts and absolute negative moral precepts, and how, in some cases, one’s ability to follow the former can be restricted by the demands of the latter (VS 52.2; 67.2).[v]   

                On the second point, Mr. Murphy is somewhat inconsistent.    He insists that the Politician’s Rule presumes the application of the various subsidiary moral principles to which he refers, and is quite prepared to “read into” it permission to vote for and support proposed remedial laws that in and of themselves admit the liceity of abortion, even though the words the Pope actually used don’t objectively support either of these propositions.   Yet, he is not prepared to recognize the Pope’s use of the term “intrinsically unjust” for what it obviously is ------ a modern succinct paraphrase for all of the various descriptions previously used to describe a civil law that no Christian may ever support, whatever the civil law may already say.   He insists that the Magisterial documents to which I referred in my article do not support the proposition that Bill C-510 is an “intrinsically unjust law”.

                It is the common practice of Popes and other Magisterial authorities to attempt to paraphrase, with alternative language, previously expressed, and perhaps more specific, terms or concepts.   Canadian courts regularly do this, as well, in the course of interpreting the meaning of statutory provisions, substituting alternative language in order to explain better and, perhaps, more succinctly, the explicit and implicit meaning of the statute.  In so doing, they are always mindful of the distinction between “plausible paraphrase”, where the court accurately restates the meaning of the explicit text and the necessary implications of that text in alternative language, and “implausible paraphrase”, where the court impermissibly revises or amends the legislative text.

                In the case of the No Exceptions Statement, the author, JP II, clearly paraphrases the CDF’s statement in n. 22 of the Declaration on Procured Abortion (1974) [he cites it as authority for his statement in a footnote].   It would therefore defy common sense (and is an obvious sign of poor scholarship) to attempt to interpret his use of the term “intrinsically unjust” by ignoring the original text from the Declaration.   How can he ignore the words of n. 22 the Declaration that describe a civil law that is “immoral in itself” or “which would admit in principle the liceity of abortion”, and the words “whatever may be laid down by civil law in this matter”?   How can he ignore the words of the immediately preceding n. 21 that proclaim the innate invalidity of civil laws that “declare to be right what would be opposed to the natural law”? [“.....for this opposition suffices to give the assurance that a law is not a law at all”].  How can he fail to see in my quote from the CDF’s later document, Doctrinal Notes (2002), a further, plausible paraphrase of the No Exceptions Statement: “In this context, it must be noted also that a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals.”?  The reference to “individual law” here is clearly to the particular remedial proposal, and not the existing statute.  

                All of the afore-mentioned descriptions mean the same thing as “intrinsically unjust”.   All of the alternative descriptions used by the Magisterium in the other documents I cited in my article are also expressions that have the same meaning as the term “intrinsically unjust”.    Whatever the terminology used,  Church authorities invariably describe the principles the text of the individual civil law explicitly or implicitly declares or affirms and their conformity or non-conformity with objective natural law and/or the fundamental contents of faith and morals; never in “relative” or “consequentialist”  terms that describe whether or not the proposal simply re-states the current “legal environment”, or how the proposal will or will not improve the current “legal environment”.    Moreover, they never speak of the precise ulterior reasons that individuals might have for voting for or supporting such laws.   The notion that such reasons could transform the moral object of the act of supporting such laws from something evil to something good is an invention of some theologians and philosophers that has not been endorsed by the Magisterium and which is irreconcilable with JP II’s teaching in VS.   Bill C-510 clearly falls within the scope of the meaning of many of the alternative descriptions, which, again, JP II paraphrased with the term “intrinsically unjust”.

                Mr. Murphy says: “In the current political climate, it is not possible to enact a law that prohibits abortion; doubtful, even, that a merely restrictive law would pass. That being the case, those who are known to be opposed to abortion may support legislation like Bill C-510 on the grounds that it is aimed at limiting one of the harms that flows from existing law.  As Pope John Paul the Great observed, this can be understood as legitimate and proper.”   But the words JP II used in EV 73.3 do not reasonably bear this interpretation, having regard to what he said in the immediately preceding 73.2, in other parts of EV, in VS, and in other documents.   It is a half-truth, because it neglects the further necessary condition that the proposal is not itself intrinsically unjust, irrespective of what the current legal environment is, ignores the premise of an existing explicit piece of legislation on the subject of abortion (in Canada, we have only de facto societal acceptance of abortion on demand), and fails to distinguish between politicians and non-politicians.   All Catholics are bound by the No Exceptions Statement; only Catholic politicians are permitted to invoke the Politician’s Rule.   Human Life International is one Catholic-oriented pro-life organization that gets this point right, when it says:  “In summary, then, Evangelium Vitae recognizes the distinct limitations and strictures that pro-life politicians must labor under, and it allows them to work for and vote for imperfect legislation.   However, no such limitations exist for Catholics who are not directly involved in the political process.   The CDF [Doctrinal] Note quoted above makes it perfectly clear that it is impermissible for Catholics to work for illicit legislation that treats some preborn babies as unworthy of protection.”

                To sum up, Mr. Murphy’s personal interpretation is an implausible paraphrase of JP II’s Politician’s Rule (EV 73.3), which is in turn based on an implausible paraphrase of JP II’s paraphrase, in the No Exceptions Statement, of n. 22 of the Declaration.          

                In my opinion, the Politician’s Rule cannot mean that a Catholic politician has permission to positively affirm, with that voting authority, that which is “intrinsically unjust”.  That would be giving him permission to lie; to use duplicitous speech in the Augustinian sense; to engage in acts of dissimulation in the Thomist sense;[vi] to be morally incoherent; to directly act against two “goods” for the sake of some other good. [vii]  That is not the same as giving him permission to cast a vote that objectively signifies “no comment” on the remaining unjust aspects of existing legislation.[viii]    

                Mr. Murphy also makes the following argument:  “[Bill C-510] abstains from punishing wrongful conduct, to be sure, but the Declaration on Procured Abortion acknowledges that this may be legitimate.”  This argument is based on a gross misreading and misapplication of the text of nn. 20 and 21 of the Declaration.   On any rational reading of Bill C-510, having regard to the peculiar legal philosophy associated with Canadian criminal law, and applied by Canadian courts (see footnotes 6 and 7 of my article), it does more than simply “abstain from punishing” certain conduct; it declares a freely made choice to abort one’s unborn child or to assist someone else in procuring an abortion to be right.  These statements of the CDF do not say what Mr. Murphy claims they say.   Let’s set them out in full so that there can be no misunderstanding about what they say:

                20. These arguments and others in addition that are heard from varying quarters are not conclusive.     It is true that civil law cannot expect to cover the whole field of morality or to punish all faults.   No one expects it to do so.  It must often tolerate what is in fact a lesser evil, in order to avoid a greater one.  One must, however, be attentive to what a change in legislation can represent.  Many will take as authorization what is perhaps only the abstention from punishment.   Even more, in the present case, this very renunciation seems at the very least to admit that the legislator no longer considers abortion a crime against human life, since murder is always severely punished.   It is true that it is not the task of the law to choose between points of view or to impose one rather than another.    But the life of the child takes precedence over all opinions.  One cannot invoke freedom of thought to destroy this life.

                21. The role of law is not to record what is done, but to help in promoting improvement.  It is at all times the task of the State to preserve each person’s rights and to protect the weakest.   In order to do so the State will have to right many wrongs.   The law is not obliged to sanction everything, but it cannot act contrary to a law which is deeper and more majestic than any human law:  the natural law engraved in men’s hearts by the Creator as a norm which reason clarifies and strives to formulate properly, and which one must always struggle to understand better, but which it is always wrong to contradict.  Human law can abstain from punishment, but it cannot declare to be right what would be opposed to the natural law, for this opposition suffices to give the assurance that a law is not a law at all.     

                I confess that I am at a loss to understand how Mr. Murphy can derive his conclusion from these words.   The “present case” referred to in n. 20 was a West German abortion law proposed in 1974, and reviewed by the West German Federal Constitutional Court in 1975.    Due to peculiarities in German law that are not transferable to the Canadian context, the proposed German criminal statute that the CDF was itself reviewing “depenalized” abortions  obtained where the pregnant woman received sufficiently  pro-life pre-abortion counselling, but nevertheless, arguably, regarded such abortions as a “unlawful”, because the criminal law was subject or subordinate to the West German “Basic Law”, which required the government to make reasonable efforts  (which efforts did not necessarily have to include imposing “penalties”) to urge pregnant women to assume their legal duty to respect the right to life of their unborn child.    As Canadian criminal law is very different, conceptually, the exceptions and qualifications in Bill C-510 would have affirmed that all uncoerced abortions are not only not punishable, but also not unlawful --- i.e. it would surely have been found to have declared to be right that which would be opposed to the natural law.   It is therefore intellectually dishonest to say that the Magisterium would regard Bill C-510, which would have re-affirmed the decriminalization, and not just the depenalization, of “freely chosen abortions”, as a “legitimate” law.   In any event, the CDF could hardly be said to have endorsed laws that merely abstain from punishing abortions; indeed, it expressed real concerns about the “message” such laws would nevertheless send to the public, a concern that, incidentally, the Federal Constitution Court of West Germany shared (see Note 1).  

                I could not end my response without answering Mr. Murphy’s accusation that I took the CCRL Executive Director’s public statements about Bill C-510 out of context.   I did not.  He misconstrues my criticism.   All I said was that she “tumbled to the language of choice” and that this had the possibility of scandalizing other Catholics and hurting the future credibility of the organization.   In my experience, it is best to avoid arguing your case on the false premises of your opponent (in this case, the premise that a pregnant woman has the “choice” to dispose of, or not to dispose of, her unborn child), lest others think you have actually adopted those premises.  A direct attack on those premises is invariably the better strategy.   For example, although I do think there is strong evidence that the abortion industry makes a mockery of the law of informed consent, I would think twice about how to express it without conveying to others the idea that if it would only comply with that law, I would be “happy”.   The duty to avoid scandalizing others should be taken very seriously, if not “scrupulously”. 

                Of course, she ought to have said that the CCRL could not support the Bill because its qualifications and exceptions were incompatible with Catholic teaching, just as four American Cardinals did in 1974, in respect of proposed remedial legislation in the wake of the infamous Roe v. Wade decision.   That said, however, the damage from this public relations blunder could at least have been minimized[ix]  had she added to her statement something like “......but, of course, we still believe that the unborn are children, not choices.”   Or she could have recited section 2258 of the Catechism:   “God alone is the Lord of life from its beginning until its end:  no one can under any circumstance claim for himself the right directly to destroy an innocent human being.”  Or she could have referred to the CDF’s statement in Donum Vitae (1987):  “[P]arents.....may not freely dispose of the physical integrity or life of the unborn child.” (I,4)   Without such a clarification, her comments could easily be misinterpreted by misinformed Catholics, much in the same way the Pope Benedict’s recent comments about condoms were misinterpreted by many as a sign of an imminent change in Catholic teaching, and Cardinal Ouellete’s recent criticism that Canada does not “even” have a law similar to Belgium’s gestational abortion law was misinterpreted by LifeCanada’s Peter Ryan as definitive support for a gestational law, which also is an intrinsically unjust kind of abortion law. 

II

Response to Maureen Ward (November, 2010, Volume XVIII, No. 10 – Letters to the Editor):

                Ms. Ward says she “took my comments personally and found them arrogant and hurtful”.    I take seriously my obligation to “speak the truth with charity”, but, really, I cannot take responsibility for her feelings.   My approach to the moral issues presented by Bill C-510 and, indeed, the broader issue of the controversy surrounding the true meaning of the Politician’s Rule in Evangelium Vitae (73.3) has always been to call the theologians and philosophers to a deeper dialogue on these questions; to test their speculations  (which I contend are logically implausible) about what JP II actually meant against the principles of both faith and human reason.   As Pope Benedict XVI recently reminded us in Caritas in veritate, “.....Reason always stands in need of being purified by faith: this also holds true for political reason, which must not consider itself omnipotent.  For its part, religion always needs to be purified by reason in order to show its authentically human face.  Any breach in this dialogue comes only at an enormous price to human development.” (n. 56).

                The desire to accomplish “something” good on the question of abortion is a very human sentiment that is consistent with modern secular political thought.   But it is clear that JP II understood both the bedrock western philosophical principle of non-contradiction (see Fides et Ratio 34), and the Church’s “supreme principle of morals” --- the end does not justify the means, and its corollary principles --- the end does not “homogenize” the means, and it is not licit to do evil that good may come of it.     It is fair to ask how, in one sentence (EV 73.2, or the “No Exceptions Statement”), he could have, as a matter of commonsense and logic, absolutely prohibited, in all circumstances, all Catholics from supporting an individual law that admits the liceity of abortion, and then, in the immediately following paragraph, aimed exclusively at politicians, given all of us permission to support such laws.    

            Apparently, the plea ---- “Can’t we save at least some babies?” --- has also become the new “politically correct” mantra among some pro-lifers.    Ms. Ward appears to be offended because my support for this plea is qualified by an insistence that we not use evil means to accomplish this goal.    Perhaps I am “out of date” when I insist that we never contradict our “old” mantra that all the unborn are “children” and not “choices”.   So be it.   In response to her offended feelings, I probably can do no better than to quote a recent statement by Archbishop Raymond Burke:  “One of the ironies of the present situation is the person who experiences scandal at the gravely sinful public actions of a fellow Catholic is accused of a lack of charity and of causing division within the unity of the Church....... What causes wonderment in such a society is the fact that someone fails to observe political correctness and, thereby, seems to be disruptive of the so-called peace of society.   Lying or failing to tell the truth, however, is never a sign of charity.   A unity which is not founded on the truth of the moral law is not the unity of the Church.   The Church’s unity is founded on speaking the truth with love.  The person who experiences scandal at public actions of Catholics, which are gravely contrary to the moral law, not only does not destroy unity but invites the Church to repair what is clearly a serious breach in Her life.  Were he not to experience scandal at the public support of attacks on human life and the family, his conscience would be uninformed or dulled about the most sacred realities.” (“Reflections on the Struggle to Advance the Culture of Life”, 9/26/2009).

            Some are tempted to view the Church’s insistence on exceptionless compliance with the supreme principle of morals as unduly harsh and too demanding.  As we read in The Teaching of Christ  (a popular catechism used in North American classrooms in the 1970’s),  “[t]he results of a decision not to kill the innocent will often seem to many to be worse, sometimes much worse, than the death of the innocent.  Many more persons may seem certain to die, or perhaps to suffer spiritual harm.” (p. 319).   Indeed, some say it would be cruel to tell a childless couple who desperately want to have a child that they cannot use IVF methods to conceive a child.   Yet, the Church still says that such means to a good end are never morally acceptable.   And, I submit, the Church still says “no” to those who want to affirm that some unborn children may be lawfully killed in the hope that some others may be spared that fate.

            I hope that Ms. Ward will see in this reply a sincere call for her to do more reading to help her discern the reasons for this distinctively Christian teaching that one should not do something that is intrinsically evil even for the best of reasons, or even to avoid the worst consequences. 

                Finis

III

Response to Patricia Maloney (November, 2010, Volume XVIII, No. 10 –Letters to the Editor):

                Patricia Maloney participated in earlier email correspondence with the office of Alliance for Life Ontario over the subject of Bill C-510.    I took part in drafting our replies to her, in which we referred her to Magisterial authorities and encouraged her to read them.   She was well aware of my position and arguments before CI published my article.   My very long article on EV 73 is in fact an attempted refutation of the speculations of William May and others (whom I call the “Speculators”)  in the National Catholic Bioethics Quarterly article she cited in her letter to the editor.

                Again, my position is that the Speculators’ paraphrase of the text of EV 73 is logically implausible, and is contradicted by explicit statements of JP II himself elsewhere in EV, and in other documents, and of the CDF.

                Ms. Maloney is guilty of the logical fallacy of “appeal to authority” when she says I am “a banking lawyer and not a moral theologian”.  Theologians are not an infallible, and American theologians and British legal philosophers, no matter how well known, have no credentials when it comes to interpreting Canadian criminal code provisions, and certainly no exclusive expertise in linguistics or the proper application of the principles of Western logic.   Moreover, those who disagree with me on the interpretation of EV 73 have been known to be out of step with the Magisterium on other moral issues, such as capital punishment (Finnis), the approval of civil unions for homosexuals (Finnis), the source of the essential evil nature of the contraceptive act (Finnis, May), and pre-natal embryo adoption (May).  

                In any event, from a theological perspective, such appeals to “authority” are only valid when we are invoking the authority of the Magisterium.   And the Magisterium has not validated or endorsed the Speculators’ interpretation of EV 73.   Moreover, as JPII himself said, in 1988:    “There is a great difference between the person who falls into error after having used all the means at his or her disposal in the search for truth, and the situation of one who, through simple acquiescence to the majority opinion, often deliberately created by the powers of the world, or through negligence, takes little pains to discover the truth…..The Church’s Magisterium is among the means which Christ’s redeeming love has provided to avoid this danger of error.  In His name it has a real teaching authority.  Therefore, it cannot be said that the faithful have embarked on a diligent search for truth if they do not take into account what the Magisterium teaches, or if, by putting it on the same level as any other source of knowledge, one makes oneself judge, or if in doubt, one follows one’s own opinion or that of theologians, preferring it to the sure teaching of the Magisterium (n. 4):”  John Paul II, Address to 400 theologians – November 12, 1988; quoted in John F. Kippley, Sex and the Marriage Covenant (Cincinnati:  Couple to Couple League, 1991), at page 143.

                I prefer to accept what the Magisterium actually says over the Speculators’ implausible paraphrase of what it says.

                Ms. Maloney does mention something new in her letter to the editor ---- a statement by Cardinal Ouellet in the press --- which she presents as some kind of authoritative theological statement in support of gestational abortion laws.  The statement itself was ill-advised, as it contradicted his earlier statement that the Church still insists that even abortions in the case of rape be banned by the civil law.  It would make no sense whatsoever for the Church to insist on legal protection for the unborn in one circumstance, but not in the case where an unborn child has not yet reached a certain gestational age.  I am sure that if the Cardinal were asked to give the question due consideration and issue a formal pastoral paper, he would not be so careless in his comments.   His statement to the press might have been more of a strategic effort to criticize pro-aborts on their terms, on their understanding of what is “civilized”, than an effort to make a definitive theological statement, but, even if that was the case, in the process he carelessly, in my view, gave the impression that the Catholic Church now believes that the civil law can licitly discriminate between human beings on the basis of stage of development.   That is not the case, as the CDF’s Declaration on Abortion (1974) makes abundantly clear (see nn. 11-12).    Moreover, in EV, JP II repeatedly reconfirms that the right to life of every human being must be protected by the civil law, without discrimination, as human life is an “indivisible good” (EV 87.3).

                The inherent contradiction between a rejection of discriminatory treatment regarding the right to life and the acceptance of gestational abortion laws was unanimously recognized by the West German Parliament and the West German Federal Constitutional Court in the 1975 West German Abortion Decision.   The German Federal Parliament said:  “The term solution [a gestational law] would lead to the disappearance of the general awareness of the worthiness of protection of unborn life during the first three months of pregnancy.  It would lend support to the view that the interruption of pregnancy, in any case in the early stage of pregnancy, is as subject to the unrestricted right of disposition of the pregnant woman as the prevention of pregnancy.   Such a view is not compatible with the constitutional classification of values.”

                The Court agreed:  “The weighing in bulk of life against life which leads to the allowance of the destruction of a supposedly smaller number in the interest of the preservation of an allegedly larger number is not reconcilable with the obligation of an individual protection of each single concrete life.......The protection of the individual life may not be abandoned for the reason that a goal of saving other lives, in itself worthy of respect, is pursued.  Every human life----the life first developing itself as well ---is as such equally valuable and can not therefore be subjected to a discriminatory evaluation, no matter how shaded, or indeed to a balancing on the basis of statistics.”  [John D. Gorby and Robert E. Jonas, “Translation of the West German Abortion Decision”, The John Marshall Journal of Practice and Procedure [1976], Vol. 9, 605, at pp. 655.]

                Ms. Maloney also is rather selective in her reliance on press reports of the views of individual Church representatives.  Contrast the Cardinal’s statement with the criticisms of Archbishop Francisco Gil Hellin, of Burgos, Spain of Spain’s new abortion law, which abolishes penalties for all abortions performed during the first 14 weeks of gestation.   It also allows minors to obtain abortions without parental permission, although they must first inform their parents of their intention to do so. He is reported to have called the law “an evil law which is directly opposed to right reason and the most elemental justice……Let us diagnose it with total clarity:  this law is no law, although it is presented as such by some political and legislative bodies.  And it isn’t because no one has the right to eliminate an innocent.  For that reason, it doesn’t obligate.  Even more, it demands a head-on opposition without reservation.  Right reason cannot admit as a right the killing of an innocent person……It is a fallacy to affirm that this law has been approved by the majority of the Parliament and that this represents the majority of the citizens, or to say that if the Constitutional Tribunal decrees its conformity [with the Constitution] it would be disobedience to oppose it, and would deserve a punishment.  The fallacy consists in attributing to politicians, judges, or citizens a right that they don’t have, and no one has the right to legislate that an innocent can be killed….”:  Matthew Cullinan Hoffman, “Spanish Archbishop Urges Defiance of New Abortion Law:  `This Law is no Law’”, accessible at Lifesitenews.com, July 14, 2010.

                Ms. Maloney obviously prefers to rely upon the views of theologians who refuse to see any contradiction between the Church’s teaching and support for gestational laws.   Again, the Church regards such laws as intrinsically unjust, and they remain so, even if such an individual law might have the effect of making abortion less available than in the current legal environment, and even if those supporting it claim that they “will” the passage of only the “just” aspects of the law.

                Finis

From Maureen Remus

            In your November issue it is indicated that one may obtain the longer article on Bill C-510 which Mr. Cauchi has writtten. Is there contact information for Mr. Cauchi, as I would like to receive a copy.

Editor: see above.

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