The previous article discussed the CCCB’s reluctance to face sexual-marital issues and its attitude toward the Mitges motion. Of central interest here is the justification provided by the two secretaries, namely that “there was the matter of the freedom of each Member of Parliament to make a personal decision about the motion; and the Bishops wished to safeguard their freedom of informed conscience.” The article briefly mentioned that similar sentiments existed 20 years ago when the CCCB delegation to the parliamentary abortion hearings assured their audience that they hadn’t come “to impose their views.”
Reflection will show that the issue is central to the survival of the pro-life movement, among others. The thrust of the argument appears to be that legislators are not morally bound by the condemnation of abortion as “an abominable crime” (Vatican II); and, similarly, that moral authorities such as the Church cannot or may not insist that civil authorities protect fundamental human rights.
Freedom to do nothing
A reluctance to face sexual marital social issues is one thing. Arguments that politicians are free to approve legal abortions, and that bishops are obliged to refrain from pointing out to them that they are not free to approve abortion, is another. These are two very different things. The former constitutes as attitude; the latter deficient theological reasoning. The former may change easily and on the whim of the moment; the latter cannot change until the deficiency has been corrected.
The idea that legislators have complete autonomy – even though they are supposed to make sure their consciences are “well-informed” – is essentially a product of the sixties and the pluralist society. In Catholic circles this idea was put forward after the Second Vatican Council, supposedly as an interpretation of the Declaration on Religious Liberty and of references to the autonomy of the laity in other Council documents. It merged with heady talk of post Council days about a supposed new “maturity” of Christians, a new independence, a questioning even about the need for an institutional Church now that modern Catholics understood religion so much better than did their parents and grandparents. In the political as well as in the moral area, it led to an exaggerated view of the ability of the individual conscience to make judgments independently of outside norms and standards.
It was in this manner that theologians and others launched the notion that even on abortion politicians and legislators were free to act as their “consciences” dictated. One well-known proponent of this view in the sixties was U.S. Congressman Father Robert Drinan, a Jesuit priest and a former Dean of Law at Boston College. Drinan believed that laws on abortion should be repealed and that abortion should be left to the women themselves. His views impressed some people, including some at the CCCB. Drinan acted upon his beliefs and during the years he serve3d as a Massachusetts representative, he favoured abortion and abortion funding in 31 of 35 recorded votes.
A few other Catholics also began to hold more radical views on individual freedom. The Declaration on Religious Liberty was concerned with the freedom or immunity from coercion in matters religious. It projected principles such as the requirement that the freedom of the human person be respected as far as possible and curtailed only when and in so far as necessary. The American Catholic theologian Charles Curran, for example, transferred what had been used in establishing freedom from religious coercion to the relationship between civil and moral law.
Curran argued that the purpose of civil law is to ensure as far as possible the freedom of the individual, even at the cost of contradicting the natural moral law which otherwise sets the norms and standards for civil law. For him, morality became the “basic shared morality which is necessary for people to live in society.” In a pluralistic society people disagree a lot, such as whether or not human life is present in the foetus. Consequently, prudence and feasibility may lead to the persuasion that there should be no law against abortion. Such a law would unduly restrict the freedom of many people who think there is no human life present.
Similar theories were bandied about in society at large by those who claimed that all civil law should be cleansed from (religious) morality. Many people, including Christians, were acting upon these philosophies without even realizing it.
At the time Catholic Bishops in Canada were not taken in by the claims of intellectual liberalism and secularism. However, the multitude of ideas from the Council mixed with the intellectual confusion of the sixties, did lead to a certain perplexity about how to handle what suddenly appeared to be much more complex moral problems. In Canada, this perplexity led to a too simple distinction between moral and civil law and too great a readiness to comply with demands for change.
In doing so, Canadian Catholics also veered away from the course of action pursued by the Vatican.
As a starting point for this analysis, let us recall the most important – and most unfortunate – result of this kind of thinking. Canadian Catholics had been told by their Bishops that abortion was not acceptable. Yet, it was a strongly Catholic Liberal Party which voted en bloc to ensure passage of the act. In the Cabinet alone, some 23 out of 34 Ministers were Roman Catholic. They were to give Canada the dubious distinction of being the only country in the world where Catholics are technically – if not intentionally – responsible for legalizing abortion. How come? Before 1965, Catholics would not have dreamed of voting for legal abortions. What made them change?
The answer can and, indeed, must be summarized plainly as a surrender of Catholic politicians to the spirit of the times. There is no way around it. But one must add that the surrender was preceded and influenced by pastoral decisions of the Canadian hierarchy.
Among these decisions, two stand out because of the nature of the arguments employed. The first one is the abandoning (in 1966) of the Church’s opposition to the legal sale and distribution of contraceptives. The second was the Bishop’s judgment in Winnipeg in September 1968 to modify – the impact of the birth control encyclical Humanae Vitae by Pope Paul VI, the Catholic Church’s chief pastor.
The first decision concerned the general public; the second concerned the Catholic faithful only. In essence, both were the result of pressure from Catholic laity – mostly well-to-do middle class and academics – whose demands really meant that they wanted the Bishops and the Church to conform more closely to the rest of society. Laity who opposed these changes found themselves ignored.
Obviously, most Bishops did not think at the time that these two decisions were unduly conformist. Rather, they must have believed that both measures were just accommodations. Despite this belief, the resulting vote on abortion just described is sufficient reason to question the wisdom as well as the correctness of the action undertaken.
The 1966 October Statement projects a too radical separation between civil and moral law. This is not altogether surprising in view of the pressures of the times. Opinions delivered before the House of Commons by national or local organizations and churches were practically unanimous in favouring withdrawal of Article 150 without further ado. There was only one exception. The Pentecostal Church of Canada opposed the change, stating that “such permissive amendments…will tend to increase immorality among the youth of our nation, with resultant increases in social disorders.” Apart from this one exception, none of the organizations were interested in even thinking of Canada’s philosophic-theological heritage except to sweep it aside.
The main purpose of the 1966 Statement was to assure Catholic legislators that questions such as these could and should be resolved by themselves without help from the hierarchy. By then contraception had become a major point of contention among Catholics, with the Pope having reserved the final word to himself. This uncertainty surely had something to do with the position the CCCB put forward.
Their statement emphasized the autonomy of the legislator and used Vatican II documents as evidence. It insisted that legislators make their own decisions and follow their own consciences. It went as far as stating that Catholic legislators could resolve the question before them without the knowledge whether the use of contraceptives was morally right or wrong. This view surely cannot be accepted.
No matter what the issue, a conscientious legislator must first decide whether a proposed bill is good or bad for society. If the bishops were correct in their view that the morality of contraceptives was “not up to parliament to decide” as they said it wasn’t, then they should have asked Parliament to defer its decision until the proper authorities, that is, they as guardians of faith and morality, had decided this issue. As it was, they now left the impression that morality was not involved at all.
A second flaw concerns the reasoning by which the authors of the 1966 Statement deduced that the existing law banning contraceptives was contrary to the common good, i.e., that it does “not serve the common good to translate moral laws into civil laws.” Of the four standards by which legislators could judge this (equitable application, harm to society, enforcement by law and not leading to greater evils) the authors only used one, the inability to enforce the law.
In 1966, it was public knowledge that contraceptives were being sold under the counter and that some public institutions were not observing the law. That important deficiency could be used as an argument to support those who favoured change. This is just what the Bishops did: immediately after having declared Article 150 to be deficient, they stated “The law is not in fact enforced, and the good of public peace might well be lost by attempts to enforce it.”
This is the only proof offered in the Brief. The non-enforcement was indeed a fact. It was the only fact. And even this fact was a modest one, because the harm which supposedly might come from attempts to enforce the law, could only be speculated upon. One could just as well project some good coming from enforcement. The Brief neither investigated what evils the existing law was designed to suppress, nor speculated on what damage might be done to the family and society if the law were to be removed.
One final point. If ability to enforce becomes the sole standard in practice for deciding whether civil legislation is wise or possible, then any degree of lawbreaking is automatically taken as a sign the law must change to accommodate the new practice. This was to be the case with abortion in 1968 and is the main idea behind Henry Morgentaler’s law breaking.
In the case of (medical) practices not yet under legislation, it will mean hands off or mere regulation of existing practices. Today Health and Law Reform Committees are recommending approval of sperm banks and in vitro fertilization, euthanasia and surrogate motherhood. Such changes are seen as accommodating a supposedly “evolving morality.”