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Monday, April 4, 2016

Should Civil Law Forbid Abortion? If So, Should It Punish Those Who Violate the Law?

Written by  Robert J. Siscoe
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Should Civil Law Forbid Abortion?  If So, Should It Punish Those Who Violate the Law?
During a recent interview with MSNB’s Chris Matthews, the Republican frontrunner, Donald Trump, stated that he believes women who have an abortion should be subject to some form of punishment.  Trump later clarified his comments by saying he was speaking of a hypothetical case in the context of abortion being illegal, that is, a violation of civil law. He further clarified his position by stating that he would prefer to allow the states to establish their own laws to protect the unborn.

His comment concerning women being punished caused quite an uproar, not only in the mainstream media (which would be expected) but also, quite surprisingly, in the pro-life community. In light of this, we will consider the question of whether abortion should be illegal, and, if so, whether there should be a penalty attached to the crime. We will consider these questions from the perspective of Catholic theology, as well as the reason for the written law and sanctions attached to the law.

What is Law?

St. Thomas defines law as an ordinance of reason, for the common good, promulgated by one who has care of the community.[1] The true purpose of law is to guide man in his actions, so that he will more easily attain the end for which he was created. Consequently, the civil law should reflect, not only the natural law (which is the Eternal Law of God stamped upon man’s reason), but also the Divine Positive Law (the teaching of Revelation).  And because the Church’s Magisterium is the divinely established interpreter of the Revealed deposit, it is evident why the Church and State should not be separated, but should instead work to together for the betterment of the whole man, both body and soul. Now, in a non-Catholic secular State, such as America, it is understandable that the ideal would not be realized, and hence that civil law would not reflect the precepts of the Divine Positive Law (although the idea should be the desired goal).  However, even in a secular state, the precepts of natural morality (the natural law) should be incorporated into the civil law, so that man can more easily live according to right reason, since reason is something that all men (of any religion or none) have in common.

What men also have in common is free will, which was given to man, not so that he could choose evil, but so that he would freely choose the good.  But the human will is a blind faculty, which is dependent upon the intellect (reason) for its guidance and direction. Man’s will stands midway between the judgment of the intellect and the unthinking desires of the flesh.  Contrary to what many today believe, true liberty is not simply doing what one desires, but doing what one ought.  It is realized by those whose intellect is free from error, and whose will is free from all vice.  In such a person, the free will is able to choose what the intellect correctly judges to be the true good.  To the extent that one is entangled in error or vice, their true liberty is proportionally diminished.

The Fall and Its Effect

Now, due to the Fall, man’s intellect has been darkened and his will weakened. Consequently, man often errs in his judgment (defect of the intellect), and chooses what he ought not (defect of the will). The law is intended to serve as a remedy for both of these defects. The letter of the law informs the intellect what should be done and what should be avoided, while the sanctions attached to the law help motivate the will to choose correctly (i.e., to chose the judgment of the intellect over the unthinking desires of the flesh).

The Letter of the Law

We can understand why it is necessary for the letter of the law to forbid abortion by considering how many young women have been deceived (defect of the intellect) into believing that abortion is some kind of natural right, which those who oppose abortion are seeking to deprive them of.  The fact that many truly believe this only shows how easy it is for people to be led into error, and hence to form incorrect judgments.  Often, it is only after having an abortion that they realize what they have done; but by then it’s too late.  If abortion had been illegal and presented as the evil that it is, it would have prevented most from falling into this error and doing what they would later regret.  

The Punishment Attached to the Law

The purpose of sanctions attached to the law is to motivate the will to choose correctly.  Due to original sin and the consequent weakness of man’s will, a law without penalties attached it will do little good to prevent men from violating it.  Imagine if the authorities decided to eliminate any penalty for those who robbed convenience stores.  What do you think would be the immediate result?  That’s right. The immediate result would be a huge uptick in convenience store robberies, followed by a huge uptick in convenience store clerks carry guns, followed by a huge uptick in shootouts in convenient stores with innocent people being shot.

Similarly, if there is a law on the books that forbids abortion, it would do little good if there was no penalty attacked to the crime.  The sanction is what deters the person from committing the crime.  So what Trump said was really a matter of common sense: if you are going to have a law on the books (forbidding abortion), there must also be a penalty attached to the law.  And the penalty would not apply only to the doctor who performed the illegal act, but also to the women who sought it out.  

And we should also note that the Church not only forbids abortion, but it also punishes it by attaching the spiritual penalty of excommunication.  And in the Papal States, the Church also attached the most severe temporal punishment to the crime, which was that of death.  

We find this, for example, in the Papal Bull Effraenatam Perditissimorum by Pope Sixtus V.  He spoke of “the monstrous and atrocious brutality of those who have no fear to kill most cruelly fetuses still hiding in the maternal viscera.”  He then asked: “Who will not detest such an abhorrent and evil act, by which are lost not only the bodies but also the souls? Who will not condemn to a most grave punishment the impiety of him who will exclude a soul created in the image of God and for which Our Lord Jesus Christ has shed His precious Blood, and which is capable of eternal happiness and is destined to be in the company of angels, from the blessed vision of God, and who has impeded as much as he could the filling up of heavenly mansions, and has taken away the service to God by His creature? Who has deprived children of life before they could naturally see light or could be protected by maternal body from ferocious cruelty? Who will not abhor the cruelty and unrestrained debauchery of impious men who have arrived into such a state of mind that they procure poisons in order to extinguish the conceived fetuses within the viscera.”  

The Pope then referenced “the Sixth Synod of Constantinople” which “decreed that persons who give abortive medicine and those who receive and use poisons that kill fetuses are subject to punishment applied to murderers,” and concurred by concluding that those who committed abortion should incur the “sanctions and punishments established by divine and human laws … which the civil and profane law inflicts upon true murderers and assassins who have actually and really committed murder” which at the time was the death penalty.

So not only has does the Church currently attach the most severe spiritual penalty to the crime of abortion (excommunication), but it has historically also attached to it the most severe temporal punishment. In light of this, we can see that Trump’s statement that “some form of punishment” should be attached to the crime of abortion is in no way contrary to the mind of the Church.


[1]ST, I-II, q. 90, a. 4

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Last modified on Monday, April 4, 2016