In the course of this discussion of the norms governing Catholic political behavior (see C. Wolfe, Can a Catholic Be Elected President, May, 1983; E. Peters, The Forbidden and the Inevitable, July, 1983; C. Wolfe, Professor Wolfe Replies, August, 1983; and K. Long, The Limits of the Law: Remarks on Edward Peters, September, 1983) some issues have been settled, and other new ones raised. In the interest of advancing, yet controlling, this discussion let us pass over those points conceded and avoid those which, while interesting, are not quite germane to the issue. Enlightening commentary, not only by Dr. Wolfe but, happily, Mr. Kevin Long, has helped us see these remaining issues in still greater relief .
We have posited a bill which states “Feticide shall be prohibited, except in pregnancies resulting from verifiable rape or incest,” and have asked whether the Catholic legislator may vote for such a bill. Dr. Wolfe writes that voting for such a bill would be a “material cooperation in evil” but goes on to argue that such voting may be justified. Mr. Long terms the rape/incest exception “unambiguously … absurd,” but also argues that voting for such a bill may be justified. I argue contra, to wit, that as a Catholic legislator may not authorize what God forbids, he thus may not vote for such a bill, for reasons explored elsewhere. All parties, of course, submit their arguments to the wisdom of the Church, and all admit that the others’ positions are ones which a Catholic may hold, at least in so far as scholarly discussion is concerned. Let us examine then the arguments of Messrs. Wolfe and Long respectively.
Dr. Wolfe argues from considerations flowing from the principle of double-effect, namely, that if four standard conditions are met, then voting for such a bill, while a material cooperation in evil, can be justified.
1. I grant that voting for an imperfect bill is not necessarily evil. But Dr. Wolfe rightly states that the form of the bill is crucial, and that to pass moral muster, the bill must tolerate the evil without “expressly authorizing it.” (Now, as an aside, I suggest there is little or no moral difference between “authorizing” an act and “expressly authorizing” an act, at least in so far as the moral responsibility of the one who authorizes the act is concerned. If A has, in fact, authorized B to commit an evil act, of what matter is it that A has managed to keep such authorization from being ex-press?)
But, I earlier argued that when the legislature legislates this closely on this specific act, it can only forbid or permit it. Here, since the legislature deletes certain cases of feticide from its prohibition, it necessarily permits feticide in those cases, and thus the Catholic legislator may not vote for such a bill. Dr. Wolfe does not contest the validity of the prohibit/permit distinction, (Mr. Long does contest it, and I address him infra) and the point must for the present fall to me.
2. Our Catholic legislator is assumed to have good intentions.
3. The lives under consideration here (innocent unborn human beings) are each of immeasurable worth. The legislator may not weigh the worth of the lives saved against that of those which, under Point 1, are killed with his permission.
4. The good achieved (the saving of some lives) is the result of the evil act — though not the evil act which Dr. Wolfe presents. While the killing of these unborn children is, of course, evil, we are considering here the act of the legislator. It is his act of voting for this bill which we have posited as objectively evil (we do not consider the subjective culpability of the legislator) and while his act of voting results in some lives being saved, it also results in others being condemned.
The criticisms in Point 4 and, to a lesser extent, Point 3, cast doubt as to whether the conditions for double-effect have been met in this case. The criticism in Point 1 calls into serious question whether the principle of double-effect even applies to this case. The act of the legislator has been argued to be wrong in itself, and not, as is required by double-effect consideration, to be at least morally neutral.
Mr. Long moves us, I think, even closer to the nub of this debate, namely, the contention that “[a]n act (when rigorously defined) is either prohibited or permitted. There is no middle ground possible.” If this is true, then the bill we are considering, since it deletes the prohibition against feticide in certain cases, necessarily permits feticide to be committed in those cases. Such a bill is to that extent repugnant to the law of God — which permits feticide in no cases — and as such, may not be supported by Catholics. Mr. Long is tactically correct to attack this point, for if it falls, I am hard-pressed to maintain this position.
Mr. Long argues first and chiefly that I have misstated a cardinal principle of jurisprudence. But I do not believe I have misstated a principle, as I have simply not raised the principle to which Mr. Long refers: that an act is either prohibited or prescribed. (By adopting this distinction, Mr. Long can introduce a “middle ground,” that is, those laws which are “permitted,” and go on to argue that prudential reasons allow us to support a law which “permits” feticide in certain cases.) I did not raise the prohibited/prescribed distinction for several reasons, one of which will suffice here.
All prescribed acts are, of logical necessity, permitted acts as well. We may imagine a spectrum of acts, with prohibited acts on one side and permitted acts on the other, and with prescribed acts being a subset of those permitted acts. Now, while there is indeed a middle ground between prohibited and prescribed acts, there still is no middle ground between prohibited acts and permitted acts. And we need not even raise the problem of prescribed acts here because, as Mr. Long well observes, “a law which requires [that is, prescribes] abortion in cases of rape or incest would be unconscionable … perversely command[ing] what is wrong.” But Mr. Long leaves uncontested the relevant claim that there is no middle ground between prohibited and permitted acts. Thus the points that A) this bill either prohibits or permits certain cases of feticide, and B) this bill does not prohibit, and thus must permit, certain cases of feticide, must fall to my side, from whence I conclude that a Catholic legislator may not vote to permit what God forbids. It is on this point (though certainly not the exclusion of others) that I invite criticism of my argument by Messrs. Wolfe, Long, or others.
Mr. Long does go on to raise some collateral comments which deserve reply. Assuming, arguendo, that we should draw the distinction between prohibited acts and prescribed acts, we may agree that it is incumbent upon the state to command what is good and prohibit what is evil. But it has never been suggested that prudence plays no role in deciding which goods are commanded and which evils forbidden. Both types of legislation would be good in themselves. What is argued throughout is that voting for this bill would be wrong in itself. Moreover, it is not clear how this incumbency to do good and avoid evil is part of “the very definition of law.” Paraphrasing St. Thomas, law is an ordinance of reason, tending to the common good, promulgated, and promulgated by one with care of the community. The incumbency is really the first principle of law, and not part of its definition.
In conclusion, we should recall that most political decisions do not involve questions of fundamental principle. Most involve questions of prudence, and reasonable men may disagree as to where to draw those compromises. My contention is that on questions of principle (here illustrated by the feticide question, though we might have chosen questions of “divorce” or homosexuality, for example) Catholics may not fight for compromises — even if we may tolerate them while, as Dr. Wolfe reminds us, grieving for them. Our call is to do what is right, and only secondarily to do what succeeds. And as Mr. Long notes, the question of whether the nation will support a complete ban on feticide is essentially empirical, with a good case to be made either way. What is not open to question is the prohibition against doing evil, even to achieve a greater good. Our question is whether voting for the posited bill is to do an evil act. At this point in our discussion, it appears that it is, and thus something precluded by the norms of Catholic political behavior.