Monday, November 5, 2007


Monsignor John W. Sweeley, Th.D.
Abstract: Beginning with the papacy of Pope John Paul II the only response of a Catholic to pronouncements of popes and the teaching of the Magesterium is obedience. This is especially so regarding the issue of abortion as put forth by John Paul and certain Roman Catholic Bishops during the presidential election of 2004. This position will be codified in a document soon to be released by the United Stated Conference of Catholic Bishops as a guide for how Catholic should vote in the 2008 election. This document will confirm the Church’s position that "human life and personhood begin at the ‘moment of conception’ and must be protected until natural death." The document will also state that that this belief is non-negotiable and is binding on all Catholics.
However, nothing could be farther from the truth. This essay will trace the historical development of the Roman Catholic Church’s "theology of abortion" and will cite the theological teaching of the Church regarding moral theology from the time of St. Augustine at the beginning of the fifth century. This body of theology clearly states that one’s informed conscience must be the final arbiter of a person’s decision making and behavior even when to do so is diametrically opposed to the pronouncements of popes, Magesterial teaching, dogma, and doctrine of the Church.
Brief History Of The Theology of Abortion
Throughout its history the Roman Catholic Church has had varying declarations about the beginning of human life. For most of its the history the Church viewed immediate animation/ensoulment as impossible. Following Aristotle, traditional Catholic doctrine determined a male fetus became animate; that is, infused with a soul at forty days after conception. A female fetus became animated eighty days after conception because it was "weaker" and "not as active."
There were three councils that addressed the issue of abortion before 700. The first council is the Council of Elvira early in the fourth century. The textual history of these canons is complicated. Hamilton Hess discusses the problems of the textual transmission of the canons in, The Early Development of Canon Law and the Council of Serdica. He summarizes the research of Samuel Laeuchli who prints the Latin text and translates it in Sexuality and Power: The Emergence of Canon Law at the Synod of Elvira, Maureice Meigne’s, "Concile ou collection d’Elvire," Revue d’hisoir ecclesiastique where Meigne argues that the Council of Elvira issued only the first 21 canons; the other canons were added to the "collection" later, probably taken from other Iberian councils and concludes with Eckhard Reichert’s Die Canones der Synode von Elvira: Einleitung und Kommentar. The date of the Council is not certain but scholars have placed it between 300-309.
Thirty percent of the canons relate to sexual behavior including fornication, women who leave adulterous husbands for other men, virgins consecrated to God, adultery of the soul (marriage to a Pagan, Jew, Christian heretic), clergy who commit sexual immorality, sexual immorality of "young men," a husband who knows of his wife’s adultery and stays with her, sexual abuse of boys, widows who have intercourse, and parents who give up their children to others for sexual abuse.
The Council of Ancyra followed in 314. The disciplinary decrees of the Council of Ancyra possess a singular interest as being the first enacted after the ceasing of the persecution of Christians and as providing for the proper treatment of the lapsed. Recently two papyri have been recovered containing the official certificates granted by the Roman government to those who had lapsed and offered sacrifice. These apostates were obliged to acknowledge in public their adhesion to the national religion of the empire, and then were provided with a document certifying to this fact to kept them from further trouble. Dr. Harnack (Preussiche Jahrbucher) wrote that the Church condemned this as lying and denial of the faith, and after the termination of the persecution, these unhappy people were partly excommunicated and partly obliged to submit to severe discipline.
Who would ever suppose that the records of their shame would come down to our time and yet it has happened. Two of these papers have been preserved. The first was found by Krebs in a heap of papyri that had come to Berlin; the other was found by Wessley in the papyri collection of Archduke Rainer: "I Diogenes, have constantly sacrificed and made offerings, and have eaten in your presence the sacrificial meat, and I petition you to give me a certificate." Who today, without deep emotion, can read this paper and cannot feel the terror of the heart under which Christians of that day collapsed?
The last was the Council of Trullo in 692. There are significant problems with the Council of Trullo. It did not have ecumenical authority either in its constitution, treatment by the Church, or its enactments. It was summoned by Emperor Justinian in 692 as the previous two general councils (553 and 681) had not produced any canons. Two hundred eleven bishops attended of whom the principals were the four Patriarchs: Paul of Constantinople, Peter of Alexandria, Anastasius of Jerusalem, and George of Antioch. The Council is also named Quinisextum in Latin and Penthecton in Greek, "fifty-sixth," to mark that it is only the supplement of the two preceding Councils although it is distinct within itself. All of the representatives were from the Eastern Church except Basil of Gortyna in Crete who claimed to represent the whole Council of the Roman Church. The Council produced 102 canons but Pope Sergius (687-701) refused to sign the decrees. He rejected them because they were invalidi (lacked authority) and described them as having "novel errors." Pope Constantine (708-715) adopted a middle course of acceptance. Pope Hadrain I (772-795) recognized the Trullan Decrees in his letter to Tenasius of Constantinople and attributed them to the Sixth Synod, "All the holy six synods I received with all their canons, which reference is made to a Lamb being pointed to by the Precusor as being found in certain venerable images." This reference is unmistakably to Trullan Canon LXXXII. Pope John VIII (872-882) again took a middle ground in that, "he accepted all those canons which did not contradict the true faith, good morals, and the decrees of Rome."
The Council of Elvira was a local council held in what is today Spain. It was attended by nineteen bishops and twenty-six priests. Eighty-one canons were produced mostly dealing with disciplinary matters. Canon 63 contains two sins, adultery and abortion, and states,
If a woman conceives in adultery and then has an abortion, she may not commune again, even as death approaches, because she has sinned twice.
Canon 68 deals with a similar issue,
A catechumen who conceives in adultery and then suffocates the child may be baptized only when death approaches.
In this case the adulterous woman is not yet baptized and the child is not aborted but killed after birth. The penalty was similar in both cases. However, it is noteworthy that only the woman is mentioned. Therefore it is possible to read that conceiving in adultery was regarded as more serious than adultery since the product of lust, the bastard child, is contemptible. Except for the already mentioned association with adultery, Canon 68 does not provide a detailed explanation for condemning abortion.
However, as thirty percent of the canons address sexual sin this tells us that sexual sin was a major issue for the Church in "Spain" at the end of the third and beginning of the fourth century. It also tells us that the Church believed it had the right to regulate any and all sexual relations and punish the transgressors. It is to be noted that abortion of a fetus by a married woman is not mentioned.
The second concern of the Council of Elvira was that it banned all social and intimate relationships between Christians and Jews. Twenty canons legitimized discrimination towards Pagans, Jews, and Christian heretics. It is in the Council of Elvira that anti- Semitism is first sanctioned by Church leaders. It is in Elvira that the foundation is laid for the future pogroms of murder, torture, and summary imprisonment of dissenters. It is in Elvira that the foundation is laid for the arson and demolition of pagan temples, classical libraries, and Jewish synagogues. It is in Elvira that the foundation is laid for the violent inquisitions, crusades, and forced conversions that fill Christian history. It is in Elvira that we see the character of biblical and canonical Christianity as it emerges in late antiquity.
The Council of Ancyra was attended by twelve to eighteen bishops. Nine of the twenty-five canons deal with sexual issues including adultery; virgins who have been betrothed, carried off, and returned; bestiality; virgins living with men as sisters; and corruption resulting in pregnancy of a betrothed maiden’s sister.
Canon 29 states,
Concerning women who commit fornication, and destroy that which they have conceived, or who are employed in making drugs for abortion, a former decree excluded them until the hour of death, and to this some have assented. Nevertheless, being desirous to use somewhat greater lenity, we have ordained that they fulfill ten years of penance according to the prescribed degrees.
The ancient epitome of Canon 29 was that harlots taking injurious medicines were to be subjected to penance for ten years. The phrase, "and to this some have assented" is the translation of Hervetus, Van Espen, and Hefele. Routh suggests the Greek be translated as, "the same punishment will be inflicted on those who assist in causing miscarriages" but this seems to be an unnatural and strained rendering of the Greek.
To put these two councils into perspective we can see that the Council of Elvira did not represent the view of the entire Church. The canons only reflect the attitude of the "Spanish" churches. The Council of Ancyra provided more detail. Again abortion is associated with fornication. Also in Ancyra’s canon a clause is included condemning the manufacturers of medicines that cause abortion. Contrary to a "former decree," which possibly refers to the Council of Elvira, penance is limited to ten years. The disciplined were to go through a period of repentance divided into three stages: weeper, kneeler, and hearer and stander, after which reconciliation was obtained. Whereas the Council of Elvira only required penance for the adulteress, the Council of Ancyra includes men as well. The ancient epitome seems puzzling as penance was only applied to the baptized. Being a harlot was condemned in Pauline writings and many canons rejected fornication. Therefore, "harlot" should not be understood as the profession of prostitution but as referring to any woman committing fornication.
The first fifty-four canons of the Council of Trullo, also known as the Quinisext Council (629), are concerned with how the clergy from bishops to deacons carry out their ministry and live their personal lives. Immediately following Canon 6 follows a long excurses on when clergy may marry or not marry including that when a married man is raised to the dignity of bishop he must leave his wife and family. His wife is then expected to enter a monastery and if deemed worthy would be given the title deaconess. While a few of the remaining canons address the relationship between Christians, Pagans, Jews, and heretical Christians the majority of the rest of the canons concern human sexuality both within and outside of marriage. Canon 91 concerns abortion,
Those who give drugs for procuring abortion, and those who received poisons to kill the fetus, are subject to the penalty of murder.
It is to be noted that this is the first time the word murder or homicide is used in relationship to abortion in a canon. However, the canon does not say abortion is murder; rather, those who prepare the drugs that cause the abortion and the pregnant women are subject to the penalty of murder.
It is also to be noted that the decisions of the Council of Ancyra are reversed as the reference to fornication in relation to abortion has disappeared. Additionally, thoughts on the development of the fetus have undergone a change. The inclusion of Basil’s canon reflects the discussion as to when the fetus possesses a soul,
She who purposely destroys the fetus shall suffer the punishment for murder. And we pay no attention to the subtle distinction as to whether the fetus was formed or unformed. And by this not only justice satisfied for the child that should have been born, but also for her who prepared herself the snares, since the woman very often die who make such experiments.
Whereas the canon refers to the distinction between the formed and unformed fetus, Basil discards this distinction that had been supported by some church fathers as "subtle." Thus for Basil, the fetus is regarded as a child that should have been born.
We may draw from the Councils of Elvira, Ancyra, and Trullo that from the theological and philosophical points of view the distinction between "formed and unformed" and "soul or no soul" may have been valuable in the development of the doctrine of the soul. However, the general feeling appears to be that this distinction was irrelevant to the issue of abortion. In fact, the majority of early texts and authorities do not dismiss abortion form the perspective that the fetus has in immortal soul.
Nevertheless, development of the doctrine of the soul and thoughts on sexuality cannot be detached from abortion even though issues surrounding sexuality emerged almost simultaneously with the start of Christianity. Christianity became obsessed with the idea of sexual purity which determined that sexual intercourse for mere pleasure was sinful because procreation was God’s intended purpose for human sexuality.
Consequently abortion in the early Church cannot be seen as an isolated issue. Developing views on sexuality and ensoulment, the influence of classic philosophy, and what constituted Christian morality all contributed to the view expressed in the Council of Trullo. Thus, by the time of the Council of Trullo the Church’s main concern had shifted from concern for the soul of the woman committing fornication to concern for the fetus itself.
In 1588 Pope Sixtus V maintained that the penalty for contraception or abortion was excommunication from the Church. However, his successor, Pope Gregory XIII, returned the Church to the view that abortion of an unformed fetus was not homicide. Thus although the Church traditionally forbade even early abortion in that it held abortion interfered with the procreative purpose of sexual intercourse, a fetus was not considered a person early in pregnancy and early abortion was not considered homicide. The movement to remove the distinction between animate and inanimate fetuses from the doctrine of the Church was initiated by Thomas Fienus who argued in 1620 that the soul must be present immediately after conception in order to organize the material for the body. 43
However Pope Gregory’s view was largely the view until 1869, when Pope Pius IX again declared that the punishment for abortion was excommunication. Much of the support for this view was based on the idea that since we cannot know with certainty the time at which human life begins, it should have protection from the earliest possible time: conception. This view for Pius did not insist that fertilization is the time when human life begins. Rather, it is a statement that we do not know the time of ensoulment.
In the late nineteenth century, following the scientific discovery of how fertilization occurs, the debate about abortion within the Church tipped in favor of its now familiar position that human life begins at conception. This view was enhanced by the theological acceptance of the Immaculate Conception of Mary. In 1701 Pope Clement XI declared the Immaculate Conception a feast of universal obligation and in 1854 Pius IX incorporated into Catholic dogma the teaching that Mary was without sin from the moment of her conception.
It is to be well noted that these beliefs concerning Mary did not coincide with the prior view of the Church that the fetus did not acquire a soul until later in pregnancy. Therefore, the Church had to unite its doctrine so that the act of conception coincided with the beginning of human life. This is extremely important to understand because it proves that regardless of the scientific evidence regarding when human life may or may not begin, to say nothing of when such a life form achieves personhood, the Roman Catholic Church by its pronouncement regarding the Immaculate Conception of Mary has painted itself into a dogmatic corner where it has to make the science fit the dogma whether or not the science fits the dogma.
There are five documents that articulate the Church’s current position on abortion published between 1965 and 1974.
Vatican Council II, Gaudium et spes (Constitution on the Modern World), December 7, 1965, Number 51 "Married Love and Respect for Human Life" in part states,
Life must be protected with the utmost care from the moment of conception: abortion and infanticide are abominable crimes. 44
Gaudium et spes was followed by a statement by the United States Conference of Catholic Bishops on April, 22, 1970,
The life of the unborn child is a human life. The destruction of any human life is not a private matter, but the concern of every responsible citizen. 45
The United States Conference of Catholic Bishops followed that statement with another on November 19, 1970,
The child in the womb is human. Abortion is an unjust destruction of a human life and morally that is murder. 46
On January 27, 1971 Pope Paul VI wrote,
If it necessary to go against the current of what is sometimes being thought and said on all sides, then let us never grow weary of repeating it: all human life must be absolutely protected; in fact, abortion and euthanasia are murder. 47
On November 18, 1974 the Sacred Congregation for the Doctrine of the Faith published, "Declaration on Procured Abortion." This document is in 27 articles, states that the Church has always protected human life, cites scripture references to show that only God can give and take away life, reviews Gaudium et spes, and condemns abortion under any circumstance.48
Each of these pronouncements presupposes the doctrine that maintains immediate animation, the instant at which the zygote is endowed with biological life, is when it receives a soul from God. Thus, the Roman Catholic Church’s theology, not science, contends the instant of fertilization must be the beginning of human life and personhood regardless of the fact that the majority of scientists covering several disciplines do not support this belief.
Informed Conscience: Final Arbiter of Moral Decision Making and Action
Pope John Paul II made it the cornerstone of his pontificate to deny a woman the right to exercise her informed conscience to have an abortion. Over the quarter century of his pontificate, he attempted to weave a single garment juxtaposing Magisterial teaching and medical science to prove that human life and personhood begin at conception and thus abortion is forbidden by the dogma of the Roman Catholic Church. It is a sad commentary on both Pope John Paul II and the Roman Catholic Church that contrary to the position of scientists representing multiple disciplines including biologists, geneticists, and reproductive scientists, John Paul not only chose the most restrictive and least defensible scientific understanding of when human life begins, he commissioned his own scientists and institutes to write books and scientific papers that refuted the preponderance of the research of impartial scientists that human life and personhood does not begin at conception. Two of the agencies the pope used to create and "prove" his science are the Pontifical Academy for Life and the John Paul II Institute for Studies on Marriage and the Family. To make his belief the authentic teaching of the Church, in 1995 Pope John Paul II published the Encyclical Evangelium Vitae: On the Value and Inviolability of Human Life (The Gospel of Life).
Throughout his pontificate both the pope and his close friend Cardinal Joseph Ratzinger, who prior to becoming pope was the Prefect of the Congregation for the Doctrine of the Faith, presented the pope’s position as absolute and immutable. Thus for both Pope John Paul II and Pope Benedict XVI abortion is never an option predicated on a woman’s informed conscience regardless of how deformed a fetus may be, what genetic disease it may have, or how dangerous it is for the woman to carry the fetus to term.
However, standing in stark opposition to John Paul and Benedict is the real world of Catholic moral theology that confirms and mandates the necessity and validity of an informed conscience as the final arbiter of moral, ethical, and religious decision making and practice.
The obvious question is, "Do the tools exist to prove that one’s informed conscience is the final arbiter of moral, ethical, and religious decision making and practice?" The unqualified answer is "YES" as the application of one’s informed conscience has been a central part of the history and tradition of the Church since the early centuries of Christianity. The theological role of one’s informed conscience began with St. Augustine, St. Thomas Aquinas amplified it by speaking to one’s conscience more than 200 times in the Summa Theologica, and it was echoed by all the great Scholastic writers. In 1874 John Henry Cardinal Newman wrote a brilliant defense of conscience in his response to William Gladstone and Vatican Council II confirmed the pre-eminence of one’s informed conscience.
An informed conscience is central to historical, traditional, and contemporary Catholicism because it is how one unites their religious and secular life. Just as there are two means of God’s revelation (scripture and tradition) upon which Christianity and the Church rests there are two means of acting upon this revelation: obedience and conscience. It is unfortunate that from its earliest days Christianity, and after the Reformation the Roman Catholic Church, chooses to emphasize obedience to the exclusion of conscience as the expected response to the pronouncements of popes and teaching of the Magesterium. However, a substantial body of theological polemic evolved over the centuries that were the province of theologians that legitimizes the use of one’s informed conscience as the superior response to that of obedience to such pronouncements and teaching.
The relationship between obedience and conscience continued to be the province of theologians until 1870 when the First Vatican Council, at the urging of the Ultarmontanes who wanted more control of both the Church and laity by Rome, declared the Doctrine of Papal Infallibility as Catholic dogma. The Doctrine of Papal Infallibility proclaimed the pope is infallible when he speaks to matters of "faith and morals." However, more troubling than the doctrine itself was the mandate from the pope that "absolute obedience" to the pope in these matters is required at the peril of ones salvation.
It is interesting to note that 132 years ago in 1874 the liberals in England had precisely the same concern regarding the Catholic Church’s intrusion into the autonomous secularity of the state as do American liberals in 2006. Consequently, in 1874 William Gladstone, the Prime Minister of England, confronted Catholics with his pamphlet, The Vatican Decrees in Their Bearing on Civil Allegiance. Gladstone’s primary charge, which reflected the general thinking of most non-Catholic Englishmen, was that a Catholic population committed to The Doctrine of Papal Infallibility could not be trusted to participate loyally and thoughtfully in public life. In his pamphlet Gladstone states,
Therefore Catholics are moral and mental slaves, and every convert member of the Pope’s Church places his loyalty and civil duty at the mercy of another.
Cardinal Newman’s response, A Letter Addressed to His Grace the Duke of Norfolk on Occasion of Mr. Gladstone’s Recent Expostulation, is a well-reasoned response recognized as a classic document of moral theology defining the parameters of conscience and its proper use in its universal sense for both Catholics and Protestants.
What makes this letter particularly remarkable is that on the one hand Newman was able to show Gladstone’s attack as spurious, on the other he defended the Doctrine of Papal Infallibility in such a way as to excoriate the pretensions of the Ultramontanes, while on his third hand he documented Catholic tradition which reflected that the legitimacy of all morality as well as all religion was dependent on the inviolable sovereignty of conscience. Newman documented the supremacy of acting upon ones conscience even when such action is in direct opposition and disobedience to Church teaching as well as doctrinal and dogmatic beliefs required by the Church.
However before we begin an examination of Newman’s argument it is necessary to briefly review the work of three contemporary Catholic scholars to better understand the nature of conscience as understood by the Catholic Church. Daniel Maguire views conscience as the conscious self as attended to moral values and disvalues in the concrete. Conscience is rooted in the foundational moral experience that consists of an appreciation of the value of self, the value of others, and an awareness of the connection between the two.
Timothy O’Connell designates conscience in three parts: conscience/1, conscience/2, and conscience/3. Conscience/1 refers to the reality that all persons have an awareness of value and implies a human responsibility for good direction. The exercise of moral reasoning; that is, the search for specific perception of values and concrete individual values is conscience/2. Conscience/3 is consummately concrete as it is the concrete judgment of specific persons pertaining to their own immediate action and as such is infallible because it constitutes the final norm by which a person’s action is guided.
Bernard Haring views conscience as the sanctuary of creative fidelity and liberty and links conscience with the character of discipleship. A holistic understanding of conscience reflects an awareness of the innermost yearning for wholeness and integrity while at the same time wholeness and openness for truth and solidarity. Thought and solidarity relate to the distinctive quality of the mature Christian. Although Haring argues for a distinctive Christian morality and conscience, most other theologians consider the identity of conscience universal. Thus, humankind understands the inner law (of love) in the light of Christ who manifested for us the all-embracing law of the covenant. Haring borrows from St. Thomas by concluding that human conscience in its search for objective truth and values is fallible but has indefectibility when one looks for what is good and right.
As presented by Maguire, O’Connell, and Haring the Catholic understanding of conscience is highly nuanced. Conscience is a living entity with elasticity necessary to meet changing issues and questions of moral decision making and behavior. What it is not is a "one size fits all" statement that either supports or refutes papal or Magisterial teaching. This is because conscience recognizes the immutable nature of the Good as well as the Evil. It also recognizes that a hierarchy of goods and evils exists for every moral decision and act. It will be important to keep this in mind as we return to our discussion of Newman’s argument that conscience is the final arbiter of moral decision making and action.
The origin of the good in Catholic moral theology is found in Plato’s idea of the Good that Plato often identifies with God. In the Timaeus, God is the Demiourgos who fashions the imperfect and chaotic world of matter into order according to principles of goodness. When Plato refers to God or the gods, he usually speaks as if deity were personal; thus, his whole system roots in an ethical idealism that is a form of religious monotheism. In the third century C.E. the Neo-Platonist Plotinus established a school that combined as a philosophical system Platonism with Pythagorean, Aristotelian and Stoic doctrines. After his death his pupil Porphyry edited and arranged his writings into six groups of nine books called the Enneads. Through the Enneads Plotinus greatly influenced Christianity to the time of St. Thomas in the 13th century and is the link between ancient and medieval thought.
Newman began his rebuttal to Gladstone by beginning with the Creator and his creature (humanity) from whence he would draw out the prerogatives and supreme authority of conscience. Newman determined that a Divine Being, a Supreme Being, would have one predominant characteristic which he believed in human language was reflected in the word "ethical."
This understanding of God is in consort with Christianity’s historical legacy from Judaism as the distinction between Judaism and other ancient Near Eastern religions was that in Judaism one has a personal relationship with the transcendent God which meant that God was ethical and the relationship between the Jews and God was an ethical one. Newman states this is because,
God has the attributes of justice, truth, wisdom, sanctity, benevolence and mercy, as eternal characteristics in his nature, the very Law of his Being, identical with himself; and next, when he became Creator, he implanted this Law, which is himself, in the intelligence of all his rational creatures. The Divine Law, then, is the rule of ethical truth.
It is this understanding of Divine Law that is the underpinning of the supremacy of conscience in all human matters. Newman quotes three authorities to support his position: St. Augustine, St. Thomas, and Cardinal Gousset. Cardinal Gouset cites St. Augustine,
The eternal law is the Divine Reason or Will of God" and St. Thomas, "The natural law is an impression of the Divine Light in us, a participation of the eternal law in the rational creature.
Gousset himself writes,
The Divine Law is the supreme rule of actions; our thoughts, desires, words, acts, all that man is, is subject to the domain of the law of God; and this law is the rule of our conduct by means of our conscience. Hence it is never lawful to go against our conscience; as the fourth Lateran council says, Quidquid fit contra conscientiam, adificat ad gehennam (Whatever is done in opposition to conscience is conductive to damnation).
What this means in practical terms is that conscience is founded on the doctrine that conscience is the voice of God. Newman continues that this understanding of conscience as the internal voice of God is witness to both the existence and law of God that is understood by both Catholics and Protestants. He writes,
Conscience is not a long-sighted selfishness, nor a desire to be consistent with itself; but it is a messenger from him, who, both in nature and in grace, speaks to us behind a veil, and teachers and rules us by his representatives. Conscience is the aboriginal Vicar of Christ, a prophet in its information, a monarch in its peremptoriness, a priest in its blessings and anathemas, and even through the eternal priesthood throughout the Church could cease to be, in it the sacerdotal principle would remain and would have a sway.
Newman then tackles the very difficult issue of a conscience in error. What course of action should one take when others believe one’s decision or action, made in conscience, is in error? What are the consequences if that decision or act is later found to be in error? Newman’s answer, as well as that of the history and tradition of the Church, is that one must make decisions and act upon one’s conscience regardless of the consequences. In other words, one must respond and act upon the voice of God within in all matters.
To support his position Newman quotes a school of theologians known as Carmelites of Salalmanca who lay down the broad proposition that conscience must be obeyed whether it is true or erroneous and whether the error is the fault of the person erring or not. Newman quotes the Carmelites,
Aliqui opinatur quod conscientia erronea non oblegat; secundum sententiam, et certam, asserentem esse peccatum discordare a conscientia erronea, invincibili aut vincibili, tenet D. Thomas; quem sequuntur omnes Scholastici
Some hold the opinion that an erroneous conscience does not oblige. St. Thomas holds a different opinion, and it is a certain one, namely that it is sinful to act in a way that is inconsistent with an erroneous conscience, vincible or invincible. St. Thomas is followed in this by all Scholastic writers.
Newman then states his conclusion to the issue.
If a man is culpable in being in error, which he might have escaped had he been more earnest, for that error he is answerable to God, but still he must act according to that error, while he is in it, because he in full sincerity thinks the error to be truth.
It is clear from Cardinal Newman’s exegesis of an informed conscience that we may challenge and legitimately deny the validity of Church teaching, papal pronouncements, and Magisterial dictates of dogmatic and doctrinal belief. It must be clearly understood that no matter how much hierarchal authorities may protest decisions and personal actions which occur as a result of one’s informed conscience when these decisions and actions are against Church teaching, the greater moral evil would be to conform to such teaching and doctrine when in conscience to do so is deemed immoral, unethical, or otherwise not in consort with the larger message of the Gospel. When sincerely exercised the fruits of an informed conscience can never be heresy or sin as they stem from the work of the Holy Spirit; that is, God within us.
Principle of Proportionality
Now that we have articulated the validity of one’s informed conscience as the final arbiter of moral decision making and actions we must consider a method of reaching such decisions and actions. The method to accomplish this is the Principle of Proportionality.
Human behavior is intrinsically linked to values and disvalues. Thus we must find a balance between the "goods" and "evils" and when the evils are considerable we must judge whether the goods are proportionately greater. If so they may justify the unwanted elements that are unavoidably entailed in our behavior. Since there are disvalues in all human choices, a judgment that value proportionately outweighs disvalue is implied in all moral choices. Still, there is a need to weigh the value and disvalues in moral discourse. All of the essential circumstances, not just the effects, are weighted and balanced to determine a comparative judgment. The pronouncement of popes and the teaching of the Magisterium are certainly elements to be considered but by no means are they the only ones and may not be the most heavily weighted given a particular circumstance.
The Principle of Proportionality presupposes there is no absolute good or evil in moral decision making or action. Every decision and action contains elements of goods and evils. What the Catholic must do is to weigh all the essential circumstances that impact on the decision or action and then choose the decision or action that produces the least amount of evil and the most amount of good. However, it must be recognized it would be an oversimplification to simply add up the number of goods and evils and assume the side of the equation with the most goods is the proper moral choice. This is because not all goods and evils have the same weighted impact as to the degree of good or evil they contain. Thus it is incumbent upon the Catholic to critically weigh all the elements pursuant to their weighted values. This is how one reaches decisions and carries out actions predicated on their informed conscience. Yet it is to be noted that different individuals considering the same elements may not reach the same decision or undertake the same action as the moral weigh of each element, good or evil, may vary from person to person.
There is always a danger lurking in the background when one uses the Principle of Proportionality and that is utilitarianism. The critical weakness of utilitarianism is found in the term which William Frankena uses to describe it: "ethical universalism." 32 It seeks ethical salvation in the good of the many. In its universalistic fervor, individual persons can be overlooked and sacrificed to "the cause."33 Thus, the good as defined by those who equate a particular action with being immoral often leads to the crushing of individual rights and liberties by creating social pressure or formulating law that denies individuals the right to exercise their informed conscience. It is easy to see that the Roman Catholic Church in the offices of the papacy and Magisterium has fallen into the utilitarian trap of universalism when it professes there is never just cause for abortion and that abortion is always the greater moral evil.
This is because utilitarianism is fixated on the general to the neglect of the particular whenever it appears. According to John Rawls,
The striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions is distributed among individuals.
In the political arena, utilitarianism can take on the aura of patriotism for the oppression of the majority by the dominant minority. This is especially true when the dominant minority espouses a radical set of religious beliefs. What could be more self-aggrandizing than the self-proclaimed moral high ground by the minority that conceals narrowly truncated faith beliefs disguised as the good that simultaneously blunts the claims to the contrary of the majority? Under the appearance of universal good, the nuisance of concrete individual claims to the contrary can be dismissed. Utilitarianism opens the door to exploitation, while stressing with seeming generosity, that the good of the many or the good of a movement such as the Catholic Right-to-Life movement is the absolute good. We must be constantly vigilant and aware of those of the minority who perceive themselves committed to the greatest sum of goodness, as they define such goodness, until we test their commitment to individual rights and liberties predicated on one’s informed conscience.
Judgments of proportionality, especially in social ethics, easily yield to the quantitative bias of utilitarianism and become a judgment of the greatest good of the greatest number. Thus, it becomes more interested in the sum of good effects and advantages that proceed from a policy and becomes insensitive to the collateral damage wreaked upon individuals by that same policy.
Proportional thinking by its very nature ushers in a mathematical preoccupation with net gain. For example, in mathematics if the final sum is plus the minus quantities along the way have no further significance. Ethics has no such right to ignore negative factors affecting individual persons predicated on the final affirmative sum. In ethics, the minus quantities will be evils perpetrated against actual persons and their environment. Sometimes these evils will be justifiable but they are not justified by the number of "goods" on the bottom line.35
What must always be remembered and recognized is that no matter how appealing the utilitarian argument may be to our own personal moral and ethical belief on a particular issue, especially when such a belief is informed by our faith tradition, is that utilitarianism is always the greater moral evil. Utilitarianism has a virulently infectious quality because it represents a self-serving escape from complete moral responsibility for both individuals and institutions including the Church.
Roman Catholic Theology On Abortion Vs American Politics
The issue of abortion became a major issue in the 2004 American presidential election. Prior to that event groups of conservative anti-abortion Catholics picketed abortion clinics and passed out anti-choice literature. They held rallies to support state bills that would limit or outlaw abortion. However, the statement of a few Roman Catholic bishops including Michael J. Sheridan of Colorado Springs, Raymond Burke of St. Louis, Jospeh A. Galante of Camden, Fabian Bruskewitz of Lincoln, John Donoghue of Atlanta, Robert Baker of Charleston, and Peter Jugis of Charlotte threatened to deny Roman Catholic candidates for office the Holy Eucharist if they were pro-choice, or if they were currently office holders who would not state they would work to make abortion illegal, brought abortion to the center of the election.
The bishops were embolden to make their threats predicated on the memorandum below sent by Cardinal Ratzinger, now Pope Benedict XVI, to Cardinal McCarrick who made it public in the first week of July 2004.
Worthiness to Receive Holy Communion General Principles
1. Presenting oneself to receive Holy Communion should be a conscious decision, based on a reasoned judgment regarding one’s worthiness to do so, according to the Church’s objective criteria, asking such questions as: "Am I in full communion with the Catholic Church? Am I guilty of grave sin? Have I incurred a penalty (e.g. excommunication, interdict) that forbids me to receive Holy Communion? Have I prepared myself by fasting for at least an hour?" The practice of indiscriminately presenting oneself to receive Holy Communion, merely as a consequence of being present at Mass, is an abuse that must be corrected.
(cf. Instruction Redemptionis Sacramentum, nos. 81, 83). 2. The Church teaches that abortion or euthanasia is a grave sin. The Encyclical Letter Evangelium vitae, with reference to judicial decisions or civil laws that authorize or promote abortion or euthanasia, states that there is a "grave and clear obligation to oppose them by conscientious objection. [...] In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to ‘take part in a propaganda campaign in favor of such a law or vote for it’" (no. 73). Christians have a "grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God’s law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. [...] This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it" (no. 74).
3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia. 4. Apart from an individual’s judgment about his worthiness to present himself to receive the Holy Eucharist, the minister of Holy Communion may find himself in the situation where he must refuse to distribute Holy Communion to someone, such as in cases of a declared excommunication, a declared interdict, or an obstinate persistence in manifest grave sin. (cf. can. 915).5. Regarding the grave sin of abortion or euthanasia, when a person’s formal cooperation becomes manifest (understood, in the case of a Catholic politician, as his consistently campaigning and voting for permissive abortion and euthanasia laws), his Pastor should meet with him, instructing him about the Church’s teaching, informing him that he is not to present himself for Holy Communion until he brings to an end the objective situation of sin, and warning him that he will otherwise be denied the Eucharist.6. When "these precautionary measures have not had their effect or in which they were not possible," and the person in question, with obstinate persistence, still presents himself to receive the Holy Eucharist, "the minister of Holy Communion must refuse to distribute it" (cf. Pontifical Council for Legislative Texts Declaration "Holy Communion and Divorced, Civilly Remarried Catholics" [2002], nos. 3-4). This decision, properly speaking, is not a sanction or a penalty. Nor is the minister of Holy Communion passing judgment on the person’s subjective guilt, but rather is reacting to the person’s public unworthiness to receive Holy Communion due to an objective situation of sin.
N.B.: A Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of the candidate’s permissive stand on abortion and/or euthanasia. When a Catholic does not share a candidate’s stand in favor of abortion and/or euthanasia, but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.
Doctrine of Probabilism
Predicated on [then] Cardinal Ratzinger’s memorandum some bishops, conservative, and anti-abortion Catholics claim that pro-choice Catholics are "heretics" or have been "automatically excommunicated" because they have had an abortion or support legal abortion. The reality is very different.
There are many misconceptions about Catholic teaching on abortion. While it is well understood the Catholic Church teaches that direct abortion is an objectively grave moral evil and is always forbidden, Catholic teaching regarding abortion itself and moral decision making in general are in no way absolutely opposed to abortion. There is much room in Catholic theology for the acceptance of policies that favor access to the full range of women’s reproductive health options including contraception and abortion. 36
The little-known Roman Catholic theological doctrine of probabilism, an ethical system explicated in all manuals of moral theology, is explained using as an example the dilemma of abortion. Probabilism is based on the notion that a doubtful moral obligation may not be imposed as though it were certain. Ubi dubium, ibi libertas means where there is doubt, there is freedom. There are two types of moral probability. The first is intrinsic probability where the individual, without the help of moral theologians, perceives the inapplicability of a particular moral teaching. The second is extrinsic probability, which involves reliance on findings five or six reputable moral theologians who may hold a liberal view.
Probabilism implies a reasonable doubt, and one's reasons must be cogent, but not necessarily conclusive. Today's abortion debate is an example of a respectable debate, where the liberal view has been endorsed by a number of reputable religious or other humanitarian bodies that in some cases abortion is not always immoral. Other examples in history are the view once taught by the church that taking interest on loans was immoral, that depriving slaves and women of civil rights or non-Catholics of religious or political freedom was moral. For today's legislators, there is a precedent throughout theological history for the state permitting an evil: both St. Augustine and St. Thomas Aquinas wrote that prostitution, although evil, should not be outlawed because worse evils would occur with prohibition. Many would argue that a return to the back alley abortion butcher is the greater moral evil to a legal and safe abortion.
Legislators who personally find abortion always immoral can support a Roe V. Wade decision because 1) it does not require anyone to have an abortion, and 2) the abortion debate among both Catholics and non-Catholics is not settled.
However, before we review this aspect of Catholic theology it will be instructive to cite those canons of Canon Law that address sanctions against the laity that could result in a declaration to deny them the sacraments including denial of the Holy Communion.

The Code of Canon Law and Pro-Choice Catholics
What does the Code of Canon law specifically say about punishment for pro-choice Catholics? Canon law does not specifically address abortion. Regardless, some Catholics are afraid that they will be punished if their pro-choice beliefs are publicly known. Their concerns usually fall under four broad topics.
1. Excommunication as an accomplice
One can be punished as an accomplice in canon law if one participates in a specific and successful abortion in a manner that was direct, deliberate, purposeful, and necessary. Canon law’s criminal punishments are restricted so that one cannot be punished for just thinking about committing a crime or for merely attempting it. The penalty is for participation in a specific abortion, not for what you think, say, or do to protect or promote safe, legal abortion.
2. Excommunication as a heretic
Is a pro-choice belief heretical? Heresy is a strictly construed concept in both theology and canon law and not a term that should be tossed around indiscriminately. Many theologians and canonists agree that while the issue of abortion is worthy of serious discussion in the Church, a person who is pro-choice is not a heretic.
3. Individual threats of punishment by a bishop
Bishops can and do make policy in their dioceses, but canon law limits the power of the diocesan bishops. Punishments can only be meted out as a last resort and when three conditions have been met: 1) Scandal resulting from the act cannot be repaired, 2) Justice cannot be restored, and 3) The accused cannot be reformed in any other manner. The bishop cannot punish a person by excommunication without first issuing at least one formal warning. Penalties should be established, canon law says, "only to the extent that they are truly necessary for ecclesiastical discipline." Even when they are necessary, bishops are generally cautioned against threatening automatic penalties, and are not to establish penalties of excommunication "except with the greatest moderation and only for more serious offenses."
4. An ad hoc restriction of rights
This category includes questions such as: "Can the parish priest refuses me communion,?" "Can I be refused marriage in the Church,?" "Can my child’s baptism or enrollment in school be denied because of where I work or who I support politically or for what I think or write about abortion?" Unfortunately, the answer is discouraging. While a parish priest should not do any of these things, and usually does not have the right to do so, they do happen and many people feel they are powerless to stand up for their rights. Certainly, one who encounters this injustice can appeal to the bishop – there is even a process in canon law for defending one’s rights against those who abuse them – but dioceses rarely make resource available for lay people to do so.
Changes over the years to theology and canon law underscore the responsibility of Catholics to form their own conscience through inquiry and study. They should not simply rely on a priest, bishops, the pope, Magisterium, memorization of the catechism, or a simplistic and generalized interpretation of canon law. Most importantly, they should not be intimidated or threatened by anti-abortion priests, bishops, right-to-life groups, or anyone else who would tell them they must be obedient to Church teaching or suffer the consequences when to do so would be a violation of their conscience.
Summary of General Principles Regarding Abortion
Catholic teaching regards the well-formed conscience, not the catechism or statements by bishops, not the pope or Magisterium, as the final arbiter in moral decision making.
Recent teachings of the Church acknowledge that it does not know when a fetus becomes a person so it cannot state explicitly, regardless of pronouncements to the contrary, that abortion is murder. However, there is no doubt about the personhood of a pregnant woman, and the protection that the hierarchy would grant to fetal life should be extended to include women facing difficult or unsupportable pregnancies. Not only that, for those who do think that abortion is killing, the Church does permit killing in certain instances. [such as self-defense and in war even when the Church states the war is not a just war under Catholic Just War Theory as is currently happening in Iraq] (examples added)
The Church has not made its teaching on abortion infallible. As recently as 1995, in Evangelium Vitae, Pope John Paul II and his advisers considered and rejected the inclusion of the adjective "infallible" to describe its teachings on abortion.
The Catholic system of probabilism supports a Catholic’s right to dissent from church teachings if there is a solid probability that the teaching is wrong and that this belief is supported by theologians or that the dissent is informed by prayerful and thoughtful discovery.
Canon law calling for automatic excommunication for abortion makes significant exceptions including for those aged 17 and under, those who are ignorant of Church teaching, those who acted under duress, were unaware of the penalty or acted without full imputability. To be excommunicated automatically, a woman has to believe that she has sinned. If she has examined her conscience and believes that she has done the right thing in her case, she has not sinned and is not excommunicated.
Catholics share in the development of teaching through the principle of reception. This means that a particular teaching must be accepted by the community it affects. This does not condone frivolous dissent, but a thoughtful and prudent consideration of the issue. Abortion is clearly an area of Catholic teaching that is not fully accepted by the laity.
Despite its efforts to conform public policies to its teachings, the teaching of the Catholic Church clearly demands that Catholics respect the views of other faith traditions that disagree with Catholic beliefs as well as the Church accepts the principle of the separation between church and state.
The Roman Catholic Church from the time of St. Augustine has held that there are two equally valid responses to the pronouncements of popes, Magesterial teaching, dogma, and doctrine: obedience and one’s informed conscience. Moreover, it is absolutely clear in Catholic Moral Theology that the final arbiter of a person’s decision making and behavior must be their informed conscience.

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