A Roman Catholic defense of decriminalizing abortion.

AS POLAND ONCE AGAIN CONSIDERS CRIMINALIZING abortion by making it illegal under all circumstances, we are hearing strong arguments from both sides of the debate. What is a serious Catholic to do? The League of Polish Families (LPV), which bases its positions on interpretations of Catholic social doctrine, has been pushing for Poland to guarantee the right to life from the moment of conception. Says LPF'S Professor Maciej Giertych, a member of the European Parliament, "We would like to see the restrictions [on abortion] cover life from conception, throughout pregnancy to birth. We do not want any exceptions." Including rape. Including incest. Including grave fetal abnormalities, according to Giertych.

However, while LPR has made provocative and radical statements about changing the already restrictive law, the party is advocating a position that is merely one interpretation of Catholic doctrine. In fact, in the midst of this old debate, we hear little about the freedom that Catholics have on moral matters and the ambiguity that surrounds the church hierarchy's opposition to legalizing abortion.

During the 1960s and 1970s, much was written by faithful theologians about abortion and about the status of the fetus. Medical advances meant we knew far more about the embryo and the development of pregnancy. The legalization of abortion in most European countries and the United States led to an open challenge to Vatican teachings. And the liberalizing influence of the second Vatican Council--during whose time many of us came to believe that the people of God, not just the pope and bishops, are the church--meant that our human experience as women, couples and families mattered in developing church teaching. We were, as Pope John XXIII said, a pilgrim church in search of truth in the light of the signs of the times, not a rigid institution without humanity.

With the election of Paul VI in 1963, the papacy took a very conservative turn. A commission of bishops, theologians and laity, appointed by John XXIII to examine the issue of birth control, had almost unanimously advocated allowing artificial methods of contraception. However, in the 1968 encyclical Humanae Vitae, Paul VI rejected this proposal and declared that it was a sin to use artificial methods of birth control. Under John Paul II, the windows that let in fresh air were closed and locked. Most theologians gave up any pretense that change was in the offing and stopped writing about fetal status, freedom within the church and changing the teachings on abortion.

As we consider what to do in Poland today, it would be useful to review how we, as Catholics, can support abortion's legality--whatever we think about its morality.

In supporting legal abortion, a Catholic can point to no less an authority than Thomas Aquinas, who held that it was not necessary for the church to seek laws that conform to all its moral teachings. Aquinas pointed out that when a law is not likely to be enforced, it should not be passed--and we all know that the state does not intend to enforce any ban on abortion in a serious way. Laws that are not enforced breed disrespect for all law and for social order; this Aquinas felt was a greater evil than any good that would be achieved by passing laws that were mere expressions of moral sensibility.

It is also important to note that at the second Vatican Council, in the Declaration on Religious Liberty, the church accepted the principle that Catholics should not seek laws that would prevent people of other faiths from practicing their faith. While Poland is a predominantly Catholic country, we must remember that not all Polish people are Catholic. Since many religions support a woman's right to make her own decision about whether or not to continue a pregnancy, for Catholic bishops to support laws prohibiting abortion is a rejection of Vatican II.

Church teaching itself supports the right of Catholics to disagree with that teaching; in fact, it demands that we follow our conscience even when it is not in accord with a teaching of the hierarchy. Our Catechism defers completely to moral conscience: "In all he says and does, man is obliged to follow faithfully what he knows to be just and right." This obligation to follow our individual consciences is at the heart of church teaching on moral matters. After prayerful and thoughtful reflection, a Catholic who follows her conscience and decides that having an abortion is in the best interests of her and the rest of her family commits no personal sin, even though the objective judgment of the church that abortion is a sin remains intact. This is a central tenet of Catholic faith: One's conscience, thoughtfully and honestly formed, supersedes other influences.

In addition, canon law explicitly outlines several exceptions to the latae sententiae/automatic excommunication rule for those who have or assist in abortions. The exceptions include people who are under 17, those who act without free will or are coerced, and those who were unaware that they were violating laws. Why should our church want to make a woman or her doctor a criminal under civil law when church law is more lenient?

Recognizing the right to follow one's conscience reflects the little-known but well-respected Catholic moral principle of probablism.

Probablism was first developed some 400 years ago by the Spanish theologian Bartolome de Medina, and has been a significant part of Catholic thought since. It seeks to deal with the fact that church teachings do change. In the confessional, a priest must be free to advise people that they may not be committing sins if respectable theological sources within the church support actions or beliefs currently "forbidden." A large number of theologians, both historically and today, have held that abortion is not always sinful and that fetuses are not persons. Examples include feminist theologian Rosemary Radford Ruether, Dan Maguire, Giles Milhaven and Christine Gudorf. Even more conservative theologians such as Charles Curran, Joseph Donceel, S.J., and Richard McCormick, who believe that abortion is morally wrong, have stated that one cannot claim personhood for the fetus nor demand that the state make abortion illegal. Historically, both Augustine and Aquinas believed abortion was a sin related to sex and was not murder.

As regards making abortion legal, one can point to recent statements by Cardinal Carlo Martini, the former archbishop of Milan, the largest archdiocese in Europe. The cardinal said that decriminalizing the practice has had the positive effect of reducing the number of unsafe abortions. He acknowledged that the abortion decision required careful reflection based on what is best for the individual. He concluded: "I hold that respect is due to any person who, perhaps after much reflection and suffering, in these extreme cases follows their conscience, even if the person decides to do something that I cannot approve."

In addition, how can the Catholic hierarchy say there is no room for dissent on the issue of abortion when there has never been an infallible teaching on the matter? In discussing the papal encyclical Evangelium Vitae, which deals seriously and extensively with abortion, Cardinal Ratzinger, now Pope Benedict XVI, stated that the Vatican seriously considered invoking infallibility when dealing with the abortion question, but instead removed the word infallible from the final text because the teaching does not meet the traditional tests for infallibility. One shortfall is the fact that nobody knows when a fetus becomes a person. In addition, infallibility requires a consistent church position on the teaching, whereas the church has favored varying opinions regarding the moment of personhood throughout history. As one pro-Vatican journal noted at the time, "On abortion and euthanasia the testimony of Scripture and early tradition is relatively weak. It may also be said that the Church's position with regard to these practices is still evolving as new scientific knowledge and technology become available."

Finally, there is the very different way the hierarchy has dealt with taking "life" when men, rather than women, are the decision-makers. The hierarchy has, for example, historically trusted men to make decisions about when to take life in war by giving them the "just war" theory. Yet there is no "just abortion" theory for women. Catholics who believe in justice and equality reluctantly conclude that the absolute opposition of the church to abortion has more to do with the inequality of women in the church than with respect for life. A commitment to equality between men and women means that women's consciences and moral agency must be respected as much as men's.

Abortion is a serious matter, and this evidence in no way means to suggest that the decision to have an abortion is something minor or trivial. While it might be tempting to reduce this question to something managed by a broad prohibition, our experience and our history tell us that this solves nothing. Complicated issues often require complex analyses and solutions that leave room for individuals to make their own decisions. There is no reason why a Catholic must interpret teachings in the style of the the League of Polish Families. The hierarchy would be better served by re-examining its conscience on the matter of contraception and permitting it; more abortions would be avoided in this way than any prohibition in law will achieve.

FRANCES KISSLING is president of Catholics for a Free Choice.