Abortion, Though Legal, is not Licit

Anthony Zimmerman
24 March 1992
Reproduced with Permission

Our minds, which by force of habit associate the adjective "legal" with matters enjoying public respect, ought not be comfortable with the term "legal abortion." If abortion is an injustice always, which it is, then it excludes legality by definition. A "legal injustice" is a contradiction in terms, a semantic miscreant which self-destructs when exposed to logic. Merely designating an injustice as "legal" makes it no more respectable than "legal thievery," or "legal arson," or "legal counterfeiting" would be. Call it what it is - pseudo-legal, counterfeit legal, attempted legal, civilly tolerated, non-penalized - whatever; but don't attempt to name that "legal" what God has from eternity made illegal. We dis-educate and confuse people by using the term "legal abortion."

The American Heritage Dictionary defines legal as, "Authorized or based on law; established by law; in conformity with or permitted by law. Recognized or enforced by law. In terms of or created by law." Abortion is none of these if legal means permitted; that which God forbids in eternity no authority can permit in time.

Yet the clamor for "choice" and for "right of privacy" indicates that the general public assumes that "legal" means "permitted by law," as though what man binds on earth, God also binds in heaven. To unmask this deception we had best jettison the term entirely.

Public sentiment, however, often betrays its low opinion of abortion, despite the official whitewash of "legality." Television endears us to smiling mothers showing their newborn darlings; but television does not exhibit smiling mothers posing with the remains of their aborted child. The newscaster brings a doctor to the screen to announce that the starlet's baby is just fine; but not to announce that an idol's abortion was a success. Some Japanese mainline abortionists move frequently to gain always new clients; the local women whom he aborted never come to see him again. Ads by abortionists do not splash qualifications to the public in words like "Experienced Abortionist." They creep under a euphemism to cover themselves with simulated marks of respect: "Licensed under the Eugenics Protection Law." Women may give a false name to the abortion receptionist to hide their identity. Although termed legal, abortion has not become respectable.

Women who have experienced an abortion do not usually advertise the fact. Their shyness before public scrutiny is known to abortionists, who thereby reap undeserved immunity from mal-practice suits. Some abortionists in the USA are now being summoned into courts, however. Mike Conroy, for example, encourages women injured by abortion to surface; willing lawyers then sift for suitable cases to sue for mal-practice. some abortionists have already been put out of business by expensive damage suits (Our Sunday Visitor, 23 February 1992).

Tamar Lewin reported in The New York Times, 15 March 1992, that the number of USA doctors who do abortions is decreasing, because of financial difficulties, or harassment, or both, or whatever. USA hospitals recently tend to disassociate themselves from abortion: 52% of the abortions were performed in hospitals in 1973, but only 10.1% in 1988, as abortions moved out to clinics. Some women dread treatment by a doctor if they hear he does abortions; they migrate to another doctor. Shame sticks to abortion even after its ugly face has been given cosmetic prettification by an attempted face-lift of "legality." What God sees as shameful in heaven generates little pride and comfort on earth in the deeper recesses of human hearts; hearts which, after all, are created in the image and likeness of God.

The powers of civil authority are limited

We ask why civil law cannot validly oppose divine law. For our answer we turn to a morals text book, once widely used in seminaries. A civil law, explain Noldin-Schmitt-Heinzel (Summa Theologiae Moralis, Ed. XXXI, 1956, 1, 135), is a means by which a public authority obtains the purpose of the civic community; therefore the object of its laws are those which procure what is necessary or useful for that community. From this general principle it follows that the object of civil laws must be: 1) legitimate; 2) just; 3) possible; and 4) useful.

To be legitimate a law must not disagree with the decree of God's eternal wisdom, which is eternal law; God cannot validate on earth what is illegitimate in His sight in heaven. "It follows, therefore, that a law which commands what is illegitimate ought not to be obeyed; when there is doubt whether that which the law commands is good or not, in general one should presume that it is legitimate and good" (Noldin-Schmitt-Heinzel, ibid., 136).

It is the Lord God of heaven and earth who spoke to Moses on Mount Sinai the decisive command: "Thou shalt not kill." He wrote this law into stone tables, while thunder crashed around the ears of Moses, and lightning blazed, wind howled, and the mountain was convulsed by volcanic pyrotechnics. By this law God created a divinely protected sanctuary for children of all times and nationalities, a sanctuary which remains off-limits to petty human legal maneuverings.

To qualify as a just law, a law must guide the community to the common good, must divide the burdens equitably among the subjects, and must not exceed the authority of the lawgiver. "But if something is commanded which is in some manner contrary to justice, a subject is not bound to obey the law" (Noldin-Schmitt-Heinzel, ibid. 137).

When a human lawgiver attempts to "permit" abortion, he exceeds the authority given to him by God; he cannot bind people in one moral direction, if God does not validate the bond. Human legislation in conflict with the divine is therefore not only illicit but invalid, impotent, a non-entity. It is Adam and Eve attempting to become a god by eating the fruit of the tree that gives know ledge of what is good and what is bad" (Gen. 2:17). "Non est potestas nisi a Deo." No authority exists unless given by God" (Rom 13:1). Jesus said to Pilate: "You have authority over me only because it was given to you by God" (in 19:11). When humans presume to trespass into divine territory, they may rant and rave as Saul did against God's appointment of David, but God's decision is not affected thereby; His eternal decrees remain unchanged while the earth rotates around the sun. Concerning abortion, the divine law is fixed: "Thou shalt not kill the innocent child."

If valid authority were generated by the power of humans alone, we would all be subject to arbitrary power. "Might makes right," is the lie which powers the ideology of tyrants and the now enfeebled atheistic Communism. If ruled by that ideology we have no claim to rights against one who wields more power than we can exert. "The state," observes Damian P. Fedoryka, "derives its legitimate authority from the fact that it represents the Sovereignty of God. It defends in the first place His interest, and not that of individuals or even the collective" (Abortion And The Ransom of The Sacred, p.61).

[Addition, June 2000: In the meantime Pope John Paul II has declared laws which permit abortion to be invalid: "Laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience...I repeat once more that a law which violates an innocent person's natural right to life is unjust and, as such, is not valid as a law" (Evangelium Vitae, Numbers 72, 90, March 25, 1995.]

Abortion is an act of injustice

The Church, in its "Declaration Against Procured Abortion," November 18, 1974, declares that abortion is strictly unjust:

Every human person has the right to possess himself, his life and the various things that contribute to it; all others have a strict obligation in justice to respect that right... That is not within the competence of society or public authority, whatever its form, to give that right (to life) to some and take it away from others. Any such discrimination... is always unjust. The right to live does not derive from the favor of other human beings but exists prior to any such favor and must therefore be acknowledged as such. The denial of it is an act of injustice in the strict sense of the word" (see The Pope Speaks, 19, 255-256).

To treat abortion "as exclusively or even primarily a question of morality is already a partial distortion of the issue," observes Mr. Fedoryka in a manuscript titled "Consistency and the seamless straightjacket." Carried over into practice, he continues, such a distortion makes it difficult or even impossible to justify legal and public action in defense of the innocent. "Once we do this we find that the perimeters of the battle for human life in the public arena are determined by the opposition. For the attempt to change immorality implies one kind of activity, while the attempt to prevent injustice will necessarily call for a different kind" (p. 1). The civil power cannot change the inner moral condition of an agent by force, he points out. Or, as pro-abortionists are quick to remind us, one person cannot "impose" his morality on another (ibid., p. 4).

One who directly aborts a child deprives the child of its right to life, to which it has a valid claim, a claim given to it by God together with the gift of life itself. The human subject claims this right as his own exclusively, over and against another person. This claim obligates especially public officials to help the child to protect what is its own:

The victim, particularly of abortion, has a valid claim upon civil authority. This claim is valid independently of the will or willingness of third parties, even if they are in a majority. In other words, this claim is pre-legal and independent of the specific mechanisms of legislation in a society.

And, with all due respect for Governor Cuomo and Senator Kennedy, the conditions which would exempt an individual from coming to the aid of a victim of injustice do not exempt the public official from the unconditionally valid claim of the victim of injustice (ibid., pp. 7-8).

The abortionist who rejects God, and rejects the child's God given right to belong to itself, can logically make his claim to kill only on the basis of power, continues Fedoryka: "It is no accident, then, that the pro-abortion movement follows feminism in its rhetoric of 'empowerment' ... sic volo, sic jubeo, sit pro rationem voluntas ( ... thus I will, thus I command, let my will displace reason" (ibid., p. 8).

Consequently, teaching, discussion, dialogue and persuasion may be important and appropriate before an abortion or after it. But when the decision to abort has been arrived at, "action is the only rational and appropriate and obligatory activity" p. 11). He concludes that we weaken our cause, and fail in our duty to protect the life of these children, if we speak of abortion exclusively in terms of morality, and ignore the legally defensible basis of the claim of the child to life, namely the claim of justice. "The event ... demands action, not dialogue" (ibid.,p. 12). Finally:

Consistent with the requirements of justice, the response to the claims of the victims of abortion does not require changing the minds and hearts of the agents of abortion. It does require the decision and the resolve to STOP abortions. Unconditionally. Faced with such resolve, the agents of abortion may ask "Why?" And then the dialogue may begin. Failing such resolve the pro-lifer might as well be robed in a seamless straightjacket (ibid.,p. 17).

Common sense tells us that when a terrorist's gun is blazing, our first priority is to stop the gunfire; moralizing is left for a safer day. When an arsonist puts his match to the tinder, we had best stop the blaze before we attempt to reason with him. Mr. Federico has done a great service to the cause by pointing out the correctness and advantage of focusing on the injustice of abortion and the consequent duty incumbent upon individual third parties conditionally, but upon the civil authority unconditionally, to protect the child from this injustice. We cannot impose our morality upon another unwilling to accept it, because morality is a free response; the free response itself eludes coercion, the external act does not. The civil authority has the duty to protect its citizens against unjust actions, even though it cannot convince all about the need to refrain from unjust acts.

When a civil power declares this or that abortion to be "legal," in the sense that the government gives permission to do an abortion, that statement is not true. Man cannot make licit what God has made illicit. The attempt to erect a law to legalize abortion is no more successful than the attempts of an impotent man to consummate a marriage. What meaning, then, does an abortion law retain? It serves notice to the public that the authority does not intend to protect certain citizens from the crime of murder, for whatever reason. Perhaps the authority is confused, perhaps it is cowardly before hostile powers, perhaps it cannot prevail against a hostile multitude. The "law" then serves notice that the government will not mobilize the police and courts to protect specified children. Abortion itself, in the meantime, remains what it always was and is: an abomination in the sight of God; of the God who punished Cain because he slew his brother Abel.

Duties of police when the law does not protect all the children

When a higher government agency declares its refusal to protect some of the children, does this validly exempt lower government officials - the police and courts - from carrying out normal duties to protect children from being killed by abortion? It is a delicate question. May officers practice civil disobedience while on duty? There is no umbrella answer to cover all cases, I believe. Theoretically, I believe, the oath of office does not exempt lower officials from carrying out duties which higher officials in the chain of command choose to neglect. In other words, lower officials may choose to protect the children from violence even when their higher ranking officers do not, but they may have to be prepared to be disciplined and lose their jobs. Then, so be it. However, the duty to protect is a positive law, not a negative law. In other words, like other positive laws, the duty to protect admits exceptions.

In practice, however, circumstances will help to define the duties of lower officers. Does the officer in charge have the cooperation of subordinates? Will civil disobedience by one who wields public authority unhinge public authority extensively and occasion chaos and violence? Is more good foreseen than harm? If the lower officers can coalesce into an effective majority to protect all children, and so force the hand of higher authorities, they should do so. But so long as we have not yet achieved local or national agreement on the question, police officers and judges, while on duty, may find that their hands are tied; that they cannot protect the children from being killed because they are officers! There are exceptions, of course. Individual policemen have actually protected children, despite "regulations" to the contrary. It is a sad commentary on our times that police and judges may be less capable of protecting the lives of children when on official duty than when off duty, when they can join the rescuers as private citizens.

Must police escort pregnant mothers to abortionists?

Abortion Must police "escort" mothers through picket lines to help them procure an Abortion? Negative. Officers who are not under orders to do this, who choose freely to escort women to abortions because they want to do that, participate formally in the crime, unless by invincible ignorance they believe they have a duty to do so. Officers who are under orders to escort such women ought to claim exemption by reason of a conscience clause; if that is not possible, may God give them light and strength to become public witnesses, modern martyrs, stating by their action that their first loyalty is to God the author of life, and that other duties are predicated upon that finality.

Officers who remove rescuers from blocking doors to abortuaries do not, by that action alone, cooperate formally in the crime of the abortions which they may help to facilitate. If they do not in their hearts agree to the abortions, their cooperation is material, permitted when proportionate reasons exist for their action. But police, because of their high visibility, can very effectively educate public opinion, and sometimes powerfully influence legislation and legal interpretations. Those who claim a conscience clause, or who publicly refuse to remove rescuers, those who treat rescuers with the respect they deserve, or who themselves stand with them - they are our finest. May their number increase.

Are we permitted to promote imperfect abortion laws?

Some members of the pro-life movement sincerely and passionately hold that one who proposes or promotes a law which does not outlaw all abortion, is compromising his or her moral integrity. To "permit" some abortion, they expound, is wrong in principle. I do not agree with this stance, because it is based on the deception that laws can "permit" abortion.

From what was written above, we know that laws cannot "permit" direct abortion ever, because God's prohibition against abortion remains unchanged despite all legal pretensions. Pro-lifers who claim that abortion laws with exceptions actually and objectively "permit" the exceptions make a mistake in logic. When civil law claims to "permit" some abortions, it withdraws its arm of protection from some of its citizens who are threatened with this unspeakable and despicable injustice, but it does not make abortion legal in the primary meaning of that word.

But we also saw in the lucid explanation of Dr. Federico, that the civil authority has an unconditional obligation to prevent one person from doing this injustice against another person. What, then, is the status of one who votes for, or promotes, or even construes and proposes a law, which excludes the prosecution of abortions performed on children conceived by rape or incest? Admittedly it is an imperfect law, no better than one which might provide exceptions for the actions of an arsonist: "Don't burn houses, except if they belong to orphans and widows." Or a law which might make concessions to a rapist: "Don't, except on the unmarried or the mentally incompetent." None of these crimes would become licit even should such unthinkable laws be made.

In view of the fact that the government takes upon itself the obligation to prevent injustice against all its citizens without discrimination, may any person ever licitly propose or promote an abortion law which specifies exceptions; a law which exempts from prosecution, for example, abortions done on persons whom God created in a context of rape or incest?

For our answer, I believe we can learn from Christ's comments about divorce under the Law of Moses: "Moses.," said Christ, "gave you permission to divorce your wives because you are so hard to teach. But it was not like that at the time of creation" (Mt 19:8). Actually the Mosaic law on divorce, as given in Deuteronomy 24, was designed to prevent worse abuses still, as were many other provisions of the ancient law which were by no means perfect.

Today we are a people who are "hard to teach" about the injustice of abortion. A pro-lifer today, who has good political insight, and who has confidence that an imperfect law will help to curb at least some abortion, acts like Moses if he does the best that is possible under the imperfect circumstances. Christ did not condemn Moses for regulating divorce in the Old Testament as a means of preventing worse abuses. Neither, I believe, is it correct for a "no compromise" pro-lifer to blame an "imperfect law" pro-lifer on the basis of moral principles. (Whether proposing exception laws is politically prudent or the opposite, is a question of political tactics to which this writing does not address itself.)

[Addition, June 2000: in the meantime Pope John Paul II has explained under which circumstances officials may support "imperfect" abortion regulations, which admit of exceptions: "A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on...In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official whose absolute personal opposition to procured abortion was well known could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects" Evangelium Vitae, No. 73).]


"Legal" abortion is a misnomer; it supports the deception, central now to the advocates of "choice," that civil law can render licit what divine law makes illicit. The term is semantically wrong, mis-educates the public, whitewashes crime, and forces a can of worms down our throats. To curb abortion it is essential that we abandon the term "legal" abortion and substitute another; for example, quasi-legal abortion, or non penalized abortion, or politically tolerated abortion.

Abortion is an injustice whose threat invokes the duty of public authority to protect children. It is also immoral, but that aspect is a comparatively weak base for launching political action.

One who promotes an imperfect abortion law, a law which withdraws government protection from some children, does not necessarily compromise his moral life; provided he aims to procure the maximum amount of protection for children possible among a people "who are hard to teach" he is a fit candidate to merit approval by Christ and a portion of the reward of Moses.