Abstract
A difficult task for politicians who want to fight injustice without doing wrong themselves is identifying where it is permissible to vote for and/or promote so-called “imperfect laws” which somewhat improve existing unjust legal situations but leave closely related injustices intact. One approach is to seek a “selective ban” on some injustices which are politically preventable. This approach is acceptable at least in principle, unlike the approach of “regulation”—i.e., permitting or instructing others to do, or prepare to do, the unjust act in specified ways. The latter necessarily involves us in formal cooperation with evil: wrongly intending that others choose wrongly; for example, that abortion doctors deliberately prepare for abortion, albeit in ways that make an abortion less risky or less likely. In relation to parental consent or parental notification, and to pregnancy counselling and provision of information to pregnant women, while there may be ways of requiring these without complicity in others’ wrongful choices, this is at least more difficult than is often recognised. There can also be problems of principle in seeking consensus with fellow-legislators who may positively intend and even promote the continuation of remaining injustices even as they collaborate with more consistent reformers in passing laws which mitigate injustice overall.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Some of these practical problems are discussed in Harte (2005a). The risk of giving the impression that some abortions are morally justified will obviously be less in the case of limits to the scope of protection that are fairly clearly arbitrary—e.g., concerning geographical regions—as opposed to limits—e.g., concerning disability—that reflect widespread social prejudices.
- 2.
To “abrogate completely,” in the words of Evangelium Vitae n. 73, all laws permitting wrongful homicide, whether in utero or not, may not be technically or legally possible to do at one stroke; or it may be made impossible by individual human fiat: imagine a situation in which an eccentric pro-life sultan refuses to sign any pro-life legislation unless post-12-weeks abortions are prohibited by Parliament in the morning (or this week), whereas pre-12-weeks abortions are prohibited in the afternoon (or next week). However unreasonable this stipulation, it would seem even more unreasonable for legislators to refuse to vote for such a change in the law because, for some very short period, only later abortions would be prohibited.
- 3.
I am using the phrase “unjust permissions” to cover unjust tolerations where there may be no explicit mention of the unjust activity in the country’s law.
- 4.
Note that the normal social meaning and the individually intended meaning of someone’s behavior will not always coincide. Sometimes the normal social meaning will be morally determinative: it is wrong, e.g., for a first-century Christian to sacrifice to idols even if the person means his action differently from how he knows it will be seen by others—as apostasy or worship of strange gods.
- 5.
- 6.
By this I mean, genuine, deliberate preparation, not mere “going through the motions” (see below).
- 7.
Admittedly, the less visible and the more ambiguous in its outward expression is the immoral intention, the less it is the concern of the law—but that does not mean that those hoping to reform the law may deliberately invite immoral intentions from those they hope to influence.
- 8.
Harm to a victim need not be intended as such for a choice to be absolutely morally excluded (Watt 2004, 2016; McCarthy 2015): we can think of a case like lethal organ harvesting where the intention to extract the organ is morally conclusive in conjunction with the foresight that this will cause the donor no health benefit but only lethal harm. As a separate point, there are also, of course, moral wrongs that involve the failure to intend good, but no intention to harm or otherwise affect—as when parents neglect to feed their children simply out of apathy and indifference.
- 9.
Life-saving measures which do not engage in this way with the perpetrator’s intentions, as when the horrified henchman surreptitiously empties the gun of ammunition, are a different matter.
- 10.
These preparatory activities seem in some ways more difficult to defend than activities often seen as part of the abortion itself, such as removing the now-dead child whether in the middle of a surgical procedure or by delivering the baby after feticide. Such “post-abortion” activities make medical sense independently of the abortion itself, and could, in theory, be performed by pro-life doctors and midwives were it not for the messages this would give out and the complicit coordination with colleagues it would involve. Indeed, such procedures where the baby is already dead sometimes are performed by pro-life health professionals some time after the abortion if the woman seeks their help with problems caused by retained fetal tissue.
- 11.
As we will see, it is sometimes possible to focus on some wrongful preparation without intending that preparation, as in the case of rape legislation which focuses on and punishes the absence of consent without necessarily intending that consent.
- 12.
Retrospectively recording the donor’s details is not only morally permissible but even praiseworthy, though there could be complicity problems in mandating this legally if in fact it would require, not the mere retention of information already routinely collected pre-donation, but the collection of specified details from the donor for the purpose of later record-keeping.
- 13.
Note that it is possible to wrong someone you are simultaneously attempting to protect in some way—e.g., it is unjust to sterilize a member of an oppressed race even if such sterilization makes it less likely that the person will be killed.
- 14.
For moral objections to IVF as expressed in recent Church teaching, see the Congregation of the Doctrine of the Faith Instructions Donum vitae (1987) and Dignitas personae (2008). IVF and alternative, potentially permissible forms of fertility treatment are explored in detail in Watt (2011)—in particular, the chapters by Mary Geach, Kevin Flannery, and Helen Watt, and in Watt (2016).
- 15.
Biblical examples can, of course, be found, such as the words of Jesus to his enemies in the Garden of Gethsemane: If you seek me, let these men go (John 18:8). Less easy to understand are the words of Jesus to Judas at the Last Supper: What you are going to do, do quickly (John 13:27). These last words need not be interpreted as advice to Judas to do the “lesser evil,” but are arguably more an expression of feeling—i.e., a sad recognition by Jesus of the impending betrayal and his desire to “get it over.” Alternatively, these words could be intended by Jesus to silence Judas, forestalling a lying excuse from him while averting awkward questions from the other disciples.
- 16.
I leave to one side, however, the question of a “defeater of a defeater,” where an impediment to our plans will be cancelled by the foreseen wrongful choice of someone else.
- 17.
It may be objected that the counselors are intending only to offer the woman a certificate they know is attractive to the woman as enabling abortion , without however sharing her intention to enable an abortion—as opposed to her intention to enable a certificate. However, this deliberate enticement of women considering abortion—those the clinic most wants to attract—if it is not formal cooperation in abortion-seeking motives, which seems psychologically difficult to avoid, will at the very least involve complicity in those motives. See below on foresight of others’ wrongful intentions as causally required to further one’s own overall plan, as opposed to foresight of parallel wrongfully intended causal chains—which are not relevant here, as there is no other reason that the target group want certificates. Compare pornography: to use this as a drawcard to attract pornography users to a generally pro-family film festival one is organizing could not be defended simply on the basis that this is what our target group want to watch, for reasons we do not approve and do not intend; on the other hand, we do want this specific group to come to our festival, and so we will give them something they already want, or will want when we advertise it, for reasons that apply to that specific group.
- 18.
Of course the woman may already have a general intention to get a certificate from a center that provides them, but the pro-life counselors are inviting a new specific intention to get a certificate via them.
- 19.
An alternative way of ensuring that more information is given to women would be to require any health professional, pro-life or otherwise, who is giving any information on abortion to a pregnant woman to check that she has received certain information—e.g., on help available to have the baby. The conversation would then be recorded in the medical notes, not as part of the paperwork required for an abortion, but as something the absence of which could be used after an abortion by a woman suffering from post-abortion problems as proof she had not been given the relevant information.
- 20.
Obviously, forms completed after the fact are a different matter, whether they are filled in by the abortionist or by anyone else.
- 21.
I leave aside for the moment complicity questions raised by any legal duty to report back on the parents’ consent or declined opportunity to veto (see below).
- 22.
There are perplexing cases in other areas where people are deliberately given at least an opportunity to sign something they really should not sign: think of a typed witness statement offered to a palpably lying witness who has just made an oral statement that morally he should not thus confirm.
- 23.
We recognize this distinction elsewhere: giving someone, in order to make some political point, the opportunity to kill one is perfectly compatible with intending that the person do no such thing. Again, a recovering alcoholic might go to a party at which there will be alcohol precisely to confirm to himself his ability to refuse a drink even when drink is freely available. Similarly, someone who offered him a drink might be intending to give him the opportunity to accept while actually intending only that he refuse—though the offer might need rather strong justification if, in fact, it was very likely to be accepted.
- 24.
Such a person is in a similar position to a “semi-detached” health professional on a hospital ward who is asked to check a woman’s blood pressure and report back if there is some reason for delaying her abortion . Even if such a health professional is hoping for just such a delay, she may rightly feel very uneasy about giving the “all clear” if all is well.
- 25.
We should remember that many pro-life junior doctors are understandably reluctant to “clerk” patients for abortion , despite the fact that this will allow them to warn patients of the risks of the procedure and remind them of their right to change their minds at any time. Getting the patient’s signature for the operation seems hard to defend: even if the doctor hoped against hope that the patient would refuse consent at the end, proffering the form at the end for her signature seems, at the very least, close material cooperation in seriously unjust (whether or not culpable) behavior.
- 26.
Politicians and lobbyists would, admittedly, need to be careful in framing and promoting such a law—e.g., presenting it not as a “duty to inform parents” bill—on the part of those wrongly preparing for abortion —but as a “parents’ right to know” bill or “bill to prohibit underage abortions without parental knowledge”—so as not to suggest a duty to inform as opposed to a legal liability if the parents have not been informed.
- 27.
Of course, bad things we do not intend, such as abortionists contacting parents as part of abortion preparation, may still be foreseen and may still as a matter of fact serve our ends, in addition to the causal chain we do or may licitly intend.
- 28.
In contrast, it may be less likely a woman or girl will be deterred from even beginning abortion preparations merely by being told that confidential counseling is a legal requirement. While some women and girls may of course obtain an illegal abortion, at increased risk to their health, legal abortion also carries medical risks, and restrictive abortion laws do not in fact seem positively linked with maternal mortality in different geographical areas; for a relevant U.S. study, see Rolnick and Vorhies (2012). Historically, the decline in maternal deaths in developed countries seems to have owed more to better health care, such as antibiotics, than to the liberalization of abortion laws in those countries where it was in fact liberalized, while deaths related to illegal abortion were greatly exaggerated by those wishing to liberalize the law (Farmer 2008).
- 29.
Such a strict position would seem to make gradual moral conversion of such a person very difficult.
- 30.
It is worth remembering that moral dilemmas can be perplexing even for saints and specialists, such that almost anyone might be inculpably unaware of what to do in a particular situation.
- 31.
Note that, however inculpable someone is for making morally wrong and socially harmful choices, social penalties such as deselection or expulsion from a political party can still be justly applied to that person: such penalties, like the law itself, are blunt instruments concerned above all with exterior effects on others of what the person is choosing with whatever degree of culpability.
- 32.
I am grateful to Anthony McCarthy, John Finnis, Colin Harte, David Jones, Ted Watt, and Jason Eberl for their comments on this paper.
References
Farmer, Ann. 2008. By their fruits: Eugenics, population control, and the abortion campaign. Washington, DC: Catholic University of America Press.
Finnis, John. 2004. Helping enact unjust laws without complicity in injustice. American Journal of Jurisprudence 49: 11–42; reprinted with additional notes as “Just votes for unjust laws,” in Philosophy of law, vol. IV of Collected essays of John Finnis, 436–466. Oxford: Oxford University Press, 2011.
———. 2005a. Restricting legalized abortion is not intrinsically unjust. In Cooperation, complicity and conscience, ed. Helen Watt, 209–245. London: Linacre Centre.
———. 2005b. A vote decisive for…a more restrictive law. In Cooperation, complicity and conscience, ed. Helen Watt, 269–295. London: Linacre Centre.
Harte, Colin. 2005a. Changing unjust laws justly. Washington, DC: Catholic University of America Press.
———. 2005b. Problems of principle in voting for unjust legislation. In Cooperation, complicity and conscience, ed. Helen Watt, 179–208. London: Linacre Centre.
———. 2005c. The opening up of a discussion: A response to John Finnis. In Cooperation, complicity and conscience, ed. Helen Watt, 246–268. London: Linacre Centre.
John Paul II. 1995. Evangelium vitae. Vatican City: Libreria Editrice Vaticana.
McCarthy, Anthony. 2015. Unintended morally determinative aspects (UMDAs): Moral absolutes, moral acts and physical features in reproductive and sexual ethics. Studia Philosophiae Christianae 51 (2): 143–158.
Rolnick, Joshua A., and John S. Vorhies. 2012. Legal restrictions and complications of abortion: Insights from data on complication rates in the United States. Journal of Public Health Policy 33: 348–362.
Watt, Helen. 2004. Beyond double effect: Side-effects and bodily harm. In Human values: New essays on ethics and natural law, ed. David Oderberg and Timothy Chappell, 236–251. London: Palgrave MacMillan.
———. 2005. Cooperation problems in care of suicidal patients. In Cooperation, complicity and conscience, ed. Helen Watt, 139–147. London: Linacre Centre.
———, ed. 2011. Fertility and gender: Issues in reproductive and sexual ethics. Oxford: Anscombe Bioethics Centre.
———. 2012. Cooperation and immoral laws: Preventing without prescribing harm. The National Catholic Bioethics Quarterly 12: 241–248.
———. 2016. The ethics of pregnancy, abortion and childbirth: Exploring moral choices in childbearing. New York: Routledge.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
Watt, H. (2017). Addressing Unjust Laws Without Complicity: Selective Bans Versus Regulation. In: Eberl, J. (eds) Contemporary Controversies in Catholic Bioethics. Philosophy and Medicine(), vol 127. Springer, Cham. https://doi.org/10.1007/978-3-319-55766-3_38
Download citation
DOI: https://doi.org/10.1007/978-3-319-55766-3_38
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-55764-9
Online ISBN: 978-3-319-55766-3
eBook Packages: Religion and PhilosophyPhilosophy and Religion (R0)