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Considerations on the Future of Obstetrics and Gynaecology:

The Fundamental Human Right to Practise and be Trained According to Conscience

THE FUTURE OF OBSTETRICS AND GYNAECOLOGY: The Fundamental Right To Practice and be Trained According to Conscience: An International Meeting of Catholic Obstetricians and Gynaecologist

Organised by the World Federation of Catholic Medical Associations (FIAMC) and by MaterCare International (MCI)
Sponsored by the Pontifical Council for the Health Pastoral Care

ROME, June 17th-20th, 2001
Reproduced with permission

Mons. Tarcisio Bertone, SDB, *

When there is a conflict between the moral norm and the law, i.e. between natural law and positive law, the only instrument to overcome the dilemma or the clash is conscientious objection. Conscientious objection represents a founded and legitimate dissent in relation to the constituted order, due to its dissonance towards a higher law.

The theme that has been chosen as the object of this Meeting has a fundamental importance, and it is for this reason that the Congregation for the Doctrine of the Faith supported the event organized by the Catholic Doctors.

Introduction

John Paul II's encyclic Veritatis Splendor affirms that all laws "are born and lead to the eternal, wise and loving design with which God predestinates men "to be like the image of his Son" (Rm 8,29)" (n. 45). Natural moral law is the first and basic participation of man to God's salvific design. It represents the original constitution of man as a moral being, and it makes possible the reception of any further moral instance. At the same time, however, we must affirm that moral natural law is from an objective point of view insufficient and fragmentary, not only in relation to the entirety of God's salvific design in Christ, but also in relation to social life, both in the context of the State and in the context of the Church. Natural law needs to be specified and completed by state laws and by church laws.

We ask: is that which became or is becoming law always right? Or, taking a step ahead, is it moral? Today we are witnessing an obscuration and, in some cases, a loss on the individual, social and political plane, and at times also on the theological and ecclesiastical plane, of moral perceptions of great importance. Some of them, for long centuries have been clear and unquestionable, and as such they enjoyed a general and pacific theoretic acceptance (for example abortion, contraception, homosexuality). Others, instead, correspond to new and complex problems posed by the development of science and technique (for example, the problems of bioethics).

An accurate investigation should uncover which are the causes of the obscuring of these ethical perceptions. The investigation should consider the principles and the conditions that determine the formation, the evolution and the disappearance of moral conscience, or of immediate moral perceptions.

Already in the '70ies, during the diatribe between the German episcopacy and the socialist government of Chancellor Schmidt, Chancellor Schmidt stated that educating consciences to the perception and the appraisal of ethical values was a specific duty of Churches, not of the State: the State only had to gather the fruits, in the expression of the free choices of citizens, of such education…

The crucial problem therefore is a cultural problem. Card. Ruini, in his speech of last May 14th to the General Assembly of Italian Bishops, stated that in the ethical context there are too many "areas of moral insensitiveness", cases of confusion and "almost of disintegration of consciences" which often translate into tragic events that shake public opinion and which are influenced by negative and corrupting images and models of life &emdash;proposed with nonchalance and insistence by television- but also the examples that adults hand down to the new generations. "Below all this there is a worrisome ethical void that characterizes wide sectors of culture. We must reach the roots of moral poverty, so as to heal them and regenerate man" (Avvenire, 5.14.2001).

Catholics and pluralistic society: "imperfect laws", legislators' and social workers' responsibility

In front of the loss of importance of natural law in today's society and, at the same time, in front of the ethical void above all in the conscience of those who govern, the Congregation for the Doctrine of the Faith organized a Symposium on the following theme: Catholics and pluralistic society -- the case of "imperfect laws" (Rome, November 9-12 1994). The debate is open and involves all, clergymen and faithful of the Church.

Pluralistic society, democracy, majority principle, rights of man, et cetera, constitute in some way the horizon in which today stands the question of the Christian participation or refusal concerning "imperfect laws".

The emergence of pluralistic society throughout history causes Western societies today to no longer recognize the duty, on part of the authorities, to maintain a consensus on moral values because, basically, one is turned towards the respect of the freedom of opinion and expression. The Christian legislator witnesses that the majority of public opinion refuses the right to ask respect of certain superior values because such claim would appear as the intrusion of an "ideologic" division in society.

In particular, in the field of anthropology and of morals, the spread of secularization reduced pluralism to a dualism: on the one hand secular culture of immanence and praxis; on the other hand, Christian culture of transcendence and being. Law however in the end takes away from the basis of the latter the ontologic reality of the human being, proposing instead the founding of an empiric nature.

As we reflect on democracy and on the principles sustaining it, we can speak of a comparison with "imperfect laws" in the light of the critique of the two extreme hypotheses: the so-called "reductionist" hypothesis (politics must make room for social reality), and that which favours the material request of a good life in function of the historical and environmental emergencies of our time. If the comparison is not only of theoretic-philosophical nature, but strictly of operational-political nature, dignity and the rights of man will have to be the constituting factor of social order. It will then be possible to tolerate "imperfect laws" that will guarantee the normative nature of social order as a relational reality. On the contrary, it will not be possible to tolerate those "imperfect laws" that, in the name of the promotion of a right, change this relational character, contributing thus to legitimate a utilitarian administration of the social order.

Law is based on morality and at the same time is separate from it, in the sense that it covers only those aspects that seriously threaten justice. The majority of ethical principles of the constitution of the State have a utilitarian base. One protects the right of others in order to protect his own rights. On the contrary, it is necessary to take a further step: it is necessary to create a whole of legal conditions that may protect those who cannot find support in the pure utilitarian approach; above all when the human foetus and the newborn are posed on the same level as an animal.

Can Christians who are active in politics and in social action, reasonably try and modify the main lines of politics and of public laws in the sense of Christian truth? A tentative answer can be provided in the following terms: 1) the objective of formal collaboration must be right, that is to say it must point to a positive result in relation to Christian values; 2) the gravity of negative secondary effects tied to material collaboration (considering the efforts necessary to limit it) must be reasonably proportional to the evil that must be avoided.

The social doctrine of the Church considers "imperfect laws" as "theological moral questions" and therefore they can be object of an explanatory intervention on the part of the authority of the Church through its magisterium.

The Church enjoys a potestas moralis that, in the final analysis, is rooted in the libertas Ecclesiae (distinguished from the right to religious freedom). This potestas has an indisputable legal value, both if it evokes a relationship between ecclesiastical authority and Christian laymen who are busy with the Christian animation of the temporal order (potestas magisterii), and if it indicates the values to be upheld even inside any civil society that wants to organize itself "according to justice". Laymen have the specific obligation to animate and perfect temporal realities according to the spirit of the Gospel and, as a consequence, they have the freedom to determine themselves in a responsible manner in such sector. This obviously does not exclude for the legislator, Christian or not, to start a dialogue with clergymen to receive from them orientations and normative indications of ethical and theological order.

If the primary function of the law is that of realizing social peace, the fact that a law is deemed "just" implies its conformity to the ethical order and to natural law that transcend positive law. When there is a conflict between the moral norm and the law, i.e. between natural law and positive law, the only instrument to overcome the dilemma or the clash is conscientious objection.

Conscientious objection represents a founded and legitimate dissent in relation to the constituted order, due to its dissonance towards a higher law.

Unfortunately, in the great democratic societies of the actual world, where there are many unjust laws, on the one side conscientious objection is almost done away with, but on the other side many Catholics do not fulfill their duty of opposing themselves to these laws. The main reason rests on the weakness on their faith and of their Christian engagement, or in the incorrect division of the roles between clergymen and laymen. It is urgent that clergymen proclaim with strength and integrally the Catholic faith and the moral project inspired by Christ, rather than stop at prudential judgements of socio-political nature, and that they remind laymen their dignity and their own apostolate.

In conclusion, given the specific duty of clergymen in relation to their vocation, it is Christian laymen who mostly have to confront the "imperfect laws" of actual democracy. There are three possible attitudes in this regard:

Prophetic resistance, when one has to assert a higher value than that proposed by the State. Collaboration, when it is not a question of evil as such, but of good, in a concrete way the good of eliminating or reducing that evil that evil can produce. Since this attitude can be difficult to understand for those who are not directly involved in political experience, it must be explained publicly by those who take in conscience such decision. Tolerance, that cannot be realized unless when a resistance to evil would entail a greater evil.

These three attitudes are to be considered as different ways of asserting the truth and the good in the world. He who tolerates or he who collaborates, must not be judged as a fearful man or as mediocre, but as someone who tries to bury into the infinitely diversified grounds of today's world "the small grain of mustard" (Mt 13, 31-32 and parallels). On the contrary, he who resists "unjust laws" must not be considered an extremist distant from reality, but rather a true craftsman of truth and of good in the world.

This leads us to insist again upon the importance of the fact that the different ways of asserting the truth in front of "unjust laws" are rooted in a local Church united and living.

The internalization of normative contents is the first step to resist to unjust laws and to take them away from an orientation that is intended created for the realization of the common good.

Catholics who are active in political life and social action should ask themselves what they did or what they left aside of what could have contributed to eliminate, or at least to lessen, some situations that make the receipt of the values of life, of the dignity of every person, of the respect of the laws of creation, in the family or in society, difficult.

How many of these objectives have been achieved and to what point the fact that they were not achieved depended upon objective difficulties, or to what point it depended upon little engagement? These are questions to which only the conscience of the responsible individuals can provide a suitable answer.

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