“Although I oppose abortion I think I’ll vote to repeal the Eighth Amendment. I’ll never choose abortion but I won’t stand in the way of others choosing it.”
This is quite a common position being taken concerning the forthcoming referendum, even among Catholics and other Christians. Those holding this position sense that abortion is wrong but, they reason, they are not choosing abortion. So, in their own minds they draw a very sharp distinction between voting for abortion and procuring an abortion.
How reasonable is this position?
What the vote is about
The first thing to ask is, what precisely does the forthcoming referendum involve? We get a sense from some Christian quarters that this referendum is not very clear cut. Some of the reasoning goes along the following lines.
The Eighth Amendment (Article 40.3.3 of the Constitution) has not been wholly successful in relation to abortion. Because of the Eighth Amendment we had the 1992 X case judgment, and because of the X case we got legislation allowing for abortion on the grounds of risk of the mother’s suicide (Protection of Life During Pregnancy Act 2013).
However, the referendum is not about those issues. Rather, the referendum question asks us whether we want to delete (repeal) Article 40.3.3. of the Constitution and replace it with a clause which enables the Oireachtas to legislate for the regulation of termination of pregnancy (i.e. abortion).
The effect will be to remove all constitutional protection for all unborn children and give constitutional status to abortion.
The obvious intention of this is to remove constitutional obstacles to the introduction of abortion legislation providing for much, much wider abortion access than that currently provided for in the Protection of Life During Pregnancy Act 2013. The actual legislative proposal set to become law if the referendum passes is the one endorsed by the Joint Oireachtas Committee on the Eighth Amendment of the Constitution: unrestricted access to abortion up to 12 weeks of gestation and very wide (practically unrestricted) access to abortion up to 23 weeks (on “mental health” grounds). So, realistically, there is no way of voting for repeal without intending to vote for legalised abortion.
Voting for abortion
Church teaching is clear on the morality of a vote for abortion. According to Pope St John Paul II’s encyclical Evangelium Vitae: “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 favour of such a law, or vote for it’.” (EV 73)
This is a complex statement but it is one worth reflecting on. An “intrinsically” unjust law is a law that is unjust by its very nature.
Laws permitting the violation of human rights are intrinsically unjust. As John Paul II puts it: “Laws which legitimise the direct killing of innocent human beings through abortion or euthanasia are in complete opposition to the inviolable right to life proper to every individual; they thus deny the equality of everyone before the law.” (EV 72)
Intrinsically unjust laws can never be justified. And so Evangelium Vitae says that it is “never licit” (morally right) to vote for such a law.
But is a vote for abortion not a very different act from an abortion itself?
Cooperation
The encyclical itself points to responses to this questions when, in the context of voting, it brings up the issue of “cooperation”. When we cooperate with something we give help to it: we help make it happen. Usually cooperation refers to doing something that helps someone else achieve a goal of some sort. There are basically two ways we can cooperate: by providing “formal” cooperation or by providing “material” cooperation. These are technical words but they point to acts we can all identify with.
If you donate money to the Society of St Vincent de Paul, you formally cooperate with its charity work. You may not be the person who brings the food vouchers to the house but you nonetheless intentionally cooperate with this good work. The help you give to the activity is intended by you.
Even though on one level giving money to charity is not the same as doing the charitable works themselves, it is still an act of charity because it is cooperation with charity. You choose charity and you therefore are morally responsible for it – and deserve praise.
Now suppose you don’t donate money to the SVP but you do pay your taxes. And suppose that the Government uses taxpayers’ money to fund SVP. In that case you would still be helping (cooperating with) charity, but only materially. The difference is that in this case you do not intend to give to charity when you pay your taxes.
You only want to abide by the law, perhaps in order to avoid penalties.
The help you give to charity is a (good) side-effect of paying taxes; the help may be foreseen but it is not intended. So here, since you don’t choose charity, you aren’t morally responsible for it in any significant way. So, you don’t deserve praise for being charitable!
This makes sense: we are primarily responsible for acts we intend to bring about and much less so for acts we help bring about accidentally or unintentionally or as a side-effect.
In countries with legal abortion, very often these abortions are funded by the taxpayer. This means that all taxpayers cooperate with abortion in these countries. However, the cooperation here is only material. It is a (bad) side-effect of paying taxes: the help isn’t intended. In other words, facilitating abortions need not be part of taxpayers’ plan in paying tax.
They don’t choose in favour of abortion by paying their taxes. And so they themselves don’t bear serious moral responsibilities for the abortions that happen due to the funding.
The reality is very different when it comes to voting for abortion. When a citizen votes for the liberalisation of something they formally cooperate with whatever it is that is liberalised. They enable it and facilitate it and support it, and they do so intentionally.
If a politician (legislator) voted for the liberalisation of the death penalty, we would rightly say that he chose the death penalty and that he bears serious responsibility for its operation.
The politician might protest that he didn’t choose the death penalty by his vote but merely chose to permit others (i.e. judges) to decide whether the death penalty is warranted. But this would be a misrepresentation. A vote to legalise killing is a choice in favour of killing even if the person casting the vote will never be in a position to order a specific act of killing made possible by their vote.
In the forthcoming referendum we, the citizens, become the legislators. And so we formally cooperate with whatever it is that we vote for: we help to make it happen.
In voting for something we really do choose that something. So, a vote to repeal the Eighth Amendment is in actual fact a choice for abortion. Because of this it is a contradiction to say: “I would never choose abortion myself but I will vote repeal.”
Perhaps someone might argue that a vote to repeal the Eighth Amendment is done simply to regulate what is happening anyway and is not necessarily a vote in favour of abortion as such. A comparison could be made in support of this argument: drug use could be legalised to regulate it as a way of reducing overdoses and addiction and not as a way of promoting or facilitating drug use.
It is true that a practice could be regulated to make it more difficult to access and less dangerous to those it harms. But this is absolutely not the intention behind the abortion referendum. Abortion will be regulated to make it much easier to access and therefore more dangerous to those it principally harms.
Remember, with the Eighth Amendment Ireland has the lowest abortion rate in Europe.
To repeat: in this referendum we the people are the legislators. So while voting for abortion and performing an abortion are different acts in some respects, inherent in both is the choosing of abortion. That is why a vote for repeal amounts to a choice for abortion.
