A Thomistic Perspective on Law and Abortion

A Thomistic Perspective on the Law and Abortion

Michael J. Carzon

20 March 2022

Abortion is simply defined as the termination of pregnancy, resulting in the death of the baby.  Obviously, this is something a true Catholic must oppose.  William Lane Craig divides the abortion question into two main parts. First, “do human beings have intrinsic moral value?  And (2) Is the developing fetus a human being?” (1)  For Craig, the answer to both questions is an emphatic “yes”.  Aquinas would agree as well, despite some who argue otherwise.  The focus of this paper will be two-fold.  First, can abortion be legalized, according to a Thomistic understanding of the law?  Second, how does this help us understand Peter Singer’s article “Killing Babies Isn’t Always Wrong”?

Aquinas, in his discussion on the law, follows Aristotle, who eschewed the tales of the gods for a more reasonable approach.  Aristotle and the other “virtuous pagans” could, and did, reason to the existence and main principles of the natural law.  In the Prima Secundae, Aquinas writes that law is for the common good. (2)  The common good can be defined as “those facilities–whether material, cultural, or institutional–that the members of a community provide to all members in order to fulfill a relational obligation they all have to care for certain interests they have in common.” (3)  The government exists to protect and defend the common good, but not necessarily to establish it, for the main principles thereof are already in natural law.

If a law goes against the common good and natural law, does a Thomist need to follow it?  Dr. Jeffrey Mirus presents four main “causes” of a law: “(1) Public promulgation, by (2) the proper authority, in order (3) to affect the common good, and taking the form of (4) a precept of reason in accordance with the natural law.” (4)  If a law violates these principles, that does not give the right to disobedience.  Dr. Mirus says disobedience is warranted when “the law is not real but apparent.” (5)  Or, as Augustine puts it, “a law that is not just does not seem to me to be a law.” (6)

Fr. Frank Pavone constructed a thought experiment in which Mass attendance was outlawed.  While petitions and court cases would be started, “those processes could take years.  The question is, what would you do in the meantime?” (7)  In good conscience, can a Catholic continue to go to Mass, or a priest to celebrate Mass?  I would argue that the answer is yes, because man’s duty to God is more important, and increasingly more at odds with, his duty to the state.  

All of this shows that a law legalizing abortion does not serve the common good, is an unjust law, and could be disobeyed in good conscience.  Peter Singer thinks otherwise.  In a 1995 article in the Spectator, he stated that while he disagreed with John Paul II in Evangelium vitae, “he and I at least share the virtue of seeing clearly what is at stake in the debate.” (8)  He correctly identifies the problem of those who accept abortion for “the reasons” (9) but support the sanctity of born life.  Similarly, “to present the issue of abortion as a question of individual choice is already to presuppose that the foetus does not really count” (10), and even Peter Singer does not like begging the question!  Singer also draws attention to the seeming hypocrisy of the pro-life position, saying that they need to be vegan and against capital punishment and war as well.

However, Singer raises the main issue that is the focus of the second part of this paper: 

[B]oth sides avoid the crucial question underlying the abortion debate: given that the foetus is a living being, and indisputably a human being in the sense that it is a member of the species Homo sapiens, is it always wrong intentionally to take the life of an innocent member of our species? (11)

This is an important question, as supporting a war (for example) and condemning abortion do, at the surface, appear to be mutually exclusive.  Similar yet different to the famous “trolley problem”, SInger mentions the case of two babies in a hospital.  One was functioning but unconscious (due to massive brain bleeding), and one had a heart defect.  Baby 1’s heart could be used for Baby 2.  Because Baby 1’s condition, though severe, was not enough to merit “brain death”, and thus the heart transplant could not take place, and both babies died.  Defining death is a central part of Singer’s argument.  After all, it is hard to defend life if we are not sure what death is.  Even harder is defining if someone who will never be fully conscious (Baby 1) will get any value out of life.

I think Singer’s approach here is a little selfish.  After all, defining life based on “what you get out of it” seems quite trivial, and open to many more problems than are in the scope of this paper.  Thomistically, I would argue that human life depends on the presence of a rational soul in the body.  For Aquinas, life began at ensoulment, (12) which he placed at a later time than we know to be true from modern science. (13)  While Aquinas’ view is scientifically flawed (he did not think ensoulment happened until all organs were present), the philosophical foundations are still sound.

Returning to Dr. Mirus’ four causes of law, a legalization of abortion is publicly promulgated by a legitimate government.  However, because it does not promote the common good, and certainly is not in accord with reason or natural law, it cannot be understood as a law in the Thomistic sense.  Law is supposed to direct man in his pursuit of virtue.  Rather than do this on his own, however, man acquires it “by means of some kind of training.” (14)  Different kinds of men need different kinds of this training.  For the virtuous man, the law functions as an admonishment, while for the the “evilly disposed”, the law is meant to compel. (15)  A law legalizing abortion does not admonish the virtuous, nor compel the evil.  

While Aquinas was right about many things, his argument in “support” of prostitution could be used to support abortion.  Scholar Ryan McMaken makes an important point in this area: just because something is immoral does not mean that it ought to be illegal. (16)  Both Aquinas and Augustine stated that acts like prostitution and fornication ought not be illegalized a) because such a law might lead to greater lust along with other evils, and b) it is not the proper use of the state.  Any further investigation of this particular argument in terms of only prostitution and fornication is outside the purview of this paper.  However, could this argument not be appropriated to cover contraception and abortion?  McMaken argues that while the moral status of contraception is “settled” (17), legally it lacks enforcement power, and laws against it would have the same ill effects that Agustine and Aquinas foresaw.

However, this argument cannot be applied to abortion.  While some might say that this proves the “safe, legal, and rare” argument, the premises are very different.  Returning to Dr. Craig’s two points, the fetus a) possesses intrinsic moral value, and b) is a human being. (18)  He defines intrinsic value if something “is an end in itself, rather than as a means to some end…” (19)  The other vices are a means to some end, namely pleasure, which does not have intrinsic value.  Abortion affects someone with intrinsic value, which is proved by Craig’s statement: “The notion that people have inherent rights just in virtue of the fact that they are human beings, regardless of their race, class, religion, caste, or station in life, is based in the inherent moral value of human beings.” (20)  Abortion affects a separate, fully-human life in an irreversible way: namely, murder.  That is why the arguments for prostitution and fornication do not apply to the abortion case.

In this paper, we examined a few Thomistic points related to the law and abortion.  We are able to draw a few well-supported conclusions.  First, according to the Thomistic understanding, a law that does not uphold the common good cannot be a real law.  Peter Singer constructed an impressive-sounding argument, but we showed that it is philosophically empty.  Finally, we showed that Aquinas’ arguments in the area of prostitution and fornication cannot be used to support abortion.  It is my hope that some of the arguments presented here can be used in the contemporary pro-life arena to revive many of the arguments that have been in use since 1973.

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1. William Lane Craig, “Persuading a Pro-Choice Person”, at Reasonable Faith (3 October 2021), at reasonablefaith.org.
2. Thomas Aquinas, Summa theologiae, IIa IIae, q. 90, a. 2, s.c., at New Advent, www.newadvent.org.
3. Waheed Hussain, “The Common Good”, at the Stanford Encyclopedia of Philosophy (26 February 2018), at plato.stanford.edu.
4. Dr. Jeff Mirus, “What Is the Law?  When Can We Ignore It?”, at Catholic Culture (9 March 2018), at catholicculture.org.
5. Mirus, “What Is the Law?”, at catholicculture.org.
6. Augustine, On the Free Choice of The Will, On Grace and Free Choice, and Other Writings, trans. Peter King (Cambridge: Cambridge University Press, 2010), 10.
7. Fr. Frank Pavone, “When Is It Okay to Disobey?”, at Catholic Answers (1 March 2010), at catholic.com.
8. Peter Singer, “Killing Babies Isn’t Always Wrong”, at the Spectator (16 September 1995), at archive.spectator.co.uk.
9. Health, career, education, finances, etc.
10. Singer, “Killing Babies”, at archive.spectator.co.uk.
11. Singer, “Killing Babies”, at archive.spectator.co.uk.
12. An interesting investigation would be researching the understanding of ensoulment as insertion of the “life principle”, as Aquinas writes in Summa Contra Gentiles, II, ch. 89.
13. John Haldane and Patrick Lee, “Aquinas on Human Ensoulment, Abortion and the Value of Life,” Philosophy 78, no. 4 (2003), 26.
14. ST, IIa IIae, Q. 95, a. 1, s.c.
15. ST, IIa IIae, Q. 95, a. 1, ad. 1.
16. Ryan McMaken, “Catholic Theologians: Prostitution Should Be Legal”, at Mises Institute (1 January 2013), at mises.org.
17. McMaken, “Catholic Theologians”, at mises.org.
18. See William Lane Craig, “Abortion and Presidential Politics”, at Reasonable Faith (16 June 2008), at reasonablefaith.org.
19. Craig, “Abortion and Presidential Politics”, at reasonablefaith.org.
20. Craig, “Abortion and Presidential Politics”, at reasonablefaith.org.