Yes, Virginia, Catholics can say abortion should be legal.

r that is what Fr. Matt Mal­one, S.J., claims, in an arti­cle at Amer­i­ca. It is the kind of arti­cle that makes one say: “Yes, Fr. But.” (Leila Miller at Lit­tle Catholic Bub­ble had so many buts she wrote a full rebut­tal; hie you to her blog and read it.) I want to reit­er­ate one of her points.

Before I do that, how­ev­er, I should first say that I sym­pa­thize with Fr. Mal­one’s main con­cern, which was the pres­ence of pro­test­ers as Sen. Tim Kaine arrived for Mass on August 28. One of them held a sign that said that he and Mrs. Clin­ton are “a match made in Hell.” Anoth­er held a sign cit­ing canon 915 (to make the claim that Kaine should not be giv­en Holy Com­mu­nion). These love­ly peo­ple would be bet­ter advised to go inside, kneel, pray, and attend to their own wor­thi­ness to receive the Eucharist. If they have con­cerns about canon 915, or about Sen. Kaine, they should write his bish­op. Engag­ing in self-right­eous street the­ater does no one any good, includ­ing the pro-life move­ment. (Unless the pro-life move­ment wants to become in real­i­ty the group of fire­breathers the media has por­trayed it as, lo these many years.)

But Fr. Mal­one does not lim­it him­self to mak­ing this sen­si­ble point. He goes fur­ther, and claims that Catholics are free to dis­agree about whether abor­tion should be ille­gal in the first place:

[I]t does not nec­es­sar­i­ly fol­low from the fact that some­thing is immoral that it should be ille­gal. Thus our pub­lic pol­i­cy choic­es belong to the realm of pru­den­tial judg­ment.

No. I stop Fr. Mal­one here. “Pru­den­tial judg­ment” does not free us from the moral law, or the duty to reflect it in our civ­il law. Pru­den­tial judg­ment is a ques­tion of how to do that, not whether to do that.

Let us read on:

To be sure, the church’s mag­is­teri­um has sup­port­ed spe­cif­ic pub­lic pol­i­cy solu­tions in the areas of abor­tion, the death penal­ty, pros­ti­tu­tion and oth­er con­tentious issues. [Yes it has.] And not all of those issues involve the same lev­el of moral grav­i­ty. Yet Catholics are still free to dis­agree with one anoth­er in good con­science, if not about the moral prin­ci­ples at stake, then cer­tain­ly about the pru­den­tial appli­ca­tion of those prin­ci­ples in the pub­lic square.

But the ques­tion, Fr., is how to apply, not whether to apply. It is sure­ly true that Church gives more lat­i­tude for “pru­den­tial appli­ca­tion” when it comes to the death penal­ty, which is not an intrin­sic evil. But abor­tion is. Car­di­nal Ratzinger made this clear in “Wor­thi­ness to Receive Holy Com­mu­nion: Gen­er­al Prin­ci­ples”:

Not all moral issues have the same moral weight as abor­tion and euthana­sia. For exam­ple, if a Catholic were to be at odds with the Holy Father on the appli­ca­tion of cap­i­tal pun­ish­ment or on the deci­sion to wage war, he would not for that rea­son be con­sid­ered unwor­thy to present him­self to receive Holy Com­mu­nion. While the Church exhorts civ­il author­i­ties to seek peace, not war, and to exer­cise dis­cre­tion and mer­cy in impos­ing pun­ish­ment on crim­i­nals, it may still be per­mis­si­ble to take up arms to repel an aggres­sor or to have recourse to cap­i­tal pun­ish­ment. There may be a legit­i­mate diver­si­ty of opin­ion even among Catholics about wag­ing war and apply­ing the death penal­ty, but not how­ev­er with regard to abor­tion and euthana­sia.

Note that Ratzinger is not mere­ly talk­ing about dis­agree­ments over the “moral prin­ci­ples at stake.” He is talk­ing specif­i­cal­ly about their “appli­ca­tion in the pub­lic square.” (He even uses the word “appli­ca­tion.”) Fr. Mal­one is wrong when he attempts to lump abor­tion in with the death penal­ty in this regard.

Pope St. John Paul II also made note of this in his encycli­cal Evan­geli­um Vitae:

72. The doc­trine on the nec­es­sary con­for­mi­ty of civ­il law with the moral law is in con­ti­nu­ity with the whole tra­di­tion of the Church. This is clear once more from John XXI­I­I’s Encycli­cal: “Author­i­ty is a pos­tu­late of the moral order and derives from God. Con­se­quent­ly, laws and decrees enact­ed in con­tra­ven­tion of the moral order, and hence of the divine will, can have no bind­ing force in con­science. …

Now the first and most imme­di­ate appli­ca­tion of this teach­ing con­cerns a human law which dis­re­gards the fun­da­men­tal right and source of all oth­er rights which is the right to life, a right belong­ing to every indi­vid­ual. Con­se­quent­ly, laws which legit­imize 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 …

73. Abor­tion and euthana­sia are thus crimes which no human law can claim to legit­imize. There is no oblig­a­tion in con­science to obey such laws; instead there is a grave and clear oblig­a­tion to oppose them by con­sci­en­tious objec­tion. From the very begin­nings of the Church, the apos­tolic preach­ing remind­ed Chris­tians of their duty to obey legit­i­mate­ly con­sti­tut­ed pub­lic author­i­ties (cf. Rom. 13:1–7; 1 Pet. 2:13–14), but at the same time it firm­ly warned that “we must obey God rather than men” (Acts 5:29). …

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”.

Believ­ing that abor­tion may be legal, or vot­ing to uphold and extent its legal­i­ty, is not an option the Church has left open to Catholics. Not on this ques­tion. There is no such thing as being “per­son­al­ly opposed.”

Where Catholics can dis­agree is with regard to strat­e­gy: How do we best go about get­ting rid of abor­tion once and for all? That is not, how­ev­er, to be con­fused with sup­port­ing or vot­ing for its legal­i­ty. It is good to elim­i­nate the rea­sons why many women choose abor­tion, but the Church does not per­mit us to say that by doing so, one need no longer wor­ry about whether abor­tion remains legal. As Mark Shea is wont to say: Catholics are a both-and peo­ple.