Abortion and subsidiarity

Ever sincethe Dobbs decision permitted statesto set their own abortion policies, Donald Trump has taken the position thatthe issue should stay at the state level. Dobbs itself doesn’t requirethis, and leaves open the possibility of a federal ban.  But Trump nevertheless declines to pursuesuch a ban, and indeed is opposed to such a ban.  Now, a federal ban is in any event currentlypolitically unrealistic, and will likely remain so for the foreseeablefuture.  But some take the view that,even if abortion amounts to murder, it would be wrong to impose a federal baneven if it were politically possibleto do so.  They make their case onfederalist grounds, arguing that a national abortion ban would usurp power thatrightly belongs to the states.  Someargue on natural law grounds, specifically, suggesting that the principle ofsubsidiarity would rule out a federal ban. If this were true, then it would follow that even a pro-life Catholicshould oppose a federal abortion ban. What should we think of this argument?

I think itis a terrible argument, one that rests on a distortion of the principle ofsubsidiarity.  We can see this both fromwhat the principle of subsidiarity actually says, and from how the Church hastreated the issue of abortion.  A classicformulation of the principle is given by Pope Pius XI in his encyclical QuadragesimoAnno.  He famously saysthere that “it is an injustice and at the same time a grave evil anddisturbance of right order to assign to a greater and higher association whatlesser and subordinate organizations can do.”  If this sentence were all there is to theprinciple of subsidiarity, it is easy to see why someone might think itlicenses leaving abortion to the states. But that is not all there isto the principle.  Let us look at thelarger context of this remark from Pius XI. Here is the relevant passage:

When we speak of the reform of institutions, the State comeschiefly to mind, not as if universal well-being were to be expected from itsactivity, but because things have come to such a pass through the evil of whatwe have termed “individualism” that, following upon the overthrow and nearextinction of that rich social life which was once highly developed throughassociations of various kinds, there remain virtually only individuals and theState.  This is to the great harm of theState itself; for, with a structure of social governance lost, and with thetaking over of all the burdens which the wrecked associations once bore, theState has been overwhelmed and crushed by almost infinite tasks and duties.

As history abundantly proves, it is true that on account ofchanged conditions many things which were done by small associations in formertimes cannot be done now save by large associations.  Still, that most weighty principle, whichcannot be set aside or changed, remains fixed and unshaken in socialphilosophy: Just as it is gravely wrong to take from individuals what they canaccomplish by their own initiative and industry and give it to the community,so also it is an injustice and at the same time a grave evil and disturbance ofright order to assign to a greater and higher association what lesser andsubordinate organizations can do.  Forevery social activity ought of its very nature to furnish help to the membersof the body social, and never destroy and absorb them.

The supreme authority of the State ought, therefore, to letsubordinate groups handle matters and concerns of lesser importance, whichwould otherwise dissipate its efforts greatly.  Thereby the State will more freely,powerfully, and effectively do all those things that belong to it alone becauseit alone can do them: directing, watching, urging, restraining, as occasionrequires and necessity demands.

To forestallconfusion, note that “State” as Pius is using it refers to any more centralgovernment, and thus, in the American context, would apply first and foremostto the federal government rather merely to “state” governments, as that term iscommonly used in the U.S.

Now, whatPius is saying here is indeed, in part, that if some social problem can beadequately addressed by more local institutions (which would include families,municipal governments, and provincial governments), then central governments shouldleave things to them and not intervene. But by no means does Pius leave it at that.  He also says that there are some things thatcentral governments “alone” can do. Naturally, this includes things that are the proper function of anycentral government under normal conditions (such as national defense). 

But it alsoincludes things that more local institutions might in theory be able to handle, but in practice cannot, because of “changed conditions” or therequirements of some particular “occasion.” In particular, says Pius, because of the “individualism” of moderntimes, those intermediate institutions that traditionally came betweenindividuals and central governments have become so weakened that they are nowunable to perform some of the functions they were once able to.  And this has left these functions in thehands of central governments, as the only agencies left which can perform them.  In these ways, the principle of subsidiaritynotwithstanding, there remain many functions which “necessity demands” thatcentral governments perform, either always and in principle or at least undermodern contingent circumstances.

Accordingly,as Fr. Austin Fagothey’s well-known manual of ethics Right and Reason notes, after affirming the principle ofsubsidiarity:

On the other hand, the state should provide a favorableenvironment in which individuals, families, and voluntary associations canfulfill their functions properly.  It hasthe right and duty to intervene when they fail to function as they ought orcannot harmonize their activities for the common good. (p. 394)

Now, thiscan include measures necessary to uphold the institution of the familyitself.  The Catechism of the Catholic Church, in a passage that reaffirms that“following the principle of subsidiarity, larger communities should take carenot to usurp the family's prerogatives or interfere in its life,” also teaches:

The family must be helped and defended by appropriate socialmeasures.  Where families cannot fulfilltheir responsibilities, other social bodies have the duty of helping them and of supporting theinstitution of the family…

The importance of the family for the life and well-being ofsociety entails a particular responsibility for society to support andstrengthen marriage and the family.  Civilauthority should consider it a grave duty “to acknowledge the true nature ofmarriage and the family, to protect and foster them, to safeguard publicmorality, and promote domestic prosperity.” (2209-2210)

Naturally,there is no greater affront to the institution of the family than abortion,which involves the murder of the very human beings for whose sake the familyexists in the first place.  Andnaturally, the Catechism explicitly teachesthat the right to life of the unborn child must be enshrined in law:

The inalienable right to life of every innocent humanindividual is a constitutive element of acivil society and its legislation:

“The inalienable rights of the person must be recognized andrespected by civil society and the political authority… Among such fundamental rights oneshould mention in this regard every human being's right to life and physicalintegrity from the moment of conception until death.”

“The moment a positive law deprives a category of humanbeings of the protection which civil legislation ought to accord them, thestate is denying the equality of all before the law.  When the state does not place its power at theservice of the rights of each citizen, and in particular of the morevulnerable, the very foundations of a state based on law are undermined... As aconsequence of the respect and protection which must be ensured for the unbornchild from the moment of conception, the law must provide appropriate penalsanctions for every deliberate violation of the child's rights.”

Since it must be treated from conception as a person, theembryo must be defended in its integrity, cared for, and healed, as far aspossible, like any other human being. (2273-2274)

Note thatwhat the Catechism is saying is thatthe right to life of innocent human beings, including the unborn, must be affirmed by the state and itspositive law as such.  In no way does it indicate that it isspeaking only of more local governments but not of central governments.  And even if one wanted to argue that suchlaws needn’t be enacted by federal governments if the laws at more local levels sufficed, that would by no meansbe the end of the story.  For themanifest implications of the teaching of Pius XI and of the Catechism is that more centralgovernments not only may, but must take action to prevent abortion ifin practice there is no other way to secure the rights of the unborn.

Hence,suppose a number of states in the U.S. outlawed abortion, but others didnot.  And suppose that there was nopolitically realistic prospect of outlawing it at the state level in thosestates that failed to do so.  But supposealso that it was neverthelesspolitically feasible to impose a federal ban on abortion.  Would respect for the principle ofsubsidiarity require us to refrain from imposing such a ban?  Not at all; on the contrary, when all theconsiderations just spelled out are taken account of, it is clear that we wouldbe obligated to impose a federal banif we could.  For in this scenario, therewould be no other way to protect the right to life that is, as the Catechism says, “a constitutive elementof a civil society and its legislation.” Given what Pius XI calls “the evil of… ‘individualism’” that hasinfected modern Western society and informs “pro-choice” rhetoric, it may be thatcentral governments alone can effectively suppress the evil of abortion.

Here isanother consideration.  In the Church’scanon law, there are some sins so grave that the penalties associated with themcannot be lifted by one’s confessor.  Fora long time, that included the procurement of abortion, the penalty for whichcould, until recently, be lifted only by one’s bishop.  Indeed, at one time only the pope had theauthority to do so.  In his book The Soul of the Embryo, David AlbertJones writes:

In 1588, in a decree called Effraennatam, Pope Sixtus V invoked the power of excommunication inan attempt to restrain the growing practice of abortion during the Renaissance. As his model he took the Decretals V.I2.5 and imposed thesanction not only for abortion but also for administering contraceptive drugs.  He also reserved the ability to lift theexcommunication to the pope alone.  Thecondemnation of abortion as homicide was not in any way novel.  However, several aspects of theexcommunication were novel: it was promulgated to the whole Church (not just inone diocese or region); it was reserved to the pope to be able to lift theexcommunication (not to a local bishop); and it included contraception as wellas abortion.  This meant that anyabortion and any use of contraception anywhere in the Church had to bereconciled personally by the pope. (p. 71)

To be sure,as Jones goes on to recount, this proved unworkable, so that a later popelimited the excommunication to abortion alone and granted local bishops theauthority to lift it.  The point, though,is that the Church has not regarded abortion as something which of its natureought to be dealt with only at the local level. On the contrary, it takes it to be so grave an offense that at one timethe highest authority in the Church, the pope himself, alone could lift thepenalty associated with it.  Whetherlocal or central authorities ought to deal with abortion is a prudential matter.  The principle of subsidiarity does not byitself entail that only local authorities ought to deal with it.  And what is true of the Church is, mutatis mutandis, true also of thestate.

If theappeal to subsidiarity is intended to provide Trump with theological cover,then, it fails.  He and his supportersmay think his position is good politics, but no reasonable case can be made forit on grounds of natural law or Catholic moral theology.