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THE NOTRE DAME ARRESTS AND THE CATHOLIC MORAL PRINCIPLE OF DOUBLE EFFECT

 

There is no doubt in the mind of any serious Catholic pro-lifer that Notre Dame University forfeited its right to be called a Catholic institution of higher learning when it allowed Barack Hussein Obama, current resident of the White House to come on campus and to be honored.  He sullied the ears of the graduates with his unabashedly pro-abortion screed.  They rendered banal their doctorate degree of law when they bestowed that on Obama.  Notre Dame’s forfeiture of honor may well be irrevocable.

 

Just prior to Obama’s arrival, thousands of decent people tried to prevent his coming on campus, utilizing various means.  Time forbids a long litany of the methods of protest used.  One such method, however, evoked considerable controversy, even in Catholic and pro-life circles.  I am, of course, speaking of the arrests deliberately undertaken by several hundred protesters.  There are some key factors to consider when examining this method as used at Notre Dame; there are real problems with the arrests, and these problems are not that obvious.

 

Some brief background is in order.  There were many protest efforts.  The earlier efforts were just outside campus (or, over campus, with the planes flown by the Center for Bioethical Reform).  Bishop D’Arcy had asked that protesters stay off campus.  Father Jenkins made clear that protesters venturing onto the campus would be arrested.  Enter Randall Terry and Alan Keyes.  They made clear that they would go onto campus with the clear intent of being arrested, in order to draw media attention to their message.  In a May 11th press release via the internet, Alan Keyes appealed to pro-lifers to “join us in trespassing until the South Bend jail cell is filled to overflowing with witnesses of truth.”  Some rather well-known pro-lifers were among those who deliberately sought arrest: Joan Andrews Bell, Father Norman Weslin, Norma McCorvey – in addition to Alan Keyes himself.  Moreover, several of my personal friends joined this effort.  I greatly respect the courage and tenacity of all who participated.  I do believe, however, that the planners of this “arrest event” inadvertently ran afoul of a tenet of Catholic moral theology.

 

Let me say at the onset that I do not believe for one second that this breach was deliberate.  Due to the relatively poor teaching we’ve all received, it is understandable that such mistakes could be made.  I myself would have been unaware of this, had I not recalled some taped lectures that I had procured, in an attempt to correct my own ignorance.  The lectures to which I refer are a series called “Fundamentals of Catholic Moral Theology”, given by the late Msgr William Smith, of Keep the Faith (producers of The Latin Mass magazine).  I would highly recommend that all procure this lecture series (now available for download in MP3 format) from www.keepthefaith.org.  I found it to be very lucid and easy to understand for a layperson.

 

Particularly relevant to this topic is Msgr’s discussion of the Principle of Double Effect.  This principle follows from the truth that “the ends never justify the means”.  This principle deals with actions that we may place, that have both a good effect and a bad effect.  It lists four criteria whereby we may evaluate the permissibility of such a given action.  They are listed below (taken from the online Catholic Encyclopedia):

·         The act itself must be morally good or at least indifferent.

·         The agent may not positively will the bad effect but may permit it. If he could attain the good effect without the bad effect he should do so. The bad effect is sometimes said to be indirectly voluntary.

·         The good effect must flow from the action at least as immediately (in the order of causality, though not necessarily in the order of time) as the bad effect. In other words the good effect must be produced directly by the action, not by the bad effect. Otherwise the agent would be using a bad means to a good end, which is never allowed.

·         The good effect must be sufficiently desirable to compensate for the allowing of the bad effect”

 

In his discussion of this principle, Msgr Smith used the example of a fireman deciding whether or not to venture into a burning building.  In one case, the fireman had reason to believe that someone was trapped inside.  The action to be considered was the venturing into the burning building.  The potential bad effect was him getting burned, perhaps fatally.  The potential good effect was the rescue of the other person.  Let’s run through the criteria.  The act of going into the building is most likely neutral.  There is no other way to achieve the rescue without that action.  Of course the fireman doesn’t will the potential of getting burned.  The good effect won’t happen because the bad effect might happen (just the opposite).  The good effect of another person being saved does compensate for the risk of the bad effect.  However, if we were to take the same situation and say that not a person was trapped inside, but a family pet was, the fireman would not be justified in running into the building, since his life is worth more than that of the animal.

 

Again, I reemphasize that I don’t believe those participating in the arrests were aware of this principle and the moral ramifications of their actions.  However, such lack of awareness in no way renders this principle moot.  It is still relevant.  I also believe in their honest intentions and do admire their courage.

 

The reader of this article may well be comparing the above criteria with what happened at Notre Dame and may well be coming to their own conclusions that the deliberated arrests do not conform with the principle of double effect.  Such were my concerns, as I consulted a number of moral theologians.  I chose priests who were recommended to me as being orthodox; at least one of them participated in the Operation Rescues of the late 1980s to early 1990s.  Most of them have confirmed my concerns that the deliberated arrests fail the principle of double effect in all respects.

 

The first criterion states that the act to be considered must, in and of itself, be morally good or at least morally neutral.  I believe it to be morally bad.  Now one priest who did agree with the arrests referred me to a online article on the “principle of civil disobedience.”  Here is the link: http://plato.stanford.edu/entries/civil-disobedience/  Quite frankly, it’s off the wall.  There seems to be an unspoken assumption here (and in the thinking of many “civil disobedience” proponents) that the thinking, writings and actions of Martin Luther King Jr and Mahatma Gandhi are de facto infallible doctrine.  This boggles the mind.  Ladies and gentlemen, the problem with that assumption should be painfully obvious, but I’ll state it anyway.  Neither of those two gentlemen were Catholic!  How can their thinking possibly inform a Catholic conscience?  Their thinking, be it ever so meritorious, must still be judged in the light of the Magisterium – not the other way around!

 

It has also been said that Pope John Paul II advocated civil disobedience in his encyclical Evangelium Vitae.  I will now quote the pertinent sections.  First, from the very end of section 72 and starting section 73, “Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law.  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.”  Later in section 73 we read, “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 favor of such a law or to vote for it’.”  We do read, however, in Scripture, particularly at the ends of several of Paul’s letters, that we are to obey civil authority.  While on the surface Paul and John Paul II might seem to contradict each other, a little reasoning makes clear that they are in fact complimenting each other.  Simply put, we must disregard intrinsically unjust laws – but only those laws.  All other laws, including trespass laws and private property laws, are to be obeyed.  What if human life is in imminent danger?  Well, even civil law makes clear that trespass laws may be set aside to save someone in danger on private property.   Our fireman in Msgr Smith’s example is a prime “case in point”.  Twenty years ago, the participants of Operation Rescue did rightly break trespass laws to save babies in danger; in those cases, the trespass laws were being utilized to shelter the murder of babies and thus they were morally invalid laws on their face.

 

Such was not the case with the Notre Dame arrests.  I quoted above Mr. Keyes’ clarion call to “join us in trespassing.”  Trespass does involve the breaking of law, but that law doesn’t promote abortion or any other intrinsic evil, especially when it involves the private property rights of a school as opposed to an abortuary.  I do understand that there may now be question as to whether or not Notre Dame had the right, under canon law, to bar the protesters.  However, should that question not have been researched beforehand, as opposed to “after the fact”?  Thus, in my opinion, the first criterion of the principle of double effect was not met by the Notre Dame arrests.

 

The second principle states that the bad effect (arrests) must not be positively willed.  Well, obviously they were.  The arrests were not merely accepted willingly, they were sought.  We already saw that Mr. Keyes made that quite plain.  We also read unabashed statements to that effect in the June 2009 edition of the Defend Life newsletter at this link http://www.defendlife.org/June09Newsletter.pdf.  On page 2, first column, we read and I quote “Of the hundreds who demonstrated, nearly 80 would intentionally get arrested for trespassing, as part of the effort to focus the nation’s attention.” (emphasis mine)   Other excerpts speak of individual intentions to get arrested.

 

The second principle goes on to say that if the agent could obtain the good effect without the bad effect, he should do so.  The protesters wanted to draw attention to their message.  I have learned that there were no gates and no fences that separated the campus from the surrounding areas.  There was no pressing need to go on campus.  In fact, the bulk of the protesters stayed off campus and certainly drew attention.  I mentioned earlier that the Center for Bioethical Reform rented planes and flew advertisements above campus.   The second principle was violated.

 

The third principle that the good effect must flow from the action at least as immediately as the bad effect (that is, in the order of causality).  The good effect cannot be caused by the bad effect.  Else, that would be an attempt to justify bad means by good ends, which is never allowed.  It is illicit to place an action to deliberately cause a bad effect so that a good effect can come from the bad effect.  Catholic morality does not allow for that.  However, that was the stated plan to garner media attention: walk onto the campus to get arrested, so that media publicity would be attracted.  Someone pointed out to me that there’s nothing inherently immoral about being arrested.  True, but that doesn’t diminish the bad effect aspect.  Recall Msgr Smith’s example of the fireman; Msgr clearly stated that getting burned would have been the “bad effect”, although there isn’t anything inherently immoral about getting burned.  The third principle was violated.

 

The fourth principle states that the good effect must be sufficiently desirable for the allowing of the bad effect.  That’s why the fireman could risk being burned to save another person, but not for an animal.  The good effect desired was media publicity for the pro-life message.  I am rather handicapped in evaluating this, since I don’t watch television.  I am, however, in touch with pro-life news services.  For several weeks prior to the “arrest events” (as Alan Keyes called them), I saw many items regarding pro-life protests, from pickets outside of campus to the planes flown over the campus by the CBR.  However, for the sake of debate, let’s assume that prior to the “arrest events”, there was no coverage whatsoever.  The Defend Life article and the various Terry websites claim that the media coverage made the arrests, and attendant risks, worthwhile.  I must question that.  I’ve been in contact with various folks who were planning to get arrested.  Two were an older couple who are both on heart medications.  They were wondering what to do about their pills, should they be arrested.  Was it licit for them to take that risk?  More to the point of the “arrest event” itself, was it licit to ask people to take such risks to their health for the sake of mere publicity – publicity that was probably already being obtained by the other pro-life groups?

 

Yes, people were being asked to take such risks to their health.  I know that for a fact because I was one of those so asked.  One of the arrestees, after getting out of jail, urged me to come to get arrested “for the experience.”  I mentioned several reasons why I didn’t think that wise.  Firstly, most of the local pro-lifers who offer leadership on Saturdays in front of the abortuaries were headed up there.  Had I joined them, there would have been complete absence of pro-life leadership that weekend.  Secondly, I do take blood pressure medicines.  Anyone with a scintilla of medical knowledge knows that missing doses of those pills is NOT an option!  However, this individual urged me to come anyway and “just tell the jail guard”.  I respect and love this person dearly, but if I had followed that advice, I would have engaged in the epitome of irresponsibility – most likely to a sinful degree.  But how much of that occurred with other people?  In my opinion, the fourth criterion was not satisfied.

 

Again, I reiterate my respect for the courage that it took to undergo the arrests.  I reiterate also that I don’t believe there was any culpability for sin, owing to the misinformation that most of us received.   The facts of theology, though, are not rendered irrelevant by our lack of knowledge of the same.  I write this with great reluctance, but I do so because I feel that the participants (and most likely the planners) were not informed.  Having done some research on this matter, I feel it incumbent to make known my concerns and findings.  Let me also state that I certainly did not author the principle of double effect or any other facet of Catholic moral theology.  I am, however, bound to adhere to it, as are all who take seriously their Catholic faith.    Now of course I don’t claim any monopoly on the truth.  If I err, I welcome correction.

 

I realize I am causing some consternation, but I trust that all will hold my efforts to inform in honor, as I hold my friends in honor.  Some might take umbrage, opining that Matt 18 requires me to address these thoughts first to those who planned the events.  I think that would be a misapplication of Matt 18, as that passage speaks about the handling of personal grievances.  I certainly don’t consider myself personally aggrieved by anyone involved.  Rather, tactics and ideas were proposed in public.  Since we are all free and reasonable people (I hope), we are free to discuss in respectful and rational manners the merits and/or demerits of the proposed ideas, so that we might all learn for the future.  That, in and of itself, should be no cause for disquiet.  There might be debate and discussion on this matter.  Well and good – let them occur!  Any comments can be addressed to webmaster@restore-dc-catholicism.com.  We reserve the right to publish any comments.  Thank you.

 

Janet M. Baker