From ............ HUMAN QUEST
POPE ASKS DISOBEDIENCE TO U.S. LAW
BLOW AIMS AT AMERICAN DEMOCRACY
By JOHN M. SWOMLEY
POPE JOHN PAUL II on March 25, 1995 promulgated his papal encyclical, Evangelium Vitae requiring the obedience of Roman Catholics in opposing abortion and euthanasia when they vote or have anything to do with legitimizing those issues.
The encyclical is therefore an explicit instruction to obedient [Roman] Catholics in Congress, state legislators and even to Supreme Court justices in their official capacity to oppose any laws or proposed law which would permit abortion.
The following are the crucial sentences in a much longer papal decree:
No circumstances, no purpose, no law whatsoever can ever make licit an act which is intrinsically illicit, since it is contrary to the Law of God which is written in every heart, knowable by reason itself, and proclaimed by the church.
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.
In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is never licit to obey it, or to "take part in a propaganda campaign in favour of such a law, _or_vote_for_it._" [emphasis supplied]
The pope also insisted that his authority to interpret what is moral must be placed ahead of democratic judgments of people whose interpretation of the will of God differs from his. He specifically stated,
"Democracy cannot be idolized to the point of making it a substitute for morality." He also said, "As a result we have what appear to be dramatically opposed tendencies."
It is not unusual for absolute monarchs to assert their judgments as superior to the will of the people. But in a religiously diverse society such as the United States there are those who do not want their legislators, presidents, govenors and judges to obey the pope rather than take seriously the constitutional oath to obey the Constitution and the will of the people.
At the same time this writer acknowledges that the pope has a right to issue any encyclical he wants, even though he is the head of a foreign state and a citizen of Poland. His decrees, however, need careful examination when they are applied to laws that were enacted by and apply to Roman Catholics as well as to non-Catholics in the United States.
For example, the pope is clearly wrong in asserting that abortion "is contrary to the Law of God." There is no statement in the New Testament which validates the papal position. Moreover, his interpretation of "the Law of God" is not "written in every heart, knowable by reason itself" or it would be accepted by other churches and faiths as well as the non-religious.
When the pope speaks of conscience he is right in saying that conscience may cause some people to violate a particular law. But conscience may also support laws which give women the right to choose ending an early pregnancy. The pope has never acknowledged that the lives and health of women are important enough to permit them to terminate a pregnancy which endangers them or their families.
The pope is also clearly wrong in telling American Catholics who have been elected or appointed to public office that they must obey him. If such officials were to acknowledge that he determines how they should vote, there would be no point in democratic elections even in heavily [Roman] Catholic areas. Many if not most [Roman] Catholics do not automatically vote the way their bishops or the pope want.
The pope is also wrong in defining contraceptives that function after "sperm unites with egg" as abortion. Conception is not complete or viable until the fertilized egg is implanted in the uterus which generally occurs about ten days to two weeks after ovulation. Yet he condemns contraceptives because they "really act as abortifacients in the very early stages of the development of the life of the new human being."
One courageous lawyer, John Tomasin, who is admitted to practice before the U. S. Supreme Court and therefore is "an officer of the Court," has filed a petition with that Court calling for the mandatory refusal or disqualification of Justices Scalia, Kennedy and Thomas in cases involving the constitutionality and application of Roe v. Wade. In doing so he relies on an Act of Congress, 28 USCA 455a which says
"[a] any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
In doing so the lawyer noted that the pope wrote of the necessity to
"resist unjust human law" even though this "may require the sacrifice of prestigious professional positions or relinquishing of reasonable hopes of career advancement."
It obviously referred to more than ordinary voters. Justices Scalia and Kennedy were included in the petition because the lawyer said they are "among the faithful to which said binding Encyclical Evangelium Vitae applies, and proud of it, and rightly so."
Justice Thomas was included because "he has stated that he was taught by nuns and other faithful, that he is not formally a member of such a church, but he has stated publicly that he follows and applies God's law in adjudicating constitutional cases Ñ the same words and rule used by Pope John Paul II in said Encyclical condemning abortion as murder."
Mr. Tomasin is concerned about the non-enforcement of the Act of Congress requiring disqualification of Supreme Court Justices and other judges lest
"Papal Encyclicals are being quietly enforced and made part of American law on the highest level, by the deliberate ignoring and disobedience of a statute specifically designed to prevent such prejudging of a case ......"
Mr. Tomasin's petition is not written from an anti-Catholic stance. He gives no clue to his own religion. He is explicit in saying that the recusal of Justices Scalia, Kennedy and Thomas could not have been raised prior to March 1995 when Papal Encyclical "Evangelium Vitae" was issued; and the "General religious or moral views" of the justices "do not require their recusal/disqualification" in any case before this. Only the papal encyclical requires it "in the one case of abortion, and 'Roe v. Wade' and its application."
Is his request for recusal/disqualification unreasonable? Certainly former Justice William Brennan, a faithful [Roman] Catholic, did not let pleas by Catholic bishops affect his judgments on cases of aid to parochial schools. On the other hand, some past and current members of Congress such as Henry Hyde have always voted in conformity with the wishes of the hierarchy.
But if three justices vote as the pope demands, will they be suspect even if they do so for different reasons? What do Americans think?
Certainly this papal encyclical is a crucial threat to American democracy and to a rule of law. Yet the press, including the progressive Catholic press, has paid it little if any attention. Did our readers know about this encyclical before reading this article ?
Dr. Swomley is Emeritus Professor of Social Ethics, St. Paul School of Theology, Kansas City, Missouri. He has a Ph.D. in political science and is Associate Editor of The Churchman's Human Quest.