Ethics of Procreation and the Defense of Human Life: Contraception, Artficial Fertilization, and Abortion

7. The Legal Defense of Prenatal Life in Constitutional Democracies

228 7 The Legal Defense of Prenatal Life in Constitutional Democracies f Introduction: The Defense of Life and the Challenges of a“Culture of Death” The defense of human life in its physical integrity is, unquestionably , a traditional duty of the state. This duty, however, is currently being contested in two specific areas: the beginning and the end of life. The encyclical Evangelium Vitae (1995) denounces the inhumanity of what it calls a “culture of death”: a culture within which killing becomes an ordinary means to resolve conflict and end suffering, at times grievous and tragic, and caused to a great extent by a remarkable irresponsibility within the area of sexual behavior. The encyclical also appeals to the responsibility of the state, the legislator, democratic institutions , and the people, so that they continually guarantee a more effective safeguard of life, above all the life of the weakest , including the unborn, the elderly, the handicapped, and the terminally ill.1 In the following pages, I would like to show how the chap1 . Evangelium Vitae, no. 90. Numerical references for Evangelium Vitae and the other encyclicals cited within are to the paragraph(s) of the encyclical. Quotations from Evangelium Vitae are from the Vatican translation (St. Paul, Minn.: Leaflet Missal Company, n.d.). The present chapter was originally published as “Fundamental Rights, Moral Law, and the Legal Defense of Life in a Constitutional Democracy: A Constitutionalist Approach to the Encyclical Evangelium Vitae,” American Journal of Jurisprudence 43 (1998): 135–83. The Legal Defense of Prenatal Life   229 ter in Evangelium Vitae that discusses the relationship between moral and civil law adopts a line of reasoning that could be called “constitutionalist .” It follows closely the reasoning already propounded in the document Donum Vitae (1987) and in the encyclical Centesimus Annus (1991), which in its fifth chapter proposes a conception founded on the basic principles of modern constitutionalism: the idea of the supremacy of law over power; the separation of powers; and the protection of individual freedom based on fundamental rights. These are the constitutional presuppositions of a democracy that seeks to avoid degenerating into a tyranny of the majority. I shall pay particular attention to the problems involving the legal protection of prenatal human life; the principles developed there are only partly applicable to the problem of euthanasia. Starting from the conviction that mere moral argument is insufficient, this essay intends to propose a line of reasoning that can insert the doctrine of Evangelium Vitae into the real legal-political context of today. So I shall begin with a short yet necessary reflection on the difference between a strictly moral dimension and a legal-political one. Later we shall see whether and to what extent such a distinction seems justified against the setting of traditional Christian thought. Then we shall proceed to an exposition of the doctrinal core of Evangelium Vitae on this subject, and to a comparative and critical analysis of the constitutional jurisprudence of the Federal Republic of Germany and of the United States of America; this analysis will yield criteria and categories for dealing appropriately with the chosen subject. In the next section, I will point out the main propositions in opposition to the legal defense of the unborn, propositions that intend to “neutralize” and render irrelevant the fundamental truths that the unborn child is a human person and that with respect to human dignity, he or she is equal to any other living person. Finally, starting from the teaching of Evangelium Vitae on the subject, I shall propose two arguments to show the fundamental nexus between the legal-political order and the moral law within the area of my chosen subject, the legal defense of human life. Distinguishing between the Legal-Political and the Moral Plane To focus effectively on the question of the defense of life through legislative action and perhaps even social assistance by the state, we 230   Injustices must recognize two well-differentiated planes: the moral and the legalpolitical . Evangelium Vitae deals not only with ethical but also with complex legal-political themes. Addressing the relationship between the civil and the moral law, it affirms that “the purpose of civil law is different and more limited in scope than that of the moral law.”2 Not only are there limits regarding civil law, but the civil and the moral law have different tasks. The moral and the civil law are not subject to the...