A couple of weeks ago, a member of the youth executive of the PN suggested that abortion should become available to women who felt the personal need to resort to it. The party leadership rightly responded that abortion was not on its policy cards. It is interesting why a youth should feel that women should have a free choice in this type of decision irrespective of what society wants. What should mark this decision as a personal rather than a social one? We live in a western society that has free choice and freedom of expression enshrined not only in its Constitution but also in its culture. It is hard for us to imagine doing anything today without freedom of choice. The youth concerned reasoned that women had a right over their body and therefore only they had a right to decide what to do with their unborn child.
Why is this reasoning defective when examined in depth? First of all, even in a liberal society that has the right of free choice, one is aware that the freedom of one human being ends where the freedom of another human being begins. Are unborn children citizens, members of civil society, people? Although they obviously lack the ability to convey their thoughts and cannot as such access the services of a lawyer, biologically they are human from day one of fertilisation. Embryological and biological science leave no doubt here and the force of natural reason impels us to protect the right to life of fellow human beings even though this argument is often woolly as to whether these beings are actually people or not, a dichotomy I find false. Members of our own species deserve to be protected from harm and have a shot at living a full life like we all have had.
A couple of months ago, I appeared on a programme chaired by Saviour Balzan in which I spoke about the moral aspects of homosexuality. I said that as a moral object, homosexuality was both through revelation and rational natural law, considered an intrinsically immoral act. In fact the Catholic faith still calls on Catholic homosexuals to live a celibate life. I went on to explain that notwithstanding this, the moral act itself also considered subjective elements such as the intention and circumstances surrounding the particular issue which may lessen the moral guilt substantially in particular cases, even possibly to the point of removing it completely. These circumstances can vary but include hormonal, genetic, neural, psychological issues and the extent of the homosexual inclination itself which is not a one size fits all. Mr. Balzan made the erroneous assertion at that juncture that one could use the same reasoning for abortion vis-à-vis women's rights. I said nothing at that point because I did not want to detract from what I had just said and I did not want to confuse people, but Mr Balzan's conclusion was highly flawed.
In the types of issues where the moral object is offset by aspects of circumstantial and intentional facts as far as guilt is concerned, there is usually a trade-off of different rights and duties depending on the circumstances of the issues at hand. The big mistake is that these trade-offs in morality, as opposed to ethical issues of bioethics for example, are not a simple issue of considering prima facie rights depending on the situation prevailing at the moment where all rights may carry equal or different weights according to the different circumstances one may find oneself in. In these cases of bioethics, each right such as autonomy, beneficence, justice or non-malfeasance may each be prima facie right or wrong. In moral issues, there is a situation involving a trade-off between rights with an intrinsic hierarchy of scale where certain rights naturally carry more weight than others independent of the circumstances. There is a pyramid of rights involved in morality and at the very top lies the right to life, which one may consider quasi-absolute and in the case of innocent human life, of an absolute quality. The rights of a woman to do what she wants with her own body lies at a lower hierarchical scale than the right of the unborn to be able to have a life at all, independent of circumstances!
Lord Patrick Devlin, a former judge of the Queen's Bench correctly pointed out the difference between morality and law. He quotes Thomas Aquinas as stating that not all that is immoral should be illegal except those issues that are concerned with order and disorder and, Aquinas adds that the common good of society. He states that criminal law should not be detracted from morality but should reflect the public morality of the time as opposed to the private morality of individuals and religion. This public morality is determined by the reasonable man, or as he says, the reasonableness of the man or woman in a jury box. This public morality changes with time. Where I disagree with Lord Devlin's conclusions, probably a product of the Reformation and the thoughts of the utilitarian J.S. Mill, is that his concept of the basis of reasonableness of the common man is not his rationality in the sense of being the intellect but the heart, constituting the emotions. He concludes that the country's legislative and criminal law should follow the sway of emotional feelings of the general population of the time. I believe that Lord Devlin's concepts fall under the definition of public interest rather than the common good. Can a majority decision legally ever deny a human being of his or her human natural rights based on natural law?
Lord Devlin here refutes the concept of natural law as understood by the main philosophical tradition of the Maltese population and most of continental Europe since time immemorial. Natural law holds that the construct of a public morality should not be based on its emotional majoritarian aspects but primarily on aspects of man's rationality. The common good is what is rationally good for each member of the public to lead a fulfilled life and this should constitute the 'public morality' independent of what the majority think. Consequently, the legislative branch in Malta and the courts should continue to give credence to a concept of the common good based on the inalienable natural rights of individuals foremost among which is the right to life. This should not be an issue of public interest but one of the fundamental common good, allowing each individual human being to have a fundamental right to life! One should ultimately distinguish between an objective and subjective morality even though the objective morality recognizes subjective circumstances. Subjective morality on the other hand never considers the objectivity of moral issues!
Dr Michael Asciak MD., M.Phil., PhD., GTC in Vocational Education & Training
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