One can forgive the Minister of Health, who is a doctor, not a lawyer, for suggesting that there may be a change in the law so that doctors do not need to report a crime like an abortion to the police, but for the Prime Minister to suggest it is strange, to say the least, him being a doctor of law. This idea to throw the onus on doctors for not reporting a crime to the police is not a good idea at all. Doctors might be tempted then not to report other crimes and choose when to do so and when not. If one wants a solution to the problem one should look elsewhere.

There is a big difference between morals and law. In a moral act, the three factors that determine it are the material object or physical act itself, circumstances and the motive of the end in order to establish the good or bad of the moral act. The most important of these is the motive or the final end of the will to maintain a good end usually based on human dignity and virtue theory. One can consider the motive to be the formal object of the moral act what scholastics later termed the finis operantis.

There is then the intention towards the material object/ norm of law or physical act, what scholastics called the finis operis and of course the circumstances which qualify the ethical situation especially the material object. In morality for a good moral act to ensue, the person involved must carry out the material norm that is in right proportion to the intended end even if this is considered an ontic or premoral evil.  If this is not proportionate to the end, then the means used of the material object are not justifiable.

The right to life of an innocent human can never be cut short except when it threatens the life of the mother as well, leading to the loss of both, as otherwise there is no proportion between the right to life of the innocent child and the right of the mother to a better quality of life or other considerations. For a good end and a right action, the finis operis must be translated into the finis operantis!

Our courts are however courts of law. The law is the norm and in the main consideration of the law as a norm, things are different. The intention to the finis operis is what mainly counts not the finis operantis. Our courts are courts of law not morals, and it is the norm of law and breaking it, which constitutes the formal object while circumstances and motives are secondary in nature which might reduce the guilt if considered appropriate.

Proportion of circumstances and motives are lined up to the material norm. The right to life of an innocent human being is absolute and guaranteed by our constitution unless, of course, it is threatening the life of another innocent human being, where proportion then permits whether to choose to lose one life rather than two. No particular circumstances or motives of the mother except where there is a direct threat to her life, can justify removing the life of the child by killing it in an abortion. Circumstances and motive can lessen the guilt but not erase it completely if the formal object is the norm of law.

Therefore, if the Prime Minister wishes for women not to go to jail when they commit an abortion, then he ought to change the punishment associated with breaking the norm of the law! I am not referring to decriminalisation here. In my opinion the magistrate did well to give the woman a suspended sentence rather than send her to jail but even if a suspended sentence is considered unwelcome then it is up to the government to change the law to more appropriately fit the punishment to the crime.

Michael Asciak is a former Member of Parliament