The Common Good
By Brenda Appleby
From CONSCIENCE Newsjournal of Prochoice Catholic Opinion, Autumn 1997
The Canadian Bishops and the Public Debate On Contraception
Brenda Appleby, a bioethicist and Doctor of Theology, is currently engaged in clinical training at Kingston General Hospital in Ontario, Canada. This article is adapted from a larger work on responsible parenthood.
Until 1969, contraception was illegal in Canada. Section 150 of Canada’s Criminal Code designed to protect the public from corruption and preserve social values stated:
Every one commits an offence who knowingly, without lawful justification or excuse,…
(c) offers to sell, advertises, publishes an advertisement of, or has for sale or disposal any means, instructions, medicine, drug or article intended or represented as a method of preventing conception or causing abortion or miscarriage.
Although subsection 3 of Section 150 (“Offenses Tending to Corrupt Morals”) provided an escape clause for those who could prove that the actions which led to their criminal Charge served the public good, it was an unreliable exception.
During the course of legislative activities undertaken by the First Session of the Twenty-seventh Parliament (January 18, 1966 to May 8, 1967), the House of Commons of Canada heard four bills proposing amendments to the Criminal Code in regard to birth control.(1) These four bills received first reading on January 24, 1966, and on second reading (February 21), they were referred to the Standing Committee on Health and Welfare. The Committee held public hearings on these bills, providing a forum for public debate on contraception.
In the early 1960s, Protestants and Catholics, legislators and citizens believed that the Roman Catholic church would oppose all efforts to remove contraception from Canada’s Criminal Code. The Catholic church was known to oppose the use of contraceptive devices, and where confessors may have been lenient towards parishioners who made use of them, the ideal of preserving the procreative potential in each act of sexual intercourse was largely defended by both Catholic priest and lay person. In 1966, however, the Canadian Catholic Conference (CCC)(2) did not oppose an amendment to decriminalize contraception. For many Catholics, the CCC had betrayed the orthodox position of the Catholic church, that sexual intercourse should always be open to procreation; others welcomed what they saw as a modern andopen-minded position taken by their bishops.
The public hearings of the Standing Committee began in February 1966. For the CCC this was both an opportune and an awkward time. During the first half of the decade, Catholics and Protestants alike had subjected the topic of contraception to rigorous theological and moral examination. By 1964, the Canadian Council of Churches, following the example of the World Council of Churches, had issued a statement in support of responsible parenthood to which the Canadian Catholic observers did not dissent.
Later that same year, Cardinal Paul-Emile Leger, Archbishop of Montreal, addressed the Second Vatican Council on a draft version of “The Pastoral Constitution on the Church in the Modern World” (Gaudium et Spes), which had been circulated in April 1964. According to Leger, conjugal love within marriage was good in itself, not just when it served the needs of procreation. He affirmed that marital and parental duties were based on the reality of two equal, good, and holy ends of marriage, namely, love and offspring, neither of which should be designated as primary or secondary.(3)
Other members of the Canadian Catholic hierarchy who advocated a change in doctrine on contraception included Cardinal Emmett Carter, Archbishop Philip Pocock, Bishop Remi de Roo, and Bishop Alexander Carter. Contributors to a collection of essays on the “Catholic Predicament,” published in 1964, included Canadians Stanley Kutz, Professor of Moral Theology at St. Michael’s College in Toronto; Leslie Dewart, Professor of Philosophy at St. Michael’s College; and Gregory Baum, then consultant to the Secretariat for Promoting Christian Unity.(4) All contributors to the book argued in favor of a modification in the traditional Catholic teaching.
Responsible parenthood included values which Protestants and Catholics alike affirmed about marriage, especially with the developments that took place in Vatican II. Both communions emphasized the importance of conjugal love and offspring, neither subordinate to the other; both confirmed that decisions about numbers of children and frequency of childbearing were mutual decisions of the spouses; both allowed intercourse to take place during periods of known infertility; both regarded family income, health, and social factors to be relevant to parental decisions.
Two matters were not yet held in common. Catholics would defer to the teaching in the long-awaited papal encyclical on contraception; even if their consciences would allow them to use contraceptives, a papal ban would influence their decision. The second difference was that Protestants were free to choose mutually acceptable, aesthetically unobjectionable, and medically recommended means of contraception.
Catholics, on the other hand, were restricted to the calculation of sterility, or natural family planning, to defer conception. Both of these differences were, however, more theoretical than actual, for some Catholics in particular. Robert Springer cited statistics from a study by Westoff and Ryder which reported in 1965 that 54 percent of Catholic couples in the United States used methods of birth regulation other than natural family planning.(5)
It was clear from as early as the fall of 1964, and certainly by June 1966, that many Catholic lay people, priests, and theologians anticipated a change in the teaching that contraception was always intrinsically evil. Whatever decision Paul VI would make, it would have had consequences for the topic of contraception, as well as for the role of individual conscience among Catholics.
The Bishops’ Statement
In the summer of 1966, while the Standing Committee on Health and Welfare suspended its hearings on birth control to accommodate the hesitancy of the CCC and await its statement, Canadian Catholics were divided over the issue. Some, perhaps an articulate and vocal few, were ready to embrace the concept of responsible parenthood, allowing spouses to determine the number of children, the spacing of pregnancies, and the method of regulation according to their own personal conscience. No doubt, the Canadian hierarchy was divided on the issue, some eagerly anticipating change, others longing for a reaffirmation of what they saw as an objective moral truth, that the sexual act might not be altered.
The CCC resolved its dilemma astutely. With regard to the concept of responsible parenthood, their Statement to the Standing Committee acknowledged that “a large number of our fellow citizens believe that this law [criminalizing contraception] violates their rights to be informed and helped towards responsible parenthood in accordance with their personal beliefs.”(6) In one sentence, the bishops indicated that the issue involved a law which did not contribute to the public good; that the role of the law was to protect citizens’ rights, not religious beliefs; and that responsible parenthood was a goal that could be implemented according to the individual conscience of Canadian citizens. Even if Paul VI continued to maintain that conception prevention was objectively evil, that teaching would be irrelevant to the proposed legislative amendments to the Canadian Criminal Code. Certainly the Catholic church would expect obedience of its members, but the church could not expect criminal or civil law to enforce ecclesiastical or moral law. If the awaited encyclical permitted Catholics to make their own decisions about the means of birth control, including natural family planning, then retaining contraception in the Criminal Code would also violate the rights of Canadian Catholics as citizens.
The pivotal assertion of the CCC Statement was that the rights and responsibilities of Catholics as citizens differed from their rights and responsibilities as members of their church. Moreover, the role of civil legislation was to protect the rights of Canadian citizens, regardless of their religious beliefs, which were becoming increasingly pluralistic. The standard of civil legislation was that it contributed to the common good of the society. On these matters, the bishops had a wealth of solid and contemporary Catholic teachings on which to draw. Several documents of the Second Vatican Council examined the issues of the relationship between church and society, the responsibilities of legislators, citizens, and church members, and the distinction between the common good of the political community and the gospel for the religious community.
In their statement, the Canadian Catholic bishops deliberated on the role of the Christian legislator in the face of a controversial moral issue. They questioned: Are legislators who are loyal to their church bound to vote for laws prohibiting what the church declares to be wrong? Are they obliged by their allegiance to the church to work for the repeal of laws which allow what the church holds to be wrong?(7) To answer these questions, the CCC referred extensively to documents from the Second Vatican Council, including as an appendix to their Statement the complete text of Part II, Chapter 4 of “The Pastoral Constitution on the Church in the Modern World” (Gaudium et Spes) entitled “The Life of the Political Community.” Additional documents to which the Statement referred were “The Dogmatic Constitution on the Church” (Lumen Gentium) and “The Decree on the Apostolate of the Laity” (Apostolicam Actuositatem).
The bishops observed that people were members of both the religious community, that is, the church, and the political community, the state. Within their religious community, Catholics had a personal vocation and were competent to pass moral judgments on matters of basic personal rights and the salvation of souls. Within the political community, Catholics had a social vocation to pursue the common good of all citizens. Gaudium et Spes envisioned a clear distinction between the role and competence of the church and of the state. “Within the political community Christians act ‘in their own name as citizens’,” guided by their Christian conscience which was in turn formed by the teachings of the church(8). Catholics must therefore “learn to distinguish carefully between those rights and duties which [were] theirs as members of the Church, and those which they [had] as members of society.”(9)
Article 36 of Lumen Gentium enumerated the rights and duties of society or citizenship concerning human labor, technical skill, civic culture, the fair distribution of worldly goods, and norms of justice. As members of the church, Catholics would be concerned with the subjection to Christ which was human freedom, and would be responsible for imbuing “culture and human activity with moral values.” These two spheres must then be distinguished and harmonized.
Drawing on the “Decree on the Apostolate of the Laity“, the Canadian bishops spoke of the task of renewing the temporal order, acting on one’s own responsibility as citizen, and being guided by the gospel and the church. According to their Christian consciences, formed in part by the church’s teachings on the social order, as well as the moral aspects of the political order, Christian legislators were to apply social and moral principles to concrete social and political realities, always seeking the common good. The Christian legislator’s task was to promote the common good through wise and just laws, always seeking the good of all society, rather than the advantage of any one group.
Being One Among Many
The common good would include the exercise of civil liberty, protection of personal rights, and preservation of the rights and duties of national and religious minorities, respecting “the opinions and religious beliefs of others” in a “spirit of cooperation” in the midst of political, social and cultural diversity.(10) Political structures would vary according to particular social contexts and historical developments, but public authority rested upon human nature and, therefore, was part of the “order of things divinely foreordained.”(11) When faced with oppression by authorities, Gandium et Spes directed Christians to obey in matters that served the public good, while defending themselves and others against the abuse of authority. Politicians were charged with the responsibility to fight against injustice and oppression, resisting the arbitrary rule of one person or one party, and fostering a greater tolerance toward all members in a pluralistic society. Article 74 of Gaudium et Spes described the common good as “the sum of those conditions of social life by which individuals, families, and groups [could] achieve their own fulfillment in a relatively thorough and ready way.”(12)
Rooted in Catholic social justice teachings on the competence of the political order or state and the spiritual order of the church, the CCC Statement emphasized the development and protection of the common good. The bishops were addressing their community of lay persons in the Canadian Catholic church, as well as members of the legislature and Standing Committee. In answer to the questions, “Are Christian legislators bound to vote for laws which forbid what the Church forbids?” and “Are they bound to oppose laws which permit what the Church forbids?”, the simple answer was “No.” Members of Parliament were responsible for protecting human rights and freedoms, and establishing laws which promoted the good of all society, not just the good of a particular religious group.
In the matter of a legislative amendment to remove “conception prevention” from the Criminal Code,’The Christian legislator must make his own decision,” concluded the bishops. Participating in politics was “a temporal task” not directly linked with the salvation of souls or ultimate moral values. Within the political sphere, the Catholic legislator was responsible for the common welfare, not for imposing the moral doctrines of the Catholic church on other citizens.
The CCC argued the need for a “reasonable proportion between wrongdoing and the means taken to suppress it.” A wrongful act should only be a criminal offence if five conditions were met:
- the act was “notably contrary to the common good;”
- the act “notably injure[d] the common good;”
- a law forbidding the wrongful act was “capable of enforcement;”
- the law was “equitable in its incidence,” that is, it would not disproportionately harm any group in society; and
- the law would “not give rise to evils greater than those it was designed to suppress.”(13)
On the basis of these conditions for legislating against a wrongful act, the bishops testified that they considered Article 150 of the Criminal Code to be an inadequate law: contraception was not harmful to public order or the common good, the law was not, in fact, enforced, and attempts to enforce it would violate the public peace.
Nevertheless, the CCC noted that there were public ramifications on the matter of contraception, and that the Catholic church had three specific concerns and corresponding recommendations. First, the CCC advised the Standing Committee to provide “safeguards to protect juveniles” from harm and to “safeguard” the general public from offence. Regulations should be enacted to control the advertising, display, and sales of contraceptives before any amendment was passed. Second, the bishops wanted assurances that the “privacy and effective freedom” of individuals regarding responsible parenthood would not be compromised by government regulations and programs. Specifically, the CCC wanted to make sure that “acceptance of contraceptive devices or information [would] never in reality [be] made a condition or necessary concomitant of welfare assistance.” Third, the CCC advised against allowing the government to “dictate” to married couples “how many children they may or should have, or what methods of regulation of births they should adopt.” Since these decisions properly belonged to spouses, they must be free to act according to their conscience, free from coercive tactics and policies. With these safeguards in place, the CCC would not oppose an amendment to legalize contraception.
On December 5, 1966, the Standing Committee on Health and Welfare presented its summary report to the House of Commons recommending that “the dissemination of family planning knowledge should be completely available and free from any fear of illegality, as a matter of personal choice.” Out of thirty-six witnesses heard, all but one (the Pentecostal Assemblies of Canada) advised removing “preventing conception” from the Criminal Code. In common with the Protestant churches and the CCC, however, many Committee members contended that the government should maintain some federal control over contraceptives and family planning services. They believed without government controls over advertising, the country could be deluged with blatant billboards and neon signs advertising contraceptive devices. If there were no restrictions on sales, contraceptives might be openly sold in grocery stores, “cigar” or convenience stores, and even vending machines. The Committee proposed that the Food and Drug Directorate regulate the sales, advertising, and safety of contraceptive devices and drugs.
Negotiating these matters took another two and one-half years: the bill decriminalizing contraception received Royal Assent on June 27, 1969. During this interval, in the summer of 1968, Pope Paul VI issued Humanae Vitae, his encyclical proscribing birth control. By this time, however, the public debate in Canada had long been resolved. In terms of law and public policy, in support of the common good of society, Canadians of all faiths were free to make their own decisions regarding birth control and parenthood.
1. It was the “subject matter” of these four bills that was referred to the Committee. All four bills used the term “birth control.”
2. Although Canada’s House of Bishops is now known as the Canadian Conference of Catholic Bishops (CCCB), in the late 1960s it was known as the Canadian Catholic Conference (CCC).
3. An account of Leger’s speech can be found in Patrick Riley, “112th General Congregation, October 29, 1964.” Council Daybook: Vatican II, Session 8. Edited by Floyd Anderson. (Washington, DC: National Catholic Welfare Conference, 1965), p. 204.
4. Contraception and Holiness: The Catholic Predicament (New York: Herder & Herder, 1964).
5. ibid, p. 324. The article he cited was Ryder and Westoff, “Use of Oral Contraception in the United States, 1965.” Science 153 (1966), p. 1199-1205.
6. House of Commons of Canada. “Evidence (11 October 1966).” Standing Committee on Health and Welfare, p. 579.
7. “Evidence,” p. 576.
8. The concept of “citizen” had first been introduced by Pius XII in his 1945 Christmas Discourse. Leo XIII in Rerum Novarum and John XXIII also used it in Pacem in Terris. Rerum Novarum also referred to the notion of a “common welfare” in an early development of Catholic social justice teachings.
9. Evidence,” p. 577.
10. ibid, p. 582.
11. ibid, p. 583.
12. ibid, p. 583.
13. “Evidence,” p. 579. ©