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Contraception and the Council

by John T. Noonan, Jr,

from The Catholic Case for Contraception,  ed. Daniel Callahan, Macmillan, 1969, Ch.1, pp 3-18.

Reprinted from Commonweal, March 11, 1966.

Leading Catholic authorities oppose Pope Paul’s position on birth control.

Vatican II stated expressly that “the Holy Synod does not intend to propose concrete solutions directly.” The reason was also given: “certain questions which need other and more searching inquiries have been given, by command of the Supreme Pontiff, to the Commission for the Study of Population, Family, and Natality.” The question of contraceptive practice was thus recognized to be outside the Council’s domain of action. This frank recognition of a limit, and the delicate, nuanced, and balanced language of Schema XIII, the conciliar document on marriage in the modern world, has obscured the substantial development of doctrine which the Council effected. The Council did not propose concrete solutions “directly.” It did provide a fresh analysis of values, a new framework of concepts, [p 4] and a recasting of past teaching, in terms of which concrete solutions might be sought.

The significance of the Council’s teaching appears most strongly if it is set against two backgrounds: the background of the previous nineteen hundred years of Church teaching on marriage and marital intercourse; and the immediate background of conciliar drafts and amendments from which the final text emerged. The basic council document was prepared by a special sub-committee of the conciliar Commissions on Doctrine and the Lay Apostolate, of which Bernard Häring, C.SS.R., was secretary. This document of April, 1964, was then thoroughly revised as to language but not substance by another subcommittee of these Commissions in the summer of 1965.

The revised document was accepted on November 16, 1965, by the Council by a vote of 1,596 to 72, but with 484 Fathers favoring amendments (modi). According to the rules of the Council these modi could be accepted only if they did not go against the substance of the document. Their acceptability was passed on by the Mixed Commission, consisting of thirty bishops from the Commission on the Lay Apostolate and thirty bishops from the Commission on Doctrine. Reference here will be made to these accepted or rejected amendments by the number – m.1, m.2, etc. – they bear in the printed legislative history of the Council. Only in these contexts of past history and immediate legislative struggle can one perceive clearly the balances struck, the blendings achieved, the nuanced preserved, and the triumphs accomplished.

That the teaching of Vatican II should be of the greatest relevance to Catholic doctrine on contraception [p 5] is not surprising when it is remarked that the Second Vatican Council was the first council in the history of the Church to speak on the purposes of marital inter­course. This subject, which was unmentioned in the Gospels, had been left largely to the speculations of the theologians. It had never been a matter of authoritative teaching by a general council, nor, I believe, by any council. Now, for the first time, as the culmination of a slow evolution that took a decisive turn about 1680, a council gave authoritative teaching on coital purpose.

At various earlier times in the history of the Church it had been the common opinion of Catholic theologians that the only lawful purpose for initiating intercourse was procreation; a consciously procreative intent was required. This view, derived from the Stoics, was as­serted by Clement of Alexandria, and, adopted by Origen, played a guiding role in the Greek Church. In the West it was affirmed by St. Ambrose, St. Jerome, and, above all, by St. Augustine, who riveted it on Western moral thought. From 1100 to 1680 the Alexandrian or Augustinian requirement of procreative purpose was dominant among Catholic moral theologians.

By the end of the fifteenth century, however, a sharp critique had been made of the dominant theory, and Paris theologians had suggested that among the lawful purposes of marital coitus where the avoidance of adul­tery, the restoration of bodily and psychic health, and even the achievement of pleasure. Between 1480 and 1680 there went on a major theological controversy conducted in these categories. In 1563 the Council of Trent for the first time spoke at a conciliar level about love in marriage, but did not relate it to intercourse. Yet during the next century it became accepted that [6] intercourse in order to avoid incontinence elsewhere was lawful; after all, this view had the implicit support of St. Paul in I Corinthians: 7. In adopting this analysis, the seventeenth-century theologians broke with the Augustinian insistence that sexual acts must be some­how tied to procreative purpose. At the same time they were uneasy about pleasure as a purpose in itself, and the consensus was that to seek pleasure only in inter­course, while excluding other purposes, was to commit venial sin.

Only in the nineteenth century was the idea advanced that the expression and fostering of love could be recog­nized as a purpose of marital intercourse. This thought was not developed in nineteenth century theology, al­though by the end of the century Alois De Smet could add the un-Tridentine thought, apropos of the love which Trent had spoken of in marriage, “The marriage act itself, by which the partners are made one flesh, cultivates and nourishes this love.” Substantial theoret­ical development of this new, non-Augustinian insight was made in 1925 by the German layman, Dietrich Von Hildebrand, in his Reinheit und Jungfräulichkeit, and above all, in 1935 by the German priest, Herbert Doms in his Vom Sinn und Zweck der Ehe. Doms set out a complete theory of coitus as an ontological act of re­ciprocal love, “an act which contains the abandonment and enjoyment of the whole person and is not simply an isolated activity of organs.”

Doms’ theory was received with coldness, the Holy Office issuing a decree on April 1, 1944, that was interpreted as rebuking it. But his emphasis on persons, in contrast to the earlier focus on the biological act, was taken up by Pius XII in 1949 in an allocution [7] condemning artificial insemination. In the 1950’s, a position balancing procreation and conjugal love was set out by the leading moral theologians, Bernard Haring and Joseph Fuchs. Marital intercourse, Haring said, was “a fundamental mediation of charity.” Apart from procrea­tion, one of its permissible purposes was “the augmentation of love.” The loving union of spouses, however, was not directed to their own completion, but to the child, whose “virtual presence” was “inscribed in the ontological act of total union.” Similarly Fuchs taught that expression of love was a purpose of intercourse, although this love “entirely (although not solely or as a mere means) serves and is subordinated to the educa­tion of offspring, to whose generation such an act expressive of love is evidently ordered.”

There had then already occurred in theological thought a development which, blending procreation and conjugal love, recognized both as purposes of intercourse. Vatican II confirmed and crowned this develop­ment by relating the coital expression of conjugal love to procreation, but also giving such expression a substantial value independent of procreation. Conjugal love, the Council now taught, had its origin from God’s invitation to the married to love each other, and the Lord had “cleansed, perfected, and elevated” this love. Such love is “directed from person to person” and “completes the good of the whole person.” This was Doms on the ontological significance of coitus. Such “emi­nently human love,” the Council continued, “is able to enrich the expressions of the body and of the spirit with a peculiar dignity and ennoble them as elements and special signs of conjugal friendship.”

The Council then went on to teach specifically. “This [8] love is singularly expressed and perfected by the proper work of marriage. The acts, then, by which the spouses intimately and chastely unite with each other are decent and worthy, and exercised in a truly human way, sig­nify and foster a mutual giving by which with joyful and grateful spirit they reciprocally enrich each other” (sec.49 of Schema XIII, The Church in the Modern World).

One Father sought to excise the final clause running from “by which” to “enrich each other.” His amendment was rejected by the Mixed Commission with the comment, “This sentence was expressly and pressingly asked for by the laymen” (m.57). Four Fathers sought to replace “perfected” in the first clause by “consummated.” The amendment was rejected on the ground that “perfected” “brings the human aspect better into the light” (m.55). In short, the Council insisted that the coital act was human and personal, enriching the persons involved, and remarkably expressing the love which the Lord had perfected.

This insistence on the great value of love as an end of intercourse was a far cry from Clement, Augustine, and the dominant theological teaching of pre-seven­teenth-century Catholic thought. Not only was love set forth as an excellent purpose. The classification of pri­mary and secondary ends in marriage—a classification often used in debates on contraception—was deliberately rejected. Marriage, the Council said, was endowed by God “with various goods and ends” (sec.47). Family life was said to be a good of marriage, “not putting second the other ends of marriage” (sec.50). Two Fathers objected that for these reasons the whole chap­ter “was still theologically immature, equivocal and [9] reticent in certain essentials: it insists predominantly and almost uniquely on conjugal love and on personal donation, which they say does not correspond to the way of speaking of the Church from earliest times.” At least, these Fathers said, the chapter ought to speak of “the hierarchy of ends” and “the intrinsic malice of onanism” (m.1). One hundred and ninety Fathers asked that the text be amended “to recall Catholic doc­trine up till now handed down and to better indicate the hierarchy of ends” (m.16). Another Father pro­posed the amendment, “Conjugal love is ordained to the primary end of marriage, which is offspring” (m.72).

All of these attempts to insert the hierarchy of ends were defeated. The Mixed Commission said laconically, “It may be noted that the hierarchy of goods can be considered under different aspects.” Brusquer treatment was given an arch-conservative attempt to reaffirm Augustine by saying “conjugal love, independent of the intention of procreating offspring, does not justify the conjugal act.” This, the Mixed Commission said, “does not square with received doctrine” (m.67). The rejected amendments here, like the rejected amendments to the conciliar decree on religious liberty, stand as forlorn monuments to a theology which has been passed by.

Conjugal love, however, was not left unrelated to procreation and education. Here Haring and Fuchs were followed. “By its natural character, the very insti­tution of marriage and conjugal love are ordained to the procreation and education of offspring as they are crowned by their birth” (sec.48; cf. sec.50). The Coun­cil declared this twice, adding the second time this amendment, “Truly children are a most excellent gift of marriage and contribute especially to the good of the [10] parents themselves.” As the Mixed Commission pointed out, the “primordial importance of procreation and education is at least ten times expounded in the text” (m.15). Procreation and education were said to be cooperation in the work of the Creator; responsible procreation was said to be itself the generous fulfilling of a duty imposed on spouses. Not only was the procreative value strongly affirmed, but the Council also found “worthy of particular commendation” those who raised “a larger number of offspring to be appropriately educated” (sec.50).

In Short, the Council affirmed strongly and insistently that procreation was good and that marriage was di­rected to it. At the same time, in complete accord with classical Catholic expositions of the goods of marriage, procreation was never separated from education, ex­cept arguably in the amendment on the excellence of children; yet even this amendment was probably controlled by the sentence which preceded it and spoke of the “procreation and education of children.” There cannot be found in the conciliar exposition any attempt to praise uncontrolled procreation or to assert that procreation, apart from education, is good.

The coordinate emphasis on procreation and education was related to the stress the Council laid on parental responsibility to determine the number of children. Here the Council was summing up theological writing of the 1950’s, but at the same time setting a precedent in being the first Council to speak to the issue. In the April, 1964, draft of Schema XIII this responsibility was put very strongly: “Christian spouses know they are not the slaves of blind instinct.” On the floor of the Council in November, 1964, Cardinal Ottaviani challenged this [11] stress on parental responsibility as a dangerous novelty. Yet the revised text, no longer containing the sentence on blind instinct, was scarcely less emphatic than the first draft. The Council said that each couple was to decide the number of children they should have. They were to make the decision “attending both to their own good and the good of their children whether now born or to be born, diagnosing both the temporal and spiritual conditions of the times and their state of life, and taking into account the good of the family community, temporal society, and the Church itself” (sec.50).

This affirmation was scarcely tempered by the following statement that in making the decision the couple were to be “docile toward the magisterium.” The magisterium had never taught how many children a couple should have. Indeed it now taught, through the mouth of the Council, that a context of multiple goods was the framework in which a decision as to offspring should be made. What the Council regarded as relevant in making this decision was far broader than what Pius XII in 1951 had conceded in his Allocution to the Midwives could provide reason for regulating births—that is, “medical, eugenic, economic, and social” motives. Now the Christian couple were told explicitly by the magisterium to consider their own good, their family good, and their state of life; and there was unmistakable reference to the value to which procreation was invariably wedded, education, when the Council told parents to consider the good of their children born and to be born. “This judgment,” the Council said of the judgment as to number, “must ultimately be made before God by the spouses themselves” (sec.50). The Mixed Commission struck from this sentence the concluding words “and [12] by no one else” because these words “could seem too harsh” and might exclude advice; but the Commission acted with the explicit caution that the sense of the sentence, “by which every undue intervention is excluded,” was unchanged. The word “ultimately” was retained over objection, because “it underlines the proper responsibility of the spouses” (m.81).

What relevance to contraception had these strong conciliar affirmations on conjugal love as a purpose of intercourse, on the linked goods of procreation and education, and on ultimate parental responsibility? The Council began to relate the basic goods and contraception in section 51, “The reconciling of conjugal love with respect for human life.” The Council said it knew that “often in conditions of today’s life,” spouses are in circumstances “in which the number of offspring, at any rate for the time being, cannot be increased.” The parental responsibility to limit births then conflicted with the demands of love, and this conflict, the Council noted, threatened both the good of marital fidelity and the education of the children. There was candid avowal that the attempt to achieve all the basic goods of marriage might produce a crisis.

Recognizing the difficulty, the Council went on to say “There are those who presume to offer to these problems indecent solutions; indeed they do not shrink from killing.” To such persons, the Council declared that life “from conception” was to be guarded with the greatest care. This statement was itself a doctrinal ad­vance at the level of conciliar statement; no Council before had spoken so clearly as to the instant from which the embryo demanded respect. “Abortion and infanticide,” the council affirmed, “are horrible crimes.” [13]

There were also, the Council taught, moral criteria for marital coitus. These criteria are “taken from the nature of the person and his acts.” These criteria must determine what acts respect “an integral sense of mutual donation and human procreation in the context of true love.” In these statements a true advance occurred. Rejected was the scholastic approach rooted in St. Thomas which stated that the criteria were to be found in the nature of the act of coitus. One hundred and nine Fathers had sought to state the acts expressing married love in the old scholastic terms of “acts per se apt for the generation of offspring.” This hallowed formula was sharply rejected by the Mixed Commission with the decisive comment, “Not all acts tend to genera­tion (cf. sterility and the sterile times)” (m.56).

Now, in setting out the objective criteria of birth regulation, thirteen Fathers asked that “criteria” be modified with the words “as, e.g., in the generative faculty of human nature founded in the same dignity of the human person.” This attempt to emphasize the generative faculty was rejected by the Mixed Commis­sion (m.104). Also rejected was the amendment offered by one Father to add after the words “human procreation” the old scholastic formula “and the natural ordination of the act” (m.105). In sharp contrast, the Mixed Commission chose the words “taken from the nature of the person and his acts” because “by these words it is asserted that the acts are not to be judged according to a merely biological aspect, but as they relate to the human person integrally and adequately considered” (m.104). In accepting this criterion, the Council eliminated the usual scholastic arguments against contracep­tion which were focused on the nature of the coital act [14] abstracted from the person. Now the person and all his acts—educational as well as generative—were made the norm for judgment.

In the language used by the Council there was a reminiscence of the argument advanced by Doms that contraception hindered the ontological gift of oneself in coitus. “If a person,” Doms had said, “mutilates the biological process anatomically or physiologically, be­fore, during, or after the act, he only gives himself with an arbitrary reservation, which is contrary to the immutable meaning of the sexual act and the most pro­found intention of conjugal love.” The Council, however, did not adopt this argument. It left open the possibility that this argument might, however, be a valid objection, at least to those contraceptive acts destroying the physical integrity of coitus.

Attached to the April, 1964, draft of Schema XIII there had been an Appendix where it was explicitly stated that “Every deliberate intervention of men which vitiates the work proper to the conjugal act of the per­son is contrary to divine law and the order of matri­mony; nor can such a way of acting be consonant with the integrity of conjugal love.” Here was an express condemnation of coitus interruptus and the condom. A proposed footnote buttressed the text by noting that these methods were condemned by Casti Connubii. In the revised draft these references to particular contra­ceptive means were dropped.

In this final refusal to speak out on any contraceptive means, the Council refrained from judgment on any of them. It had stated in the introduction to the chapter on marriage that marriage today was profaned by “illicit practice against generation.” But “such practices” were [15] not made precise; oral and anal intercourse could have been meant. The Mixed Commission had rejected an effort to say “contraceptive arts” at this point instead of “illicit practices.” It did so for the pointed reason that “contraceptive arts” could include “the method of periodic continence, which often requires technical computations” (m.51).

The final draft, like the April, 1964, text, contained a reference to Casti Connubii and to the precise pages where Casti Connubii condemned contraceptive means interrupting the coital act. This reference was added, in the end, in an amendment called to the Mixed Com­mission’s attention by the Cardinal Secretary of State. But, unlike the April, 1964, draft, it was no longer said that the Council endorsed the condemnation. Casti Connubii became a footnote, introduced by “cf.” It was a footnote attached to the clause “ways reproved by the magisterium when it explains the divine law.” The footnote then asked the reader to “refer to” Casti Connubii. Did this cryptic notation mean that the Council was teaching that Casti Connubii was a case where the magisterium had stated divine law? Hardly, because the footnote reference to Casti Connubii was amplified by further references: to Pius XII’s 1951 Allocution to the Midwives, and to Paul VI’s Allocution to the Cardinals of June 23, 1964. The Allocution to the Midwives expanded Casti Connubii by saying it condemned attempts to impede procreation by preventing the “development of the natural consequences” of conjugal intercourse; in short, it condemned the diaphragm and douche. Paul Vi’s Allocution to the Cardinals, a reference added by the Mixed Commission, referred to “birth control” in general and said, “We must say openly that up to now [16] we have not sufficient reason to consider the norms given by Pius XII in this matter to be out of date [superate] and therefore not binding.” These were to bind “at least until we feel in conscience obliged to modify them,” because “in a matter of such importance it seems good that Catholics wish to observe a single law.” The norms given by Pius XII were probably those he had given on the progesterone pill in 1958, but arguably they included his 1951 teaching to the Midwives. Surely “norms” “given” by a Pope which might be shown to be “out of date” were not meant as divine law; and if the Council was not teaching by its elusive footnote 14 that the rules of Pius XII on the pill, douche and diaphragm were divine law, it could not be consistently argued that it was teaching that Casti Connubii on the condom and coitus interruptus was divine law.

Indeed, the most striking aspect of the Council on contraception was the way that it put the existing law on contraception as law for “children of the Church.” Pius XI had taught very strongly in Casti Connubii that the contraceptive acts condemned therein were contrary to the good of any man, Christian or pagan. The Council did not repudiate this teaching, because in its general deploring of the illicit practices against generation and in its setting out of objective moral criteria based on the person, it was speaking to all men, too. Indeed the introductory section of the marriage chapter noted that the Council “intends to illuminate and comfort all men.” Yet, when the Council turned to existing discipline in the Church on contraception, it ceased to talk of all men. Rather it said that “for children of the Church” “it is not lawful” to use methods of regulating procreation which “have been reproved by [17] the magisterium when it interprets the divine law.” The footnote reference to Paul VI’s Allocution to the Cardinals showed that the Council believed that in the process of interpreting divine law a Pope could give norms which were open to revision but which should be obeyed as authoritative teaching until revised. In short, the casting of the teaching on contraception in terms of what was not lawful, and the application of this teaching only to Catholics, would seem to suggest that the Council viewed existing condemnations as, at least in part, open to revision. In this it was in perfect harmony with Paul VI who thought it desirable that, until they were revised by him, a single law should bind Catholics.

Finally, the Council gave some guidance as to how conjugal love and the education of children were to be reconciled with the responsibility to regulate the number of offspring. It stated flatly “that there cannot be a true contradiction between the divine laws of transmitting life and those favoring genuine conjugal love.” When those were known it would also be known what rules could not be divine law. At least such a procedure seemed recommended by the Council in preference to one of hypothesizing the divine laws and trying to accommodate the laws of conjugal love to them.

The Council, subtly but decisively, indicated by example and precept its preference for the first method. It began the chapter on marriage by the statement that it proceeded not only in the light of the Gospels but “in the light of the human experience of all men.” The Council itself meant to rely on human testimony as to the requirements of love. Looking specifically “to the necessities and advantages of the family which are [18] appropriate for the new day,” the Council declared that a great contribution might be made by “the Chris­tian sense of the faithful.” Six Fathers wished to qualify this appeal to the faithful by qualifying the sense of the faithful as “showing filial obedience to the magisterium of the Church.” The Mixed Commission responded that enough had been said of the magisterium (m.113). What the Council valued was the consensus fidelium; as the Council had earlier taught in its Con­stitution on the Church, “The holy people of God share also in Christ’s prophetic office.” Beyond this invocation of the witness of the faithful, the Council asked scientists “to try to elucidate more deeply the different conditions favoring the decent regulation of human pro­creation.” Again there was no assumption that all the divine and natural laws on birth regulation were known to the Council or even to the well-read theologian. The appeal was to empirical investigation to discover the conditions.

The Council, then, has not proposed solutions “directly,” as to how conjugal love and parental responsibility may be reconciled. It has, however, set up the main pillars of any solution: procreation and education are indissolubly linked goods; conjugal love is in itself a legitimate and laudable purpose of intercourse; em­bryonic life is to be guarded; the dignity of the person is to provide norms; there is an element of divine law in previous teaching by the Church on contraception, but not all existing law on contraception is immutable. Solutions for the new day are to be found both by discerning what is divine and immutable and by consult­ing experts and the Christian faithful.