Abortion: depenalization equals decriminalization

What makes a law a law?

In order for a law to be truly a law, certain conditions must be met. For example, a law must be just in order to be a true law.

Saint Augustine: “For it seems to me that an unjust law is no law at all.” (On Free Choice of the Will, n. 5.)

Pope Leo XIII: “For laws are to be obeyed only insofar as they conform with right reason and thus with the eternal law of God.” (Rerum Novarum, n. 72.)

Saint Thomas Aquinas: “Human law is law only in virtue of its accordance with right reason: and thus it is manifest that it flows from the eternal law. And in so far as it deviates from right reason it is called an unjust law; in such case it is no law at all, but rather a species of violence.” (Summa Theologica, I-II, Q. 93, A. 3.)

All laws must conform to right reason (the correct use of reason) and to the eternal moral law. Any law that is in conflict with the eternal moral law cannot stand as a law; it is violence, not law. This concept is implicit in human law, in that, when a local law is incompatible with a State law, or a State law is incompatible with a Federal law, the law with the greater authority stands and the other law is null and void. So right reason, as expressed in human law, agrees that a law that conflicts with a greater law is not a valid law. But the greatest law is the eternal moral law of God.

“All just laws are (1) reasonable, (2) of proper authority, (3) for the common good, (4) promulgated, and (5) enforced.” (Conte, Catechism of Catholic Ethics, n. 29.)

An unreasonable law is not a law because it is contrary to right reason, and therefore contrary to the eternal moral law.

A law not made by proper authority is not a law. For example, if a nation makes a law attempting to govern the Church (deciding who may be bishop or priest, deciding what doctrine may or may not be taught), then that law would be null and void because the government of the nation does not have that type of authority over the Church. Or if the United Nations makes an international law attempting to govern particular nations internally, such a law would be null and void because that organization lacks the authority to govern nations.

Any law that is contrary to the common good is not a valid law because it is therefore contrary to the eternal moral law. The basis for the eternal moral law is the love of God above all else and the love of neighbor as self. Laws contrary to the common good are not in conformity with right reason and the eternal moral law.

Any law that is not promulgated is not a law. It is unreasonable to expect people to obey a law of which they can have no knowledge, since it is not promulgated. Therefore, a law does not take effect until it is promulgated. So if there were a news report claiming that a Pope or a Council was about to approve, or had approved but not yet released, a new Church teaching or a new Church law, the faithful should ignore those claims until and unless the teaching or law is promulgated. A rumor is not a law. A claim is not a law.

A law that is either not enforced, or not enforceable, is not a law. Now the eternal moral law is enforced by God. But those persons err gravely who claim that God, being all loving and all forgiving, never punishes those who break the eternal moral law. Certainly, the punishment is lighter for lighter sins (venial sins), and the punishment is lighter for those who are repentant, than for those who are unrepentant, even from mortal sins. But the claim that God does not enforce the eternal moral law implies that the moral law is not a law.

Recently, the highest Court in the State of Maryland voided a state law (banning removal or alteration of firearms serial numbers) because when the legislature recently updated that law, they omitted specifying a penalty for breaking the law. The Court ruled that a law without a penalty is not a law. And so they overturned the law, even though the law formerly had a penalty and even though the law concerned an important matter of public safety. The Court’s decision is in accord with right reason. [News Source]

A law cannot be enforced if there is no penalty for breaking that law, and so a law without a penalty is not a law.


Those who claim that abortion should be illegal, but without any penalty for breaking the law, in effect are supporting the legalization of abortion. For although they protest, saying that they only support the depenalization of abortion, not its legalization (or decriminalization), it is a requirement of all laws that they be enforced and enforceable. Without a penalty, there would be no way to enforce the law. Therefore, support for the depenalization of abortion is just a clever way to support the legalization of abortion.

As for the question as to what the penalty should be, punishments must be proportionate to the offense. A minor offense calls for only a minor penalty. A law that gives a grave penalty for a minor offense is unjust, and therefore not a law. But a law that gives a minor penalty for a grave offense is also unjust, and therefore also not a valid law. Abortion is a grave crime; generally, it is a type of premeditated murder. Therefore, all just laws against abortion must attach a weighty penalty for that weighty crime.

The penalty should be more weighty on the person who performs the abortion, than on the woman who obtains it. For the one who performs abortions does much greater harm by giving abortions to many persons. But the woman should also suffer a weighty penalty, since her offense is also weighty. The exact penalty that should be applied must take account of the circumstances of the particular nation or state, but it cannot be so light as to not deter the crime.

Jail time is not necessarily the only possible weighty penalty. A heavy fine would be a heavy punishment for those with limited finances. And this also addresses the reason that some women get abortions, the effect of raising a child on their financial situation. But a fine is not sufficient, since the wealthy will not be deterred at all, and the middle class will not be sufficiently deterred. A lengthy amount of community service (perhaps working with children) would be weighty for those who are in the middle or upper classes, since it interferes with their lives. And this addresses another reason that women get abortions, to prevent a disruption to their lives. The combination of a heavy fine plus lengthy community service would perhaps be sufficient to deter the crime and to punish the offenders. However, a lengthy jail sentence should be given to repeat offenders, whether they are the provider of abortion or the recipient.

Ronald L. Conte Jr.
Roman Catholic theologian and Biblical scholar

Gallery | This entry was posted in ethics. Bookmark the permalink.