Abortion and subsidiarity

Ever since the Dobbs decision permitted states to set their own abortion policies, Donald Trump has taken the position that the issue should stay at the state level.  Dobbs itself doesn’t require this, and leaves open the possibility of a federal ban.  But Trump nevertheless declines to pursue such a ban, and indeed is opposed to such a ban.  Now, a federal ban is in any event currently politically unrealistic, and will likely remain so for the foreseeable future.  But some take the view that, even if abortion amounts to murder, it would be wrong to impose a federal ban even if it were politically possible to do so.  They make their case on federalist grounds, arguing that a national abortion ban would usurp power that rightly belongs to the states.  Some argue on natural law grounds, specifically, suggesting that the principle of subsidiarity would rule out a federal ban.  If this were true, then it would follow that even a pro-life Catholic should oppose a federal abortion ban.  What should we think of this argument?

I think it is a terrible argument, one that rests on a distortion of the principle of subsidiarity.  We can see this both from what the principle of subsidiarity actually says, and from how the Church has treated the issue of abortion.  A classic formulation of the principle is given by Pope Pius XI in his encyclical Quadragesimo Anno.  He famously says there that “it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.”  If this sentence were all there is to the principle of subsidiarity, it is easy to see why someone might think it licenses leaving abortion to the states.  But that is not all there is to the principle.  Let us look at the larger context of this remark from Pius XI.  Here is the relevant passage:

When we speak of the reform of institutions, the State comes chiefly to mind, not as if universal well-being were to be expected from its activity, but because things have come to such a pass through the evil of what we have termed “individualism” that, following upon the overthrow and near extinction of that rich social life which was once highly developed through associations of various kinds, there remain virtually only individuals and the State.  This is to the great harm of the State itself; for, with a structure of social governance lost, and with the taking over of all the burdens which the wrecked associations once bore, the State has been overwhelmed and crushed by almost infinite tasks and duties.

As history abundantly proves, it is true that on account of changed conditions many things which were done by small associations in former times cannot be done now save by large associations.  Still, that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.  For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them.

The supreme authority of the State ought, therefore, to let subordinate groups handle matters and concerns of lesser importance, which would otherwise dissipate its efforts greatly.  Thereby the State will more freely, powerfully, and effectively do all those things that belong to it alone because it alone can do them: directing, watching, urging, restraining, as occasion requires and necessity demands.

To forestall confusion, note that “State” as Pius is using it refers to any more central government, and thus, in the American context, would apply first and foremost to the federal government rather merely to “state” governments, as that term is commonly used in the U.S.

Now, what Pius is saying here is indeed, in part, that if some social problem can be adequately addressed by more local institutions (which would include families, municipal governments, and provincial governments), then central governments should leave things to them and not intervene.  But by no means does Pius leave it at that.  He also says that there are some things that central governments “alone” can do.  Naturally, this includes things that are the proper function of any central government under normal conditions (such as national defense). 

But it also includes things that more local institutions might in theory be able to handle, but in practice cannot, because of “changed conditions” or the requirements of some particular “occasion.”  In particular, says Pius, because of the “individualism” of modern times, those intermediate institutions that traditionally came between individuals and central governments have become so weakened that they are now unable to perform some of the functions they were once able to.  And this has left these functions in the hands of central governments, as the only agencies left which can perform them.  In these ways, the principle of subsidiarity notwithstanding, there remain many functions which “necessity demands” that central governments perform, either always and in principle or at least under modern contingent circumstances.

Accordingly, as Fr. Austin Fagothey’s well-known manual of ethics Right and Reason notes, after affirming the principle of subsidiarity:

On the other hand, the state should provide a favorable environment in which individuals, families, and voluntary associations can fulfill their functions properly.  It has the right and duty to intervene when they fail to function as they ought or cannot harmonize their activities for the common good. (p. 394)

Now, this can include measures necessary to uphold the institution of the family itself.  The Catechism of the Catholic Church, in a passage that reaffirms that “following the principle of subsidiarity, larger communities should take care not to usurp the family's prerogatives or interfere in its life,” also teaches:

The family must be helped and defended by appropriate social measures.  Where families cannot fulfill their responsibilities, other social bodies have the duty of helping them and of supporting the institution of the family…

The importance of the family for the life and well-being of society entails a particular responsibility for society to support and strengthen marriage and the family.  Civil authority should consider it a grave duty “to acknowledge the true nature of marriage and the family, to protect and foster them, to safeguard public morality, and promote domestic prosperity.” (2209-2210)

Naturally, there is no greater affront to the institution of the family than abortion, which involves the murder of the very human beings for whose sake the family exists in the first place.  And naturally, the Catechism explicitly teaches that the right to life of the unborn child must be enshrined in law:

The inalienable right to life of every innocent human individual is a constitutive element of a civil society and its legislation:

“The inalienable rights of the person must be recognized and respected by civil society and the political authority… Among such fundamental rights one should mention in this regard every human being's right to life and physical integrity from the moment of conception until death.”

“The moment a positive law deprives a category of human beings of the protection which civil legislation ought to accord them, the state is denying the equality of all before the law.  When the state does not place its power at the service of the rights of each citizen, and in particular of the more vulnerable, the very foundations of a state based on law are undermined... As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child's rights.”

Since it must be treated from conception as a person, the embryo must be defended in its integrity, cared for, and healed, as far as possible, like any other human being. (2273-2274)

Note that what the Catechism is saying is that the right to life of innocent human beings, including the unborn, must be affirmed by the state and its positive law as such.  In no way does it indicate that it is speaking only of more local governments but not of central governments.  And even if one wanted to argue that such laws needn’t be enacted by federal governments if the laws at more local levels sufficed, that would by no means be the end of the story.  For the manifest implications of the teaching of Pius XI and of the Catechism is that more central governments not only may, but must take action to prevent abortion if in practice there is no other way to secure the rights of the unborn.

Hence, suppose a number of states in the U.S. outlawed abortion, but others did not.  And suppose that there was no politically realistic prospect of outlawing it at the state level in those states that failed to do so.  But suppose also that it was nevertheless politically feasible to impose a federal ban on abortion.  Would respect for the principle of subsidiarity require us to refrain from imposing such a ban?  Not at all; on the contrary, when all the considerations just spelled out are taken account of, it is clear that we would be obligated to impose a federal ban if we could.  For in this scenario, there would be no other way to protect the right to life that is, as the Catechism says, “a constitutive element of a civil society and its legislation.”  Given what Pius XI calls “the evil of… ‘individualism’” that has infected modern Western society and informs “pro-choice” rhetoric, it may be that central governments alone can effectively suppress the evil of abortion.

Here is another consideration.  In the Church’s canon law, there are some sins so grave that the penalties associated with them cannot be lifted by one’s confessor.  For a long time, that included the procurement of abortion, the penalty for which could, until recently, be lifted only by one’s bishop.  Indeed, at one time only the pope had the authority to do so.  In his book The Soul of the Embryo, David Albert Jones writes:

In 1588, in a decree called Effraennatam, Pope Sixtus V invoked the power of excommunication in an attempt to restrain the growing practice of abortion during the Renaissance.  As his model he took the Decretals V.I2.5 and imposed the sanction not only for abortion but also for administering contraceptive drugs.  He also reserved the ability to lift the excommunication to the pope alone.  The condemnation of abortion as homicide was not in any way novel.  However, several aspects of the excommunication were novel: it was promulgated to the whole Church (not just in one diocese or region); it was reserved to the pope to be able to lift the excommunication (not to a local bishop); and it included contraception as well as abortion.  This meant that any abortion and any use of contraception anywhere in the Church had to be reconciled personally by the pope. (p. 71)

To be sure, as Jones goes on to recount, this proved unworkable, so that a later pope limited the excommunication to abortion alone and granted local bishops the authority to lift it.  The point, though, is that the Church has not regarded abortion as something which of its nature ought to be dealt with only at the local level.  On the contrary, it takes it to be so grave an offense that at one time the highest authority in the Church, the pope himself, alone could lift the penalty associated with it.  Whether local or central authorities ought to deal with abortion is a prudential matter.  The principle of subsidiarity does not by itself entail that only local authorities ought to deal with it.  And what is true of the Church is, mutatis mutandis, true also of the state.

If the appeal to subsidiarity is intended to provide Trump with theological cover, then, it fails.  He and his supporters may think his position is good politics, but no reasonable case can be made for it on grounds of natural law or Catholic moral theology.