An unjust law

“It’s an unjust law, to which we cannot give our support. It’s our duty to continue to insist, positively, on the value of life”, declared the Portuguese bishops, meeting in plenary assembly in Fatima, in a statement signed by their President, Archbishop Jorge Ortiga. The Portuguese bishops criticized the legislation on abortion that has just been approved by the Portuguese Parliament following a referendum. According to the bishops, “the new legislation does not limit itself to de-penalizing abortion, but turns it into a right, a legal form of conduct in which a role of active collaboration is attributed to the State”. Recalling that “in no democracy are there immutable or irreversible laws”, Ortiga lamented “the failure to introduce a compulsory counselling service which, without placing in doubt the woman’s right to free choice, would act as a dissuasive element and propose viable alternative options”. In this sense, he promises, “the Portuguese Church pledges to respond to this ‘banalization’ of abortion with redoubled action and effort on the part of all Christian communities, with the aim of providing practical and caring support to pregnant women and families in difficulty, faced by the burden of a further maternity”. We present below a reflection on the legal implications of the question by the Portuguese magistrate Pedro Vaz Patto. The Portuguese law that liberalises abortion in the first ten weeks of pregnancy was promulgated by the President of the Republic Anibal Cavaco Silva. He (who had demonstrated against a similar law in the referendum of 1998) had appealed to MPs, after the referendum in February, to show moderation and balance in its legislation. In his promulgation of the new law, Cavaco Silva sent a new message to Parliament, making a further appeal to it to strike a fair balance, in its formulation of the law, between the “rights of the woman” and the protection of life in the womb. During the referendum campaign, many supporters of the “yes” vote, some of them with important political responsibilities, without any expression of dissent on their part, had announced that there would be a system of advisory centres, aimed at dissuading women from undergoing abortion in order to limit its increase, according to the German model (and also the Italian model, at least in theory). After the referendum, these voices – the so-called “moderate yes” – were heard no more. The law that has just been approved does not in fact provide for any advisory service according to the German model; it merely speaks of psychological and social “accompaniment”, which is optional, for a very short period of reflection lasting three days, at private clinics (with little interest, in any case, in any limitation of the practice of abortion), where the majority of abortions will in all probability be carried out, with state financial support. The “consultation”, which is merely informative in nature, cannot be provided by doctors who are declared conscientious objectors. Nor is it explicitly stated in the law that the information in question should be extended to such aspects as the development of the foetus, or the psychological consequences of abortion. The proposal to ban any advertising of abortion was also rejected. According to the pro-life movements (the supporters of the “no” in the referendum), these aspects justified the veto of the President of the Republic (he had this power, even if Parliament would have been able to reconfirm the law with a simple majority). And these aspects would also have justified the submission of the law to the Constitutional Court. In fact, that Court had pronounced (with a majority of seven against six judges) that the question submitted to the referendum was constitutional, but only on condition (even if not explicitly stated) that a system of advisory centres aimed at limiting abortion would be introduced. The President (dashing the hopes of the proponents of the “no”) did not call for any preliminary ruling on the constitutionality of the law. Some MPs will do so during its subsequent control. All these are attempts to limit the damage of a law that is in any case unjust, even though it seems to me that little can be hoped from them. What’s needed, instead, is a far-reaching effort to change mentalities that may permit, one day, a reform of the law that cannot ever be considered, as unfortunately seems to be the case in some countries of Europe, intangible and irreversible.