Page 3, 6th March 1987

6th March 1987
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Page 3, 6th March 1987 — Priest and Bad-mouth law not judges

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Priest and Bad-mouth law not judges

politician compromise or conflict

THIS is written after hearing of the resignation from priestly ministry of Bruce Kent. I note with interest and respect what Bruce and the Cardinal have said in their statements of regret, and would not presume to pass any judgment on this instance. Bruce remains for many of us a shining example of leadership in the Church, and Pax Christi continues to be proud to have him as a Vice-President of the British section.

The Church in the Modern World (Guadium et Spes) of Vatican II said (para 43.i) "secular duties and activities belong properly although not exclusively to lay persons"; but this text, if read accurately, does not settle any of the disputes we have seen over recent years about the role of priests in politics. We may have strong reservations about the propriety of priests holding office in government, as in Nicaragua, or of founding political parties, as Don Sturzo in Italy, but the whole point of the Gospel is to make Christ's teaching incarnate in the world, and on the ways we relate to God and to one another; and that implies "politics" in a wide sense for the Church as a whole.

But where should the individual priest stand in daily political issues? At the grassroots level he may be more in touch with facts than those with major Church leadership duties. At times one hazards the guess that bishops, however occasionally embarrassed, may be grateful for the priests who stick out their necks and challenge governments on individual issues. The Church needs both prophets and negotiators. On matters of moral principle it is never permissible to compromise between good and evil and now and again an issue will seem as stark as that.

A priest who finds that his people are expected to implement, or at least condone, actions which are contrary to moral teaching, does not have to wait for his bishop's approval, before issuing a challenge. Is this political or pastoral action? He would be a strange pastor who discovered, for example, that a local hospital was insisting that all the doctors and nurses were obliged to take their turn in the abortion clinic, and then said or did nothing.

The military chaplain has important pastoral tasks with service-people and their families. It would be odd, however, if he did not help them to face the absolute prohibition of actually using weapons of mass destruction, even though that is to challenge a political and military policy.

So it would seem that the individual priest may well be involved in politics in this sense, even when his is mainly a "pastoral" role. But it is pure clericalism to suggest that only ordained priests have pastoral roles. Thankfully nowadays we speak of pastoral work within the teaching staff of our schools. Members of religious orders, even without ordination, have carried pastoral roles of all kinds through the centuries.

The clarification we need then is about the special nature of ordained ministry. The number of tasks which an ordained man is empowered to do is minimal, though all of them are important. To preside at the Eucharist, to give sacramental absolution, and to administer the sacrament of the sick — these are three vital tasks in the Christian community; but they scarcely fill the priest's day, even in the busiest of parishes.

What else does he do with his time? Thousands of priests never have the pastoral leadership of a parish; they have been drawn into work as theologians, teachers, specialist advisers, administrators, even fund-raisers for building cathedrals or managing Vatican finances — and hardly ever see a parishioner as such.

Their motivation and orientation is for the good of the faithful; but they would not claim to be pastors. Some of them indeed have found themselves arguing with national or local government to uphold the rights of religious people — a firmly political role. And of course they can still "exercise their priesthood" by helping pastors out in the tasks for which ordination is a prerequisite.

Historical examination of ministries in the Church has shown us that priestly ordination was once linked directly to community leadership — and a particular community at that. But Church practice has for centuries sanctioned the idea of generic ordination. Priests have been given clerical status, a structural authority role, even if they have no community to lead. Sacramental theology has argued that there is a charism on the very person of the priest. Canon Law has usually, but not always, imposed a celibacy rule to help separate him off in a quasi-monastic way.

When a priest is appointed to the pastoral role of parish priest or assistant, he has to ensure in an accountable fashion that the essential elements of Christian community life are enacted. He will ensure that the sick and needy are visited and cared for and all are guided doctrinally and spiritually.

We have long ago realised that he cannot do all this himself — but as leading pastor he has to see that it is done. He will lead his people to know what the Gospel says, and to apply it to the problems and circumstances of the day. Even at the time of elections, it would rarely be easy to insist, however strong his personal preference, that one political party alone had a programme wholly suited to facilitate justice and peace. But now and again he may find it necessary to point out a particular policy which is incompatible with Gospel principles. Is it a political or pastoral task to do this?

Some priests have developed special knowledge or expertise which leads them into work with many political overtones. Tackling issues, counselling tasks, finding support for disadvantaged people are not precisely what a priest was ordained to do, but, with the consent of his bishop, they can be tasks of enormous value in Christian leadership, though they may well exclude him for a period from full-time pastoral responsibility. Yet those of us priests who have moved out of narrowly Church circles in our work have met up with hundreds of Christians who have already moved away from the organised churches because they believe some major issues of the day are not being dealt with at all. Encouraging such people in a wider concept of "church" can hardly be refused the description of pastoral work.

The discussion then seems to me to need to focus on "What is a priest"? If the answer were "someone who works in the pastoral care of a defined community", then historically there are many ordained men who have hardly been priests at all. If a priest were defined as someone who has been deemed suitable and competent and, by ordination, authorised to take on some sacred tasks, then this is not incompatible with many non-pastoral roles, including some quite political ones.

But maybe ordained ministry, while including sacred tasks, is about leadership roles not too narrowly defined. In that case we may need to examine what characteristics need developing in the seminary, alongside intellectual training and spiritual discipline. We must surely question the clericalisation which has overtaken almost all else in the decision about what is or is not proper for a priest to be doing. Maybe the politician needs to be more pastoral, and the pastor more political in our time. THE judges' analysis of the statutory phrase "capable of being born alive" in last week's abortion case has been dismissed as "astonishing", "confused" and a "mockery" by some pro-life groups. This reaction is code for saying that those pro-lifers would have twisted the law to suit their moral convictions if they had been the judges.

But that is one of the reasons why they are not judges. Judges should not subvert the law. We should continue to ask Parliament to change the law. We should not bad-mouth the judges when our real quarrel is not even with the statute which they were honestly and plausibly interpreting, but with another statute, the Abortion Act 1967.

Those who accuse the judges of incompetence or malevolence would do better to consider the context of the Infant Life (Preservation) Act 1929. In 1928 Mr Justice Talbot's direction to a Liverpool jury was that "It is a felony to procure abortion and it is murder to take the life of a child when it is fully born, but to take the life of a child while it is being born and before it is fully born is no offence whatever." The following week Lord Darling introduced a Bill to plug this gap between abortion and murder, to protect in his words children "in the course of being born".

Although those words were changed in Select Committee to "capable of being born alive (section 1.1) Lord Darling emphasised in moving the Second Reading that "it really is a Bill designed to prevent children being destroyed at birth."

As this legislative history suggests, it is not surprising that the Abortion Act 1967 was passed on the assumption that the 1929 Act would protect viable (and only viable fetuses). Section 5(1) of the Abortion Act states that "nothing in this act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus)" — the parenthesised phrase is in the original.

Section 1(2) of the Infant Life (Preservation) Act 1929 states. "For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive." This implies that the purpose of the Act was to protect the lives of viable fetuses and so it gives a clue as to what the phrase in section 1(1) means.

All this is merely to observe that the father's action was a long shot. The Act was not designed for his problem, which, was a quarrel with the lax Abortion Act 1967.

Now what about the actual words, "capable of being born alive"? Well, they could in everyday language be taken to cover a fetus from day one. Or they should be taken to mean only a viable fetus. But the legal techniques for interpreting such an ambiguous phrase require the judges to look at the Act as a whole, to construe the words in their context, with a sense of the purpose for which the Act was passed. I have endeavoured to do this and to show why it was wishful thinking to expect the courts to interpret "capable of being born alive" as covering the fetus in question.

The judges unanimously chose breathing as the test and said that the affidavit evidence suggested that a fetus at this stage of development would not be able to breathe naturally or even with the aid of a respirator, because the lungs would be too immature. It follows that when the fetus is able to pass that test, say by 24 weeks, the offence of child destruction would be committed. So the presumption of 28 weeks, contained in section 1(2) of the Infant Life (Preservation) Act 1929 is not the last

word, and the true legal limit for abortions is 24 weeks or whenever the fetus is capable of breathing.

The Pavlovian reaction of criticising the judges should therefore be resisted. Indeed, both counsel for the mother and for the father praised the judges for the manner in which they had handled the case. The litigation went through the High Court, Court of Appeal and on to Appeal Committee of the House of Lords in record time. Mrs Justice Heilbron and the Court of Appeal were so certain and convincing that the Appeal Committee of the House of Lords saw no possibility of success in a full hearing.

But Parliament really cannot expect to escape criticism. Abortion law is a travesty which needs legislative attention. At last we have been promised legislation on the Warnock topic of embryo experimentation, and those of us who have pointed out the flaws in that Report's reasoning should be glad to see that the government intends to put the option of a complete ban to Parliament after the next election, with a free vote. That might be an opportunity to make the connection between concern for the 14 day old embryo and concern for the 20 week old fetus. Whether the Warnock controversy leads to a complete ban on embyro experiments, or a ban on experiments after 14 days, it seems difficult to see how the current abortion law can be reconciled to either option.

How can opponents of abortion best continue the campaign to change attitudes on abortion? The way forward is definitely not the argument which has been much canvassed in the last week or so, to the effect that the father has rights over the fetus. Anti-abortionists cannot really believe that fathers have rights over fetuses. Suppose that the father wants to abort the fetus but the mother wants to continue the pregnancy, then

the anti-abortionists would desert the father and perhaps start arguing that the mother has rights. Instead of sheltering under the temporary banner of father and mother, we should more honestly argue that the fetus is the one who has rights. Mothers and fathers have duties.

The anti-abortion lobby would better get its message across if it focussed on the fantastic efforts of Life and others to provide counselling, friendship and practical help for those pregnant women who are unhappy but who might be prepared to see the pregnancy through with appropriate support. That is a triumph which ought to be more widely known.

A further way in which Catholics in particular could show their commitment to the fetus is to clarify attitudes towards miscarriages. Questions about proper counselling and where appropriate baptisms and funerals ought to be addressed. Some priests set a shining example in this regard. Other priests and lay people do not know how to help those suffering from the trauma of miscarriage.

Anti-abortion beliefs must be rooted, and be seen to be rooted, in a thoroughgoing respect for the fetus. Indeed, they should stem, and be seen to stem, from a thorough-going respect also for life, and the quality of life, beyond the womb. In all these matters, the best starting-point is the outstanding Statement on Abortion by the Archbishops in 1980: Lawyers will find the recent abortion judgments to be interesting reading, but those judgments are concerned with what the law is. For answers to the more fundamental question of what our attitudes should be, we should be rereading the Archbishops' judgments. Simon Lee is the author of Law : Morals Warnock, Gillick & Beyond (OUP).

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