Some notes on Fr. Bernas' response to Bp. Reyes

The following are some thoughts in response to an article by Fr. Joaquin Bernas (Conversation with a Bishop), posted in his blog on 8 September 2012, which in turn was in response to an article by Bishop Gabriel Reyes (Defense of the Stand of the Catholic Bishops’ Conference of the Philippines on the House Bill 4244) published in the Philippine Star and Inquirer.

Fr. Bernas organized his response on three points: the availability of contraceptives, the use of government funds to purchase contraceptives, and the natural law in relation to contraceptives. These notes will adopt the same line, with the addition of some thoughts on the nature of the Catholic Church's teachings on contraception.

Contraceptives are publicly available

Fr. Bernas takes issue (or, as he puts it, would like to "converse") on the assertion by Bishop Reyes that contraceptives are publicly available. It must be emphasized that Fr. Bernas does not contest the fact that it is "available", that it is not banned. What he does, however, argue is that because of the fact that contraceptives need to be purchased, then the same unduly restricts the freedom of the choice of the poor.

But that is a claim that needs to be further examined. One thing that must be considered is that contraceptives, particularly condoms, are not only publicly available, they are actually quite affordable. How affordable? Cheaper than cellphone loads. And this has to be considered as well in light of the fact that that the business of telecom companies, particularly with prepaid loads, are doing quite well. This apparently has to also to do with the claim by the government that the economy is picking up and experiencing growth. Interestingly, even the most far flung areas can see the presence of cellphones, which is a great development indeed. Considering all that, it should be no difficult matter indeed for pharmaceutical companies (or even civil society groups advocating for contraception) to actually donate such contraceptives for free if they truly believe it would do some good. In fact, when one thinks about it, contraceptives are actually even cheaper than alcohol, tobacco, or even a copy of the country's most popular broadsheets.

But examined further, Fr. Bernas actually skipped over the point that the very first choice that people are asked to make is not what contraceptive to use but whether or not they want to have children. At that point, the "freedom of choice" is already there. Then, assuming that the couple prefers (for reasons of their own) or decides not to have babies, they now have the option of practicing NFP (which I'm sure Fr. Bernas definitely endorses) and, because precisely, it is not banned and readily available, shell out money and buy contraceptives. At both instances, "freedom of choice" is still again available.

It is in the third instance, which is what Fr. Bernas is actually focusing on, that refers to the choice in relation to the variety of artificial contraceptive method. But disregarding my point earlier about cellphone loads being more expensive than condoms, the question then becomes: is it proper for the government to use public funds just to make available (not contraceptives) but a variety of contraceptives? Which leads us to the second point.

Taxes can't be used to discriminate against a religion

Fr. Bernas makes much of the difference between money donated and taxes paid. But that is not the point. The RH Bill seeks to provide free contraceptives and the government will need money to purchase the same. For that the government will need to use government funds, taken from the taxes collected mandatorily (by law) from the people.

Will a portion of the taxes collected from an individual be used for a probable RH Law? Yes. How can it be proven it won't? What about taxes collected from faithful Catholics? Then they have just been forced to go through a situation knowing that they have supported, through their taxes, a measure they believe to be immoral and against their faith. Note that the objection is not merely about political or policy differences. The objection is based on a constitutionally protected right: of religion. This right does not merely mean quietly praying in the secrecy of one's room but also includes the right to proselytize and to live that faith in public.

Furthermore, in the same manner that taxes can't be used to support one religion (see Arts III and VI of the Constitution) then neither can tax money be used to discriminate against a religion. And the issue of contraception definitely has a strong religious component. And to use tax funds to purchase contraceptives discriminates against the Catholic faith. It is like the government purchasing crosses. Or, worse, purchasing crosses to put in mosques.

Finally, any law must fulfill several requisites: public purpose, necessity, etc. For tax money to be disbursed it must be for a recognizable and clear public purpose. In the case of the RH Bill, what is its purpose (and by that I mean true purpose)? Population control? No. And RH Bill proponents already admitted as much that population control is not their objective. Poverty? But study upon study has already claimed that our population, our young population, is driving upwards our economic growth. Health? But pregnancy is not a disease. Maternal deaths and other such health risks? Then why not use the money to purchase additional hospital facilities and hire and train more health professionals? Besides, particularly as to the matter of health, a lot of this is already covered by other existing laws and regulations, for which budgets have already been allocated.

But aside from the fact that it is unclear what the true purpose of the RH Bill is, which raises the issue of necessity, there is also the issue of the propriety of the measure espoused by the Bill. Because study upon study has already attributed certain health risks associated with contraceptives, particularly as to oral contraceptives. Cancer, bleeding, bone problems, migraines, permanent infertility, etc. There is also the issue of failure rates, with both condoms and oral contraceptives having a probable failure rate as high as 10-15%. Considering the risks, considering the unreliability, our own legal system, our legislative experience, tells us that, assuming that there are indeed public purposes that need to be addressed, then the least obtrusive, invasive measure shall be adopted. Providing free contraception, what with its possible violation of religious rights, obvious divisive nature, health risks, and unreliability, is clearly such a measure that need not be adopted and begs for an alternative, better measure.

The same conclusion could be reached when one simply uses common sense: when in doubt say no. Considering that women and children's lives are at stake, considering that there are reasonable grounds to believe that a risk exists as to contraceptive use, would it not be more rational to employ measures that are not as divisive and as laden with risk but would achieve the purposes or objectives laid out in the RH Bill? Even with the use of international law perspectives, particularly of the "precautionary principle" (which I've had occasion to discuss in another article) and even with due regard to the sui generis argument in relation to international human rights law (that a lot of human rights lawyers sadly misunderstand), the same common sense conclusion would be reached.

Contraception violates natural law

The last point that Fr. Bernas seeks to "converse" upon is Bishop Reyes' assertion that contraception violates natural law. Fr. Bernas responds to this with a "flippant" answer and an answer that is "more than just a flippant answer." However, considering his reputation and learning, both of Fr. Bernas' answers are - sadly - actually flippant.

Fr. Bernas asks which natural law, which "reasoning" do we refer to: "Plato, Aristotle, Aquinas, Grisez, Chapell, Finnis, etc.?" The answer, simply put, is: all of them. Because there is only one natural law. Considering Plato's and Aristotle's reasoning but with the caveat that theirs is a primitive understanding of natural law, and then looking at Aquinas, Grisez, Chapell, and Finnis, the conclusion is inevitable: contraception violates natural law.

And Fr. Bernas actually leaves out other natural law proponents: Rice, Arkes, George, Smith, Rhonheimer that all come to a similar view. Interestingly, considering his background, Fr. Bernas leaves out perhaps the most significant natural law proponents of all: Karol Wojtyla and Joseph Ratzinger.

The fact is: there is no significant, recognized, respected natural law proponent out there who will say that contraception does not violate natural law. And there is a reason for that: because natural law, contrary to what people think is not based on "nature" per se, is based on "human nature". To put it another way, natural law followers all proceed from certain first principles, primary among then is that the focal point is the human being, with his body and a reason capable of comprehending reality, and possessed of an inherent dignity. From that as a starting point, the conclusion that contraception violates natural law is inescapable.

Fr. Bernas points out that there other "serious thinkers" studying human nature that take the view that there's nothing wrong with contraception. Of course there are. But who are these thinkers? These are thinkers whose views of human nature would be different from that of natural law proponents: either they would deny human nature, or deny that human beings have a nature, or deny that human beings are with inherent dignity. Or they would most likely deny that man is capable, by the use of his faculties and reason, of actually comprehending reality.

But if that be the case, then one has now to contend with the probability that there is no ordering of morality, that, as one natural law proponent puts it, the acts of Hitler will now be considered no different from the acts of Mother Teresa. A logical end that I am sure Fr. Bernas will not accept.

Interestingly, Fr. Bernas then jumps from a discussion of natural law to a discussion on plurality. This is a bit of a puzzle. Because natural law, which seeks to apply a universal standard through the use of right reason, independent of divine revelation (as Hugo Grotious once famously puts it: "natural law would maintain its objective validity even if we should assume the impossible, that there is no God"; thus allowing natural law to be free from any dependence on theology) precisely overrides any cultural, religious, or racial differences because it looks to that which is uniform and constant in all men. If Fr. Bernas actually proceeded to this point because he disregarded natural law, then there is left the uncomfortable situation of him acquiescing to a world without an ordering of moral norms. However, it would seem instead that Fr. Bernas chose to sidestep any further questioning of natural law ("I do not intend to dispute the meaning of natural law as the bishop or the Church, to which I also belong, teaches") but then makes the rather baffling allegation that Bishop Reyes' "view is a very narrow understanding" of pluralism"". Baffling because Bishop Reyes, to reiterate, was proceeding on the basis of natural law (which Fr. Bernas apparently does "not intend to dispute") and not on religious differences.

But setting aside that point on natural law for a moment and instead just focusing on Fr. Bernas' rather awkward segue to "plurality", one can see that this again presents further issues. Of "plurality", a reading of Fr. Bernas' writing give the impression (at least to my view) that he is referring to or at least having a view similar to John Rawls understanding of such (which is plausible; another lawyer/columnist who made reference to Rawls is former UP law dean Raul Pangalangan). But this leads to a further awkward point (awkward taking into consideration that Fr. Bernas is a Catholic priest): Rawls concept of plurality is so constructed ("unreasonably narrow" in fact, according to George) as to exclude religious arguments and heavily favor liberal advocacies such as abortion and same sex marriage. Furthermore, while Rawls' plurality does make a pitch for public reason, his concept of "public reason" (see Rachael Patterson's critique, as an example) is so, well, "unreasonable" or ambiguous, as such that it becomes impracticable. In any event, we must not also confuse plurality, as well as the need for tolerance and respect for others' belief into actually thinking that it will magically transform all of our individual beliefs to be all correct. To tolerate and respect the belief of others will not necessitate us agreeing to such others' belief. 

So is it not unreasonable instead that any such plurality we consider will be one that will indeed take into account and respect religious arguments, for which the Catholic Church has been quite clear (and for which we shall discuss in a bit?) But then is it also not unreasonable that any understanding of plurality be also rooted in, again, "reason"? And by that, we mean practicable reason. And on that point, do we not consider that the opposition to the RH Bill, far from being merely a religious objection as its detractors paint it out to be, is actually based on legal, scientific, economic, sociological grounds so much so that it would be ... reasonable to take seriously into account?

Catholic teaching is that contraception is immoral

Which leads to this one point: if Catholic religious beliefs are to be respected and protected (keeping in mind that Catholic objection to contraception rests on more than religious grounds as understood in constitutional law), what is Catholic teaching in relation to contraception?

In this regard, the answer is both consistent and clear: Catholic Church teaching is that contraception is immoral. A reading of the the Catechism of the Catholic Church tells us this.

Are there dissents on this matter? Yes there are. But like in rulings of the Supreme Court, the dissenting opinions are merely just that: opinions. In the end, as far as the Catholic Church is concerned, only one vote counts: the Pope's. And if you don't like that set-up, then complain to the One who made it that way.

But is the teaching infallible? Consider: From Pope Pius XI’s Casti Connubii, Second Vatican Council’s Gaudium et Spes, Pope Paul VI’s Humanae Vitae, Pope John Paul II’s Familiaris Consortio and Theology of the Body lectures, and as recently as Pope Benedict XVI’s Caritas in Veritate, all in quite clear and unconditional language leads us to the reasonable conclusion that the teaching  that contraception is immoral has an infallible nature. And this has been concurred in by theologians and philosophers of recognized merit: Giovanni Montini, Karol Wojtyla, Joseph Ratzinger, George Weigel, Steve Ray, John Murray, John Hardon, William Most, Jimmy Akin, Scott Hahn, Janet Smith, Mike Aquilina, Roberto Latorre, Cecilio Magsino, Mark Shea, Charles Chaput. Lined up with all that, might it not be the reasonable path indeed for any Catholic to exercise a little bit of humility and try to understand the teachings of our Catholic Church?

But even assuming that the teaching is not infallible, we must remember that it is a teaching still of the Catholic Church that Catholics should recognize and heed as such. Not every teaching of the Church, it must be remembered, has attained the status of being infallible (at least at this time). These include the teachings on guardian angels, the rosary, on novenas, or even human cloning, and many many more. Are we to disregard these teachings, turn our back on them, much less should priests refuse to preach them, simply because they are not classified as infallible?

Indeed everyone must obey the dictates of his conscience. And Catholics (who also have the duty of forming their conscience properly) are no different and the Catholic Church teaches that. But there is a world of difference between following one's conscience and creating a lie that it is not Catholic teaching that contraception is immoral or that there is no teaching on the matter. Follow your conscience as you must but do not deceive yourself into thinking that in resorting to contraceptives or doing a contraceptive act that you are not violating a Catholic teaching or that there is no teaching on the matter at all to be violated. Because there is a teaching on the matter, to which every Bishop and priest are duty bound to preach: contraception is immoral (see CCC No. 2399 or Compendium of CCC No. 498).

To that, the following must be added and emphasized: not only does the Catholic Church teach that contraception is immoral due to religious or scriptural reasons. In addition to the foregoing, the Catholic Church teaches us that contraception is immoral because it violates natural law, an objective standard of right and wrong based on right reason and universally applicable to all.

As always, St. Augustine says it best

"I believe so that I may understand". So says St. Augustine. It is an attitude based on humility and it is an attitude that I try to take and which I trust all other Catholics do so too. Thus, I acknowledge and give credit to Fr. Bernas when he wrote that he takes Bishop Reyes' letter as an "invitation to a dialogue". I am therefore cheered by the thought that, whatever confusion or misunderstanding there may be at the moment, in the end, in such "conversation", when the point that it is the teaching of the Catholic Church that contraception is immoral because it violates natural law is raised, Bishop Reyes and Fr. Bernas will both be in happy agreement to it.

*for further information see:
- No need for unmet need (which discusses the myth regarding the need for contraception),
- Contracepting common sense (which discusses the health risks associated with contraceptives),
- Compiled arguments against the RH Bill (which discusses the natural law, constitutional, and scientific reasons why contraceptives and the RH Bill are wrong for the Philippines).