# The Right to Life of the Unborn Child/Prof. H. Treub as Penal Legislator

III. PROF. H. TREUB AS PENAL LEGISLATOR.
BY DR. TH. M. VLAMING.
Prof. H. Treub, lecturer on obstetrics at the University of Amsterdam, has lately proposed a new law which he desires enacted. It reads as follows : Whoever forbids or in any way hinders another to call in or to accept medical aid for his ailments shall, if death result from the illness, be punished with imprisonment, etc.
I shall here recite the incident which occurred to the professor in his practice and which led him to formulate that proposition :
Mrs. N. N., pregnant for ten or twelve weeks, suffered in conse- quence of her pregnancy from excessive vomiting (hyperemesis gravidarum), so that her condition became critical, and her phy- sician, Dr. Y., suggested to her, as a last resort, the procurement of abortion.
The woman answered that her pastor had forbidden this course. Thereupon Dr. Y. interviewed the priest, and told him that " there could be no question of saving the child, not even for baptism, as it would die before the mother."
The pastor, nevertheless, maintained that " such action was abso- lutely illicit." About a week after this Prof. Treub was called into consultation, only to find that any efforts to save the woman
22
PROF. H. TREUB AS, PENAL LEGISLATOR.
would now prove useless, though such efforts, if resorted to a week sooner, would have been almost certainly successful. Though the professor knew of the Catholic Church's decree forbidding the sacri- fice of the unbaptized offspring, he thought he had to deal in this instance with the narrow interpretation of that law by the pastor. Under that impression he reported the case to the Bishop of Haarlem, in the form of a complaint against the 'priest, expressing the hope that the prelate would take measures to prevent the recurrence of such a sad case, and, furthermore, that the Bishop's answer would enlighten him as to the course he would have to take in his lectures on obstetrics. The Bishop of Haarlem sent to the professor a lengthy reply. Whence it became evident that the narrowness of which, in the professor's opinion, Father X. was guilty, was, in reality, the correct interpretation of the decrees of the Holy Office* at Rome, quoted or indicated in the Bishop's letter, denying the lawfulness of medical abortion as a means to save women's lives. f
With reference to this decision of the Roman tribunal, Prof. Treub puts the question whether the Dutch lawmaker will allow a
the personal presidency of the Pope, issue final decisions in questions bearing on Christian faith and morals. This college is assisted by some thirty consultors of different nationalities; besides also by a dozen officers of higher or lower rank.
f Thus' agreeably to some other decisions, the decrees of July 24, 1805, and of May 4, 1898, " ad II.," mentioned, e. g., in Nouvelle Revue Theol., No. 27, P- 599, and No. 31, p. 277, and in Canoniste Contemporain No. xviii., p. 678, and No.xxi., p. 483.
23
THE RIGHT TO LIFE OF THE UNBORN CHILD.
college of priests at Rome to dispose of the lives of Holland's women without any resistance.
The professor answers the question with a decided No, and hopes that the national legislature will do likewise, and that they will insert in the Penal Code the amendment which he proposes.
Readers of this periodical who do not know Prof. Treub, except through this petition, might readily judge him biased and overbear- ing, and, in fact, favoring a revival of the Kulturkampf . They would thus greatly wrong the professor, for he justly prides himself on the impartiality known even to the Bishop of Haarlem with which he has met the regulations of the Catholic Church in his practice. I had the pleasure of learning that also from Catholic medical students and from Amsterdam priests. Indeed, Prof. Treub himself thus closes his paper : " It is not my wish to have a Catholic priest eventu- ally lodged in jail; but the very fact of the possibility of such an occurrence would easily move the Holy Office to take into account the opinion of the majority of the population of a country where perfect liberty of worship exists, yet where one does not tolerate that the ordinances of any church shall degrade religion into Moloch- worship which demands human victims."
It is manifest that Prof. Treub's very peculiar statute of law springs from a difference of view between him and the Holy Office regarding the lawfulness or unlawfulness of medical abortion. And this divergence of view is traceable probably to the fact that Prof. Treub looks at the question only from its medical point of view,
24
PROF. H. TREUB AS PENAL LEGISLATOR.
whereas the Holy Office considers its ethical side. To a physician like Prof. Treub, who values his knowledge devoted to the relief of suffering humanity above all else, it must doubtless be painful to see a patient, whose life he thinks he can save without fail, prefer death to the violation of a moral principle, which, however sacred to her, is not thoroughly appreciated by him, the doctor. This, no doubt, is painful, but sentiment can not do away with the reasonableness of the principle nor with the right to enforce it by precept, especially where, ns here, there is question of a precept, which, as its history* shows, has been deliberated over long and earnestly, weighed by men whom the professor rather slightingly designates as a college of priests at Rome, but who are really men of solid and varied learning ; men, who, fully conscious of their grave responsibility, decide the matters proposed to them only after seeking the best light on the subject, and after mature deliberation; men, finally, who take no less interest in the relief of suffering humanity than any of their fellow men.
physiologico-theologicae de humane generationis oeconomia, de embryologio sacra, de abortu medicali et de embryotomia; de colenda castitate. Parisiis 1884. (A second edition of this work came out lately.) In the Disputa- tio tertia: " De occisione foetus ad salvandam matrem, seu de abortu medicali, et de embryotomia " we find " Pars I. Controversiarum historica synopsis. I. Medieorum sententiae et disputationes. 11. Theologorum et Canonis- tarum sententiae. Then Pars II. Sententiarum critices." This criticism is continued in Nouv. Revue Theol., Nos. xvi. and xvii. See also Dr. J. Heiden- reich's detailed and comprehensive treatment of the subject in Archiv f. Kath. farchenrecht, bk. 63 (1890), pp. 289-390.
THE RIGHT TO LIFE OF THE UNBORN CHILD.
Prof. Treub, who surely will not take the verdict of this personal sentiment in the domain of ethics and religion as final, should, in my opinion, have pondered well over this matter before allowing himself to be carried away to such loud and violent indignation, which has proved contagious far beyond the academic halls. What avails it to appeal to sentiment or to " impression," or to characterize our re- ligion as Moloch-service, or to italicize the exclamation : There lies a young woman killed through the narrow prescriptions of the Holy Office?
To appeal to the sentiment of the population will, for many rea- sons, help but little, chiefly so because the bulk of our people still believe that the dominion over the unborn man's life and death be- longs altogether and exclusively to the true and living God, and not to Aesculapius, the imaginary god of medicine.
The thought just expressed God's absolute and exclusive do- minion over all human life involves the great principle underlying the Holy Office's decisions, which Prof. Treub impugns. Because of this principle, it is a crime to cause or bring about abortion, it being equivalent to the direct taking of an innocent human life,*
answer to the speculative question whether the fetus has a rational soul at the very moment of conception or only after a certain stage of develop- ment. The moral certainty that through abortion a human life is de-
26
PROF. H. TREUB AS PENAL LEGISLATOR.
consequently a transgression of the Divine law " Thou shalt not kill." * Abortion procured with the best of intentions is still an in- fringement of that law. Neither the intention of thus saving the mother's life, nor even the intention of procuring baptism for a child whose life can not be saved,f justifies that trespass. For, the two- fold purpose of saving the mother's life and of baptizing the infant can not do away with the intent, evil of itself, of depriving the unborn offspring of a life to which it has a God-given right. This accords with the inspired principle : " And not rather let us do evil that there may come good " (Rom. iii. 8) ; or, in other words: The end does not justify the means.
Whether Prof. Treub has any scruples about that law does not
stroyed entails the obligation of following the safe line of conduct, and of not attempting violence, no matter in what period of pregnancy. Nor can, according to our Penal Code, anything be attempted with impunity against the fetus no more in the first than in the later periods of pregnancy. Cfr. Noyon, Art. 295, 3. .
seems to hold, the order : " Increase and multiply " may be seen at first glance in the pertinent constitutions of Sixtus V. and Gregory XIV., which speak throughout of the procurement of abortion as of murder.
t I mention this because Prof. Treub apparently opines that the Catholic Church forbids only the sacrifice of the unbaptized offspring. Dr. Y., the phy- sician in the case under consideration, seems to labor under the same impres- sion, as, in order to move Father X. to consent, he called attention to the fact that there could be no question of saving the child, even were it only for baptism, as the child would die before the mother. The same opinion is shared by the author of " Beschouwingen over Art. 295-298 van het Wet b. v. Strafrecht, 'S Gravent." 1887, p. 47. Therefore, I emphatically de- clare that the Church in forbidding abortion aims, in first place, at pro- tecting the natural life of the fetus.
27
THE RIGHT TO LIFE OF THE UNBORN CHILD.
appear from his article. All we can learn from it is, that he finds the decree of the Holy Office narrow and its application Moloch- worship. I believe I come closest to his mind by admitting that his utilitarian sentiment revolts against that injunction, and raises the question : Why may we not choose the lesser of two evils ? If I do not procure abortion in this case, both mother and child will die before my eyes ; if I do procure it, the child taken from its element will die, it is true; but at any rate I shall save the mother. What objection can the Church have to my choosing the lesser of two evils, the more because in this case I shall be able to baptize the child, whereas otherwise it will be deprived of this blessing?
As regards the bestowal of baptism, the answer is given above. The rule " One may not do evil that there may come good " ex- tends even to the great boon of baptism. Murder is intrinsically evil, is forbidden by the Author of Nature's law, is a crime. Now, God
who forbids murder, and thus also forbade abortion, can not void
this law for any purpose, however apparently beneficial, nay, not
even for the purpose of some one's eternal salvation.
There remains, then, the one question : Must one not choose the lesser of two evils ?
A little thought will show that under this question a great sophism lies hidden in our case. For it makes it appear as though we were dealing here with two things, both evil in one and the same sense; whereas, in reality, choice is claimed between two things, indeed both evil, but in a wholly different sense. The choice is here
28
PROF. H. TREUB AS PENAL LEGISLATOR.
between letting the mother and the fetus die together, an evil only from a physical point of view (malum physicum), and the positive murdering of the fetus in order to save the mother, an evil from a moral view-point (malum morale}. Should both things be evils of the same order, e. g., both only physical evils, then, of course, one ought to choose the lesser of the two. He who puts the question insinuates that the killing of the fetus is but a physical and not a moral evil, taking for granted the proof, which he ought to give. Consequently, as long as the insinuation is not proved, the conclusion abides that medical abortion, being a moral evil, may not be practised to hinder the merely physical evil of the mother's death. " One may not do evil that good may come."
Perhaps Prof. Treub has the following reply ready : Suppose that, by causing abortion, moral evil is done to the fetus' life, then it would be for me, as a physician, a far greater offense to let both mother and child die than to neglect the means of saving at least the mother. By letting only the fetus die, I really choose the lesser of two evils of the same moral order.
I rejoin: Your reply wrongly supposes without any proof that the means of which you speak is a lawful one. Certainly you would fall short of your duty as a physician if you neglected to use a lawful means to save the mother. But nothing obliges you on the con- trary, all that is reasonable forbids you to adopt in your medical practice any unlawful means, even were this unlawful means a last resort. Now, abortion is of its very nature an unlawful means, even
-29
THE RIGHT TO LIFE OF THE UNBORN CHILD.
though you should have recourse to it with the noblest ulterior pur- pose. Thus your argument built upon the supposed moral obligation of availing yourself of an unlawful means is disposed of.
I take it that I am also a correct interpreter of Prof. Treub's reasoning process, by admitting that in our case he looks upon the fetus as an unjust aggressor on the mother's life, an invader, whose materially * unjust attack upon the mother bestows upon the latter the right to self-defense just as this right arises for him, who sees his life threatened by a person rushing upon him in a sudden fit of insanity. To tell the truth, I should not of my own accord have thought it worth while to bring forward this antiquated argument which has been refuted a hundred times. But I have been assured that it is still current in academic circles, and even that it impresses some Catholic students as being sound. Therefore, I answer briefly :
i. The fetus no more attacks the mother's life than the mother the child's. Neither of them does aught resembling the just men- tioned attack of the insane man. The latter really attacks, really wrongs the one whose life he threatens, is indeed an agent through whose act a right is injured. It is altogether different with t lie- mother and fetus in our case. They are in regard to each other's
inflict a formal or voluntary injury. That is why we prefer the example of an insane man who, while attacking one's life, really and mateiially invades one's right to live, though his act is not voluntary, and, therefore, not formally wrong.
30
PROF. H. TREUB AS PENAL LEGISLATOR.
lives not agents, but mere patients. What simultaneously threatens the lives of both is simply the fatal circumstances due to pregnancy. Both, are no more unjust aggressors toward the other than, ^ g., those passengers of a ship that fall the first victims to a plague are toward their fellow-passengers. And as the captain of such ship could by no means order the sick to be thrown overboard (a la
Nietsche) to save the other passengers; much less could in our case the child, who has a right to be where it is, be thus summarily dealt with.
2. On the contrary, if an attack on life may be spoken of at all, it is not the fetus who is the unjust aggressor toward the mother, but rather the mother toward the child. Not only its existence, but, in nearly all cases, any danger to its existence, comes from the mother. The child has not done anything wilful whatsoever to constitute itself a menace to the mother's life. Hence there can absolutely be no question of an unjust attack. In most cases* the obstacle to de- livery lies with the mother, e. g., narrowness of the pelvis, etc. Con- sequently if through an act of the mother's will, cohabitation, the child has, without its cooperation, been placed in the mother's womb ; if, afterward, by the mother's act efforts are made to remove the child from the womb ; if, finally, as is the fact in most cases, obstacles on part of the mother disturb or hinder that removal, and if, through the concurrence of these circumstances, all traceable to the mother,
31
THE RIGHT TO LIFE OF THE UNBORN CHILD.
the lives of both are endangered, is there a shadow of reason to call the child an unjust aggressor, or an aggressor at all ? *
The argument just refuted is sometimes set forth in the follow- ing somewhat different form : Where, in consequence of pregnancy, the lives of both mother and child are in danger there is a collision of rights, just as in the case when two shipwrecked persons cling to the same plank which is too light to hold up both, so that unless one of them is pushed off, both will be drowned. In such a collision of rights it is held not only that one of the two may seek to save himself at the cost of the other's life, but even that a third party, c. g., in the case of these shipwrecked persons a swimmer who hurries to their rescue, and in our case the physician in charge of the case, may inter- vene in behalf of one of the two, for instance, in favor of the worthier.
Such cases are dealt with in lessons on penal law, and, ac- cordingly, it is claimed that he who would really push off one of the two shipwrecked men would not be accounted guilty of murder. Besides (so our opponents seek to clench their argument) most men will act thus by instinct, and will endeavor to save at least what can be saved, even at a sacrifice.
I reply: I. The question is not, what one would do by instinct in such critical circumstances, where man's reason is perplexed, and where sentiment will easily get the better of judgment. No; the
1875, P. 24.
32
PROF. H. TREUB AS PENAL LEGISLATOR.
question is, what is and remains sensible and moral, even in such straits, according to ethics ?
2. If eventually the judge makes, and must make, allowance for mental confusion in such bewildering emergencies, this does not prove that what has been done was done with correct judgment, or that the action left unpunished, or, for the nonce, held unpunishable, accords with reason and ethics. Penal law is not per se also ethics, especially nowadays, when, according to many schools of juris- prudence, " legality " and morality are completely divorced.
3. There is no perfect parity between our case and that of the two shipwrecked persons. Whereas one of these shipwrecked per- sons is no more cause of their plight than the other, the mother, in our case, is most positively the chief cause of the trouble : Firstly, to herself, and not to the fetus, is due the pregnancy ; secondly, by her, in most cases, and not by the fetus, has been brought about the illness due to pregnancy. Accordingly, if there be here a collision of rights, the mother's right should yield to the child's.
4. Moreover, granting the parity, it is decidedly untrue that there is in our case a collision of rights. The right to live of a drowning person comes generally after that of the one as yet in a safe condi- tion, and so likewise the mother's right to live comes after the child's. The two rights do not clash as long as the drowning man leaves the other one unmolested ; their rights come into collision, however, through the natural, to them fatal, course of events ; shipwreck, light- ness of the plank, absence of another means of salvation. The rights
33
THE RIGHT TO LIFE OF THE UNBORN CHILD.
of either remain as unassailable as before; neither one of the two parties interested, nor a third party, may, without inflicting a wrong, directly assail the other's right. To take sides, for instance, with the life reputed the worthier, would be a deed not of right but of expediency. It would be without doubt a breaking of God's com- mandment: The innocent and just person thou shalt not put to death (Exod. xxiii. 7).
I suppose that after all the foregoing statements Prof. Treub will insist : Speculatively, from your so-called Christian* point of view, nothing can be said against your reasoning, still for this quite extraordinary case with which we are busy just now, I can not but deem the attitude of the Holy Office as unwise and exceedingly nar- rowminded.
Permit me to say, firstly, that the charge of narrowness brought against the Church and her ethics by a non-Catholic strikes me as a surprising variation from the old stock-charge of elastic and Jesuit-
ception of the ethical side of the question his own view, which he styles natural-historical. According to this view, in keeping with which he lays down his moral principles concerning the punishableness of abortion, (i) the fact that the end of cohabitation has been attained can not of itself be some- thing punishable, because the right to cohabitation, as an act by which the bent of nature is satisfied, stands altogether by itself. And, as far as that is concerned, the preservation of the race is not to be reckoned with. (2.) The not yet viable fetus can not be considered as a man, but merely as a con- glomeration ; of cells, whkh "has no objective right to live. With such a natural-historical conception one could soon gather a system of moral prin- ciples the ethics of which would be detected only by microscopic examination.
34
PROF. H. TREUB AS PENAL LEGISLATOR.
ical morality. In reality, the Church deserves^ neither one nor the other blame, particularly not that of narrowness, now under con- sideration. Her aversion to stickling for principles as regards the ap- plication of her own positive ecclesiastical, and, therefore, human pre- cepts, is clearly shown by the universally recognized rule of jurispru- dence and moral theology, according to which merely ecclesiastical precepts lose their binding force, when their observance in a special case would involve great harm or inconvenience.* That aversion is evinced also by the comparative ease with which at times the Church grants dispensations from her rules if there are good reasons. The case is altogether different as soon as we leave the domain of ecclesiastical and merely human legislation, to enter upon that of the law given by God Himself, especially the natural law. Herein not only the Church, but also sound philosophy,f discerns an immutable standard of right and wrong, a law as un- changeable as the eternal and infinitely wise plan according to which it has been given ; here, no matter what reasons of expedi-
t Even Cicero wrote, as Lactantius witnesses : Right reason is indeed a true law, which agrees with nature, is to be found with all people, con- stant and perpetual, whose commands urge us to duty and whose prohibitions deter us from wrong. We may neither oppose nor alter this law nor tres- pass against it, nor can it be altogether repealed. Neither the Senate nor the people 'can free us from that law. Nor is that law different at Rome from what it is at Athens, now such and later otherwise, but one, ever- lasting, unchangeable, this law rules all nations at all times, and the one God is the common Master and Commander. He is the Originator, the Author and Giver of this law.
35
THE RIGHT TO LIFE OF THE UNBORN CHILD.
ency present themselves, derogation, dispensation, or accommo- dation is out of the question; here, then, the Church must in- flexibly hold that as unlawful, whatever, according to this standard, she judges as intrinsically evil.
To what lengths we shall come if one may pit against principles of morality one's so-called practical sense, one's expediency, may be inferred from the very elastic definition of medical abortion given by Prof. Treub himself : " By artificial abortion is meant the breaking off of pregnancy, done for good reasons, before the fetus is viable, consequently before the twenty-eighth week of pregnancy. The life of the child is not considered here, and the general inducement for procuring such abortion are the dangers which, in consequence of pregnancy, threaten the health or the life of the mother, and for which there is no other remedy, or for which the woman refuses to take other remedies."* I took the liberty of emphasizing the words containing the doctrine that either the life of the child is held venal or that the end readily justifies the means. If such teaching is unassailable solely because it is broached by the fashionable medical science, then it is incon-
Prof. H. Treub (Haarlem, 1898-1900), first part, p. 354. From the many directions given there by Prof. Treub concerning the procurement of abor- tion, as also from his warnings to exercise prudence in diagnosing, it is indicated that the fetus' life is exposed to the carelessness and incompetency of certain doctors who too readily desire to betake themselves to abortion. Nor is it a reckless supposition to hold that in some cases expediency, or the love of ease, will throw principle overboard.
36
PROF. H. TREUB AS PENAL LEGISLATOR.
ceivable why our Penal Code still threatens with severe punish- ment the practice of abortion. For and here I pass from ethical to judicial ground wilful abortion is not only a sin, but, accord- ing to Dutch law, it is a punishable crime.
We heard Prof. Treub ask the question whether the Dutch lawmakers will permit a college of priests at Rome to dispose of the- lives of Holland's fair women without offering resistance, add- ing, to use his own words, " To my mind, that would be unworthy of a Dutch legislator."
And why should this be unworthy of the Dutch lawmaker only? For neither the French Code Penal nor the Strafgesetsbuch fur das Deutsche Reich, nor, to my knowledge, the penal law of any other civilized country, has deemed it improper to allow clergymen to advise in like matters of conscience as bidden by their duty. Why should we in our land of liberty of conscience make exactions which have not been dreamed of even in the empire of the Kulturkampf , nor in other countries where the Church has been, or is, persecuted? Above all, how is it possible to justify the means for which claim is made, when everybody, not excepting Prof. Treub, knows that this means, opposed by Catholics, is of a nature as to make it liable to prosecution and punishment ?
However absurd it may seem, it is a fact that Prof. Treub desires to punish those who, by opposing medical abortion, strive to hinder a deed set down as punishable by law! The professor puts forth in the following words a remarkable pretension : " Should the Dutch
37
THE RIGHT TO LIFE OF THE UNBORN CHILD.
legislature refuse to acknowledge that the law is equally binding for every citizen, and thus admit that a certain group of them are free to set the decree emanating from Rome above the Dutch law, then the Penal Code must needs be amended."
That our readers may judge for themselves who, according to Dutch law, are really Moloch-worshippers, i. e., sacrificers of chil- dren's lives, I here quote the statute in full. In title xix. of the Penal Code, under the heading Misdemeanors Against Human Life* we find:
Art. 295. The woman who designedly causes abortion, or the fetus' death, or allows such to be caused, shall be punished with imprisonment not to exceed three years.
Art. 296. He who deliberately causes abortion, or the fetus" death, without the mother's consent, shall be punished with imprisonment not to exceed twelve years.
If the woman's death results from it, he shall be punished with imprisonment not to exceed fifteen years.
Art. 297. He who deliberately causes the fetus' abortion or death, with the mother's consent, shall be punished with imprisonment not to exceed four years and six months.
If the woman's death results therefrom, he shall be punished with imprisonment not to exceed six years.
Art. 298. Physicians, midwives, and druggists, accomplices to the misdemeanor described in Art. 295, or guilty of, or accomplices, to the offense described in Arts. 296 and 297, may incur increased penalties, and may be deprived of the profession they exercise at the time they commit the offense.
land, make distinction between therapeutic and criminal abortion; they
38
PROF. H. TREUB AS PENAL LEGISLATOR.
Whosoever reads these statutes can not help but perceive, what Prof. Treub found for himself when writing his Treatise on Obstetrics, namely, that the Penal Code holds him or her punishable who deliberately causes the fetus' abortion or death, no matter what are the medical reasons for such deed*
This is why, on the same page of his book where above quotation is found, Prof. Treub exhorts doctors not to decide too hastily upon
exempt abortion from penal liability when it is necessary to preserve either the mother's or the child's life (i. e., therapeutic abortion).
According to some of our authorities, it never was an act punishable by common law to commit abortion with the consent of the mother, pro- vided it was done before the child became quick ; but others are not even disposed thus to restrict the criminal act, and hold that it may be com- mitted at any stage of pregnancy.
The Supreme Court of Pennsylvania (in Mills v. Com. 13 Pa. St. 630), however, observes : " It is a flagrant crime at common law to attempt to procure the miscarriage, or abortion, of the woman, because it interferes with, and violates, the mysteries of nature in the process by which the human race is propagated and continued. It is a crime against nature, which obstructs the fountains of life, and, therefore, it is punished. The next error assigned is that it ought to have been charged in the count that the woman had become quick. But, although it has been so held in Massa- chusetts, and in some other States, it is not, I apprehend, the law in Pennsylvania, and never ought to have been the law anywhere. It is not the murder of a living child which constitutes the offense, but the destruction of gestation by wicked means and against nature. The moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated."
The statutes enacted on this subject in most of the States fail to draw any distinction between the commission of the offense, or attempt at com- mission, before and after the quickening of the child in the womb, making it a felony in either case.
39
THE RIGHT TO LIFE OF THE UNBORN CHILD.
abortion, nor without consulting a colleague. Although it is not likely, in his opinion, that a physician " would be found guilty and sentenced for the deed mentioned, the risk of judicial prosecution, even though followed by an acquittal, is disagreeable enough to spur us on to guard against it as far as possible." Elsewhere* Prof. Treub showed also considerable uneasiness about the possi- bility of a judicial condemnation, and he complained of the legal uncertainty to which doctors are exposed when producing abortion according to the rules of their profession. He winds up with the exclamation : " We must have certainty, and this we have not as long as the law lacks an explicit statement upon this point."
The professor is fully alive to the fact that he is not within the law as actually in force in Holland ; of this he is certain, notwith- standing the assurances of many lawyers that a physician acting agreeably to the rules of science would not run any risk.
This fact is also realized and explicitly acknowledged by Min- ister Cort von der Linden, who has proposed an amendment a novel one indeed, to Articles 296 and 297 of the Penal Code in favor of medical abortion, with the explanation that it is necessary, in order to secure the free and untrammeled exercise of obstetrics, because, as yet, the operation consisting in the ejection of the fetus has the character of the punishable deeds described in these articles. Therefore many doctors will, through fear of prosecution on the
40
PROF. H. TREUB AS PENAL LEGISLATOR.
strength of one of these articles, refrain from performing this opera- tion, even when necessary for preservation of the woman's health or life.
Consequently, the lawyers' assurances referred to seem to avail nothing. Where, on the one hand, the law clearly describes the mis- demeanor, and, on the other, does not contain anything like ex- emption of physicians, one must needs appeal to the principle of penal law.
Some, indeed, presume to find such principle in the claim that >
the law requires not only a mere design, but an evil design, in
order that the offense described in Articles 296 and 297 may be regarded punishable. This evil design does not exist, they assert, in medical abortion. But there is no room for such fine distinction between mere design and evil design in the system according to which our Penal Code has been framed. According to that system, punishable design is the intention of doing a deed punishable by the Penal Code, or " the conscious bent of the will to a definite misde- meanor." The law requires no more to make a deed a misdemeanor, and should one demand, as some think should be demanded in re- gard to medical abortion, that the law should exact more requisites for a misdemeanor, this can not do away with the fact that under present circumstances no more are exacted. And the interpretation must conform to present requirements. One may find, or fancy, that the lawgiver's system leads in some cases, for instance the one unCer discussion, to undesirable results; it is not the inter-
THE RIGHT TO LIFE OF THE UNBORN CHILD.
prater's but the lawgiver's task to forestall such results. Even granted that medical abortion should by right not be punishable, that can be no reason to read the law differently from what it is, no reason to exempt from liability him whom the law does not exempt. Accordingly, the privilege of putting medical abortion beyond the reach of Articles 296 and 297 must be sought elsewhere. Equally unavailing is the pretext advanced to put an operating physician beyond the reach of Article 300 and following (mal- practice), namely, that there is no design of doing something pun- ishable. A medical operation, forsooth, has not the nature of mal- practice, and is altogether different from the misdemeanor of that name. Not so with abortion. Even though it is produced with a view of saving the mother's life, it assumes the character of that deed which is described in the law as a misdemeanor against life, viz., against the fetus' life.
Lastly, Mr. Noyon thinks he can find justification for abortion in desperate emergencies. In fact, Article 40 of the Penal Code says : " Whoever commits a deed to which he is driven by superior force is not punishable." Mr. Noyon makes this article applicable to our case by submitting that the physician acts under a pressure of circumstances which he is not bound to resist, as he could not morally justify such resistance.
Albeit, I readily own, that, by superior force or duress, must be understood not only physical compulsion, but also, and par- ticularly so, moral (psychic) compulsion, and even the so-called
PROF. H. TREUB AS PENAL LEGISLATOR.
" Nothstand " (necessity), it is hard to define the limit of what may be held as done under pressure of superior force, neverthe- less, in my opinion, Mr. Noyon extends that limit too far. Any act not morally justifiable might then be attributed to superior force, and this would legalize deeds of revenge, duels, lynching, etc. ; it
would authorize the applying of the principle " la propriete c'est le vol" (property is theft), to Jameson raids, in short, to all sorts of crimes that are now being perpetrated around us. At all events, according to other jurists, the physician who, jn-order to ^ave the pregnant mother's life, decides to kill the child, is not placed under 'such compulsion^ he is not driven by any force, or pressure, which he can not resist. No wonder that Prof. Treub has expressed
doubt as to whether all judges would agree on the broad under- standing of Article 40 of the Penal Code. Thus it is evidently very hard to justify the exemption claimed by some jurists.
The question whether such exemption could be morally justified in a state which calls itself Christian, I shall not answer myself. I'll rather leave it to my learned opponent. The answer which Prof. Treub gave in 1896* shall serve here as the best justification of the Catholic interpretation, of which he hopes to rid us by threat of punishment. There he expressed himself in an altogether dif- ferent way. His opinion then was, that, as long as our Penal Code is dominated by the ideas of Christian morality, and as deliberate
43
F y
THE RIGHT TO LIFE OF THE UNBORN CHILD.
abortion is consequently regarded as a punishable misdemeanor, to make an exception in favor of medical abortion would be an in- consistency and a wrong : " // we bow to the Christian interpreta- tion, then the penal law should be more explicit ; then the untimely
y w *
stopping of pregnancy can not be allowed under any pretext; then
the unwritten law, ' A physician acting according to the recognised rules of his art is not punishable,' must be set aside, and the rule of medical science which prescribes the untimely breaking off of pregnancy must be deemed conflicting with the morality of the state. Then also optional sterility must be made punishable." Such is the mind of the Catholic Church, which has, at least, the courage of her convictions !
Now, as Dutch law still holds the oft-mentioned misdemeanor as invariably punishable, and as the same law does not distinguish between medical and criminal abortion, and, according to Prof. Treub, should not exempt it, may I not then, after appealing to the professor's respect for our existing law, as also to his well-known fairness and consistency, conclude by politely inviting him to with- draw the charge that we, as Catholics, by our opposition to medical abortion mentioned, put ourselves above the Dutch law ?
Should Articles 296 and 297 ever be amended in favor of medical abortion, and should Prof. Treub then wish to propose his amend- ment, then I beg leave to suggest that it should be placed else- where than under Title xxi. : Causing death or bodily injury by wilful fault. In the first place, it can not be said that a clergyman
44
PROF. H. TREUB AS PENAL LEGISLATOR.
by pointing out a duty of conscience causes injury. In reality, he neither causes nor hinders it; he leaves the patient entirely to her conscience; she is, apart from her conscience, quite free to deviate from the advice given. Where is the connecting link be- tween the clergyman's act and the woman's death?
For in so far as the clergyman might be said to be fault of the woman's death, his act can not be called a fault in the strict judicial sense, but would have to be looked upon as design. Fault, gross fault even, supposes some lack of reflection, as well as the failure to foresee the evil results of the act, which one could have foreseen by due consideration. Thus, fault exists only where there is want of reflection, ignorance, imprudence, or, at most, reck- lessness; not, however, where, as in our case, some one acts with open eyes and due deliberation. Thus, there being neither fault nor design on the part of the clergyman, he can not be held guilty.
I trust that Prof. Treub will not take his proposed statute seriously, even though he has composed it most elaborately. For what would it accomplish? Catholic clergymen would not leave off doing their duty, for they also would act under pressure of superior force. And the Holy Office? It also, when there is, as here, question of principle, and not of human precept, yields neither to minority nor majority of popular opinion. Indeed, if, what God forbid, the majority of the Dutch people and the Dutch legislature should ever wholly break with morality, to adopt in its stead ethics of the natural-historical kind, then the Catholic Church, eventually constrained to fight, will continue to the end to show the courage of her convictions in this struggle for the highest principles.