St. Augustine and Justice After Dobbs

I see myself as a spiritual son of St. Augustine. I even named my son after him. Imagine my disappointment, then, when I saw his words trotted out in defense of abortion in the pages of the New England Journal of Medicine. As a physician, I would normally be thrilled to see Augustine quoted in medical literature. But not this time. In a recent article, Dr. Matthew Wynia proposes physician disobedience in the wake of Dobbs—he suggests that as state abortion bans take effect after Roe's overturning, doctors should perhaps collectively defy these laws and continue to perform abortions. He supports his argument by appealing to Augustine’s maxim that “an unjust law is no law at all.” Would that the author had considered his source more carefully. He misunderstands both Augustine's writing on abortion and his writing on justice. 

We should first address his position on abortion and ensoulment. Augustine adamantly opposed abortion at all stages of pregnancy. However, he was not sure about exactly when “ensoulment” occurred. He himself declares his ignorance on this issue in his Enchiridion:

And therefore the following question may be very carefully inquired into and discussed by learned men, though I do not know whether it is in man's power to resolve it: At what time the infant begins to live in the womb . . .

Thomistic conceptions of progressive ensoulment and “quickening” would have to wait until the next millennium, as would modern medical knowledge of when life begins. Nonetheless, Augustine recognized that an embryo in the womb partakes in some way in human life. In the Enchiridion, while discussing the resurrection, he muses about miscarriages:

Who will dare to deny, though he may not dare to affirm, that at the resurrection every defect in the form shall be supplied, and that thus the perfection which time would have brought shall not be wanting . . . that what is not yet complete shall be completed, just as what has been injured shall be renewed.

To those who “feign a scrupulous anxiety . . . to cast ridicule on our faith in the resurrection” by asking whether miscarried fetuses shall rise, Augustine again admits of his ignorance and uncertainty: “I make bold neither to affirm nor to deny.” However, “trusting that God will mercifully assist my endeavors,” he concludes that if fetuses are alive, they must be human lives, however distant from maturity: Miscarried children, then, share in the resurrection, a uniquely human event. 

If Augustine admits latitude about ensoulment, he nonetheless sees induced abortion itself as clearly sinful. He writes in On Marriage and Concupiscence that abortion serves “cruel lust” to insulate the pleasure of the sexual act from procreation. He avers that spouses who pursue abortion “are not husband and wife. . . . they have not come together by wedlock but by debauchery.” That abortion serves a perverse pursuit of pleasure suffices to condemn it. 

Augustine’s teaching on justice also clearly shows that Dr. Wynia's invocation is absurd. The maxim in question—“an unjust law is no law at all”—appears in the first book of Augustine’s On the Free Choice of the Will. He wrote this shortly after his conversion in a.d. 387, and it reflects his first mature attempt to grapple with theodicy. “Please tell me: isn’t God the cause of evil?” his friend and interlocutor Evodius asks in the text. This question, of course, formed the basis of much of Augustine’s adolescent peregrination:

You have hit upon the very question that worried me greatly when I was still young . . . I was so hurt by this fall, buried under a mountain of silly fairy tales, that if my love of finding the truth had not secured divine help, I would not have been able to get out from under them.

Augustine then guides Evodius through an account of the moral order of the universe: The rational soul apprehends, and the will freely chooses, the moral good. 

In accounting for the seeming inconstancy of temporal laws, Augustine notes that these laws reflect the ever-changing needs of a polity. The goodness and justness of any temporal law, however, derives from its conformity to the eternal law: “Nothing is just and legitimate in the temporal law except that which human beings have derived from the eternal law.” This provides essential context for Augustine’s maxim: If a temporal law contravenes the eternal moral order, that law is unjust and thus no law at all. 

To further carry the point, Augustine offers the classical definition of justice: giving others their due. He elaborates that the just man “cannot wish anyone ill . . . they harm no one.” Finally, Augustine avers that no one can use justice to do evil: “No one uses virtue for evil, because the task of virtue is the good use of things that we can also fail to use for good.” 

Dr. Wynia tellingly avoids explaining how laws restricting abortion are unjust. He references professional society nostrums about non-interference in the doctor-patient relation and potential ethical issues surrounding maternal health risk, but never delivers a robust account of how these laws might violate justice broadly. Enlisting Augustine's words on justice to support abortion, then, would appear to be an attempt to use justice for evil. This seems to me to be not justice at all. 

In the end, Dr. Wynia’s use of Augustine is wrongheaded. The saint cannot be drafted in support of abortion, or of physician disobedience to a (just) law. I would remind Dr. Wynia of Augustine’s own position when countered with the “obstinacy which belongs to a long-cherished error”: “For, notwithstanding all the assiduity of the physician who attempts to effect a cure, the disease remains unconquered, not through any fault of his, but because of the incurableness of the sick man.”

John Nawn is a physician in Philadelphia.

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