Susan Stabile on John Courtney Murray and Abortion

"John Courtney Murray and the Abortion Debate"

      BY:  SUSAN J. STABILE
              St. John's University
              School of Law

Document:  Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=825164

Paper ID:  St. John's Legal Studies Research Paper No. 10-0028

Contact:  SUSAN J. STABILE
   Email:  Mailto:[email protected]
  Postal:  St. John's University
           School of Law
           8000 Utopia Parkway
           Jamaica, NY 11439  UNITED STATES
   Phone:  718-990-1579

ABSTRACT:
This paper explores the contribution of the foremost Catholic
theologian in the church in the United States - John Courtney
Murray - to the issue of abortion. Although Murray never
directly spoke on the question of abortion, his distinctions
between morality and civil law and between matters of public and
private morality contribute to our thinking about that question.
Indeed, Murray's views on how the Church should respond to
legislative efforts to decriminalize contraception, as well as
his statements generally about religious freedom, the separation
of law and morality and the distinction between public and
private morality have been influential in forming arguments
concerning the abortion controversy.

In the mid-1960s, Murray wrote a memorandum containing
recommendations regarding how Catholics should respond to a
proposal to amend Massachusetts law to decriminalize
contraception. In response, Murray wrote a memo arguing against
Catholic opposition to the law, despite his view that artificial
contraception was immoral. Because that memorandum has been used
by others in an attempt to use Murray to justify a pro-choice
position, I use it as a framework for exploring Murray's
thought. This paper considers to what extent Murray's statements
about how the Church should respond to contraception carry over
into the development of a workable position regarding abortion
and evaluates arguments that have been made based on his
writings. I argue that Murray has something to say to both
public policymakers and the Catholic Church about their approach
to abortion. More specifically, I argue that abortion is a
matter of public morality, making it a matter that the state is
justified in regulating, but also that prudential considerations
must be taken into account in deciding whether and how the law
should intervene. Separating the questions of whether abortion
is a proper subject for the law to address and what constitutes
a good law with respect to abortion is a necessary step in
moving from confusion to productive debate.