Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, May 12, 2006

Mike's Mother of Ironies

I see Mike's point, and the irony of his reversal of a common mode of distinguishing between abortion and capital punishment with respect to the scope of prudence. Mike siezes, quite accurately, on the element of JP II's analysis of capital punishment that in fact leaves very little room for prudential judgment in the US re the moral unacceptability of CP. I gather Rick seems to agree with that.The issue with respect to abortion is a lot more complicated; I do not think the topic lends itself to Mike's neat reversal. First, even if it is presumed that there is SOME room for prudential judgment, that judgment cannot include the conclusion that abortion should be decriminalized because of the primacy of a woman's choice, or that there is a right to an abortion, and that the right to choose should trump the intrinsic immorality of abortion. I wonder if Mike would see his idea of the scope of prudence as encompassing what would be a principled valorization of the "right to choose." If he would, then we have a disagreement over what he means by prudence, and I could not characterize that position as being even remotely consistent with Church teaching. I think this is what Rick means by suggesting that the position of the Democratic party on abortion could or should not be encompassed by Mike's idea of prudence re abortion. Second, if Mike is making the argument that because the Church's goal is to reduce the number of abortions but to avoid harm to women thru illicit abortions, then prudentially we should not criminalize some very limited category of abortions, I would concede that he is at least making a prudential argument (whether rightly or wrongly) rather than challenging a basic Catholic principle. The prudential judgment, however, depends upon another principle; the principle he would be applying is the "lesser evil" one that Cardinal Martini and others are invoking in the current debate re condoms and AIDS. Fair enough. So, the question then becomes, what scope is there in fact for such a prudential judgment on criminalization of abortion in light of that principle? Just to kick the debate off, I would suggest that with respect to the use of condoms in a society widely afflicted by AIDS, the gravity of the behavior condoned (ie use of condoms by married couples) is much less than the good achieved (preventing transmittal of AIDS). The use of a condom is truly a "lesser evil" In the case of abortion, however, the evil is very grave -- the deliberate destruction of an innocent human life. Is that evil greater or lesser than the evil that would be prevented by decriminalizing some limited category of abortions? Finally, the devil is in the details. Would Mike be ok with a decriminalization that went beyond the first trimester, because women with advanced pregnancies would otherwise be tempted to seek unsafe back alley abortions? In other words, does he believe that an unlimited range of prudential judgments is permissable? If so, we are pretty much where we are now under Roe and Casey, practically speaking, absent the mystery of life and choice rhetoric. In short, I am with Mike on his first ironic proposition, but the second one needs to be thought thru more thoroughly. (There is also the problem that Rick pointed out with the non-authoritative nature of Cardinal Martini's position.)

--Mark

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