There's a lot to think about in Eduardo's response to George Weigel (here). He is right, of course -- and I suspect that Weigel would agree -- that there is an important "distinction between morality and law in Catholic legal theory." We all agree that the law need not, and should not, prohibit every vice. (And, I'm glad he believes that a faithful, engaged, intelligent, informed, and well-formed Catholic -- like me! [insert smiley-face emoticon here] -- can vote for Sen. McCain.)
I do not agree, though, with Eduardo's view that laws permitting abortion should be distinguished from racial-segregation laws on the theory that "in the context of abortion, it is private parties doing the evil, with the law merely failing to stop them." I just don't know that the public / private thing is all that helpful here. For starters, let's recall, but then put aside, the fact that in the curent debate, we are talking not just about laws permitting lethal violence by private persons, but laws that will increase public funding for this violence, laws celebrating the choice to engage in such violence as a "fundamental right", laws that will impose burdens on pro-life health-care workers' consciences, and laws that will roll back legal protections from such violence that currently exist.
The bigger problem, for me, is that what our abortion regime does is, I think, best described not as "merely failing to stop" abortions, but instead as "prohibiting political communities from extending to some persons -- unborn children -- legal protections that other persons enjoy and that unborn children have a right, in justice, to expect." Our regime denies to some people -- indeed, it withdraws from some people -- that which is their due, and with grim consequences. It seems to me that it is the case, to use Eduardo's words, that "the law itself . . . is doing the intrinsic evil" (i.e., denying the personhood of, or the rights due to, an innocent, vulnerable person).
Don't get me wrong -- it is, I agree, important in many circumstances to distinguish between cases where law tolerates evil and those where law does evil. Our abortion laws (unlike, say, our First Amendment doctrines dealing with obscenity and pornography) strike me as falling in the latter category.
UPDATE: A student of mine, Edward Highberger, writes:
I am probably misunderstanding Prof. Penalver's post on Mirror of Justice regarding George Weigel's recent Newsweek article, but this claim Prof. Penalver makes strikes me as wrong:
"Consider, for example, Weigel’s reference to legal segregation. This is inapt, since in that case it is the law itself that is doing the intrinsic evil (i.e., racial subordination), whereas in the context of abortion, it is private parties doing the evil, with the law merely failing to stop them."It seems to me that in the case of the abortion regime, the law itself is also intrinsically evil. The Supreme Court effectively holds that the U.S. Constitution prohibits States from enacting legislation that affords fundamental human rights to a particular class of persons--the unborn. In other words, federal law isn't just permitting private actors the "right" to procure an abortion. It mandates the subordination of the rights of unborn children to that of their mothers by barring state legislatures from enacting laws that would limit the mother's countervailing interest in reproductive freedom.
Similarly, Prof. Penalver is wrong to implicitly analogize the current abortion regime to the legal regime that existed prior to the enactment of federal civil rights legislation. Even before federal law prohibited private actors from engaging in certain types of discrimination, the States were presumably free to regulate such conduct. In that case, federal law really did just "fail[] to stop" private discriminatory acts. However, in the case of the current abortion regime--where states are forbidden to enact legislation protecting unborn life--federal law isn't merely tolerating private actors obtaining abortions, it is actively excluding a class of persons from protection under state or federal law. As Weigel originally asserted, this seems more analogous to legal segregation.
In all the back-and-forth over the effects of an Obama election victory, there are two that appear to me to be crucial yet largely or entirely undiscussed.
One is the effect of an Obama victory on abortion worldwide. An international effort to export US-style (and worse) judicial activism is now paying off richly, especially in Latin countries. (I often teach comparative law in Latin America as well as in the USA.) Essentially, judges and other leaders there are being repeatedly (and falsely) told by UN-based non-judicial treaty enforcement committees that their countries are acting illegally when they protect life before birth. So far, the highest courts in Colombia and in Mexico seem to have gotten into line, reversing solidly pro-life past holdings in favor of full rights to abortion similar to Roe v.Wade. Argentina and perhaps Brazil may fall soon as well. While the Bush administration has somtimes sought to brake this process, an Obama administration can be expected to press the acclerator. (Austin Ruse and his group of analysts at C-FAM do an admirable job of reporting on these matters, although I don't believe they endorse or oppose candidates.)
Second, many commentators have pointed out correctly that the Obama-sponsored "Freedom of Choice" Act would greatly extend Roe to create rights, e.g., to abortion funding, partial-birth abortion, and abortion without parental interference. It would thus put an end to virtually all possible compromises on abortion, and (perhaps even worse) put an end to all legislative debate around the nation. There would be little point in speaking to our neighbors about community protection for life if we had been rendered utterly impotent.
But even if FOCA did nothing more than duplicate Roe, it would be very bad news in terms of public reason. It would sharply restrict or eliminate judicial debate as well as legislative debate. That is, for the last 35 years, the pro-life movement has been nourished by the hope that judges and justices (who are, after all, professionally committed to reason) will someday see the insanity of claiming that passage through the birth canal changes one from a merely potential to an actual living human being, as Roe insists. But once FOCA is in place, the Supreme Court will be precluded forever from reconsidering Roe. Courts will always strike down laws (like the new one in South Dakota) for violation of FOCA without having to reach the constitutional issues. In order even to hope that the Supreme Court would change its mind, we would first have to have a pro-life House, a 60-vote (filibuster-proof) prolife majority in the Senate, and a president who would not veto a repeal of FOCA -- all at the same time. Such an eventuality strikes me as quite a bit more unlikely than just someday getting more justices on the Court who are willing to reject what almost all scholars concede is the fallacious reasoning of Roe.
Even Robert George's otherwise devastating critique of Obama's impact fails to mention how Obama's FOCA could indefinitely entrench Roe v. Wade. Nevertheless, I concur with Mike Scaperlanda that Prof. George's new essay is absolutely necessary for conscientious citizens to read before voting this year. Here it is again: http://www.thepublicdiscourse.com/viewarticle.php?selectedarticle=2008.10.14_George_Robert_Obama's%20Abortion%20Extremism_.xml
Rick and Eduardo have already weighed on George Weigel's article and expressed some of my thoughts. Weigel states the powerful pro-life case against Obama, which I recognize and feel deeply. But -- and I want to make a point about principles and policy, not about for whom to vote -- there is also a pattern in his article of unjustifiably denigrating the value of social supports for women as a factor reducing abortions. Following Rick's lead, I'll restate my own belief: these measures are a crucial part of any pro-life strategy, both because they face fewer obstacles than abortion prohibitions do and because they will have to accompany any significant abortion prohibitions if we want the latter to pass and stick over time, given how they could affect women who become pregnant in difficult circumstances.
Weigel writes:
The "social safety net" component of the pro-life, pro-Obama argument may seem, at first blush, to make sense. Yet it, too, runs up against stubborn facts: for example, Sweden, with a much thicker social safety net than the United States, has precisely the same rate (25 percent) of abortions per pregnancy as America.
I've already discussed the fallacy in this argument, in responding to John Breen's article (John, I'd be interested in your thoughts). As I wrote last January,
the real question is: given that the belief in abortion's immorality is less widespread or deeply held in many of these Western European nations, what would the abortion rates/ratios be were it not for the safety-net provisions that support children, families, and pregnant women? . . . [W]hat seems striking that the European ratios are lower at all than America's -- and in countries with relatively weak abortion prohibitions similar to the U.S.'s (like France), the safety net is prima facie a very plausible explanation.. . .
Our distinctive problem in the U.S., compared with other developed Western nations, is that -- even with the current reductions -- we have a relatively high abortion rate despite a relatively high percentage of public opinion opposed to abortion. . . . [T]here is still evidence that our less protective safety-net system is a factor, [and] that strengthening the safety net can help. . . .
Continue reading
"Public Discourse" is the not-blog (though it is kind of like a blog) of the Witherspoon Institute at Princeton. Here is the link, and here is a description of the not-blog's mission and a list of the (impressive array of) contributors. A bit:
We call it Public Discourse: Ethics, Law and the Common Good for three simple reasons. First, the topics we cover all center on public life. Second, we approach these topics using methods of discourse that are inherently public, open and accessible to all fellow citizens. Third, we contend that at the heart of our public debates are ethical questions - questions about good and bad, right and wrong, just and unjust. As to our approach, we rely on neither revelation, emotivism, nor majoritarianism. Rather we aim to address these questions rationally through critical reflection on man's nature, his personal and communal flourishing, and the ethical principles that should guide his conduct.
Aristotle taught that the central question of political life is how we ought to order our lives together. This is an inherently ethical question. Whatever the pressing question of the day may be - debates surrounding economic policy, biotechnology, international relations, marriage and the family, constitutional law and religious liberty - they all entail ethical positions.
Sounds good!
