Response to Eduardo

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.