Mirror of Justice

I continue to think there is more in common than not among all of us on the Mirror of Justice regarding the sanctity of life in general and the evil of abortion in particular, from both a moral perspective and in terms of appropriate legal responses, even as I read the ongoing exchanges between Michael Perry and Rick Garnett. I wonder whether the apparent distance can be further lessened and the remaining points of difference be more sharply illuminated by a few clarifications or points of emphasis.

First, I agree with Rick Garnett that any political response to the problem of abortion that is truly faithful to Catholic teaching must march forthrightly to the front-line, which is located where early abortions are being performed. Most of the unborn lives stolen each year are snatched away in the early stages of pregnancy. Accordingly, any political or legal response that fails to directly address early abortions would leave the daily violence against the unborn in this society largely unabated. A premeditated determination to neglect the center of gravity for the abortion travesty indeed would be difficult to reconcile with Church teaching emphasizing the intrinsic evil of destroying innocent unborn life.

However, to insist, as Rick rightly does, that we must “prohibit direct abortion, without regard to the gestational age of the fetus, fetal deformity, or any other factor,” does not lead ineluctably to forceful employment of the heavy hand of the criminal law as the primary means to that end. As Rick has explained previously, for example, few if any in the pro-life movement advocate imposing severe criminal penalties upon vulnerable women in difficult situations who procure abortions. And even if society instead and appropriately directs its ire toward those medical practitioners who pervert the healing arts to the destruction of unborn life, regulation and licensing of the medical profession or provisions for civil liability should be explored rather than resorting too readily to the penal law. Thus, prudential judgment not only is permissible but is desperately needed to craft creative and sensitive means of curtailing early abortions, even if prudential judgment may not be invoked to justify neglecting or tolerating this killing field.

Second, when I consider the element of prudential judgment in Catholic social teaching, I tend to think of the need to balance the limits of law, the realities of human weakness, and the complexities of societal structures in deciding how best in a particular culture to advance an ideal for a just society, such as the preferential option for the poor or the need for human development through education. By contrast, many (by no means all) of the justifications I have read for focusing efforts upon more limited constraints on abortion, including leaving early-stage abortions largely unregulated, emphasize simple political feasibility. While I acknowledge that political calculation is necessary, I think that factor lies at the outer edge of prudential judgment, if it can be characterized as part of prudential judgment at all. Political calculations sometimes force us to make necessary compromises, based simply on what can be achieved at the moment. Such compromises are not based on principle nor grounded upon the inherent limitations of law or concerns for externalities. Thus, a political compromise on a matter of fundamental principle can never be justified as anything other than an inadequate and interim measure that only precedes continued and concerted efforts to achieve complete justice.

When Abraham Lincoln issued the Emancipation Proclamation in 1863, the political realities of ongoing war, divided public opinion, and persisting legal precedent may have justified the partial abolition of slavery only in those regions that remained under the control of those in rebellion against the Union. But the achievement of that interim advance in social justice was no reason not to press forward toward more complete justice through the Thirteenth Amendment and the Civil Rights Act following the Civil War.

Furthermore, when we consider the wisdom of compromise measures or partial remedies, we must weigh as well the danger that we will be perceived as abandoning a fundamental principle and settling too readily and too comfortably for something much less. Rather than being intended by ourselves and seen by others as but a preliminary step, the compromise could become the end game. If the Catholic witness for life in this culture is to be heard loud and clear, we all are responsible for making sure that our conversations about practical obstacles and prudential judgments are not misunderstood by the public.

As Catholic thinkers, we thoughtfully and appropriately raise questions and ponder responses to the evil of abortion, including evaluating the faithfulness and wisdom of compromises and alternative measures. However, the nuances and the qualifications—and especially the unwavering commitment to an ethic of life—that are contained in such academic dissertations often become lost in translation to the news media and the political arena. Thus, when such compromise proposals emerge into general discourse, I frequently hear from my stalwart pro-life friends on the political left that they feel cut off at the knees. In an environment on the political left that has been most inhospitable to their message, they have stood heroically as witnesses for the culture of life. Then they are pressed by others on the left who crudely invoke these compromise proposals as supposed evidence that one can be adequately pro-life or safely within Catholic teaching without supporting political measures that would seriously threaten the abortion license. (“See,” the argument they hear goes, “faithful Catholics don’t have to be opposed to abortion in the first trimester.”) And thus pro-life progressives are left feeling even more marginalized, with insult being added to injury in that they perceive this marginalization as coming from those who should be their allies in the pro-life cause. However unfair or misguided may be these reactions, they nonetheless are part of the practical realities that should form the background to our exercise of prudential judgment. And knowing as much, we are responsible to take aggressive steps to ensure that such misunderstandings do not persist.

Finally, while accepting that prudential judgment has its place in nearly every area of public policy, surely we all would agree that the parameters of such discretion are greatly narrowed when the subject at hand is one of arresting an intrinsic evil. To take for example the subject of torture as recently discussed on this blog, consider if someone were to propose compromise measures to reduce the incidence of torture while accommodating to the practical reality of divided opinion on the subject. Suppose legislation were introduced to mandate the executive to obtain a “torture warrant” from a court which required a high showing of necessity to use the infliction of pain to obtain information vital to prevent great loss of life (as Alan Dershowitz has proposed) or a regulation were proposed to limit the forms of torture that may be used against terrorists, such as allowing suffocation short of death or serious bodily harm but prohibiting electrical shock or use of cutting tools. Would we accept such compromise measures as reflecting the legitimate exercise of “prudential judgment”? Or would we insist that accepting any such compromise on such a matter of principle would itself be unprincipled? And, if we reluctantly did support such a compromise as necessitated by political calculation, would we not remain diligently and energetically committed to continuing the effort for more complete justice in the future? And shouldn’t our answers to these hypothetical questions about torture policy directed toward terrorists inform our answers to similar questions about public policy addressing the killing of innocent unborn children?

Greg Sisk