Mirror of Justice

Susan Stabile said she found that what was missing in some of the critical responses to the Roche editorial in the NYT was the issue of the effectiveness of means. That is, it is one thing to talk the language of life and another thing to enact policies that work to bring down the number of abortions. She also claims that none of the responses in the blog addressed Roche's point that some of the highest rates of abortion are found in countries where abortion is illegal. Both of these points warrant additional discussion.

I disagree with Susan's assessment on several grounds. First, the relationship between the frequency of a certain form of conduct and its legal prohibition is complex. Murder is against the law here in Chicago, but that hasn't kept the Windy City from claiming the dubious distinction of being the nation's murder capital. The country's freeways generally forbid driving over 65 mph, but speeding is common as are the accidents that such behavior causes. Although the exact correlation between an act and its prohibition is inexact, one thing seems to be fairly certain, at least intuitively, and I would venture to say empirically, namely, that if there were no legal prohibition against murder in Chicago or speeding on the highways we would see an even greater occurrence of both. Part of this would have to do with the absence of fear of punishment by the state, part of it would have to do with didactic role of law, a role made all the more significant in a pluralistic country like our own.

Surely other means in addition to legal prohibition are needed if we are to reduce the level of abortion in this country, just as means other than strict murder statutes and speed laws are necessary to reduce murder rates and driving deaths. The issue is truly a cultural one and not merely a legal one. If reducing the number of murders and speeding deaths is truly one's goal, however, it makes little sense to endorse a candidate unwaveringly committed to making murder and driving over the speed limit a constitutional right.

Second, I thought there was a frankly devastating response to Roche's point that one must look at how a candidate proposes to achieve a moral aim that one supports. He pointed out that abortion rates have been lower under pro-choice administrations and that, bearing in mind a candidate's positive qualifications, this effectiveness could lead one to again support a pro-choice candidate for president notwithstanding his pro-choice credentials. The devastating response to this as I understood it was to point out the logical fallacy, post hoc ergo propter hoc. Just because lower rates of abortion have coincided with pro-choice administrations does not mean that the policies of those administrations were responsible for these welcome changes. As Richard Myers noted, a number of other causal factors could better explain this phenomenon.

Moreover, even if this is not the case, isn't it worth asking if being effective is all it’s cracked up to be? Sometimes, isn't it more important to be faithful than to be effective? That is, because we are dealing in the case of abortion with the foundational issue of who counts as a member of our society (i.e. who is a person) perhaps our vote should stand on the principle of the matter rather than on causal arguments open to serious challenge.

Third, Kerry's failure to vote in favor of the ban on partial birth abortion has nothing to do with Roche's argument. More importantly, his point in the second debate that he voted against the legislation because it failed to contain a health exception was pure casuistry. It was the skillful maneuver of a debater, not the clear and principled stand of a politician, even a pro-choice one. His point was "valid" as Susan suggests only if one accepts wholeheartedly the logic and meaning of Roe and its companion case Doe v. Bolton. The statute in question did contain a health exception. It did not contain a health exception as broad as "health" is defined in Doe. As anyone knowledgeable about Roe and its progeny know, Doe eviscerated the seemingly reasonable second and third trimester restrictions on abortion that Roe allowed. Under Doe, "health" includes "age" such that if an eighteen year old says she's too young to have a child, that qualifies as a "health" exception that the Constitution mandates.

Kerry also said in both the second and third debates that abortion is a constitutional right under Roe and that he will only appoint judges that will uphold the Constitution. With this jurisprudential polestar to guide him, one can only guess at the kind of judges Kerry would appoint if we still lived in the age of Plessy v. Ferguson.

Fourth, Susan began her post with the claim that surely no one disagrees with the claim that if one professes the Catholic faith, one must evaluate her political choices in light of that faith. I trust that is true for members of this blog. It remains, however, very much an open question with respect to Senator Kerry. References to his days as an altar boy aside, an honest assessment of his voting record in the Senate indicates that his faith is completely irrelevant to him with respect to this issue. Indeed, far from trying to reduce the number of abortions, he has worked to expand their number, by supporting federal funding of abortions, by trying to make them more widely available for military personnel, by his support of RU486 and in countless other ways. Indeed, an honest assessment of his voting record would lead one to conclude that, notwithstanding the claim that he thinks abortion is a bad thing, he never met an abortion he didn't like. So the problem with Senator Kerry, if we put to one side his rhetorical surplice and cassock, is that he doesn’t share the very goal on which our whole conversation is premised, namely, that reducing the number of abortions is a worthy goal to which we should all be committed.

John