Wednesday, May 25, 2011

May we 'legislate morality'? When pro-choice advocates manipulate the ground rules

Some pro-choice advocates say pro-lifers are illegitimately trying to "impose" or "legislate" their moral view on others by working to enact laws that restrict abortion. There are three related points I wish to make in response.

(1) To say that one should not "impose" morality is self-defeating, for the one making the statement is seeking to impose his morality -- that we should not impose morality -- on others. Perhaps he could claim that he is not using "should" in a normative or ethical sense, but is speaking merely about legal or political requirements. But what legal rules prohibit legislating morality? There are none (the First Amendment's establishment clause does not apply, because we are not talking about religious claims), and in any case legal rules themselves are examples of legislating morality (see point #2). The "you should not impose morality" objection is at bottom a normative, moral objection about the way government ought to operate, and thus it contradicts itself and cannot be true.

(2) As President Barack Obama (a staunch defender of legalized abortion) has written, "To say men and women should not inject their 'personal morality' into policy debates is a practical absurdity; our law is by definition a codification of morality." Most every law reflects some moral view and serves some moral purpose. Laws against murder, rape and abuse are based on moral judgments. Even speed limits reflect a determination by society that human lives are valuable and ought not be put recklessly in danger. (Of course, the fact that law concerns morality does not mean that every moral matter ought to be addressed in law.)

Law is fundamentally a moral enterprise because it concerns how society ought to be governed. If this is not the case, then objective morality apparently does not exist (there is no "ought"), and the law is merely a tool for those in power to wield however they wish.

(3) Both the pro-choice and pro-life positions seek to enshrine a particular moral view into law. By permitting elective abortion, our government is (very controversially) taking the view that the unborn human being dismembered and killed by abortion is not deserving of basic moral respect and protection. Likewise, by permitting slavery, our government took the view that slaves are not persons, but rather mere property that can be used and abused. Necessarily, the government "imposes" one view or the other of the unborn and the slave, respectively. Neutrality is not possible.

Francis J. Beckwith writes:
[T]o say that a woman should have the right to choose to terminate her pregnancy without public justification is tantamount to denying the pro-life position that the unborn are human persons who by nature are worthy of protection by the state. And to affirm that the unborn are human persons with a natural right to life that ought to be protected by the state is tantamount to denying the abortion-choice position that a woman has a fundamental right to terminate her pregnancy, because such a termination would result, in most cases, in an unjustified homicide. Consequently, when abortion-choice advocates, in the name of tolerance and religious liberty, call for pro-life citizens to completely cease employing the legitimate avenues of our constitutional democracy for the purpose of protecting the unborn from harm, these abortion-choice supporters are in fact instructing their fellow citizens to silently, politely, and without resistance acquiesce to the metaphysical status quo, namely, that the unborn are not full-fledged members of the human community and therefore are not entitled to protection by the state. To the opponent of abortion, this request hardly seems tolerant or liberating.
So: The claim that we cannot "legislate" or "impose" morality, or that the government ought to remain "neutral," does not withstand the slightest bit of scrutiny. Law reflects moral viewpoints. People on both sides of contentious political issues are trying see their moral viewpoints reflected in law. As Micah Watson puts it, "The real question is not whether the political community will legislate morality; the question is which vision of morality will be enforced and by what sort of government."

In recent blog entries, local law professor David Schultz -- after attacking the notion of "legislating morality" -- concedes that he "do[es] not think there is no connection between law and morality," and says that the government should "establish certain basic values regarding liberty and equality [i.e., 'legislate morality'], for example, but much beyond that individuals are left to their own to define the good for themselves [itself a moral view about the proper limits of government]. This is what a free and pluralist society does."

Okay. But Schultz still tries to disqualify the pro-life position (that elective abortion should not be permitted) from public consideration. His claim is that regardless of whether abortion is morally permissible or not, abortion is not appropriately the subject of legislative restrictions according to the ground rules of a pluralist society.

Why? Because "we do not know what is right" about abortion, and the issue is "contested." That is the key difference Schultz offers between dismembering unborn human beings by abortion, which he says must be permitted as dictated by pluralism, and something like spousal abuse, which should, he agrees, be illegal. (At least, that is how I understand him -- if he reads this and my interpretation is wrong, I hope he will correct me.)

Schultz's effort here to disqualify the pro-life view out of hand hardly seems defensible. First, Schultz's view -- that "contested" matters should not be legislated upon -- is highly contested, yet he wants to impose it upon everyone else. Second, as I note in point #3, legal abortion itself imposes a "contested" moral view. Finally, may we not restrict a practice unless there is widespread agreement to do so (even beyond the agreement obviously necessary for the legislation to be passed and enacted into law)? If that is true, then abolishing slavery was not legitimate. Nor was the Civil Rights Act.

It is unfair and incoherent to manipulate the ground rules to exclude one particular position from political consideration.  To counter our view, Schultz and other pro-choice advocates will have to do the hard work of actually showing that it is false.

Send comments to