Ad Limina Apostolorum

Abortion and the Common Good

A piece ran in early August in America Magazine, entitled 'American Catholics and the State,' by Gregory A. Kalscheur (right). It's essentially an application of John Courtney Murray's thought on the relation between the moral law and civil legislation, in response to the recent controversy surrounding pro-abortion Catholic politicians such as John Kerry.

First off, kudos to America for actually tackling this issue in an academic, philosophical manner, giving as thorough a treatment as can be expected to an issue which invites far too much off-hand cynicism and far too little serious thought. Sure, it's skewed, the foregone conclusion is stacked against the hierarchy, and Murray himself is a questionable source. But at least they're trying.

Secondly, I have virtually nil experience in Catholic social teaching, or even in political theory. The last political education I had was Poli 401 in college, and I have almost no exposure to Murray's thought. So, given the caveat that I'm in over my head, I thought I'd offer my reaction nonetheless. Kalscheur's goal here is to sketch the juridical sphere of civil law and that of the natural moral law, and, ultimately, to show how little the two overlap, so as to minimize (as it were) the Catholic politician's obligation to import his moral beliefs into civil legislation:

"[Morality and law] are not coextensive in their functions. Legal prohibitions can have only a limited effect on shaping moral character. Accordingly, Murray [left] argued that people can 'be coerced only to a minimal amount of moral action.' Indeed, 'the moral aspirations of the law are minimal.'"

"If society wishes to elevate and maintain moral standards above the minimal level required for the healthy functioining of the social order, it must look to institutions other than the law. The state and law, therefore, have a necessary - but a necessarily limited - role to play in society's work of establishing and maintaining the common good."

"In light of all these considerations, society should not expect a great deal of moral improvement from legal prohibitions. Instead, the limited effectiveness of legal coercion compelling obedience through fear of punishment as a vehicle toward enuine moral reform means that legal prohibitions must be used with caution in a free society."

I sense an odd disconnect present in these statements, which I can't quite explicate. There seem to be two ends envisioned for the civil law, implied here but not always rendered explicit. Perhaps they shouldn't be sharply distinguished, but I think they should be, at least conceptually: (1) that of preserving a minimal degree of peace and good order within society, usually dubbed the 'common good'; and (2) inculcating moral virtue in the general populace, at least to a relative degree. Without a doubt, from a Catholic point of view, civil law is meant to serve these two functions. But the two are clearly distinct. The second presupposes the first, as a minimal degree of peace and order seems beneficial for the flourishing of virtue; yet, at the same time, as a society grows in virtue it will correspondingly grow more peaceful and orderly. Yet the two are not the same. All men of good will would seem to agree with the first end of civil law; in fact, it seems the only goal which all rational men would agree upon, regardless of creed or ideology: government exists to maintain peace and order. The latter, however, would be more controversial, and many if not most social theorists would deny that the state has any right at all to impose or legislate a moral code on its citizens, or to have even the most subtle intention of influencing their moral creed or behavior (of course, at least a minimum of 'morality' is required to maintain peace and order, to prevent murder and mayhem, yet this would fall just as easily under the first category).

Kalscheur, however, seems to confuse the two, interposing them and switching them at crucial points. In the statements above, e.g., he is discussing the state's role in the latter category, to 'elevate and maintain moral standards,' 'shaping moral character,' 'moral improvement,' etc. He rightly minimizes the state's role in acting towards this end, and this is hardly surprising - who wants a state which imposes a moral creed on its citizens? His next step is to include the question of abortion as a 'moral principle' within this category. The conclusion, of course, is that the state (and Catholics inasmuch as they play a role in this state) have no particular mandate to outlaw abortion, as this would involve the state overstepping its bounds in attempting to coerce 'moral improvement.'

What's left entirely outside of this analysis is a treatment of abortion as a social evil. Abortion, of course, is both a moral crime and a social evil. Inasmuch as it is a moral crime, committed by the person who procures it, it falls within the scope of the moral law, and seemingly outside that of the civil law. In that respect, Kalscheur may be right to urge the state to be cautious in its intervention. The state is not a judge of souls. Yet beyond its status as a moral crime, abortion is also a social evil. When our viewpoint is imprisoned within the narrow lens of the pregnant mother, we forget that another person is very much involved in this act, i.e. the aborted child. Given that 1.37 million unborn children are killed annually in this country alone, we can hardly avoid the social implications of the act. And the legislated, state-sponsored execution of 1.37 million children a year, I think, is a factor that ought to be taken into consideration in the discussion of the role of the law in preserving 'peace and order' in society.

Insisting on discussing abortion exclusively in the context of a moral crime, and in the context of the government's presumed role in legislating morality, misses the point. Shouldn't we, also, distinguish between the moral law's 'negative' prohibitions - murder, deceit, theft, etc. - and its 'positive' obligations - e.g., charity, respect to parents, honor to God, etc.? Surely the civil law has a greater obligation to enforce the former than the latter? Murder, deceit and theft not only constitute moral crimes, they also, when unchecked, destroy the fabric of society. Hence, the state has a vested interest in curbing them, by force if necessary. The latter, although perhaps necessary for our salvation, play only a minimal role in preserving the common good of society, although they certainly assist in this. When you tuck abortion into a conversation about 'legislating morality,' it conjures up images of dragging someone to Sunday mass at gunpoint. But surely, taking forthright action to prevent the murder of over a million innocent children annually is more than a matter of state intervention in moral affairs. In this amateur political theorist's opinion, it seems more along the lines of the state's natural interest in preserving the peace and order of its own populace.