Since the evangelical Christians are flexing their political might these days, I suspect that we have some big legal battles ahead of us. Should homosexuals be allowed to get married in the eyes of the law? Should abortion and embryonic stem cell research be legal? Should church and state remain separated? Of these three issues, a triumph over abortion (by overturning Roe v. Wade) would probably give the most fuel to the evangelical fire. They have been fighting this one for more than thirty years and success at this stage would make them feel even more confident than the recent election did.
Since Bush has managed to secure a second term in office, he will probably have the opportunity to appoint several new justices to the Supreme Court. Most people expect him to appoint hardline anti-abortioners. I expect to see more Justices like Antonin Scalia, who is against abortion and also does not believe in the separation of church and state. (He at least had the good sense to recuse himself from the Newdow case after making his bias explicit in a speech, but I doubt that a Court with a cluster of Scalia-like justices would hand down unbiased rulings in similar cases.) This means I also expect to see some brazen challenges to the church and state doctrine, and a major effort to get Roe v. Wade overturned. Neither of those possibilities makes me happy.
Before I explain why, here is my philosophy of law. It goes something like this:
Every act, from murder to sexual intercourse, is legal until we make it illegal. (In other words, we do not create the “right” to perform an act; we can only restrict the “right” to perform it.) Furthermore, an act should only be made illegal because performing it would bring unwanted and unnecessary harm to another citizen or another citizen’s property.
By that rather libertarian standard, homosexual marriage should be legal because, despite some of the gloom-and-doom rhetoric out there, no one can prove that homosexual marriage is a cause of our declining culture, a symptom, or something completely unrelated. That is, it harms no one, except perhaps the consensual participants of the marriage, but only so much as any marriage harms anyone. (I.e., if you want to play with fire, expect to get burned. It’s not my job to tell you not to play with fire.)
However, when applied to abortion, my homely little philosophy of law finds a snag. If laws are made to protect people, the whole thing depends on we define a fetus with respect to personhood and humanity. From my perspective, a fetus is clearly not a person, clearly not a human being, and clearly not an entity upon which we should bestow the full rights an privileges of personhood and citizenship. Hence, there is no need to criminalize abortion. But from the Christian perspective, a fetus clearly is a person and an entity deserving of the full rights and privileges of humanity and citizenship. Hence, abortion is one of those harmful acts that needs to be criminalized.
How do we arbitrate between these two perspectives? It is a problem of defining humanity, which always makes people uncomfortable, especially when it ends up before the Supreme Court. For instance, the Court decided in the infamous Dred Scott decision in 1857 that no blacks could claim citizenship and that the federal government could not prohibit slavery, thus robbing blacks of their humanity. This did not sit well with the nation, and nine years later the 14th Amendment overturned the Court’s ruling. During the interim, of course, was the Civil War, in which disputes regarding slavery and the power of the federal government to mandate northern support for slavery (e.g., via the Fugitive Slave Act) played no small part.
The differing perspectives regarding abortion are moral perspectives. Some people think abortion is immoral, other people do not. However, according to my homely little philosophy of law, we cannot create a right to abortion, but only restrict its practice. This means that leaving abortion legal does not constitute an imposition upon any unwilling parties the moral perspective that abortion is not immoral. (No one who opposes abortion is forced to participate.) On the other hand, criminalizing abortion does constitute an imposition upon unwilling parties the moral perspective that abortion is immoral. (People who want to acquire or provide abortions are restricted from doing so.) Hence, regardless of the absolute morality of abortion (which either cannot be known or does not exist, from what I can see), the position of the anti-abortion crowd regarding the criminalization of abortion is the untenable one because it abuses the power of government by legislating a moral solution to problem controversial enough to have persistent arguments on either side.
However, in the recent discussion, Funky Dung has insisted, contrary to my argument, that all laws impose morality on unwilling parties, so it is hypocritical to object to laws against abortion because they impose morality on unwilling parties. For instance, Funky Dung would probably argue that laws against murder, theft, and assault impose a certain morality on people whose private morality does not preclude such behaviors. Does this complicate the problem?
Many people have argued that we make laws against acts like murder, theft, and assault because we have no choice if we want to maintain a stable society. We have even created psychological definitions of “normal” behavior that label as antisocial and mentally ill the people who are prone to these acts. Hence, while there may be some people who privately have no moral qualms with murder, theft, or assault, the rest of us have no problem with imposing our “morality” on them, because any arguments they might make in favor of their morality would be labeled as not just irrational, but pathological.
However, most people do not consider the desire to obtain an abortion as irrational or pathological. In fact, there are many rational arguments that favor the use of abortion. My personal favorite is that abortion provides a balance for women against the unfair advantage of men as regards the relationship between sex and reproduction. Men can always deposit their sperm and slink away, thus avoiding all responsibility and investment; women are stuck with the pregnancy and cannot slough the responsibility or investment in any way, except by getting an abortion.
The difference between abortion and murder might simply be that enough people want to have abortions and enough people are willing to let them that it falls within that range on the bell curve where we are willing to consider it “normal,” and not irrational or pathological. But that raises the question of why abortion is more acceptable than murder, simply in terms of how many people want to allow it. If both of them are equally wrong, morally, then why are they not equally rejected by our society? Is it because abortion seems “victimless”? What is a victim, anyway? Does a victim need to be human? Is a fetus human? How does one decide? Is humanity bestowed according to potential or according to function? Who decides how humanity is bestowed?
Also, Steve has recently commented that the libertarian view such as my own “sidesteps” the moral component of the law. The fact that the “morality” of abortion is so variable in our society is a good reason to take the libertarian view, at least in this case. Here especially morality is subjective, and making laws according to subjective reasoning is a bad idea. Can the issue of abortion be moved outside the subjective realm of “morality” and set on a firmer, more rational ground? If it cannot, if abortion remains purely a morality battle, would it be a violation of the separation of church and state for the Supreme Court to overturn Roe v. Wade according to “Judeo-Christian” beliefs?
(Personally, I would answer those last two questions as No and Yes, respectively.)