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My response to Eduardo Peñalver on the Commonweal blog

In response to George Weigel's Newsweek piece, Cornell University law prof, Eduardo Peñalver writes on the Commonweal blog:

With an Obama win looking increasingly likely, Catholic Republicans are pulling out all the stops to press the argument that Catholics cannot in good faith vote for a pro-choice candidate, or at least a candidate whose positions on abortion are as stark as Obama’s. George Weigel takes a crack at this in a column in Newsweek. Lots of interesting stuff in there, but this paragraph struck me as particularly important and wrong [FJB: I've excised some portions of this quote since they are outside of the focus of my critique]:
The pro-Obama, pro-life Catholics would doubtless reply that that standard has been met in this instance. But that claim still leaves them with a problem. As Cardinal George’s letter indicated, the Catholic Church’s teaching on the intrinsic evil of abortion involves a first principle of justice that can be known by reason, that’s one of the building blocks of a just society, and that ought never be compromised—which is why, for example, Catholic legislators were morally obliged to oppose legal segregation (another practice once upheld by a Supreme Court decision that denied human beings the full protection of the laws)....

Two things about this argument. First, he is attempting to press the point that it is impossible, as a matter of self-evident principles, to be morally opposed to abortion but at the same time oppose codifying that opposition in law. I’ve already posted on numerous occasions about the distinction between morality and law in Catholic legal theory. The letter by Cardinal George to which Weigel refers blurs that line, asserting that it intrinsically evil not to have laws prohibiting abortion. (John Paul II makes the same move in Evangelium Vitae at 73.) The confusion that results from this failure to give adequate attention to the distinction between law and morality is wide and deep.

Consider, for example, Weigel’s reference to legal segregation. This is inapt, since in that case it is the law itself that is doing the intrinsic evil (i.e., racial subordination), whereas in the context of abortion, it is private parties doing the evil, with the law merely failing to stop them.A better analogy from the civil rights context would therefore be to laws (such as Title II or Title VII) that prohibit discrimination by private actors. Were such laws necessary in the United States, given its traditions of private racial subordination? You bet. Would it be intrinsically evil for a society not to have such laws? I don’t think so. A society that had no history of private discrimination might legitimately decide not to qualify private exclusion rights in the way that Title II does. And even a state that does have a history of private discrimination might (as Title II does) exempt certain very private activities from the law’s reach (as with the private clubs exception from Title II’s prohbition of racial discrimination). So, to recap, racial subordination is intrinsically evil. The state must never do it. But the state may sometimes choose (for any number of valid reasons) not to interfere with private conduct, even though that means that some private parties might thereby be permitted to engage in racial subordination.

I don’t think Peñalver's analogy flies. Here’s why: in the case of abortion, the state is in fact engaging in intrinsic evil, for it is excluding the unborn from the human community. Yes, private actors perform abortions, but the state performs the requisite anthropoligcal apartheid so that the private actors may perform their contract.

Private discrimination based on race was not the consequence of the state declaring blacks non-persons. For discrimination occurred for many generations following the passage of the post-Civil War amendments in which the personhood question was forever (and thankfully) closed. If, for example, the state had explicitly declared blacks non-persons and thus subject to the whims and wills of white citizens, and yet private discrimination for some odd reason did not occur following that state action, the wrong would be in the state declaring blacks non-persons. A Catholic who would defend that law as essential for a fundamental liberty for white persons–-even if no white person ever exercised their liberty to discriminate or enslave–would be cooperating with the protection of an intrinsic evil. In the same way, a Catholic, such as Nancy Pelosi, Joe Biden, or Christopher Dodd, who defends and/or supports a law or court opinion that declares an unborn's non-personhood as essential for the fundamental liberty of abortion--even if no citizen ever exercises her liberty to abort--is cooperating in the protection of an intrinsic evil.

The issue in the abortion debate is, oddly enough, not abortion. The issue is the size and scope of the human community, and in that regard, the state has acted, and acted badly.

Although there is more to Peñalver's blog entry than the portion to which I respond, I think that the failure of his analogy to support his case undermines the force of the entire entry.

(cross-posted)

Comments (5)

Very interesting post, Frank. And an interesting question. It seems to me that one difficulty with regarding it as intrinsically wrong for a country not to have laws protecting some group of people is that it's hard to pin that intrinsic wrong onto any individual or individuals. In some hypothetical case, some country might simply not have thought of passing such laws.

Also, the position that a country's situation or state-of-being is an intrinsic immorality if innocent human beings are unprotected could make the incrementalist vs. purist debate particularly acute. It might seem at least to lend credibility to the position that a politician who votes for a less-than-perfect abortion law is cooperating in bringing about a country-state that is intrinsically immoral.

However, Penalver's attempt to make a big deal out of the difference between something's being immoral and its being illegal is obviously spurious. In fact, it strikes me as just an attempt to make Cuomo's "personally opposed, but..." into some sort of heavy and respectable philosophical position. And it obviously _is_ a scandal and a disgrace that we cannot protect the unborn in this country, a situation we must be working against with all our might.

So, how about this as an alternative: It is intrinsically wrong for anyone to advocate the position that it _should be legal_ for some class of innocent human beings to be murdered. Now, that seems unquestionably right, and also, of course, unquestionably to apply to Obama. He and all other pro-choice politicians are saying that they will "protect a woman's right to choose," that they will "keep abortion legal." They are saying that a woman has a _right_ to an abortion, that abortion _ought_ not to be prevented by law. This is not simply a matter of advocating an incrementalist strategy or a less-than-perfect law where the _final_ state sought is unambiguously that all unborn children should be protected in law. Rather, it's advocating just the opposite--that unborn children _must not_, _ought not_ be protected in law. And that is totally unacceptable and evil and not just "one issue among many."

Lydia, I agree.

What if we were to say that it is a grave fundamental defect of a society if they fail have either a custom or law that protects the unborn from intentional grave harm and death. This fundamental defect becomes a morally evil act by various actors when the following conditions come: (1) they have both the power and the duty to help pass law respecting fundamental defects in society; (2) they are made aware of the harm being done to the unborn; (3) they choose to NOT correct this grave fundamental defect which is contrary to justice, for trivial (or, mostly, selfish) reasons that are even on their face not sufficient to overcome the obligation to defend life.

I don't know as I would call it an intrinsically evil act philosphically, that might be too far. But it is certainly an evil act that the legislator has an obligation to avoid, by pushing for a law that upholds a grave fundamental point of justice.

Wiegel didn't claim it was intrinsically immoral, he said that the truth is known through natural reason, and that the legislators were morally obliged to act on that. It is philosophically erroneous to assume that having a moral obligation to act in a certain way on something which is known by reason (unaided by faith) constitutes the criteria for an omission of the act being intrinsically evil.

Thanks Lydia and Tomm.

It seems to me that corporate entities can engage in intrinsically evil acts, and passing legislation could be intrinsically evil. For example, suppose a legislature passed a law that said "at midnight all 5-year olds may be killed without any reason." Suppose that about a dozen sadists are looking at the clock and waiting for it to strike 12 so that they can get down to business. However, 5 seconds before 12 hits, an asteroid kills them all. Even though they never killed any 5-year-olds, the fact that the law permitted them to means that the legislatures engaged in an intrinsically evil act.

Remember that the current regime in the U.S. forbids a legislature to fully protect the unborn. That regime began as a judicial act in 1973. So, it wasn't like there was no law protecting the unborn and we are still in that situation. Rather, there were many laws prior to 1973 that affirmed the unborn's personhood, but they were rescinded by the Supreme Court all at once that January.

I would _certainly_ say that it was an evil act to write Roe. So was the upholding of Roe in Casey. Those are acts. Therefore they can be evil actions, and the justices who agreed to them did wrong. So, too, do those legislators and politicians who unequivocally favor them. What they are saying is, "This regime where no law can be passed to protect the unborn is a good one, and we want it to continue to be that way. We don't want there to be any laws preventing women from choosing to abort their children, because there should not be such laws." It's the same _kind_ of statement that a drug-libertarian makes when he says, "It's none of the government's business if I want to do drugs." Only it concerns something much more grave.

I think myself that the racial laws analogy actually confuses the issue. Penalver himself creates confusion by attributing to his opponents the position that "it is intrinsically evil not to have laws prohibiting abortion," where the phrasing makes it sound like no one is _doing_ this evil, which makes it look like his opponents' position is confused. But Penalver makes it clear where he is really coming from in the earlier sentence: "First, [Weigel] is attempting to press the point that it is impossible, as a matter of self-evident principles, to be morally opposed to abortion but at the same time oppose codifying that opposition in law." Now, if one really is opposed morally to abortion *because it is the deliberate killing of innocent human beings*, then one is indeed being irrational to oppose protecting those innocent human beings. I suppose it would be possible for some person to be opposed morally to abortion _just_ because he thinks it's a surgical procedure that women are pressured to go through without sufficient information, and for no other reason, but to feel that these considerations aren't serious enough for it to be prohibited by law. But the truth is that most "personally opposed" people never say _why_ they are supposedly morally opposed, and don't want to say why. They really don't think abortion is all that bad; they really don't truly and rightly see its evil, as they could do by reason, or they would not "oppose codifying their opposition in law." And this is all true. Penalver has no way of arguing against that. He just thinks he's so very clever for talking about "blurrring the distinction between morality in law in Catholic legal theory." Please.

Now...what about Cathy Kaveny in America?

Since you're both at Notre Dame, how about an in-person public conversation about this?? THat would be great.

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