Legalizing Abortion as Legislating Morality

It is common for critics of religious conservatives to accuse them of legislating morality, but such criticism not only reflects historical amnesia (Martin Luther King, Jr. was also accused of legislating morality by Southern segregationists) but also legal naiveté since all legislation is grounded in some underlying moral philosophy. As a former Senator (and law school professor) from Illinois once observed:

Secularists are wrong when they ask believers to leave their religion at the door before entering the public square. Frederick Douglass, Abraham Lincoln, William Jennings Bryan, Dorothy Day, Martin Luther King -- indeed, the majority of great reformers in American history -- were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their “personal morality” into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition. 

-- Barack Obama, 2006 (emphasis added) 

Keynote Speech, Call to Renewal (Sojourner’s Community) 

When I used to show this quote to my students while I was still teaching at Santa Clara University, very few of them knew who Senator Obama was at the time and may have mistaken him for cultural conservative. And, in their defense, the primary target of Obama’s remarks were progressives who Obama believed had abandoned “the field of religious discourse” and consequently been prevented “from effectively addressing issues in moral terms”:

If we truly hope to speak to people where they're at - to communicate our hopes and values in a way that's relevant to their own - then as progressives, we cannot abandon the field of religious discourse. Because when we ignore the debate about what it means to be a good Christian or Muslim or Jew; when we discuss religion only in the negative sense of where or how it should not be practiced, rather than in the positive sense of what it tells us about our obligations towards one another; when we shy away from religious venues and religious broadcasts because we assume that we will be unwelcome - others will fill the vacuum, those with the most insular views of faith, or those who cynically use religion to justify partisan ends. 

Much of the resistance on the part of progressives to embrace religious language lies in the belief that government should be neutral on moral questions. However, as Obama observed, when it comes to crafting legislation, the government is anything but morally neutral.

Take the abortion debate, for instance. Some believe that abortion should be made illegal because it involves the taking of an innocent life. Others argue that the government should remain neutral on the question, that it shouldn’t take sides and allow women to decide for themselves. However, as the Harvard political philosopher Michael Sandel notes, 

This argument does not succeed. For, if its true that the developing fetus is morally equivalent to a child, then abortion is morally equivalent to infanticide. And few would maintain that government should let parents decide for themselves whether to kill their children. So the “pro-choice” position in the abortion debate is not really neutral on the underlying moral and theological question; it implicitly rests on the assumption that the Catholic Church’s teaching on the moral status of the fetus -- that it is a person from the moment of conception -- is false (Sandel, Justice, 251). 

Note that there is nothing in Sandel’s argument that precludes individuals from being pro-choice. However, it does argue that if they choose to be pro-choice, they acknowledge that are not being any more neutral than are those who choose to be pro-life:

It is not enough to say that the law should be neutral on moral and religious questions. The case for permitting abortion is no more neutral than the case for banning it. Both positions presuppose some answer to the underlying moral and religious controversy” (Sandel, 252). 

So, where does this leave us? At a minimum I hope it helps to highlight how on many issues, moral neutrality is a myth, and it behooves us to treat them as such. When we abandon our moral convictions (and demand that others do the same) in discussions of what is good and just and right, we deprive ourselves (and others) of resources that may help us resolve some of the problems that confront us today.