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What would John Courtney Murray say? On abortion & euthanasia
Commonweal, Oct 7, 1994 by Todd David Whitmore
In recent years, there has been a renaissance of interest in the work of John Courtney Murray, including conferences on his writings, conferences which have issued in edited volumes formed around the question, "What can we retrieve from Murray's work that will help us address the problems of our day?" This interest is not merely historical, but arises, in part, out of a concern that society may be losing its moorings. Perhaps Murray--the man who both preferred and exhibited the "cool and dry" discourse of a civil society--can provide some tools to guide our reflection. The effort to retrieve Murray's work extends well beyond strictly religious boundaries, for example, in Michael Perry's Love and Power: The Role of Religion and Morality in American Politics (Oxford, 1991). Perry's effort to develop an understanding of "ecumenical political dialogue" is indebted in large part to Murray. The epigraph to the key chapter in Perry's book quotes Murray, and points up the anxiety of those who are trying to retrieve his work: "Civility dies with the death of dialogue." In a society increasingly characterized by the distorted rhetoric and siege tactics of special interest groups, the practice of dialogue, indeed, appears to be vanishing.
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The practice is in particular danger where fundamental beliefs are at stake. How is one to enter into dialogue in a pluralistic society while remaining true to one's own religious or moral tradition? The questions of abortion and physician-assisted suicide are salient cases in point. They take on a linked urgency because of a Seattle federal district court judge's ruling against laws prohibiting assisted suicide: the decision was based on present abortion law favoring the right to privacy and freedom of choice. Using Murray's corpus--his concepts and distinctions--for direction is especially difficult here because he did not speak on either abortion or assisted suicide. Still, this should not keep us from trying to discern what we might say in the context of the social theory he left us.
The scholarly literature has begun to address what might be said about abortion in the context of Murray's social theory. One example is Mary Segers's essay, "Murray, American Pluralism, and the Abortion Controversy" (in Robert P. Hunt and Kenneth L. Grasso, eds., John Courtney Murray and the American Civil Conversation, Eerdmans, 1992). By analogy to Murray's brief but to-the-point comments on contraception, she argues that abortion is a matter of privacy and therefore ought not to be restricted by law. The comments on contraception come primarily from a memo Murray wrote to Cardinal Richard Cushing of Boston in 1964 or 1965 when Cushing was asked to respond to efforts to repeal laws against contraceptive use. Cushing looked to Murray for advice. In the memo and in passing comments elsewhere, Murray refers to the distinction between public and private morality, and argues that contraception is of the latter type. He also makes a distinction between morality and law. The two distinctions are related because matters of private morality are not to be translated into public law except in extreme cases where a grave evil is involved. Contraception may be immoral according to Catholic teaching, but because it is a private matter between two adults, and the gravity of the infraction is not severe, the sale and use of contraceptives ought not to be prohibited. Finally, Murray also appeals to religious liberty, citing the fact that a number of other religious denominations allow for contraception. He admits limits to religious liberty--violations "against public peace, against public morality, or against the rights of others" are to be prohibited by law--but the sale and use of contraceptives to and by married couples transgress none of them.
In her essay, Segers moves directly from these comments on law and contraception to law and abortion; since contraception is a matter of privacy, so is abortion. She writes: "[Murray] argued that contraception was a matter of private morality because (1) the practice was widespread; (2) many people do not consider it to be wrong; and (3) numerous religious groups approve it as legally permissible and morally right in many if not most circumstance. The same criteria apply to the issue of abortion: (1) the practice is widespread now and was widely practiced before 1973, when it was illegal; (2) many people do not consider it to be wrong; and (3) numerous groups approve it as legally permissible and morally acceptable in many instances as part of a moral duty to responsible parenthood." At the core of Segers's interpretation of Murray is her understanding of his concept of consensus. Public morality is a "function of consensus" and such consensus is lacking for laws prohibiting abortion.
But Segers misunderstands Murray's concept of consensus. It cannot be reduced to public opinion and the practices of the day. Murray is clear on this point when he writes: It has been pointed out to me more than once, in discussions of the American consensus, that the word is misleading. In current speech, connotations have clustered round the word that form a barrier to an understanding of its classic sense....Today, of course, the word is often taken to mean simply "majority opinion" ....These usages, however valid elsewhere, are departures from the technical constitutional sense that the word bears in the Western tradition....The validity of the consensus is radically independent of its possible status as either majority or minority opinion. Moreover, the Declaration of Independence did not hazard the conjecture, "This is the convergent trend of opinion among us...." It is the affirmation: "We hold these truths...." Or in the equivalent formula: "This is the public consensus."
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