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What would John Courtney Murray say? On abortion & euthanasia
Commonweal, Oct 7, 1994 by Todd David Whitmore
Any argument on abortion made from within the Murray tradition--that is, within the context of the moral and social theory he provides us--must begin, therefore, with three presumptions: that official Catholic teachings on the status of the embryo-fetus and the morality of taking its life are true, that as a result abortion is a matter of public morality, and that laws limiting recourse to abortion are appropriate. If schools seek to make another argument on any of these points, the burden of proof is on them to show how they are operating within the Murray tradition. Segers's argument would require a different understanding of doctrinal development, a changed epistemology, and an altered understanding of consensus. This makes her case that she is responding from within the context of Murray's moral and social theory rather strained. I do not think that her argument can be sustained in the end.
What is left unanswered so far is the question of precisely what kind of laws are appropriate. Here, Segers's use of the distinction between morality and law is illuminating--as long as it is not made into a separation between morality and law. While the presumption is that matters of public morality should be addressed by the law, the relationship between the two is not a one-to-one correspondence. This is because the public may not be ready to receive a law that simply mirrors what is morally true. Murray was cautious about the degree to which law should lead public opinion. "Law and morality are indeed related, even though differentiated. That is, the premises of law are ultimately found in the moral law. And human legislation does look to the moralization of society. But, mindful of its own nature and mode of action, it must not moralize excessively; otherwise it tends to defeat even its own more modest aims, by bringing itself into contempt." It is the tension inherent in the understanding of morality and law being "related but differentiated" that makes it difficult to prescribe a precise law. In public debate on abortion, the tensed relationship has snapped, with the two sides of what has been dubbed the "culture wars" taking what remains in opposite directions: one side claims that (objective) morality ought to be translated directly into law while the other side counters that (private) morality and law are utterly separate. From the perspective of the Murray tradition, both of these arguments fail.
How is the tensed relationship between morality and law to be maintained? In the case of abortion in the United States, the two need to be brought closer together; that is, law must be brought closer to objective morality if the two are to remain in relationship. However, simply changing the law will not be sufficient because of the problem of "contempt" for any law that would now seek to limit access to abortion services. The only way to avoid the problem of possible contempt is to change public opinion. Put another way, in order to change the law so that there will be less distance between it and what Catholic teaching argues is objective morality, it is necessary to begin with means other than the law itself. For example, in writing on censorship, Murray was clear that particularly in the area of sexual belief and practice, law cannot lead. "No society should expect very much in the way of moral uplift from its censorship statutes. Indeed, the whole criminal code is only a minimal force. Particularly in the field of sexual morality the expectations are small; they are smaller than anywhere else."
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