Time to Untangle Moral from Legal

gladerunner:

You said, "Not all immorality is illegal. Morality is relative to time, place, culture, etc."

Murder is not wrong because society thinks it is wrong. Slavery is not wrong because the majority decided that it was wrong. Even when slavery was commonplace in America (and as it continues in places around the world now) it was immoral for individuals to claim the right to own someone. Rape has been and will always be wrong because it violates a moral principle.

It is unlikely that you and I will agree on this because our premises have different starting points. My starting place is that a perfectly moral, loving, personal God has designed the world in such a way that there is in ALL people a sense of right and wrong. There are right and wrong things for all people (even in a world tainted by sin). These moral laws guide us in making decisions in life, including law-making.

We should not equate morality with legality. We can't separate the two, but they are not the same thing. Legality is not the starting place. Morality is the starting place. There are ridiculous laws against disorderly lines while waiting for the bus in England- that doesn't make it immoral. However, because of the severe immoral nature of abortion and the way it disregards the life of a person, we should make laws to protect babies in the womb, just as we have laws against rape, incest, child molestation, robbery and murder.

In response to Sparrow4's comments:

1. "[I]f we are really so set that all 'life' must be protected, then you need to redefine what a body is, and what a woman is."

That's possibly true if one wants to get really academic about it, but it's certainly not required to do all those things simply in order (i) to determine that there is no constitutional right to abortion or (ii) to outlaw abortion. After all, these things were the case until relatively recently, at least in many places.

2. "Others bring up the potential lost when an embryo is aborted. those are presumptions- if the child is innocent, the mother must be guilty otherwise the rights of a group of developing cells would not outweigh a woman's constitutional rights."

How so? The legal system balances competing rights of relatively "innocent" parties all the time. You can try to decide on the basis of which right is more compelling and which party would be more injured if their particular right were to be subordinated, not necessarily on the basis of whether one of them was "guilty".

3. "It's not society's right or business to enforce 'potential' on another human being."

When you think about it, our society already does "enforce 'potential' on people", as you put it. How do you think damages are largely calculated against the defendant in a wrongful death case? Potential. For that matter, if you get caught destroying a bald eagle egg, just see how far you get in federal court arguing that the egg was only a "potential" bird.

4. "Even more basic, we need to ask if a fertilized egg is life enough to be equal to a living, breathing, sentient human being."

Again, we don't technically need to ask that in order to consider a law banning abortion of a fertilized egg. Strictly speaking, we only need to ask if society has enough of an interest in the potential represented by a fertilized egg to warrant protecting it from intentional destruction - or some question along those lines.

5. "If we say yes, we've cheapened the what to live really means."

How have we cheapened it, in practical or legal terms? Have we somehow reduced the value of other life, or weakened the legal protections in place to prevent people whom you'd really consider to be living from being killed?

Professor Balmer:

Your essay provokes a number of observations and questions.

1. "The blithe conflation of abortion as a moral issue with abortion as a legal issue has led to a deadlock that stymies any real deliberation over this matter. It's time to separate the two."

I agree that it can be fruitful to consider a single phenomenon separately under its moral and juridical aspects, though I'm not certain that there has been a "blithe conflation" of them in this instance. It is, however, important to bear in mind that both the Western moral and legal traditions underscore the relevance of the former to the latter. I would be curious to know what you think the implications for the abortion debate are of Aquinas' treatment of the relations among eternal, natural and human law, and of virtue and justice. Aquinas argues that human laws rightly "do not forbid all vices from which the virtuous abstain", but suggests that a good system of laws forbids "the more grievous vices from which it is possible for the majority to abstain and chiefly those that are to the hurt of others". Do you agree? If so, do you think the principle finds application in this context?

2. "Let me put it succinctly: I have no interest in making abortion illegal; I would like to make it unthinkable."

Yet the unthinkable does happen on occasion, Professor, as the events of history and the nightly news sadly remind us. When it does occur, what, in your view, is the proper response of a just civil society? In your opinion, other than abortion, how many really "unthinkable" acts does society truly have no interest in making illegal?

3. "The only point of agreement between both sides of the abortion debate is that making abortion illegal will not significantly reduce the number of abortions."

Is this really an undisputed point of agreement between both sides of the abortion debate? As far as I can see, there are people who come down on either side of that point – and understandably so, since not only is the question a speculative one, but there appears to be some conflicting evidence.

Some evidence suggests that legal restrictions generally do not reduce the incidence of abortion:

http://www.economist.com/world/international/displaystory.cfm?story_id=9989951

Other evidence suggests that legal restrictions ARE capable of reducing the incidence of abortion:

http://www.heritage.org/Research/Family/CDA04-01.cfm

4. "Do we really want law-enforcement officials present at gynecological examinations? If not, how else would you enforce an anti-abortion law? How else would authorities determine whether a miscarriage was truly a miscarriage and not a botched attempt at an abortion?"

You raise valid questions here, but I wonder if they are questions you think deserve to be earnestly looked into. Without opining on whether anti-abortion laws are worth the trouble of trying to administer, I would make a few observations.

First, anti-abortion laws would obviously not be a complete novelty. A great many jurisdictions have had them up until relatively recently, some even to this day, so there is certainly a lot of data available to digest on the actual (as opposed to the merely hypothetical, as your comment suggests) administration of laws of this type. Before reaching a conclusion that there is no useful way to do so, it would be useful to consider these experiences, and the lessons learned, from a governmental perspective. This may have been done to a greater or lesser degree by some people, but I don’t think it’s something that has generally informed the abortion debate in the United States.

Second, while I grasp your rhetorical point about law enforcement officers at gynecological examinations, I think you’ve exaggerated in making it. There are a great many contexts in which the results of medical examinations have a bearing upon the administration of criminal laws, but this does not generally result in cops hovering over the examination table. Moreover, when you ask how authorities would determine whether a miscarriage was truly a miscarriage and not a botched attempt at an abortion, it does occur to me to think of the difficulties generally involved in determining whether a person's physical injury, sickness or death is the result of the commission of a crime. Those difficulties are often challenging – probably all too frequently insurmountable – and contribute on countless occasions to the imperfect enforcement of the laws.

Nevertheless, it does not seem wholly unreasonable to suggest that a law (and I’m not saying that an anti-abortion law necessarily falls into this category) may be worth enacting – or keeping on the books, if previously enacted – even where practical, ethical, constitutional or other constraints dictate that there will be many instances where it cannot be effectively administered. By this I am not asserting that that anti-abortion laws would necessarily fall into this category, but I do think that that the inquiry should not be bypassed and it certainly should not precede the question of whether a law is a just law in principle.

5. "The consensus of both the medical community and the ethicists is that life begins at conception. I concur, which is why I find abortion so troubling. But the legal considerations are a different matter. When has the state, historically, assumed jurisdiction over life?"

Unless I'm mistaken, it was as recently as 1973 in this country, at least in the sense you’re thinking.

6. "And no one has yet explained to me why it is that the very people who claim to want less governmental interference in people's lives nevertheless want the government to regulate pregnancy."

I think you have framed the question in a very tendentious way, on so many levels. Poll the American populace by asking them "Do you want the government to interfere more in people's lives?", and you won't get many favorable responses. But more to the point, some people who favor anti-abortion laws also happen to favor smaller government in general, while some don't favor smaller government. The reason why there is no logical contradiction involved in either case is that pro-lifers generally view the issue in terms of the protection of innocent human life and of human rights. Can you show me a small-government conservative so extreme that she favors the repeal of, say, the aggravated assault statute?

7. "It's even more important to take seriously the task of actually reducing abortions, which the legal system cannot do."

Is this entirely true? There are limitations on the legal system's ability to reduce abortion, certainly. Yet the Harvard/MIT study I linked earlier suggests one way in which the legal system may have the capacity to reduce the incidence of abortion. In a broader sense, recall that the legal system includes a great many laws with considerable impact on socio-economic conditions that are tied (as you note) to the incidence of abortion.

8. "And if John McCain, Sarah Palin and the other pro-life advocates were truly serious about reducing the number of abortions, they'd be talking about sex education (including abstinence; I have no quarrel with that), adoption and the availability of contraceptives. They'd also be talking about the economy, because anyone who thinks that abortion rates, especially among lower-income women, are not tied to economic circumstances - well, anyone who thinks that simply isn't thinking."

Surely, Professor, you are not under the earnest impression that people who favor anti-abortion laws don't think or talk about topics like education, adoption, or the economy.

* * * * * * * * * *

Kind regards,

Climacus

Bypassing the fuzziness of your "logic" and misleading definitions, I find myself curious as to the rights of the entity (woman, girl) in whom a fertilized egg resides, said entity having been ignored in your paper-thin, muddled pronouncements.

"The tired abortion debate has led nowhere over the past three-plus decades. It's time to untangle the moral issues from the legal issues and recognize that there is an important distinction between the two."

Professor Balmer, one of the difficulties for those of us who are Episcopalians is the Church's record of lobbying publicy for abortion-on-demand rather than to confine its resolutions for pastoral guidance. This was made painfully clear when former Presiding Bishop Browning signed an Interfaith Letter - drafted by the Religious Coalition for Reproductive Choice - urging the members of Congress not to overturn President Clinton's veto of the proposed ban of the partial-birth abortion procedure. Inasmuch as the Presiding Bishop represents the Church to the outside world, with one stroke of the pen he effectively declared the Church's indifference to the fate of the unborn. You are perhaps aware that in 2006 the Executive Council formalized the Church's membership in the Religious Coalition for Reproductive Choice, and efforts to rescind that affiliation failed at that year's General Convention.

It is hard to take seriously criticisms of pro-life advocates from the Episcopal Church unless they are accompanied by a frank acknowledgment of the Church's abortion advocacy. This, I believe, is the most serious moral problem facing the Episcopal Church and a great pity for the nation it seeks to serve..

Excuse me, Professor Balmer (or do you prefer Father?), where did you get the information that led you to write "[t]he consensus of both the medical community and the ethicists is that life begins at conception"? Because, frankly, you're either getting your facts wrong or being intentionally misleading. On one level, the question underlying this debate certainly isn't whether or not a fetus is a "life," because it clearly is. It meets the scientific criteria to qualify as "life." If that's all you mean, there's virtually no point in writing it, except as a rhetorical tool to mislead your readers into thinking that you have the support of *doctors* in considering a fetus to have moral value rivaling that of a female human being.

You want to make abortion "unthinkable"? Well, let me reassure you: it already is. Quite literally, in fact, for those of you not gifted with a uterus. You will never have to sit on your toilet waiting for a series of blue lines to appear (or not), sweating as you worry that the condom may have broken, leaving you to THINK ABOUT the unavoidable physical consequences to follow (yes, unavoidable -- a fetus doesn't just magically disappear, without physical pain or medical risk to its female host, no matter how much money you pay it to leave). You will never bear the burden of facing -- and having to THINK ABOUT -- society's abject, irrational hatred of women who have the audacity to put their physical well-being above that of a clump of cells taking up residence, uninvited, in their uteri. You propose making something "unthinkable" as though the unthinking moral disdain of an entire society weren't every bit as emotionally damaging as a cop in the gynecologist's office.

The problem lies in your very premise: that abortion is "always" regrettable. I'm not suggesting the premise is necessarily wrong, to be clear; I am suggesting that it is unsupported, and most people -- UNTHINKINGLY -- are perfectly content leaving it unsupported and unquestioned. So I ask you: WHY is abortion always regrettable? When you say you think a fetus is a life, what do you mean? Surely you don't mean to suggest, by extension, that we should morally judge people for swatting live mosquitoes? Is a fetus a HUMAN PERSON, or not? And, regardless of a fetus' personhood, does ANY living being, human or otherwise, have the presumptive right to coopt the body of an entirely separate human person for his or her own wholly selfish ends, regardless of the physical and emotional consequences to the unwilling subject of the intrusion? And should society really be in the business of questioning (or, more likely, condemning) the motives of that imposed-upon soul?

Rather than ask these important question, you seem content to unquestioningly permit -- no, ENCOURAGE -- the mindless masses to terrorize and abuse ALL women in the name of deterring the very few who abuse the right to an abortion. How thoughtless of you.

Well then your argument needs to go back even further into the basis of definitions. No one argues a fertilized egg is not "new life" by virtue of a new combination of genetic codes.

And I certainly abhor late term abortions but a fertilized egg is not a person, and is only potential. So if we are really so set that all "life" must be protected, then you need to redefine what a body is, and what a woman is. And that will lead to constitutional questions that no one wants to get into.

Once you decide you can control a woman's body, you will see the gyno-police, you will see the government poking around in your private medical records (its already happened, in fact) and you will, for all intents and purposes, redefine women as a subclass of American Society- unconstitutionally so- and make them subject to the stripping away of their right to privacy, and their equality. Why does an embryo deserve to live as a function of so much constitutional destruction?

some people have protested the innocent child shouldn't be made to suffer for its mother. Others bring up the potential lost when an embryo is aborted. those are presumptions- if the child is innocent, the mother must be guilty otherwise the rights of a group of developing cells would not outweigh a woman's constitutional rights. And as for potential- for every Einstein, every Schweitzer, every Eleanor Roosevelt, there is a Hitler, a Richard Speck, an Osama bin Laden.

that's the idea about potential-but there is no constitutional right to "potential." It's not society's right or business to enforce "potential" on another human being. May as well put a "potential" murderer in the electric chair before he "potentially" kills. Or throw money at a "potential" stockbroker while he's a child.

Even more basic, we need to ask if a fertilized egg is life enough to be equal to a living, breathing, sentient human being. If we say yes, we've cheapened the what to live really means.

I think you are chickening out. You dislike abortions, but you want to permit them anyway. Do you feel that way about things like speeding or smoking in airplanes, "I don't like it but it should be permitted anyway"? Let me suggest that you want to square your conscience with your desire to be on the good side of the liberals.

A total ban on all abortions from conception on is totally unrealistic. But LOTS of countries in the world ban all abortions after the first trimester except in emergencies. Why IS the US permitting abortions in the second (and sometimes the third) trimester?

And why does the US insist that husbands are responsible for child support but have NO say in abortion - not even the right to know? Have you not heard of "taxation without representation"? Maybe America needs a Boston Tea Party declared by all dis-enfranchised husbands.

mrbcmusicman:

"Your overall premise is wrong in separating this into a legal vs. a moral issue. Murder, rape, spousal abuse, etc... are all illegal because they violate a moral principle"

Not all immorality is illegal. Morality is relative to time, place, culture, etc. Laws are created within legal jurisdictions and apply to everyone within that jurisdiction equally (in theory). There are many things that are immoral AND illegal, but not nearly all things. Tax laws for example can be considered immoral since they take money from people by threat of force or coercion, against their will (stealing).
Murder is also broken down into categories. Manslaughter, self defense, etc. The result is exactly the same, someone is dead at the hand of another, but the extenuating circumstances surrounding the act are the key to how illegal it is. Currently abortion is legal. that does not make it 'moral'. Gambling is legal in many places, that does not make it moral either. Morals are not universal, they are not carved into our brains. Morals are taught to us by our peers. Not everyone has the same set of peers or morals. That is exactly why we have laws, to have a fixed set of objective rules to follow.
So the debate is precisely morality vs. legality. Since we can't all agree on the morality is exactly why we debate this topic.

Thank you, Prof. Balmer. This is what I have been trying to say all along. Abortion should be legal, but rare. We have to recognize that sometimes stuff happens. A condom breaks, a pill doesn't work, a fetus or the woman carrying it has life-threatening medical distress, etc. Many times laws have unintended consequences, like the woman who would have been a criminal because of her miscarriages, or the recent case in Nebraska where a father dropped off all five of his children at a hospital because he could no longer care for them. I don't want to institute the "pregnancy police" to look over my doctor's shoulder!

For a good look at what life is like in a country that has totally outlawed abortion, read an account of what's happening in El Salvador or Nicaragua.

I don't understand how you separate the moral from the legal. We base our laws on morality and if a law is not moral, then it is not a true law. We can't create a law for all morality but we must in the areas that cause real chaos in society. I would say that abortion is a moral issue than deserves this attention since it is a life and death issue. What next, are we going to be on the honor system for murder as well.

His arguement about miscarriages is very misguided. No person in their right mind would punish a woman with a miscarriage or even investigate it. Almost anyone could be convicted of a crime if we use his logic, but we only punish crimes with evidense and then we give everyone a jury trial. We know many women would still find ways to have abortions and there is very little we can do about this. But to ignore morally wrong situation because it could be difficult to bring justice to wrongdoers is not an excuse.

We must do our best to create moral laws and enforce them. They are not perfect but they will prevent abortions. I am amazed at how many people still receive abortions for no good reason besides they don't want the baby. The only real way to stop these abortions is to make them illegal. This will stop the majority of abortions and over time make the practice of abortion incomprehensible.

Dear Sir,

With care and humility I must call you to task on your stance regarding this critical issue.

Your overall premise is wrong in separating this into a legal vs. a moral issue. Murder, rape, spousal abuse, etc... are all illegal because they violate a moral principle. It would be ludicrous of me to say that I am morally against genocide (we should all think of it as unthinkable), but support the legal right to kill thousands of people based upon ethnicity. I consider rape an unthinkable act, but who am I to stand in the way of someone satisfying their lust with your sister? To use your language, "well, anyone who thinks that simply isn't thinking." The issue of abortion cannot be separated into various categories to appease our consciences any more than the issues above. We "legislate morality" all the time (murder, rape, genocide, infanticide, robbery, etc...). I'm in favor of consistency with other laws made to protect the people of this nation, including the unborn.

You said, "And no one has yet explained to me why it is that the very people who claim to want less governmental interference in people's lives nevertheless want the government to regulate pregnancy." My desire is to keep the government from telling me and others how to spend my hard earned money or where I should send my child to school. I want less involvement. However, I'm no anarchist. There is common benefit to laws to protect life. It is not about regulating pregnancy, but protecting the life that the mother is unwilling to protect.

As one who admits that life begins at conception, please be consistent and fight to make abortion both unthinkable AND illegal.