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Basic Justice
Mrs. Kennedy's misunderstanding.


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Victoria Reggie Kennedy (who is Senator Ted Kennedy’s wife), in an op-ed piece published in Sunday’s Washington Post, writes the following, in defense of pro-abortion-rights Catholic politicians, and citizens: “Pro-choice politicians–or pro-choice citizens, for that matter–do not support legislation to require or even encourage women to have abortions; they simply refuse to make abortion a crime punishable under non-church law. The pro-choice position recognizes that the United States is a diverse, pluralistic society where a woman has the constitutional right to make a decision based upon her own conscience, religious beliefs and medical needs. Would those who are trying to force non-Catholics by law to follow the teachings of the Catholic Church be willing to accept the governmental imposition of the laws of another faith on them?”

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Put aside, for now, the specific controversies (which Mrs. Kennedy was addressing) of (a) denying communion to pro-choice politicians and (b) urging Catholics not to vote for pro-choice politicians. Turn instead to what appears to be Mrs. Kennedy’s premise that laws restricting abortion, in effect, “force non-Catholics by law to follow the teachings of the Catholic Church.”

As St. Thomas Aquinas explained, and as many contemporary and traditional Catholic writers have reminded us, a just society need not prohibit every vice. Catholic citizens and politicians are certainly not required to insist that all wrongs and sins be criminalized–indeed, this Catholic citizen would not want to live in a polity that did so insist. Everyone agrees that it would be unjust to “force non-Catholics by law” to, say, abstain from meat on Good Friday–or, to affirm the divinity of Christ.

That said, Catholic citizens and politicians–like all citizens and politicians–are required to support, and seek the enactment of, just laws; and, they are required to oppose and seek the repeal of unjust laws. The decision by the polity not to criminalize (for example) gambling, like the determination that the statute of limitations on a particular claim should be (for example) three, not five, years, is not unjust. Such decisions might (or might not) be unwise, but there is no reason to think they send the community careening off the path toward the common good. And so, while it would be wrong for Catholics in public life to seek to “force non-Catholics by law to follow the teachings of the Catholic Church,” it is hard to see why it is wrong for Catholics in public life–or for anyone else–to seek to require themselves and their fellow citizens to enact and live under just laws.

A law that removes a class of persons–here, unborn children–from the protection of otherwise generally applicable homicide laws is, in my view, an unjust law. Even if we resign ourselves to the impossibility of consensus on the question whether “personhood” begins at conception, or later, it is not clear to me that pegging the requirements of justice to a claim that “personhood” inheres in every human being from conception, or very shortly thereafter, is “forcing non-Catholics to follow the teachings of the Catholic Church.” That a question is difficult or divisive does not mean that proposed answers to it are sectarian or theological. What pro-choice politicians and citizens are doing wrong, then, is not failing to impose Catholicism on their fellow citizens, but failing to pursue and promote justice in the political realm.

Mrs. Kennedy is mistaken, then, to frame the message of some Catholic bishops–i.e., that Catholics in public life need to be pro-life–as an instance of “singl[ing] out an elected official who allows a woman–and not the government–to make a private decision.” The target of pro-life political activism is not so much “private decisions” as it is the very public decision to deny to some human beings legal protections against lethal violence. It is worth remembering that Stephen Douglas lodged similar complaints about Abraham Lincoln’s refusal to abstain from addressing what Douglas regarded as a private, moral, and religious matter: the removal of the law’s protection from a class of human beings.

To be sure, Mrs. Kennedy is right to observe–quoting the Second Vatican Council–that we “must recognize the legitimacy of different opinions with regard to temporal solutions, and respect citizens, who, even as a group, defend their points of view by honest methods.” (Catholics can certainly disagree about whether the common good is better served by, for example, raising or lowering the interest rate; or by legalizing or criminalizing drug use). However, she is mistaken in framing the abortion question in terms of “private decisions” and “different opinions with regard to temporal solutions.” Abortion, it seems to me, is appropriately regarded by Catholics–and by everyone else–as an issue of basic justice. For bishops and others to remind Catholics of their obligation to promote the common good by working to make sure that our laws protect the vulnerable is not–as the New York Times predictably put it on Monday (“Hustings and Pulpits,” May 24)–to “dabb[le] in politics” or to “make elected leaders toe a doctrinal line.” It is, instead, to highlight for all of us the importance of engaged and conscientious citizenship.

Richard W. Garnett is an associate professor at Notre Dame’s law school.



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