As a political issue, abortion involves the relation of moral and religious beliefs to positive law — to law backed up by the state’s use of coercive power. This issue is complex, especially within the context of democratic pluralism.
Whenever the advocates of religion and morality propose that a previously legal act be criminalized, a number of prudential questions must be responsibly posed and answered.
Such prudential questions were not thoroughly explored and honestly answered before the passage of the 18th Amendment to the U.S. Constitution — the prohibition of “intoxicating liquors” in the United States.
Prohibition was a social catastrophe — as any student of American history or anyone who has watched “The Untouchables” well understands.
Have pro-life legislators and voters seriously reflected on the prudential issues associated with the interface of law and morality? Have they actually thought through the likely consequences of heavy-handed restrictions on access to abortion or the re-criminalization of abortion?
Whenever a group proposes a restriction on established legal rights or criminalization of what was previously lawful, the following questions must be fully addressed:
Who should be punished for breaking the law? What type and degree of punishment should the lawbreakers receive?
Do a majority or sizable minority oppose the change? What levels and types of opposition, resistance and social discord might we expect? Would expectable opposition and resistance render the law virtually unenforceable?
Would the change result in organized criminal activities — in this case “back alley” abortions, unregulated underground abortion clinics, etc.? What would be the likely individual and social costs of such activities?
What manner and extent of policing would be necessary to enforce the law? How much taxpayer funding would be required to cover costs of arrests, prosecutions and imprisonments?
Would changing the law increase disrespect for legal authority and for lawfulness in general? Would legislators, police officers and judges be held in disrepute?
When the prohibition of alcoholic beverages became the law of the land, it soon became obvious that the foregoing questions had not been addressed.
Roman Catholic Cardinal Avery Dulles opposed abortion out of religious conviction. His prudence, however, is evident in the following statement:
“Let us assume ... that by strong pressures it were possible for pro-life organizations to obtain legislation that would criminalize all abortions throughout the entire nation. The victory could be a Pyrrhic one unless public opinion were dramatically changed. In all probability the police and the courts would not enforce the law, or the forbidden practice would be driven underground. Laws that run against the consensus of the people will generally be ineffective.”
Whatever one's religious or ethical beliefs concerning abortion, before we change the law, doesn't prudence demand that we ask and reflectively respond to all the appropriate questions?
Andrew G. Bjelland
Andrew G. Bjelland, Ph.D., is a professor emeritus of the Philosophy Department of Seattle University. He lives in Salt Lake City.