With an Obama win looking increasingly likely, Catholic Republicans are pulling out all the stops to press the argument that Catholics cannot in good faith vote for a pro-choice candidate, or at least a candidate whose positions on abortion are as stark as Obama’s. George Weigel takes a crack at this in a column in Newsweek. Lots of interesting stuff in there, but this paragraph struck me as particularly important and wrong [FJB: I've excised some portions of this quote since they are outside of the focus of my critique]:The pro-Obama, pro-life Catholics would doubtless reply that that standard has been met in this instance. But that claim still leaves them with a problem. As Cardinal George’s letter indicated, the Catholic Church’s teaching on the intrinsic evil of abortion involves a first principle of justice that can be known by reason, that’s one of the building blocks of a just society, and that ought never be compromised—which is why, for example, Catholic legislators were morally obliged to oppose legal segregation (another practice once upheld by a Supreme Court decision that denied human beings the full protection of the laws)....
Two things about this argument. First, he is attempting to press the point that it is impossible, as a matter of self-evident principles, to be morally opposed to abortion but at the same time oppose codifying that opposition in law. I’ve already posted on numerous occasions about the distinction between morality and law in Catholic legal theory. The letter by Cardinal George to which Weigel refers blurs that line, asserting that it intrinsically evil not to have laws prohibiting abortion. (John Paul II makes the same move in Evangelium Vitae at 73.) The confusion that results from this failure to give adequate attention to the distinction between law and morality is wide and deep.
Consider, for example, Weigel’s reference to legal segregation. This is inapt, since in that case it is the law itself that is doing the intrinsic evil (i.e., racial subordination), whereas in the context of abortion, it is private parties doing the evil, with the law merely failing to stop them.A better analogy from the civil rights context would therefore be to laws (such as Title II or Title VII) that prohibit discrimination by private actors. Were such laws necessary in the United States, given its traditions of private racial subordination? You bet. Would it be intrinsically evil for a society not to have such laws? I don’t think so. A society that had no history of private discrimination might legitimately decide not to qualify private exclusion rights in the way that Title II does. And even a state that does have a history of private discrimination might (as Title II does) exempt certain very private activities from the law’s reach (as with the private clubs exception from Title II’s prohbition of racial discrimination). So, to recap, racial subordination is intrinsically evil. The state must never do it. But the state may sometimes choose (for any number of valid reasons) not to interfere with private conduct, even though that means that some private parties might thereby be permitted to engage in racial subordination.
I don’t think Peñalver's analogy flies. Here’s why: in the case of abortion, the state is in fact engaging in intrinsic evil, for it is excluding the unborn from the human community. Yes, private actors perform abortions, but the state performs the requisite anthropoligcal apartheid so that the private actors may perform their contract.
Private discrimination based on race was not the consequence of the state declaring blacks non-persons. For discrimination occurred for many generations following the passage of the post-Civil War amendments in which the personhood question was forever (and thankfully) closed. If, for example, the state had explicitly declared blacks non-persons and thus subject to the whims and wills of white citizens, and yet private discrimination for some odd reason did not occur following that state action, the wrong would be in the state declaring blacks non-persons. A Catholic who would defend that law as essential for a fundamental liberty for white persons–-even if no white person ever exercised their liberty to discriminate or enslave–would be cooperating with the protection of an intrinsic evil. In the same way, a Catholic, such as Nancy Pelosi, Joe Biden, or Christopher Dodd, who defends and/or supports a law or court opinion that declares an unborn's non-personhood as essential for the fundamental liberty of abortion--even if no citizen ever exercises her liberty to abort--is cooperating in the protection of an intrinsic evil.
The issue in the abortion debate is, oddly enough, not abortion. The issue is the size and scope of the human community, and in that regard, the state has acted, and acted badly.
Although there is more to Peñalver's blog entry than the portion to which I respond, I think that the failure of his analogy to support his case undermines the force of the entire entry.