Religion & Law

I probably should have omitted that whole public/private discussion, since it was not the main point of my post.  But, since I couldn't help myself, I admit that it is fair game.  I think Rick and his student make good points.  I continue to think, however, that some sort of distinction between the types of laws Weigel is comparing remains meaningful.  Let me explain why: first off, my discussion in the post was not specifically of the regime under Roe v. Wade but rather of a regime characterized by the mere absence of a law prohibiting abortion.  This is the state of affairs the Vatican has condemned as instrinsically evil.  In other words, as I read Weigel (and EV), the mere failure to legally prohibit abortion, without more, is itself an intrinsic evil.  Given that broad framing of the issue, I think the comparison to legal segregation (by which I take Weigel to be referring to a situation in which the state mandates racial subordination in some way), remains inapt because in that case it is the state itself doing the subordination.  There is no possible state of affairs in which the state mandates racial subordination by law and there is not the injustice of racial subordination.  Now, imagine a society of virtuous people, none of whom would ever actually want or get an abortion.  (I think that it would be permissible to procure an abortion in order to protect the life of the mother, but, for the sake of this discussion, I'll assume that virtue entails a complete absence of abortions.)  Imagine further that in such a society, there is no legal protection for fetuses (perhaps there is no criminal law at all, only laws coordinating collective actions), but also, because everyone is virtuous, no abortions.  Would there be an injustice against fetuses in such a society by virtue of the state's failure to enact a law against abortion?  I take it that the Vatican's (and Weigel's) position has to be yes (otherwise the absence of such a law would not be intrinsically evil), but that seems implausible to me.  And if it's not unjust in such a society to fail to enact such a law, then I think the distinction from the scenario of legal segregation remains sound. (Maybe this is not a distinction between public and private as much as between legal acts and omissions; or maybe it's an intersection of the two.  I don't really care how it's characterized, but the distinction strikes me as retaining some validity.)

Now, I take it that Rick and his student's argument is that Roe v. Wade not only fails to prohibit abortions but instructs states, as a matter of constitutional law, not to prohibit abortions for particular reasons that explicitly subordinate the interests of fetuses.  I agree that, in our present context, this is unjust, and it is an injustice that is, in part, affirmatively created by the law.  Would it be unjust if, in fact, there were no abortions being committed in the United States?  If the answer is no, then I think the situation remains distinct from legal segregation.  But perhaps the better answer is yes, in that such a law symbolically subordinates the interests of fetuses (as Rick's student suggests) even in the absence of any abortions.  To be clear, that is not the situation I was addressing.  And I'm open to the possibility that this is a valid qualification of the distinction I was drawing, one that is very relevant to assessing the situation in this country, but that does not necessarily save the Church's (and Weigel's) more aggressive and universal claim.

Again, none of this was  the main purpose of my post, which was instead to challenge Weigel's claim about instrinic evil and prudential judgments.  I'd be more than happy to delete the entire discussion of public/private.  Nevertheless, I think it's an interesting issue and thank Rick and his student for deepening my appreciation for the complexity of the question.