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John Courtney Murray, Contraception, and the "Liberal Catholic" Justification for Abortion
John Courtney Murray was America's leading Catholic theoligian during Vatican II, and as a peritus [theological advisor] at the council was a great influence on the document "Declaration on Religious Freedom" (Dignitate Humanae).
Murray was also well known for his book We Hold These Truths: Catholic Reflections on the American Proposition, in which he meditated on the compatability of Catholic doctrine with the thought of America's Founding Fathers, particularly with respect to the First Amendment.
In the discussion of the relationship between church and state, he made the Thomistic observation that there existed a necessary distinction between morality and civil law; that the latter is limited in its capacity in cultivating moral character through criminal prohibitions, and that it "it is not the function of civil law to prescribe everything that is morally right and to forbid everything that is morally wrong." As we shall see, he was influential in bringing this line of thought to bear on the issue of contraception.
It comes as no suprise, then, that the thought of John Courtney Murray has recently been marshalled by numerous liberal Catholics to justify a "pro-choice" stance in the current debate over abortion.
Consequently, in spite of the fact that I have little knowledge of Murray beyond my reading of We Hold These Truths or of Catholic political philosophy in general, I would like (with no small amount of trepidation) to present my findings on Murray's thought on contraception and the contemporary Catholic use of John Courtney Murray by "pro-choice Catholics" to support a liberal view of abortion and civil law.
The use of John Courtney Murray to justify dissent by "pro-choice Catholics"
Although Senator Kerry has yet to quote Murray directly in responding to Archbishop Burke and the minority of bishops who have vocally condemned the scandal presented by pro-abortion politicians receiving communion, judging by the following examples one might find where he is obtaining his "talking points" on this issue:
The influence of John Courtney Murray on the legalization of contraception and abortion
But what is the source for the liberal Catholic employment of Murray? -- In "Catholics and Civic Engagement in the United States", John T. McGreevy of the University of Notre Dame chronicles how Catholic debate over contraception in the 1960's inevitably led to the push for relaxation of restrictions against abortion, and ultimately its decriminalization. He specifically mentions how John Courtney Murray's discussion of religious liberty and the relationship between moral/civil law influenced this process (whether intended by Murray or not). Here, then, is his brief history of the process:
When Paul VI announced the formation of a papal commission to study the matter in that year, dissent became far more widespread and public. A parallel development, even among those favoring the traditional teaching on birth control, was a new set of distinctions between what was permissible in the public realm and what was permissible within the confessional. Jesuit John Courtney Murray famously persuaded the bishops assembled at the Second Vatican Council to stand for religious freedom. At precisely the same time Murray was advising Boston's Cardinal Cushing to permit a relaxation of the Massachusetts birth control laws. Murray explained that "It is not the function of a civil law to prescribe everything that is morally right and to forbid everything that is morally wrong," Specifically on the matter of birth control, Murray emphasized that "It is difficult to see how the state can forbid, as contrary to public morality, a practice that numerous religious leaders approve as morally right."
One can hardly imagine a less propitious beginning for Catholic opposition to the relaxation of restrictions against abortion. Catholic recalcitrance on the matter of birth control in the Connecticut state legislature had prompted Estelle Griswold to appeal to the courts in the 1950s, eventually leading to the landmark 1965 decision, Griswold v. Connecticut that first enunciated "privacy" as a basic right, and set the stage for Roe v. Wade (1973). The most divisive moment in American Catholic history occurred in the aftermath of Humanae Vitae (Pope Paul VI, 1968), and the teaching on contraception, and its all-male source, instantly made Catholic discussion of sexuality less credible for many believers and in the public mind. Finally, the long intra-Catholic discussion of birth control had also culminated in a widespread belief that no single religious group should impose its own moral vision in a diverse society. Advocates of abortion on demand immediately seized upon this point, and peppered the early state and congressional hearings on the subject with attacks on Catholic lobbying. Harvard's Lawrence Tribe saw Catholic opposition to abortion as potentially unconstitutional, since no "universal agreement in terms of values [existed] that do not divide the society religiously." 3
John Courtney Murray on Contraception -- A Closer Look:
In the mid-1960s Richard Cardinal Cushing asked Murray for advice on formulating a Catholic position on the decriminilization of articifical contraception in Massachussetts law. In his memo to the Cardinal, Murray informed the Cardinal that there were two arguments for doing so 4:
It was in response to the first argument that Murray asserted that:
"It is not the function of civil law to prescribe everything that is morally right and to forbid everything that is morally wrong. By reason of its nature and purpose, as the instrument of order in society, the scope of law is limited to the maintenance and protection of public morality. Matters of private morality lie beyond the scope of law; they are left to the personal conscience,"
I think that the case for affirming contraception to be matter of private morality is sufficiently conclusive in our present circumstances. It is not merely that the practice is in fact widespread, or that so many people do not consider it to be wrong. The more decisive reason is that the practice, undertaken in the interests of "responsible parenthood," has received official sanction by many religious groups within the community. It is difficult to see how the state can forbid, as contrary to public morality, a practice that numerous religious leaders approve as morally right. The stand taken by these religious groups may be lamentable from the Catholic moral point of view. But it is decisive from the point of view of law and jurisprudence, for which the norm of "generally accepted standards" is controlling.
On the choice of contraception as a matter of "religious freedom", Murray stated:
First, a man may not be coercively constrained to act against his conscience. Second, a man may not be coercively restrained from acting according to his conscience, unless the action involves a civil offense -- against the public peace, against public morality, or against the rights of others.
But the practice of contraception involves no such civil offense. Therefore the principle of religious freedom should obtain. And laws in restraint of the practice are in restraint of religious freedom. I call this argument secondary because it supports the prior argument, that contraception is a matter of private morality.
Whether Murray was correct in stating that the legalization of contraception was prudentially justified can of course be disputed. However, it would be wrong to characterize Murray as a radical cleric agitating for the legalization of contraception in defiance of the Church. In the very same memo, Fr. Murray stated:
. . . Catholics must make publicly known the grounds of their approval, namely, that they, like all citizens, are bound on the principles of law, jurisprudence, and religious freedom. . . . Catholics themselves must be made to understand that, although contraception is not an issue of public morality to be dealt with by civil law, it remains for them a moral issue in their family lives, to be decided according to the teaching of the Church. Because contraception is made legal it is not therefore made moral, any more that it should be made illegal simply because it is immoral.
Catholics might well take this public occasion to demonstrate that their moral position is truly moral, that is, it is adopted freely, out of personal conviction and in intelligent loyalty to their Church.
Can a defense of abortion be derived from Murray's reasoning on contraception and civil law?
One doesn't have to look far to notice various articulations of these arguments in the defense of the legalization of abortion as a matter of "private morality" as well as "religious liberty" -- both in the realm of political activism and lobbying as well as intellectual academia. In her contribution to the anthology John Courtney Murray and the American Civil Conversation (Eerdmans, 1992), Elizabeth Seger contends that Murray would have considered abortion exactly as he did the matter of contraception in the 1960's:
"[Murray] argued that contraception was a matter of private morality because (1) the practice was widespread; (2) many people do not consider it to be wrong; and (3) numerous religious groups approve it as legally permissible and morally right in many if not most circumstance. The same criteria apply to the issue of abortion: (1) the practice is widespread now and was widely practiced before 1973, when it was illegal; (2) many people do not consider it to be wrong; and (3) numerous groups approve it as legally permissible and morally acceptable in many instances as part of a moral duty to responsible parenthood." 5
One must ask whether it is in fact the case that abortion should be truly considered as either a matter of "private morality" or "religious liberty" by Murray.
In his review for Commonweal, Todd David Whitmore disagrees with Seger, noting that she labors under a false understanding of Murray's concept of "consensus":
At the core of Segers's interpretation of Murray is her understanding of his concept of consensus. [According to Seger,] public morality is a "function of consensus" and such consensus is lacking for laws prohibiting abortion.
But Segers misunderstands Murray's concept of consensus. It cannot be reduced to public opinion and the practices of the day. Murray is clear on this point when he writes:
It has been pointed out to me more than once, in discussions of the American consensus, that the word is misleading. In current speech, connotations have clustered round the word that form a barrier to an understanding of its classic sense....Today, of course, the word is often taken to mean simply "majority opinion" ....These usages, however valid elsewhere, are departures from the technical constitutional sense that the word bears in the Western tradition.... The validity of the consensus is radically independent of its possible status as either majority or minority opinion. Moreover, the Declaration of Independence did not hazard the conjecture, "This is the convergent trend of opinion among us...." It made the affirmation: "We hold these truths...." Or in the equivalent formula: "This is the public consensus." 6
What is at the core of Murray's concept of consensus, with its reference to "truths," is a realist epistemology: moral truths are grounded in the structure of reality itself. It is the correspondence of beliefs to that reality that makes the beliefs true. He is explicit on this point: Every proposition, if it is to be argued, supposes an epistemology of some sort. The epistemology of the American Proposition was, I think, made clear by the Declaration of Independence in the famous phrase: "We hold these truths to be self-evident...." Today, when the serene, and often naive, certainties of the eighteenth century have crumbled, the self-evidence of the truths may legitimately be questioned. What ought not to be questioned, however, is that the American Proposition rests on the forthright assertion of a realist epistemology."
Murray's realist epistemology is of particular import for the issue of abortion. If it is descriptively true, as official Catholic teachings say, that the embryo-fetus is, in all probability, a human person, then the presumption must be that it is also morally true that one ought not take its life. Moreover, if the embryo-fetus is in all probability a person, then the presumption must also be that abortion is a matter of public morality: a human life is at stake. Finally, if the embryo-fetus is in all probability a person, then taking its life would not be a matter of religious liberty. Religious freedom has limits. It cannot include acts "against public peace, against public morality, or against the rights of others." If the embryo-fetus is in all probability a person, then abortion possibly goes beyond the first limit, probably transgresses the second, and almost certainly violates the third. 7
Mr. Whitemore is curiously restrained in his assertion that the embroyo-fetus is "in all probability" a person. There are other critics of abortion -- The Princeton scholar Robert P. George and Boston U. philosopher Peter Kreeft, for example -- who would insist that not the humanity of the fetus and its personhood cannot be so readily divorced. 8
In any case, it should suffice to recognize that as abortion necessarily involves the life of another human being, it cannot -- according to John Courtney Murray -- be construed as an issue of private morality along the lines of contraception, nor can it be confined to the private realm of "religious liberty" precisely for the reasons articulated by Mr. Whitfield.
Having dispensed with the mistaken understanding and defense of abortion as a matter of "private morality" and "religious liberty," we are left with Fr. McBrien's reminder to Archbishop Burke that "to have made the moral argument against abortion, for example, is not necessarily to have made the legal argument as well" -- and Fr. Murray's advice to Cardinal Cushing that "by reason of its nature and purpose, as the instrument of order in society, the scope of law is limited to the maintenance and protection of public morality."
Greg Kalscheur on John Courtney Murray and the relation between law and morality
Murray's reservations regarding the application of objective morality to civil law serves as the basis for another recent article by Greg Kalscheur, S.J.: "American Catholics and the State: John Courtney Murray on Catholics in a Pluralistic Democratic Society." 9, in which he brings Murray's thought to bear on the latest document from the Congregation for the Doctrine of the Faith -- "Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life", and its reminder to such Catholics that: "a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals."
Kalscheur begins by acknowledging the validity of the doctrinal note's assertion that Catholics cannot lead two parallel lives, one private and the other public, but rather must be "morally coherent" in obedience to one's conscience and the teachings of the Church:
This understanding of the unity of conscience makes inescapable the doctrinal note's teaching on the public official's grave and clear obligation to oppose any law that attacks human life. Once a public official has reached the conscientious conclusion that abortion is an attack on the inviolable dignity of human life and that it undermines justice and the common good by violating the fundamental right to life, then that official's commitment to moral integrity demands that his or her participation in politics should conform to that judgment of conscience. These officials should work to promote justice and the common good by striving to reduce the incidence of abortion and opposing laws that attack human life.
According to Kalscheur, how American Catholic politicians are to go about doing so is complicated by "the state of American constitutional law regarding the abortion issue: The legislator must oppose laws that promote abortion, but in the United States abortion is a matter of constitutional right, not an action authorized by legislation."
Keusher rightly observes that with the advent of Roe vs. Wade, "there is no need for legislation authorizing procured abortion; and any legislative efforts to reduce the incidence of abortion through statutory prohibition will face significant constitutional hurdles," indicating by way of example that the ban on partial-birth abortion, successfully passed by the legislature under the Bush administration, faces stiff opposition by the courts on constitutional grounds. As if it illustrate this very point, it was not long after the publication of his article that a second judge struck down the partial-birth abortion ban as unconstitutional. 10
In lieu of resolving the problem of abortion by legislative means, how are Catholics in public life to respond? -- Keuscher directs his readers to the reaffirmation in the doctrinal note that "there are a variety of strategies available for accomplishing or guaranteeing the same fundamental value," and that
This question of how to promote fundamental moral values through law and policy so as most effectively to benefit the common good is always a contingent question dependent upon the practical wisdom of the legislator. In other words, we cannot move directly from moral principles to legal sanctions without considering whether legal sanctions will truly serve the common good in light of existing social conditions.
It is precisely here that the thought of John Courtney Murray can be applied, says Kalscheur, "to bring clarity to our understanding of [the relationship between law and morality]", and that our present confusion about such "often stems from our failure to understand that legal prohibitions are not capable of dealing with every sort of moral evil":
Morality (which governs all of human conduct) and law (which governs the public order of society) are not coextensive in their functions. Legal prohibitions can have only a limited effect on shaping moral character. Accordingly, Murray argued that people can "be coerced only to a minimal amount of moral action." Indeed, "the moral aspirations of the law are minimal."
If society wishes to elevate and maintain moral standards above the minimal level required for the healthy functioning of the social order, it must look to institutions other than the law. The state and law, therefore, have a necessary—but a necessarily limited—role to play in society's work of establishing and maintaining the common good.
Murray insisted that law and morality are essentially related, but necessarily differentiated. Because the coercive force of the state ultimately lies behind the law, the law must not moralize excessively. If it does so, "it tends to defeat even its own modest aims, by bringing itself into contempt."
The law, therefore, should not be used to prohibit a given moral evil unless that prohibition can be shown to be something that the law is capable of addressing prudently. John Courtney Murray, following St. Thomas Aquinas, argued that human law must be framed with a view to the level of virtue that it is actually possible to expect from the people required to comply with the law. . . . In light of all these considerations, society should not expect a great deal of moral improvement from legal prohibitions. Instead, the limited effectiveness of legal coercion compelling obedience through fear of punishment as a vehicle toward genuine moral reform means that the legal prohibitions must be used with caution in a free society
Keuscher's reiteration of Murray is also made by Commmonweal author Todd Whitmore, who -- in all fairness to Ms. Seger -- after refuting her equation of abortion with contraception, goes on to acknowledge that
What is left unanswered so far is the question of precisely what kind of laws are appropriate. Here, Segers's use of the distinction between morality and law is illuminating -- as long as it is not made into a separation between morality and law. . . . While the presumption is that matters of public morality should be addressed by the law, the relationship between the two is not a one-to-one correspondence. . . . It is the tension inherent in the understanding of morality and law being "related but differentiated" that makes it difficult to prescribe a precise law. In public debate on abortion, the tensed relationship has snapped, with the two sides of what has been dubbed the "culture wars" taking what remains in opposite directions: one side claims that (objective) morality ought to be translated directly into law while the other side counters that (private) morality and law are utterly separate. From the perspective of the Murray tradition, both of these arguments fail.
What is the proper course of action for the Catholic legislator?
If we accept Fr. Murray's contention that the enaction oflegal prohibitions of known evils may not necessariliy be condusive to the public good, what kind of advice does Fr. Kalscheur have for the Catholic involved in political life "in the face of current constitutional and social realities"?
In evaluating whether or not a public official's policy positions are consistent with a desire to protect life, we need to pursue an inquiry that considers abortion within the context of a wider range of legal-political questions. Other areas of the law can and must contribute to nurturing the virtues necessary to supporting a culture of life.
What sort of a society are we becoming through the entire range of legal policies we advocate and enact? Who are we becoming as a society when we regularly invoke the death penalty? What sort of a society do we become if we overzealously restrict civil liberties in response to terrorism, or if our immigration law and border control policies undervalue the dignity of the lives of immigrants? Have we listened to the voices of women who have felt compelled to make the choice for abortion, and are we working to establish a set of social policies that might provide women with the support needed to make the decision to carry their baby to term? In short, are we working to build a legal system that as a whole supports and promotes the virtues necessary to protect human dignity and sustain a culture of life?
John Courtney Murray's work reflected his deep concern to promote genuine dialogue at the heart of common life in a pluralistic society -- a genuine dialogue often sadly lacking in contemporary public life. If the public discourse leading to the enactment of a law fails to include genuine attempts to help people understand why the moral vision underlying the law promotes the common good, a disjunction will continue to exist between law and morality.
As a result, the style of public discourse about law is crucial. A proposed law's moral rationale must be communicated in ways that people can accept and understand. One's partners in dialogue must be treated with respect. In order to promote greater clarity in the public conscience, the church must engage Catholic public officials and American society more generally in a genuine conversation about how best to promote the common good. For that conversation to be effective, the participants cannot be locked in positions of immovable dogmatic certitude. Instead, the conversation must go forward in a spirit of shared pursuit of the truth, fostering a genuine dialogue of mutual listening and speaking, where all sides are willing to learn as well as teach.
I understand where Keuscher is coming from and I am sympathetic to the concerns he expresses. As to how we should proceed in light of the constitutional opposition to pro-life legislation, I don't have much in the way of pat and ready answers, but here are my thoughts:
Hopefully I have done something in the way of challenging the erroneous use of John Courtney Murray's thought to defend abortion as a matter of "private morality" or "religious freedom." Even so, as James Finn has demonstrated in First Things (30 February 1993: 54-57), for as long as Murray remains as an influence to the participants in this great debate, he will continue to possess "a contested legacy".