Beyond the Abortion Wars, Chapter 4.1--The Heart of Liberty

In Chapter 4, Camosy turns his attention away from philosophy and toward public policy.  This is an important move, because it recognizes that simply because one has a philosophical objection to abortion, it does not necessarily follow that it is appropriate to ban it.  Such recognition is often in short supply in many segments of the pro-life community, so it is good to see that acknowledged here.

Here, though, I am going to change my pattern here, and talk about the first section of Chapter 4 and an anecdote Camosy offers in Chapter 5.  It is here that I have the greatest disagreement with Camosy, so I'm going to go into a some detail, and come back and discuss the rest of Chapter 4 and Chapter 5 in the next post.  Bear with me.

Camosy begins on very strong footing when he begins with a discussion of the claim that it is inappropriate to ban abortion insofar as the position that the fetus deserves legal protection is the product of religious belief.  This is idea is, to put it simply, nonsense, as there is no principled distinction between a moral position that is the product of "religious belief" and one that is the product of other sorts of belief, such as philosophical principles.  People have all sorts of beliefs, formed from all sorts of ultimate or transcendent or universal principles ("Ultimate Concerns," as theologian Paul Tillich called them).  Slapping a label on some of them as "religious" is mostly arbitrary.  Moreover, in my view, to say that a particular person's viewpoint is invalid in the political sphere because it is the product of some religious tradition is a violation of the Free Exercise Clause of the First Amendment--it is preventing people from expressing their religious beliefs in the public forum  (that works both ways--someone should not be prevented from expressing their beliefs because they are seen as non-religious, too.)

Camosy also argues against a related position, which is that abortion touches on such personal issues that it should not be a subject for regulation, lest we engage in coercion of such sensitive areas.  And it is here where Camosy and I fundamentally disagree.

Most people think that the foundational U.S. Supreme Court case governing abortion is 1973's Roe v. Wade, but that's wrong.  The actual governing case (at least as of this writing) is 1992's Planned Parenthood of S.E. Pennsylvania v. Casey.  Casey is famous for two things, primarily.  One, it first articulated the notion that a particular law cannot place an "undue burden" on the ability of women to obtain an abortion.  The second thing is a single line, placed in the middle of a very long opinion:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

People, especially conservatives and philosophers, reacted to this line with bemused contempt.  Justice Scalia took a battle axe to it in his dissent.  But I want to argue that this line expresses an important fact about the political philosophy underlying the project of the United States, one that is often ignored by advocates on the pro-life side, including Professor Camosy.

First, let's take look at the whole paragraph that quote comes from.

Our precedents "have respected the private realm of family life which the state cannot enter."  These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (citations omitted).

The United States is a product of the English Enlightenment, particularly the thought of John Locke.  English Enlightenment thinkers, having lived through the devastating religiously-motivated violence of the 17th Century in England, saw these big picture philosophical questions about ultimate meaning as a serious danger to political life.  It is not that Locke and his contemporaries argued that they didn't matter or they were unknowable (as some people have misread them to say); it's that these questions were both extremely important to people and subject to many, varied interpretations and ultimate conclusions.  For a deeply pragmatic guy like Locke, this left you with two choices.  One, you can try to impose a singular, particular vision of human good on everyone, as the various combatants in the English Civil War tried (resulting in enormous bloodshed).  Or, two, you can agree to a kind of forced neutrality on these questions, bracketing them into a private space.

For Locke, and for the Framers of the U.S. Constitution, this second solution allows diverse people to live together without having endless conflict over philosophical and religious disputes.  It means that there must be a carved-out and protected space in which people can have wildly different visions of the meaning of their own life, its purpose, what is and is not to be done.  That space is not unlimited in size and scope, and figuring out where the boundaries are located is difficult and controversial.  But maintaining that space is essential to keeping the entire project of the U.S. going.  Because if that protected space starts to collapse, then we are opening the door to some variation of the English Civil War all over again.

Casey stands for the proposition that, in particular, judgments about the meaning of sexuality and sexual decision-making fall within that protected zone.  And, in a general way, I think most people agree with that conclusion.

Now, consider this paragraph from Chapter 5 of Beyond the Abortion Wars:

Or how about sexual choices?  Suppose someone is attempting to resist the desire to hook up at the bar with a very attractive person she just met at the bar.  Is it in her interest to make a difficult decision at the end of the night whether to go home with that person?  Of course not, especially if there is alcohol involved (as there almost always is).  I often tell me undergraduate students that if they have to choose at the end of the night whether they are going to go home with someone, it is almost certainly too late.  The freedom to avoid the "walk of shame" back to the dorm room or apartment the next morning requires setting boundaries on the choices you are willing to consider.  True freedom is often the result of limiting the choices available to us, especially in light of coercive forces pulling us in destructive directions.

That is precisely the kind of judgment that neither Professor Camosy, nor me, nor anyone else, can make in our system of government.  Professor Camosy is free to have opinions on whether or not it is good for this hypothetical student to have a one night stand, and he can advocate for those opinions, but he may not make that decision for her, nor may be put in place governmental structures that make that decision for her.  She has the right to "define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" to include hooking up with random guys if that is what she chooses to do.

I understand that Catholic thought has always strongly resisted this conclusion, with its insistence on universal truth claims and its emphasis on "freedom for" as opposed to "freedom from."  But this is an area where Catholic thought and U.S. liberal political theory are in conflict.  Moreover, I don't think Catholic thought has done a good job coming to grips with the pragmatic wisdom of Locke's ideas.  Asserting and attempting to enforce a particular vision of The Good is going to force those who have a different vision to resist with all of their might.  Only by intentionally avoiding those assertions, and creating space for these different visions of The Good, can this conflict be avoided.  In other words, even if you can impose a particular vision of The Good on everyone (say, through a super-majority vote or something), you shouldn't do that, because you will force the minority into a posture of resistance.  Conservative Catholics, and other conservative Christians, don't seem to get that.

Going back to the college student at the bar, there is another dimension to Camosy's framing that is really problematic.  In my view, one of the most trenchant claims made by the pro-choice movement regarding their pro-life counterparts is that this talk of concern for the unborn is all a smokescreen for their real goal, which is to police female sexuality.  On this view, by making abortion illegal, you are imposing greater "costs" on women for having sex, which means they won't have as much, which is really what pro-life people want in the first place.  Said another way, a person reading Camosy's book with this point of view would see the above quoted paragraph as revealing the secret motivation for his entire proposal--by hook or by crook, keeping his female students from having sex.

I don't think that's fair to Professor Camosy.  But there are people on the pro-life side for whom keeping people (especially women) from having sex in ways they disapprove of is their real motivation.  And Camosy is not distinguishing himself from that pool by making this kind of argument.  There is a segment of people--and for the reasons I outlined above, I am one of them--who are not going to listen to any proposal on abortion if they believe it is really about keeping that student in the bar from hooking up.  Government must be scrupulously neutral on this question, because it falls within the protected space of personal definitions of meaning and purpose.

Camosy would counter, and does counter in Chapter 4, that similar arguments could be marshaled in favor of infanticide.  (indeed, I think it is fair to say that, while Camosy recognizes a conceptual distinction between abortion and infanticide, he sees no bright line between the two).  The difference, for me, is in a sense an empirical one.  Only a tiny slice of professional philosophers believe that infanticide is morally justifiable, whereas a significant portion of the population--and a majority of the Supreme Court, at least for now, believe that their bodily autonomy and sexual freedom trumps whatever claims the fetus might have.  The Lockean concern is motivated by the practical consideration of how groups of people are going to get along, so the actual issues that people actually care about are more important than these hypothetical slippery slope scenarios.

Camosy's framing, ultimately, forces a moral vision of not just the fetus, but also sexuality generally, on a significant segment of the population, especially the female population.  Given the personal issues involved, people are going to resist that imposition very strongly.  Maybe Camosy is right that such an imposition is possible, given demographic or other trends (I, for one, don't actually believe that most women are willing to sign up for a regime that would limit their sexual freedom, and my data point is the 2012 U.S. election).  But, more importantly, such an imposition is bad for our democracy and system of government even if it is possible.

Having said that, I don't reject Professor Camosy's proposals because of this problem.  There are ways that, in my view, the personal sphere can be protected while advancing almost all of his goals.  But that is for the next two posts.


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