Morality and politics

Can they be separated . . . ever?

The recent revelation of Supreme Court thinking on abortion raises again one of the most vexing issues for democracies. What is the appropriate role of morality in politics?

The First Amendment tries to keep religion out of politics, but says nothing about morality. This is a difficult distinction to maintain. Historically, religion has informed ideas about morality, and different ideas about morality have characterized different religions. Muslims and Mormons have generally disapproved of the use of alcohol, which Catholics and other Christians sacramentalize. Protestant Christians led the drive for prohibition in the United States, over the vigorous opposition of many Catholics.

Even leaving religion out of it, morality poses problems for democracy. In 1776, most Americans did not consider slavery to be a moral issue. By 1861, many had concluded that the ownership of humans was immoral. But many others, especially in the South, still contended that morality had nothing to do with slavery, and they resented the efforts of slavery's opponents to impose their new code on the country at large. The Civil War was the result.

The moral divide over abortion is even sharper. The defenders of slavery cited a civil right in owning slaves; the opponents cited a moral right in the slaves not to be owned. Further, there was a clear trend in the direction of the latter—which was why the eleven Southern states seceded, before it was too late. On abortion, both sides claim moral rights. Opponents of abortion cite the moral right of a fetus to be born. Defenders of abortion rights cite the moral right of a woman to control her own body. Nor is there a clear trend in favor of one side or the other (in America at least: several other countries have recently liberalized their abortion laws).

What is to be done? For the last fifty years the answer has lain with the courts, under the ruling in Roe v Wade that abortion is a constitutionally protected right. The Supreme Court appears about to kick the issue back to the political arena.

Which sharpens the question: Can or should legislatures legislate morality? On issues of widespread agreement, this poses no particular difficulty. Nearly everyone agrees that murder is immoral and should be illegal.

But areas of disagreement soon arise. Should murderers be executed? And attitudes change. For centuries, most people thought homosexuality was immoral. And it was often made illegal. As thinking changed, so did the laws. Gay marriage was almost unthinkable fifty years ago; now it is constitutionally protected.

Not everyone is happy with the change; some would like to put gay people back in the closet if not necessarily in jail. Yet they are a minority, and the issue is not an especially controversial one at the moment.

Not so with abortion, where the two sides are fairly evenly matched and the issue is more controversial than ever. In such a case is there any resolution that won't risk tearing the country apart, the way slavery tore the country apart in the 1860s? 

The judicial approach failed utterly to bring the two sides together; if anything, it drove them apart. The political approach doesn't seem any more promising, especially given the polarized nature of politics today.

Some countries—Ireland, Italy, Portugal, for example—have held national referendums on abortion. Referendums have the advantage of democratic legitimacy; the people directly make the law under which they will have to live. There is no national referendum process in the United States. The closest thing is a presidential election, but this suffers from the fact that a candidate can win the popular vote and lose the election in the electoral college.

Even so, one could imagine a presidential candidate making abortion rights the central issue. Abortion has been one issue in the last several elections, with everyone understanding that a Republican victor would nominate Supreme Court justices likely to limit or overturn Roe v. Wade, and a Democratic winner to nominate justices who would preserve Roe. But other issues clouded the debate, as they always do in presidential elections.

And even if a candidate made abortion the central issue of his or her campaign, and that candidate won, there would still be, in our divided system of government, Congress and the courts to deal with.

Moreover, there is no reason to believe that the losers in that unofficial referendum would quietly accept defeat. Abolitionists were a small minority in America right up until the Civil War, but that didn't prevent them from making their case loudly and sometimes violently. People who take morality seriously aren't deterred simply because they are outnumbered. On the contrary, they are often energized by their very minority status.

If morality and politics mix together so poorly, maybe we should separate them. This would not be that different from separating religion and politics. Centuries ago the idea that religion and politics could be separated was almost heretical. It still is in parts of the world. But most countries of the West managed the feat after they finally realized there was no peaceful alternative. You practice your religion, and I practice mine, and neither of us gets to mobilize government on our side.

This last is the key element. I can try to persuade you that my religion is right, and you can try to persuade me that yours is the right one, but neither of us gets to employ the tools of government against the other.

Suppose, somehow, the two sides in the abortion debate could agree to forswear appeals to government. The pro-lifers could still try to persuade the pro-choicers not to have abortions. The pro-choicers could try to persuade the pro-lifers that sometimes abortions are the best and even most moral option. Individuals would make their own decisions for themselves but would not try to force decisions on others.

It would hardly be a perfect solution. Many pro-lifers would liken it to trying to persuade a murderer not to kill, rather than forcibly restraining the murderer. The victims, the unborn children, deserve better, they would say.

Yet it would have the merit of not holding hostage the bodies of women who didn’t share the pro-lifers’ view. The pro-lifers would still have the option of trying to persuade pregnant women not to abort. If those women agree, no compulsion is required. If they don't agree, at least the pro-lifers tried.

It's a long shot. In a democracy nearly every issue becomes politicized. Asking the two sides to depoliticize abortion might well be unrealistic. But it worked in the case of religion, more or less. It might be worth a try.