Copyright (c) 1994 Michigan Law Review
Michigan Law Review
92 Mich. L. Rev. 1893
LENGTH: 8806 words
RELIGION AND THE LAW: RELIGION AND THE SEARCH FOR A PRINCIPLED MIDDLE GROUND ON
ABORTION: The Politics of Virtue: Is Abortion Debatable?
By Elizabeth Mensch and Alan Freeman. Durham: Duke University Press. 1993. Pp.
x, 268. Cloth, $ 39.95; paper, $ 14.95.
Michael W. McConnell *
* William B. Graham Professor of Law, University of Chicago. B.A. 1976,
Michigan State; J.D. 1979, University of Chicago. - Ed. The author wishes to
thank Martha Nussbaum for comments on an earlier draft.
... Recently, religious voices have played a prominent role in the
controversy over abortion - especially, though not exclusively, on the
anti-abortion side. ... Having made that point, the authors do not pause to
wonder: If Catholic natural law thinking is entirely based on natural reason,
what does this have to say about the value of religious participation in public
policy? Does this not suggest that, even within the Church, serious ethical
philosophers consider it necessary to divorce themselves from the distinctively
religious aspect of knowledge - that is, revelation - and to rely on that
aspect of knowledge in which the Christian, the Jew, and the infidel stand on
an equal footing? In their defense of religious participation in public
deliberation, have not the authors inadvertently denigrated the importance of
theology? One might conclude that while natural law is a permissible basis for
public deliberation, sacred writings and spiritual associations have nothing
distinctive to contribute. ... The goal of fundamentalist theology, they say,
quoting Princeton theologian Charles Hodge, is to
"assent to the truth, or the persuasion of the mind.' ... This tradition, as
the authors point out, is
"peculiarly Christian" and
"stubbornly sectarian" (p. 48), yet more equivocal on the issue of abortion. ...
Religious arguments and movements have been central to virtually every
important public debate in American history from independence and abolition to
civil rights and the nuclear freeze. Nonetheless, many legal theorists claim
that this involvement of religion with politics presents a problem for our
constitutional order. Recently, religious voices have played a prominent role
in the controversy over abortion - especially, though not exclusively, on the
anti-abortion side. This has generated a surge of new writing about the role of
religion in public life. In the most serious entry in the field, John
Rawls maintains that a society may justly base its laws only on a
"reasonable" political conception of justice, meaning a conception that is, or can be,
"shared by citizens regarded as free and equal" and that does not presuppose any particular
"comprehensive doctrine," of which religious doctrine is a prime example.
n1 Applying this idea to the abortion issue,
Rawls concludes (without much discussion) that
"any comprehensive doctrine that leads to a balance of political values excluding" the right to an abortion by a
"mature adult" woman in the first trimester
"is to that extent unreasonable," because the
"political value of the equality of women is overriding."
n2 This means, apparently, that the contrary balance - treating the life of the
unborn as the
"overriding value" - is not just wrong but beyond the boundaries of reasonable argument, in part
because it rests on a
"comprehensive doctrine" (though why respect for unborn life rests on a comprehensive doctrine while
respect for the equality of women does not is something of a mystery).
In a more rhetorical vein, Ronald Dworkin, having concluded that opposition to
"at least a quasi-religious nature," goes on to tell us that
"it is no part of the proper business of government" to enforce laws based on such premises.
"It is a terrible form of tyranny, destructive of moral responsibility, for the
community to impose tenets of spiritual faith or conviction on individuals."
n5 Note that this position does not depend on the character of the rules
regulating abortion; judgments based on
"tenets of spiritual faith" are simply excluded from public discourse. Anthony Lewis, a respected New York
Times columnist, has written that the
"essential truth about most anti-abortion activists" is that they are
"religious fanatics, who want to impose their version of God's word on the rest
n6 This puts them outside the bounds of
"our form of democracy, which requires compromise and does not work when there
are ideological certainties."
n7 Again, one might ask: How willing are advocates of the opposite side to
compromise? Are there not
"ideological certainties" in secular political discourse? Nor are arguments of this sort confined to
writers and academics. Popular pro-choice rhetoric commonly brands religious
thought about abortion intolerant, extremist, and illegitimate.
n8 In the language of street protests:
"Keep your rosaries out of our ovaries!"
Come now Elizabeth Mensch and Alan Freeman, professors of law at SUNY-Buffalo
and close students of the religious debate over abortion in the United States
in the past forty years. No one will accuse Mensch and Freeman of being members
of the religious right. As feminists and early enthusiasts of the critical
legal studies movement, with backgrounds in left Protestantism (Mensch) and
Judaism (Freeman), they would seem unlikely voices to rise in defense of
religious discourse about abortion and other contentious issues of public
morality and policy. The book is all the more striking for their disclosure in
the introduction that each of them has had
"more than one firsthand experience of abortion" (p. 3). This experience they describe as
"almost perfect irresponsibility, of the kind that absolutely precludes
self-righteousness" (p. 3). These authors have produced a book that is by far
[*1895] the most comprehensive yet concise, sympathetic yet critical, account of
theological thought on the issue of abortion.
Their heterodoxical conclusion is that religious thinking about abortion -
which was interrupted by the constitutional close out of Roe v. Wade
n9 - was more nuanced, less absolutist, more tolerant of good-faith disagreement,
more closely attuned to the moral perceptions of the people, and more conducive
to compromise than the secular constitutional discourse that replaced it. But
this conclusion is not, like most theorizing on the subject, based on a priori
conceptions. The book is not really an argument at all, but simply a
description of the debate as it unfolded in the churches and synagogues of
America between the end of World War II and the decision in Roe. Far from being
divorced from public values, this discourse, according to Mensch and Freeman,
was the prime forum for deliberation about public values. The book thus
transcends the specific issue of abortion and addresses the process of forming
moral judgments in our pluralistic democracy.
"The larger question," the authors say,
"is whether we can recover a meaningful public moral vocabulary" (p. 5). The
"alchemical fantasy of liberalism - that process can turn itself into substance
- is belied by the realityof conflict" (p. 5; footnote omitted). Their book, The Politics of Virtue: Is Abortion
Debatable?, poses the question:
"Can a revival of theological traditions ... serve such an enterprise?" (p. 5).
If Mensch and Freeman were to engage
Rawls in conversation, I think they would agree with his first criterion of
reasonableness (that public debate must be based on conceptions that are, or
"shared by citizens regarded as free and equal"
n10), but they would maintain that one is most, not least, likely to find such
discussion in theological circles. The various communities of faith have been
engaged in discourse about morality and public justice for centuries and have
produced most of the bedrock of modern ethics - even ethics that appears, on
the surface, strictly secular. As the authors point out, the secular systems of
Hume and Kant presupposed the survival of Calvinist (Hume) or Lutheran (Kant)
substantive ethics, even as they undermined the epistemological basis of the
religious world view (p. 153). Moreover, there is something odd about
Rawls's argument in a nation in which religion is so important to so many people.
Three-fourths of American women and a lesser proportion of American men, the
authors point out,
"report that they consider religious faith the most important influence on their
lives" (p. 4). Can we honestly regard our fellow citizens as
"free and equal" if we rule out-of-bounds the reasons they conscientiously adopt as a ground
for their thinking about public issues?
The moral teachings of the major religions of America are starting points for
serious deliberation in which any person - believer and nonbeliever alike - can
engage. By contrast, the authors observe, most secular discussion of abortion
since Roe has been strident, acrimonious, and largely unilluminating.
Rawls's own dismissal of the pro-life position as
"unreasonable" and not requiring further discussion is a sobering example of a secular
"close out" - not different, in principle, from those who say,
"The Bible says it, I believe it, and that resolves it."
I think, however, that Mensch and Freeman would disagree with
Rawls's second criterion (that positions in the debate must not presuppose a
particular comprehensive doctrine). It is only the traditions built on
comprehensive doctrine - secular as well as religious - that have anything
useful to say about ultimate questions such as life and death, freedom and
obligation, and the proper reaches of justice and compassion. If we do not
include comprehensive doctrines in our discussions, we will be left with
nothing but sterile proceduralism and moral assertions uprooted from their
source and foundation.
Perhaps the most distinctive virtue of religious participation in public life,
according to the authors, is that religion places the concerns and the powers
of this world in proper perspective - they are important, but not controlling:
Religion in the United States provides both an incentive to act responsibly in
the world, and it also offers that
"pause" which makes complete allegiance to any political order impossible. This is why
religion provides a counterforce to totalizing secular ideologies, whether of
the right or left - so long, that is, as churches resist the temptation to
identify themselves too fully with the state. p. 140
This book should be required reading for anyone who wishes to contend that
religious participation in resolving issues of public concern is inconsistent
with our national commitment to free, open-minded debate and inquiry.
Quite apart from their analysis of the abortion question, Mensch and Freeman
have provided an insightful primer into the intellectual history of political
theology in postwar America. The authors discuss the natural law tradition that
flourished in the aftermath of the Holocaust and Nuremberg but floundered in
the conflicts of the 1960s; the ecumenical spirit of the 1950s, with its
tendency toward complacency in the public sphere; the profound, but profoundly
misunderstood, theology of Barth and Bonhoeffer, which inspired Martin Luther
King and led to the social activism of mainstream Protestant churches in the
civil rights era; the emergence of fundamentalist Christianity from its
pietistic cocoon into a powerful public voice; the secularization of
[*1897] mainstream Protestantism; and the growing division between conservative and
liberal theological movements in the years before and after Roe. To anyone
unfamiliar with these developments, the book serves as an excellent
introduction; but even to those well versed in the period, the book is studded
with often surprising insights - especially in drawing connections between
theological developments and parallel developments in jurisprudential thought.
Much of this interest arises from the authors' own quirky point of view. The
overall impression the book conveys is one of great fair-mindedness, but this
is accomplished, not by a dispassionate and
"objective" recital of the various positions, but rather by a sympathetic engagement with
The authors concentrate on four great traditions: natural law (particularly
associated with Roman Catholicism but not exclusive to it), Reformed
Protestantism (especially as informed by the life and teachings of Barth and
Bonhoeffer), Protestant fundamentalism (which shades over into evangelicalism
more broadly), and liberal (what they call
"secularized") Protestantism. In the final chapters of the book, they describe the way in
which these theological traditions interacted in the late 1960s - before Roe -
to produce a rich and promising discourse about abortion (pp. 98-125). Their
treatment of these issues is both thoughtful and well informed. It is, however,
uneven. There is no sustained discussion of Jewish thought: some individual
Jewish thinkers, such as Edmond Cahn, are included, but not in the context of
an account of Jewish theological ethics. Within Christian thought, the
discussion of the Protestant tradition is richer and more interesting than that
devoted to Roman Catholicism. Oddly, Catholic thinking is most prominently,
though not exclusively, represented by philosophers A.P. d'Entreves and Jacques
Maritain and law professor and now appellate judge John Noonan, rather than by
ecclesiastics or theologians. There is only limited discussion of official
Church pronouncements on the relation between religious teaching and public
policy in general, or on abortion in particular.
More specifically, the authors neglect any discussion of the important
question of authority within the Catholic Church and whether - as critics of
the Church maintain - the special claim of the Church hierarchy to teaching
authority binding to some extent on the consciences of faithful Catholics is
problematic within our constitutional order. Instead, Mensch and Freeman
concentrate on the substance of Catholic ethical theology, observing that
"if theological argument is to play a valuable role in public debate, it must
appeal not to privileged authority but to some version of the common good, as
Catholic tradition has in fact recognized" (p. 5). This might seem to beg the question, because
"appeals to privileged authority" and
"versions of the common good" are not logically exclusive categories. There might, after all, be reasons
grounded in the common good for recognizing privileged authority - for example,
that of the Constitution
[*1898] and its Framers, the common law, the long-standing customs and traditions of
the people, and so on. But the authors do not pursue the problem.
The authors' analysis of these four traditions exposes a paradox, which I have
not seen remarked upon in any of the theoretical discussions of the role of
religion in politics. The paradox is this: the most sectarian and
nonrationalist of the religious movements - that arising from Barth and
Bonhoeffer - is also the most nuanced, uncategorical, and nondogmatic on the
subject of abortion, as well as the most intellectually compatible with
postmodern theory and political praxis. Mensch and Freeman note that
"the Catholic natural law tradition has been successfully universalized," losing, as a result,
"its distinctly Christian character," and that, by contrast,
"the ethics of serious Reformation theology can sound stubbornly sectarian, too
peculiarly Christian to have any relevance to the world outside the Christian
church" (p. 48).
This observation warrants particular attention, because natural law has been
n11 Natural law, in the Catholic tradition, is a species of divine law - as all
law is ultimately divine in its source and authority - but can be discerned
through the application of natural reason to the world around us. Natural law
stands in contradistinction to revealed law. Even in the Middle Ages, as the
authors explain, natural law theorists
"did not depend on revelation.... Aquinas had carefully stated that the divine
law, revealed through grace, perfects, but does not overturn, the human law
that is based on natural reason" (p. 35). Thus, while some subjects - the authors give the example of
"a proper understanding of the Trinity" (p. 35) - depend on revelation,
"for most affairs of the world, natural reason would suffice" (p. 35). A prohibition on genocide, for example, can be
"rooted in an understanding of the nature and purpose of humanity that is
accessible to natural reason alone" (p. 35).
This distinction is crucial to the question of public discourse, because
Christians were not thought to have any privileged position with regard to
natural reason; indeed, their great authority on many questions of natural law
was the pagan philosopher Aristotle. Natural law thinking is therefore, in
Rawls's terminology, something that can be
"shared by citizens regarded as free and equal."
n12 That does not mean, of course, that everyone will agree with the premises of
natural law thinking. Much of modern positivist ethics is based on the cate
[*1899] gorical denial that the ought is inferable from the is, and - as will be seen
below - an important strain of Reformed Protestantism denies that any
inferences about the good can be drawn from the character of a fallen world.
But even though not everyone can share its premises, natural law methodology is
"accessible" in the sense that the evidence on which it rests is equally discernible, in
principle, by all persons without reference to any idiosyncrasies of creed,
culture, or perspective.
Catholic teaching on abortion is based squarely on natural law, not on
"Catholic doctrine takes abortion to be a violation of natural law, which means
that understanding it to be a wrong should not require Christian faith or
church authority" (pp. 35-36). In this sense, the claim in Justice Stevens's dissenting opinion
in Webster v. Reproductive Health Services
n13 that anti-abortion laws are
"theological" is based on a mistaken understanding of Catholic teaching.
"Ensoulment" is just a way of talking about humanity, and in its reliance on Aristotelian
biology, the Church was not being
"theological" but simply incorporating into its ethics the best science of its day. That is
why, with the nineteenth-century advances in knowledge of human embryology, the
Church intensified its opposition to abortions of pre-quickening fetuses.
Having made that point, the authors do not pause to wonder: If Catholic
natural law thinking is entirely based on natural reason, what does this have
to say about the value of religious participation in public policy? Does this
not suggest that, even within the Church, serious ethical philosophers consider
it necessary to divorce themselves from the distinctively religious aspect of
knowledge - that is, revelation - and to rely on that aspect of knowledge in
which the Christian, the Jew, and the infidel stand on an equal footing? In
their defense of religious participation in public deliberation, have not the
authors inadvertently denigrated the importance of theology? One might conclude
that while natural law is a permissible basis for public deliberation, sacred
writings and spiritual associations have nothing distinctive to contribute.
Perhaps the richness of ethical deliberation within the various religious
communities is a product, not of their character as religious, but of their
character as ethical communities - communities that devote themselves to
ethical questions, that have a certain, albeit incomplete, insulation from
passing fads and earthly authorities, and that take seriously both the claims
of the past and their obligations to the future. Perhaps God has nothing to do
This question arises again - though without explicit commentary from the
authors - in the chapter on Protestant fundamentalists and evangelicals.
n14 This is a remarkable chapter in its ability to see the
[*1900] world from the perspective of a group that is almost completely unrepresented
and frequently derided in academic circles. In elite circles, fundamentalists
are generally thought to be ignorant, irrational, emotional, and lacking in
independence. In a revealing incident last year, the Washington Post stated in
a front-page news story that fundamentalists
"are largely poor, uneducated and easy to command" - an offensive generalization that it retracted the next day.
n15 In fact, fundamentalism is highly rationalistic, individualistic, and
distrustful of emotion as a guide to right conduct. As Mensch and Freeman note,
"despite common misconception, biblical inerrancy, or fundamentalism, does not
represent a retreat from science to blind irrationalism" (p. 78). The goal of fundamentalist theology, they say, quoting Princeton
theologian Charles Hodge, is to
"assent to the truth, or the persuasion of the mind.'
n16 They quote J. Gresham Machen, the Presbyterian theologian expelled from
Princeton after the victory of liberal theology:
"Theology ... is just as much a science as is chemistry ... . The two sciences,
it is true, differ widely in their subject matter; they differ widely in the
character of the evidence upon which these conclusions are based; in particular
they differ widely in the qualifications required of the investigator: but they
are both sciences, because they are both concerned with the acquisition and
orderly arrangement of a body of truth."
The implications of this Bible-centered world view are individualistic, because
no human agent may come between the believer and the Word - thus resulting in a
theological egalitarianism - and rationalistic, because the believer must apply
the rational faculty of reading and understanding to gain access to the perfect
Word of God and must distrust his own emotion and instinct, which are products
of a fallen nature. As a historical matter, one can see the liberal democratic
order as a product of this Protestant doctrine - democracy being the
"priesthood of all believers" in the political sphere.
Unlike natural law, the fundamentalist world view is based on revelation as
the only entirely reliable source of knowledge, coupled with
[*1901] empirical observations about the world, in the tradition of Scottish
"Common Sense" philosophy. Fundamentalism thus raises two interesting and important questions
that the authors do not address. First is a question of interpretation: To what
extent is fundamentalist teaching against abortion based on revelation? From an
internal perspective, the answer is that it is entirely based on revelation,
but this may be because of the powerful way in which students of a particular
text are able to use it to illuminate the world. In fact, the authors point out
that the scriptural texts cited in support of the pro-life position are less
than determinate (p. 17). From a Biblical perspective, it is difficult to see
the abortion question
"as one of private rights alone" (p. 17), but that does not obviate discussion of the content of the answer
(what are the roles of excuse, justification, enforceability, and prudence?).
In other words, those who take the Bible's injunctions regarding the value of
life seriously will be unlikely to buy the privacy argument (that abortion does
not present a question of public justice) but need not necessarily insist on
criminal prohibitions in all cases from the moment of conception, any more than
they must oppose capital punishment or favor extensive welfare programs. It may
well be that fundamentalists derive their normative premises from Scripture but
their empirical and prudential data from elsewhere.
My own impression of evangelical thinking about abortion is that, for most,
abortion presents a quite simple and straightforward question of justice, much
like infanticide, and that evangelicals tend to assume that the denial by
pro-choice advocates of what appear to be obvious facts of life is attributable
to pride and selfishness rather than to any conscientious doubt that an unborn
child is a child. This means that the contribution of evangelicals to the
pro-life movement has been more in their commitment and determination than in
their ability to communicate and convince outsiders.
The second question is whether the reliance by some citizens on revelation is
problematic within our constitutional order. As on the issue of authority
within the Catholic tradition, the authors have surprisingly little to say
about the question of revelation within Protestantism - perhaps because, in
their judgment, most religious deliberation is less reliant on mere authority
or revelation than it may appear. At first blush, an appeal to revealed truth
may appear to be less
"universalistic" - less
"accessible" - than reliance on natural law, because not everyone accepts the Bible as the
source of revealed truth. The fundamentalist, however, has a powerful response.
The fundamentalist would point out that God's revelation through the Bible is
to all persons and not to a select subset of the population and that there are
good reasons why all rational persons, if fully informed and able to evaluate
the matter dispassionately - that is to say, free of the blinders of sin -
could and should accept the Bible as truth. That some persons do not presently
agree with the premise of the funda
[*1902] mentalist argument does not make the argument any less universal or
accessible. If we waited for a set of premises to which everyone could agree,
we would be waiting forever. Indeed, many rational individuals deny the
essential premise of natural law - that nature is normative. Does that mean
that natural law is not accessible to all?
In any event, it is striking that the more rationalistic strains of
Christianity have tended to take the hardest line against abortion. This is not
true of the modern Reformed tradition, most powerfully represented by Karl
Barth and Dietrich Bonhoeffer. This tradition, as the authors point out, is
"peculiarly Christian" and
"stubbornly sectarian" (p. 48), yet more equivocal on the issue of abortion. The great Barmen
Declaration of the German Confessing Church, drafted by Barth,
"repudiates" the idea that citizens can and should base their judgments about questions of
justice on something other than the comprehensive doctrines they deem to be
"We repudiate the false teaching that there are areas of our life in which we
belong not to Jesus Christ but another Lord, areas in which we do not need
justification and sanctification through him."
n18 Barth strenuously criticizes the very idea of natural law: How can observation
of the characteristics of a fallen world tell us anything about the will of a
perfect God? Even more than fundamentalism, which tends to assume that God's
revelation through Scripture is ultimately identical to His revelation through
the natural world, Barth's radical Protestantism posits a disjunction between
revelation and natural reason.
Much of the impulse behind the postwar natural law movement was the brush with
a universal evil and the recognition (at Nuremberg and elsewhere) of the limits
of positive law. It is therefore something of a shock to learn that
"the only serious institutional Christian opposition to Hitler in Germany arose,
not on the basis of natural law, but rather quite explicitly and emphatically
in the context of rejecting natural law" (pp. 46-47). At a time when mainstream German Protestantism, invoking natural
law, was reconciled to Hitler, Barth was banished and Bonhoeffer executed for
their theologically uncompromising opposition to the Nazi regime. As Mensch and
Freeman explain, Barth recognized that
"if church and culture were too bound together by the link of a natural law
theology, then contingent human projects (politics, science, cultural
traditions) could claim the status of ontological reality, not subject to God's
revealed word" (p. 55).
In other words, the very willingness of German Protestants to assimilate their
ethics into the overlapping consensus of German culture deprived them of their
vantage point for descrying the coming evil of
[*1903] Nazism. By the same token, the sectarianism of Barth and Bonhoeffer insulated
themand their fellow radical Christians from being co-opted. The radically
unsecular character of Barthian thought is captured in this excellent summary:
Could one reject abstract normative categories, whether derived from natural
law or the secularized rationalism of Kant, and nevertheless fashion an ethics
that would require responsible action in the world? The answer for both Barth
and Bonhoeffer lay not in ethics itself (based on a supposed knowledge of the
world and the operation of human reason), but in theology - in the dialectical
process of looking first
"upward," as it were, to the command of God, which is a divinely initiated and revealed
claim, the call to the covenant
"I-Thou" relationship, and then downward, to a particular person in a particular
context. The content of the command is known only by virtue of another
dialectic - that of incarnation and redemption - so that the (impossible)
command is always accompanied by the promise of grace .... pp. 56-57
In Barthian theology, there is no danger of becoming so universalized that God
ceases to be of importance. According to the authors' exegesis of Barth,
"only God, not
"natural' human beings, made the correct operation of reason in nature possible" (p. 55). In Barth's words, quoted by the authors,
"Reason, if left entirely without grace, is incurably sick and incapable of any
serious theological activity. Only when it has been illumined, or at least
provisionally shone upon by faith,' can it produce statements of truth about
the human and natural world ...."
n19 In Barth's hand this is not an attack on science but rather a sophisticated
epistemology strikingly akin to modern, nonpositivistic philosophy of science.
n20 The authors comment:
"Modern science does, in fact, resemble sophisticated theology more than it
resembles the elaborate claims of certainty that are more typical of Newtonian
physics, and too often, ironically, of social science as well" (p. 54). In Barth's view,
"all scientific knowledge is necessarily contingent, with its particular
methodology suited to its own specific object of study," and
"all science is rooted in a faith that the object of study will reveal itself,
at least provisionally, through the method fashioned by scientists within their
traditions" (pp. 53-54). According to Barth, theology
"knows itself to rest on sheer contingency"
n21 - but in this it is no different from any other field of knowledge. Positivism
is erroneous in both theology and science.
Fundamentalism and Barthian neo-orthodoxy thus start from similar premises
about the primacy of revelation and have similar aspira
[*1904] tions to a
"scientific" quality, but there the resemblance ends. Fundamentalism, with its Common Sense
philosophy, resembles positivist science in its pursuit of objective truth.
Neo-orthodoxy, with its antifoundationalist epistemology, lives comfortably in
a postmodern intellectual universe.
Barth rejects the casuistical method of natural lawyers. It is not possible,
according to Barth, to move from particular texts, norms, or objective
categories to universal rules that could govern the
"plenitude of conditions and possibilities."
n22 Indeed, not only is this
"logically impossible," but it leads both to
"unwarranted arrogance" - to set oneself up as the judge of good and evil in the place of God - and to
the destruction of human freedom (p. 58). The
"casuist ethics" of the natural lawyers
"calls a person away from real responsibility" (p. 58). For Barth and Bonhoeffer,
"the gospel" - not natural reason -
"was the core of ethics - the command that is fulfilled by the life lived wholly
for the neighbor" (p. 57). This ethics cannot be worked out in rules or confined to regulations;
it requires a kind of selflessness that is possible only through the joyous
submission of the believer to the will of God. In Bonhoeffer's words,
"it is evident that the only appropriate conduct of men before God is the doing
of His will."
"relation to God is a new life in
"existence for others,' through participation in the being of Jesus. The
transcendental is not infinite and unattainable tasks, but the neighbor who is
within reach in any given situation."
Although they give other perspectives respectful consideration, Mensch and
Freeman are apparently most impressed with the possibilities of Reformed
Protestantism as a basis for moral deliberation. This tradition, they find, is
best able to
"reject the pressure to conform to the rest of culture or to produce false moral
universals" and to
"concentrate instead on a thick description of its own tradition" (pp. 145-46). In this theology they find it possible to avoid the
"stark choice" between
"publicness,' on the one hand, and sectarian
"privateness,' on the other" (p. 145). Paradoxically, the least universal and accessible theology produces
the most open and productive political theology.
The implications of this school of thought for the question of abor
[*1905] tion are not obvious. As the authors point out, neither Barth nor Bonhoeffer
"offered a clear-cut ethical rule" governing the subject (p. 63). Their position might, however, be described as
"anti-choice," though not
The pro-choice celebration of the autonomous self is plainly antithetical to
the ethics of Reformed Protestantism. It is in this sense that I call them
"anti-choice." Celebration of the self and its independence of any obligation not voluntarily
assumed elevates the human being to the place of God at the center of the
normative universe and epitomizes the alienation from God's will that is the
essence of sin. As the authors explain, quoting Barth,
"The command of God is an appeal to freedom - not a freedom of
"choice, preference, or selection' but (again paradoxically) the freedom of
n26 In this Bonhoeffer, like Barth, could sound very much like his Calvinist
The only appropriate conduct of men before God is the doing of His will. The
sermon on the mount is there for the purpose of being done. Only in doing can
there be submission to the will of God. In doing God's will, man renounces
every right and every justification of his own ....
One might therefore expect Reformed Protestant ethicists to join with natural
lawyers and fundamentalists in forthright opposition to abortion. An ethics of
subordination of the self and service to the other - an ethics of
self-sacrifice in imitation of the suffering of Christ on the cross - should,
one would think, see nothing but negation and alienation in the practice of
n28 This is especially true because, in the crucible of Nazism, this school of
thought came to recognize the grave dangers of categorical relegation of some
biological humans to the ranks of the less-than-fully human. As Barth stated,
"Everyone should treat his existence and that of every other human being with
respect. For it belongs to God. It is His loan and blessing."
n29 Somewhat surprisingly, however, Barth and Bonhoeffer drew back from a
categorical condemnation of what Barth called
"the wicked violation
[*1906] of the sanctity of human life which is always seriously at issue in abortion."
n30 Barth called the absolute condemnation of abortion
"horribly respectable" and
"never sparing in its extreme demands on women."
n31 As Mensch and Freeman put it,
"God's commandment with respect to abortion is, for Barth, a resolute
"No,' but it is a
"No' to be engaged dialectically by human freedom and conscience" (p. 64). In his posthumously published Ethics, Bonhoeffer described abortion
"nothing but murder"; for a
"nascent human being has been deliberately deprived of his life."
n32 But, he adds,
"a great many different motives may lead to an action of this kind; indeed in
cases where it is an act of despair, performed in circumstances of extreme
human or economic destitution and misery, the guilt may often lie rather with
the community than with the individual."
Mensch and Freeman obviously believe that the theological ethics of Barth and
Bonhoeffer offers the most promising avenue toward a principled middle-ground
resolution of the abortion question. Despite their sometimes arcane exposition
and starkly theocentric world view, these theologians suggest a posture toward
abortion strikingly congruent with popular opinion: most people consider
abortion the taking of a human life - often embracing even the term murder -
but also believe that there are circumstances serious enough to justify or at
least excuse it.
n34 From either the pro-choice or the pro-life perspective, this seems hopelessly
muddled and contradictory. There may, however, be wisdom in it. From the
Reformed Protestant perspective, there is no escaping the fallen human
condition. Mensch and Freeman explain, quoting Barth and Bonhoeffer, that
"an ethics cannot be a book in which there is set out how everything in the
world actually ought to be but unfortunately is not," for it is the
"unfortunately is not" which is the whole point. It is precisely in the real, creaturely world, the
world as it is, a fallen world, that decisions must be made.
We must never, never treat the taking of human life - even nascent human life -
"private" matter of no concern to the just society;
[*1907] nor may we whitewash the reality of abortion with euphemisms about
"tissue" and the
"woman's own body." Abortion is an evil, all too frequently and casually employed for the
destruction of life. But the pregnant woman in distress is one's neighbor, too.
Elimination of abortion may be the goal, but criminal punishment need not
necessarily be the means.
It would have been helpful, at this juncture, for the authors to be more
specific about the possibilities for principled compromise. The Reformed
Protestant position, with its paradoxes and dialectics, does not translate
easily into public policy. Barth and Bonhoeffer addressed the abortion question
in the context of personal ethics and pastoral guidance, where individual,
case-by-case examinations of circumstances, motivations, and sincerity are both
possible and inevitable. The law necessarily must be more categorical - more
"casuistical." Barth and Bonhoeffer were concerned with sin, forgiveness, and grace, while
the law is concerned, first and foremost, with justice.
Mensch and Freeman are a compelling voice for a principled middle way on an
issue for which such voices are few in number. The American people, despite
decades of largely absolutist rhetoric from both sides, continue to cleave to
the middle ground on abortion, yet virtually no figure in public life has
sought to define and clarify that middle ground or to provide leadership to get
there. President Clinton has stated that he wants abortion to be
"safe, legal and rare,"
n36 but all he has done is make it cheaper and more respectable. With one and
one-half million abortions per year - many of them not
"chosen" by the woman but forced on her by circumstances beyond her control and lack of
knowledge about alternatives - there would seem to be plenty of room for action
that would help to make abortions more
Unfortunately, in the absence of such actions, the rights rhetoric of the
pro-choice movement serves only to place a collective stamp of approval on what
should be understood as a great social injustice to the unborn, as well as an
avoidable tragedy to the mothers who have had abortions.
n37 The sanctification of abortion as a constitutional right has contributed to
the perception that abortion is a morally and socially appropriate form of
birth control. This is intolerable. The first object of social policy in this
area should be to reduce the number of abortions chosen by women: not to
eliminate their choice, but to
[*1908] affect what choice they make. Abortion is at least as serious a social problem
There is a serious danger - evident in the pronouncements of the mainline
Protestant denominations on the abortion question - that the
"compromise" that comes from Reformed Protestant teaching can consist of paying lip service
to the sanctity of life while doing nothing about the practice. This is
essentially the West European solution (coupled with some more serious
protection for fetal life in the later stages of pregnancy than we have here),
and it seems to satisfy most people. Let us abolish the
"right" of abortion discovered inRoe, declare that all life is deserving of
protection, and then do nothing about it. Under this approach, the protesters,
I predict, would diminish greatly in number; the Supreme Court's docket would
be cleared of these contentious cases; politicians would be off the hook; but
the number of abortions would stay the same. If there is a principled
middle-ground position, it must lie in a noncoercive pro-life policy that
The title of this book is The Politics of Virtue. This seems to me an almost
complete misnomer, for few, if any, of the serious theologians whose ideas
inspire the book believe that politics is about virtue or that government can
create virtue. Barth and Bonhoeffer speak not of virtue but of sin and grace -
of suffering, sacrifice, and redemption, which are very different things than
virtue. The only reference to virtue in the text of the book, to my
recollection, is in a discussion of Aquinas, and for Aquinas the relation
between law ("politics") and virtue is imperfect at best:
Now human law is laid down for the multitude the major part of which is
composed of men not perfected by virtue. Consequently, all and every vice, from
which virtuous men abstain, is not prohibited by human law but only the gravest
vicious actions, from which it is possible for the major part of the multitude
to abstain, and mainly those - like homicide, theft, etc. - which are harmful
to others, and without the prohibition of which human society could not be
Laws against abortion are designed not to produce virtue but to prevent
The subtitle of the book, Is Abortion Debatable?, is more to the point. By
"debatable," the authors presumably mean that abortion is an issue about which debate is
both possible and useful. I do not think that anyone will come away from this
book persuaded of any particular thesis or program regarding abortion. I do
think, though, that readers will be in a better position to see why even
persons who share
[*1909] the authors' liberal-left, feminist world view should understand the abortion
issue as a question of justice - not simply of privacy or oppression - and even
those of a secular orientation will be able to see how theological voices can
contribute to the debate. Perhaps the first step toward having a productive
debate - and hence toward finding a peaceful democratic solution - is to listen
to one another's arguments and to stop attempting to rule
"out-of-bounds" those whose presuppositions are grounded in religious faith.
Rawls, Political Liberalism 176 (1993) (reviewed in this issue by Professor
Joshua Cohen - Ed.).
n2. Id. at 243 n.32.
Rawls's book is not about abortion, and his comments on the issue are confined to a
lengthy footnote. Presumably he would have more to say if he chose to say it.
This, however, makes the comments all the more perplexing, for
Rawls - an apparently careful and open-minded scholar - is willing to dismiss the
opinions of a quarter of the population as beyond the pale of reason on the
strength of nothing more than a few conclusory sentences in a footnote.
n4. Ronald Dworkin, Life's Dominion 15 (1993) (reviewed in this issue by Professor
Alexander Capron - Ed.).
n6. Anthony Lewis, Abroad at Home: Right to Life, N.Y. Times, Mar. 12, 1993, at
n8. For numerous examples of such comments, as well as epithets flowing in the
opposite direction, see James D. Hunter, Culture Wars: The Struggle to Define
America 143-56 (1991). See also Stephen L. Carter, The Culture of Disbelief
(1993) (reviewed in this issue by Professor Sanford Levinson - Ed.).
410 U.S. 113 (1973).
Rawls, supra note 1, at 176.
n11. For example, during the debates over the nomination of Judge Clarence Thomas
to the Supreme Court, many politicians and some scholars professed to find the
idea of natural law troubling, apparently confusing natural law with
specifically religious teachings. See, for example, Laurence H. Tribe,
"Natural Law" and the Nominee, N.Y. Times, July 15, 1991, at A15, and my response, Michael
W. McConnell, Trashing Natural Law, N.Y. Times, Aug. 16, 1991, at A23.
Rawls, supra note 1, at 176.
492 U.S. 490, 568 (1989) (Stevens, J., concurring in part and dissenting in part).
n14. Pp. 74-82. The authors use the term fundamentalist to describe a movement
within Protestant Christianity that, under their definition, embraces most
evangelicals as well. Both fundamentalists and evangelicals are inerrantists,
meaning that they accept absolutely the truth of the Bible as it came from God.
Evangelicals, however, are not committed to a literalist hermeneutic. For
convenience' sake, I will adopt the authors' practice of using the term
fundamentalist to embrace both, but with some trepidation, for the term
fundamentalist is often used as a term of opprobrium. I do not mean it as such,
and neither (I think) do Mensch and Freeman.
n15. Michael Weisskopf, Energized by Pulpit of Passion, the Public Is Calling;
"Gospel Grapevine" Displays Strength in Controversy over Military Gay Ban, Wash. Post, Feb. 1,
1993, at A1, A10. The next day, the newspaper admitted that
"there is no factual basis for that statement." Corrections, Wash. Post, Feb. 2, 1993, at A3. In the retraction, the paper
reported that, according to a nationwide poll, 38% of Americans identifying
"Evangelical-Born Again" Christians had some college education, as compared to 45% of all Americans. Id.
n16. P. 78 (quoting Forrest M. Baird, Shaeffer's Intellectual Roots, in Reflections
on Francis Schaeffer 45, 47 (Ronald W. Ruegsegger ed., 1986) (quoting Charles
n17. Pp. 78-79 (quoting Baird, supra note 16, at 53 (quoting J. Gresham Machen)).
n18. P. 49 (quoting Edwin H. Robertson, The Shame and the Sacrifice: The Life and
Teaching of Dietrich Bonhoeffer 117 (1988) (quoting The Barmen Theological
Declaration (1934), reprinted in Eberhard Jungel, Christ, Justice and Peace at
xxi (D. Bruce Hamill
& Alan J. Torrance trans., T.&T. Clark 1992) (Declaration translated by Douglas S. Bax))).
n19. Pp. 55-56 (quoting Karl Barth, No!: Answer to Emil Brunner (1934), reprinted
in Natural Theology 65, 96 (Peter Fraenkel trans., photo. reprint 1962) (1946)).
n20. See p. 54.
n21. P. 54 (quoting Harold Nebelsick, Karl Barth's Understanding of Science, in
Theology Beyond Christendom: Essays on the Centenary of the Birth of Karl
Barth, May 10, 1886, at 165, 182 (John Thompson ed., 1986) (quoting Karl
n22. P. 57 (quoting 3 Karl Barth, Church Dogmatics pt. 4, 52, at 9-10 (G.W.
& T.F. Torrance eds.
& A.T. Mackey et al. trans., T.&T. Clark 1961) (1951)).
n23. P. 62 (quoting Dietrich Bonhoeffer, Ethics 166 (Eberhard Bethge ed.
& Neville H. Smith trans., SCM Press 1955) (1949)).
n24. Pp. 62-63 (quoting Dietrich Bonhoeffer, Outline for a Book, in Letters and
Papers from Prison 210, 210 (Eberhard Bethge ed.
& Reginald Fuller et al. trans., SCM Press, 3d ed. rev.
& enl. 1967) (1964)).
n25. This is my characterization, not the authors'.
n26. P. 58 (quoting 3 Barth, supra note 22, pt. 4, 52, at 13).
n27. P. 62 (quoting Bonhoeffer, supra note 23, at 166).
n28. One could imagine a Reformed Protestant ethic in combination with a
libertarian view of government, producing the view that abortion is wrong but
that government should do nothing about it. The possibility of a libertarian
political theology is not explored in The Politics of Virtue. In the case of
Reformed Protestantism as it has developed from Calvin through Barth and
Bonhoeffer, it would be entirely out of place, for this tradition has always
seen the government as a powerful instrument for the achievement of social
justice. The selective libertarianism of pro-choice Protestant denominations
seems merely expedient, as they appear to have a perfectionist view of politics
in every area but this. Those who would use government coercion to eradicate
racism, selfishness, and other sinful attitudes and behaviors have a difficult
time explaining why the treatment of the unborn is a private matter.
n29. P. 63 (quoting 3 Barth, supra note 22, pt. 4, 55, at 340).
n30. P. 64 (quoting 3 Barth, supra note 22, pt. 4, 55, at 417).
n31. Id. (quoting 3 Barth, supra note 22, pt. 4, 55, at 417).
n32. Id. (quoting Bonhoeffer, supra note 23, at 131).
n33. Id. (quoting Bonhoeffer, supra note 23, at 131).
n34. An intensive investigation of public attitudes toward abortion and related
issues conducted by the Gallup Organization under the direction of sociologist
James Davison Hunter on behalf of Americans United for Life found that
forty-nine percent of respondents consider abortion
"murder" and another twenty-eight percent consider it
"the taking of human life." See 2 The Gallup Org., Inc., Gallup Organization Survey on the Abortion
Controversy in America tbl. 29 (Summer 1990). On the other hand, polls
consistently show that about three-quarters of the population would allow
abortions in at least some serious situations in addition to cases involving
threats to the life of the mother.
n35. P. 57 (quoting 3 Barth, supra note 22, pt. 4, 52, at 10 (quoting Bonhoeffer,
supra note 23, at 236)) (footnote omitted).
n36. See Kevin Sack, Protester Thrusts Fetus at a Surprised Clinton, N.Y. Times,
July 15, 1992, at A11.
n37. Anyone who doubts that abortion is a tragedy for the mother - putting aside
the interests of the child - should consult Magda Denes, In Necessity and
Sorrow (1976); Kathleen McDonnell, Not An Easy Choice (1984); or Mary K.
Zimmerman, Passage Through Abortion: The Personal and Social Reality of Women's
Experiences (1977). All of these books are pro-choice, but they recognize the
horror of the experience of taking the life of one's unborn child and its
effects on women.
n38. P. 38 (quoting Jacques Maritain, Man and the State 168 n.24 (1951) (quoting
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Philosophy 111A Page