Abortion and Democracy

Paul Ryan spoke today at the Value Voters Summit and he said something that a lot of abortion rights opponents say, but that just can't be true for someone who accepts the Vatican line on abortion's legality. Here's his quote (via TPM):

"These vital questions should be decided, not by the caprice of unelected judges, but by the conscience of the people and their elected representatives. And in this good-hearted country, we believe in showing compassion for mother and child alike, he said. We dont write anyone off in America, especially those without a voice. Every child has a place and purpose in this world.

Now, read literally, this could be taken as a pro-choice statement, since no one who supports abortion rights thinks people should be forced to have an abortion. Abortion rights supporters would therefore agree that the abortion question should be left to the "conscience of the (individual) people." But the reference to unelected judges makes clear that Ryan is talking about the democratic lawmkaing process, not individual conscience. Interestingly, although his comments on the issue were brief, he does not seem to have merely been saying that abortion must, as a matter of second-best practicality in light of present political realities, be left to the democratic process (for now). He seemed to be speaking of the deliberative democratic process as the proper and best means for discussing and resolving abortion's legality (hence, his normative "should"). I understand the Vatican's position on abortion to be somewhat different.

It has said in no uncertain terms that legal abortion contravenes the natural law by failing to protect the unborn. Here is John Paul II in Evangelium Vitae:

This is what is happening also at the level of politics and government: the original and inalienable right to life is questioned or denied on the basis of a parliamentary vote or the will of one part of the people-even if it is the majority. This is the sinister result of a relativism which reigns unopposed: the "right" ceases to be such, because it is no longer firmly founded on the inviolable dignity of the person, but is made subject to the will of the stronger part. In this way democracy, contradicting its own principles, effectively moves towards a form of totalitarianism. The State is no longer the "common home" where all can live together on the basis of principles of fundamental equality, but is transformed into a tyrant State, which arrogates to itself the right to dispose of the life of the weakest and most defenceless members, from the unborn child to the elderly, in the name of a public interest which is really nothing but the interest of one part. The appearance of the strictest respect for legality is maintained, at least when the laws permitting abortion and euthanasia are the result of a ballot in accordance with what are generally seen as the rules of democracy. Really, what we have here is only the tragic caricature of legality; the democratic ideal, which is only truly such when it acknowledges and safeguards the dignity of every human person, is betrayed in its very foundations: "How is it still possible to speak of the dignity of every human person when the killing of the weakest and most innocent is permitted? In the name of what justice is the most unjust of discriminations practised: some individuals are held to be deserving of defence and others are denied that dignity?" When this happens, the process leading to the breakdown of a genuinely human co-existence and the disintegration of the State itself has already begun.

Later in the same encyclical, John Paul II says of abortion:

No circumstance, no purpose, no law whatsoever can ever make licit an act which is intrinsically illicit, since it is contrary to the Law of God which is written in every human heart, knowable by reason itself, and proclaimed by the Church. . . .Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law.

This seems to leave little room for genuine conscientious political deliberation regarding abortion's legality. Some Catholics have argued that, while abortion is intrinsically evil, a society might still be justified in choosing to allow it to remain legal because of (among other things) the lack of a public consensus on the issue as well as the likely pernicious consequences of legal prohibition. But that is not the Vatican's position. A law permitting abortion is, in its view, an "intrinsically unjust law."Ryan must concede that, in the world he describes, where abortion is left to the political process, abortion is unlikely to be outlawed in all 50 states. If this is the case, then -- consistent with Vatican teachings -- Ryan cannot relegate the issue to the vagaries of the democratic process except as a temporary and highly imperfect sop to political practicality. He must believe, unless he is to join the ranks of dissenting Catholics, that merely overturning Roe v. Wade and taking abortion out of the hands of "activist judges" is a (temporary) half-measure. Abortion must be made illegal, whatever the "conscience of the people and their elected representatives" might conclude. The illegality of abortion is, in the Vatican's view, the measure of a democracy's conscience and not properly the subject of conscientious democratic deliberation. How that illegality is achieved, whether through democratic deliberation or "unelected judges," is beside the point.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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