Who is “Legislating Morality”?

Editor’s note. The following is the conclusion to a terrific blog entry titled, “May we ‘legislate morality’? When pro-choice advocates manipulate the ground rules” found here .

In recent blog entries, [Hamline University School of Law] Professor David Schultz –after attacking the notion of “legislating morality” –concedes that he “do[es] not think there is no connection between law and morality,” and says that the government should “establish certain basic values regarding liberty and equality [i.e., ‘legislate morality’], for example, but much beyond that individuals are left to their own to define the good for themselves [itself a moral view about the proper limits of government]. This is what a free and pluralist society does.”

Okay. But Schultz still tries to disqualify the pro-life position (that elective abortion should not be permitted) from public consideration. His claim is that regardless of whether abortion is morally permissible or not, abortion is not appropriately the subject of legislative restrictions according to the ground rules of a pluralist society.

Why? Because “we do not know what is right” about abortion, and the issue is “contested.” That is the key difference Schultz offers between dismembering unborn human beings by abortion, which he says must be permitted as dictated by pluralism, and something like spousal abuse, which should, he agrees, be illegal. (At least, that is how I understand him — if he reads this and my interpretation is wrong, I hope he will correct me.)

Schultz’s effort here to disqualify the pro-life view out of hand hardly seems defensible. First, Schultz’s view — that “contested” matters should not be legislated upon — is highly contested, yet he wants to impose it upon everyone else. Second, as I note in point #3, legal abortion itself imposes a “contested” moral view. Finally, may we not restrict a practice unless there is widespread agreement to do so (even beyond the agreement obviously necessary for the legislation to be passed and enacted into law)? If that is true, then abolishing slavery was not legitimate. Nor was the Civil Rights Act.

It is unfair and incoherent to manipulate the ground rules to exclude one particular position from political consideration.  To counter our view, Schultz and other pro-choice advocates will have to do the hard work of actually showing that it is false.

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