Robert Miller worries that one of the arguments in my post on Amnesty International is philosophically unsound . He admits, though, that "there are many senses of the word right , and Anderson is perfectly correct that, in one of these senses, there can be no right to do what’s morally wrong." Of course, that is the sense in which I used the word and the sense that anyone familiar with my reference to Lincoln would recognize: what the great early twentieth-century legal theorist Wesley Hohfeld called a "liberty" (the right to do something, which is correlative to the absence of a duty not to do it).
To find fault with my analysis, though, Miller substitutes for that sense a Hohfeldian "claim-right"¯ the right not to be interfered with , which is correlative to the duty of others not to interfere. It is unclear why Miller assumes that this is the more "usual meaning." It is not. Nor is it clear why, given the context in which I used the term, Miller would interpret it in this way.
Still, even if one grants Professor Miller’s interpretive liberty, he has made several errors.
First, his exposition of the teaching of the Catholic Church is, at best, out of date. He writes that the sacrifices offered by polytheists are morally wrong, but polytheists have a right to perform them. Miller claims that this is "exactly the position of the Catholic Church." Perhaps what Miller writes about the Church’s attitude towards non-monotheistic faiths is true of a once-dominant view to which he still clings, but it is not true of the Church of the Second Vatican Council, Pope John Paul II, or Pope Benedict XVI.
The developed teaching of the Catholic Church on religious liberty notes that man of his very nature is a religious creature with the duty¯and right¯to seek out the truth and (subject to certain limitations of a moral, not a theological, nature) to be guided by the truth as he best understands it. Even if the truth is grasped imperfectly or inchoately, the religious act is always aimed at a genuine good¯namely, the worship of God¯even if the believer’s knowledge of that good is severely defective (as is the polytheist’s).
That is, so long as they are sincere, even imperfect religious acts are indeed religious acts. Subject to the requirements of public order, including public morality¯requirements that justify forbidding human sacrifice, temple prostitution, and other intrinsically evil acts¯man has a right to perform them, and this right should be respected and protected by civil law.
Because religious acts are acts of conscience seeking and assenting to truth, they must also be free of coercion. According to the Second Vatican Council’s Declaration on Religious Freedom, Dignitatis Humanae , "the exercise of religion, of its very nature, consists before all else in those internal, voluntary and free acts whereby man sets the course of his life directly toward God. No merely human power can either command or prohibit acts of this kind." (Of course, it goes without saying that it would be wrong for a former polytheist who has been persuaded of the truth of Judaism or Christianity to continue engaging in polytheistic worship. That violation of the First Commandment is not an exercise of the right to religious liberty but an abuse of it.)
The Church does not say, as Miller claims she does, "that certain conduct is wrong but that people have a right to do it." Rather, the Church teaches that there is much that is good and to be protected in other religions. Speaking specifically of Hinduism and Buddhism (the Church spoke even more favorably toward Islam and, above all, Judaism), the Second Vatican Council’s Declaration on Non-Christian Religions, Nostra Aetate , declared: "The Catholic Church rejects nothing that is true and holy in these religions. She regards with sincere reverence those ways of conduct and of life, those precepts and teachings which, though differing in many aspects from the ones she holds and sets forth, nonetheless often reflect a ray of that Truth which enlightens all men." Religious liberty is protected even for the polytheist so that he, too, may abide by the ray of Truth he has gleaned, and in the hope that his continued free pursuit of God will lead him to the fullness of Truth.
Of course, religious liberty properly understood does not protect human sacrifice¯whether fetal or postnatal¯offered to God or the gods. This scenario seems most parallel to the Amnesty International abortion situation. The right of religious freedom protects religious goods (even imperfect worship offered by polytheists) but is not a right to do what is morally wrong (for example, practice prenatal or postnatal homicide).
Miller does a better job with his explanation of why governments do not criminalize every immorality. Though he doesn’t say so in his post, I assume Miller agrees that as a matter of principle there is no reason why the state could not place criminal sanctions on adultery, fornication, and other wrongful actions that damage the moral ecology of society. And he is correct in noting that a prudential judgment has to be made to decide if the legal prohibition of any particular immorality (for example, adultery and fornication) would do more harm than good. But, if Miller is correct on this point (and I think he is), then he has undermined his entire argument about Amnesty International’s position on abortion.
If we decide against criminalizing adultery and fornication, it is not because we believe that people have a right to commit certain immoral acts. Rather, it is because we fear granting too much power to the state, or because we are concerned about deflecting limited law enforcement resources away from the detection and prosecution of more serious crimes, or because we worry that the laws are unenforceable and will be flouted in ways that tend to bring the entirety of law into disrepute. In other words, the argument against prohibiting adultery is based on protecting other goods and preventing other evils¯not on protecting adultery. But the reason Amnesty International is against legal sanctions on abortionists is precisely because they want to protect abortion.
We don’t want spouses to commit adultery, but we think the problems of prohibiting it would outweigh the legitimate benefits. But Amnesty International wants abortionists to be able to perform abortions. It does not argue that prohibiting abortion would lead to other problems¯like preventing doctors from delivering babies or performing ultrasounds or anything of the sort. Rather, Amnesty International’s only argument is that penalizing abortionists would prevent them from performing abortions. In other words, the parallel that Miller imagines simply does not exist.
And this is why Miller is wrong to claim that my argument is philosophically flawed. The only reason Amnesty International offers to justify its new abortion policy is the need of women to terminate their pregnancies. That being the case, Amnesty International cannot coherently claim to take no position on "whether abortion is right or wrong," or on "whether or not abortion should be legal," or on "when life begins." For to argue that abortionists should be free of all legal penalties because in some cases women need to terminate their pregnancies entails that in some cases abortionists violate no duty of justice to the children whose lives they take and that in those cases abortion is right and should be legal. But to argue that abortion is right and should be legal, one first has to decide whether the death of the being in the womb is significant. And to answer that question, one needs to ascertain whether the being in the womb is a human being.
So, whether it acknowledges it or not, in advocating for what is in effect a right to perform abortions, Amnesty International has taken positions on the three issues it claimed to avoid. And so, pace Miller, on all three counts Amnesty International’s argument is incoherent.