Ryan Anderson argued persuasively last week that Amnesty International’s new position on abortion laws makes AI effectively pro-abortion, and that AI is being disingenuous in denying this. This is his important point, and I agree with it completely. I am concerned, however, that one of the philosophical arguments he deploys is unsound.
AI says that it takes no position on the morality of abortion but that imposing legal sanctions on women who seek abortions or doctors who perform them is wrong. Anderson refers to Lincoln for the proposition that no one can have a right to do what’s wrong, and he argues that if, as AI now says, women have a right to abortion free from government interference, then AI is committed to the view that abortion is moral. Since AI says it expresses no view on the morality of abortion, its position, Anderson concludes, is incoherent.
Now, as with all moral words, 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. But this is not the usual sense of the word right. In its usual meaning, a person has a right to such-and-such if it would be morally wrong for the state or others to interfere in certain ways (for example, by force or threat of force) with his doing such-and-such. In this sense, it can be perfectly sensible to say that certain conduct is wrong but that people have a right to do it. This is exactly the position of the Catholic Church with respect to, for example, the offering of sacrifice to the deities of polytheistic religions. See Dignitatis Humanae .
More generally, there are all kinds of wrongful actions that most people think it would be wrong for the state to punish criminally. Adultery and fornication are wrong, to be sure, but enforcing laws against them in any serious fashion would trample on individual privacy in a way that would do more harm than good. Similarly, it’s wrong to break social promises or to hurt people’s feelings, but it would also be wrong to sentence people to prison when they fail to keep a lunch date or wound the feelings of their hostess by not eating enough of her signature asparagus casserole.
Similarly, the whole sphere of civil law is concerned with wrongs that the law acknowledges to be wrongs but that it doesn’t punish criminally. There is thus nothing a priori incoherent in saying that some kind of conduct is wrong (or that one has no view on the subject of its wrongness) but that criminally prohibiting such conduct is wrong as well. If abortion is an exception to this general rule, it would have to be because there is something peculiar about abortion that makes it so.
Anderson goes on to argue that the human fetus is a human being, that abortion is thus a form of homicide, and that the state has a moral obligation to prohibit abortion. Although I might quibble about the details of some of his arguments, I agree with Anderson’s conclusions here. But I think he’s losing track of what he needs to say. Anderson wants to show that AI’s position is internally incoherent, that it asserts various propositions that are mutually incompatible. To do this, he has to take the various propositions asserted as true and derive a contradiction. In arguing about the humanity of the fetus and the immorality of abortion, however, Anderson has switched to arguing that some or all of the propositions AI asserts are false. I think he’s perfectly right about this, but such arguments will not show that AI’s position is incoherent¯untenable, yes, for independent reasons, but not internally incoherent.
Finally, although I think Anderson is mistaken in thinking that AI’s position is incoherent, I want to emphasize that I believe he’s right on the larger point that there is much intellectual dishonesty in what AI is saying. The big issue about abortion in the public square is not the moral quality of abortion; it is whether we should have laws prohibiting abortions. Hence, when AI announces that it opposes laws criminalizing abortion, it has for virtually all practical purposes joined with the pro-abortion side in the bitter political controversy surrounding abortion. If you are with AI, you can be pro-choice and think that abortion is morally permissible, or you can be pro-choice and think, a la Mario Cuomo, that abortion is morally impermissible. But you can’t be with AI and be pro-life.
That AI expresses no opinion on the moral quality of abortion itself is, from a practical point of view, of almost no importance; it amounts to taking no sides between Patricia Ireland and Mario Cuomo. If AI points to this aspect of its position to deflect attention from the only practically important issue¯whether we should have laws against abortion¯then it is being disingenuous, and Anderson was right to call AI on this.
Robert T. Miller is assistant professor at the Villanova University School of Law.