part0029

We have all heard the refrain: a politician claims to be “personally opposed” to abortion and embryo-destructive research but nevertheless supports keeping the practices legal so as not to “impose” his or her views on others. For example, Joe Biden and John Kerry have espoused this position. 1 But perhaps the best-known exponent of this view was Mario Cuomo, the former New York governor. Cuomo, who died in 2015, famously articulated his perspective in a speech at the University of Notre Dame in 1984, when he was widely regarded as the Democrats’ best hope for retaking the White House. He revisited the issue in 2002, speaking at a forum on “Politics and Faith in America.”

The former governor was also a former law professor. He was a student of history, philosophy, and theology, and his speeches and writings reflected a range of intellectual interests. But something went wrong in Cuomo’s 2002 speech.

The address was littered with fallacies—fallacies that need to be corrected, as they are often injected into the public debate over life issues. Arguments like Cuomo’s, if successful, not only justify support for legal abortion and embryo-destructive research but actually require the legal right to engage in these practices despite their admitted moral wrongfulness.

Things began going wrong in Cuomo’s speech almost right off the bat. In setting up his analysis of the question of religious faith in politics, Cuomo evidently forgot a basic principle of logical argumentation: one cannot employ as a premise the very proposition one is marshaling an argument to prove. The former governor asserted that holders of public office—including Catholic officeholders like him—have a responsibility “to create conditions under which all citizens are reasonably free to act according to their own religious beliefs, even when those acts conflict with Roman Catholic dogma regarding divorce, birth control, abortion, stem cell research, and even the existence of God.” According to Cuomo, Catholics should support legalized abortion and embryo-destructive research, as he himself did, because in guaranteeing these rights to others, they guarantee their own right “to reject abortions, and to refuse to participate in or contribute to removing stem cells from embryos.”

But Cuomo’s idea that the right “to reject” abortion and embryo-destructive experimentation entails a right of others, as a matter of religious liberty, to engage in these practices is simply—and spectacularly—fallacious. The fallacy comes into focus immediately if one considers whether the right of a Catholic (or Baptist, or Jew, or member of any other faith) to reject infanticide, slavery, and the exploitation of labor entails a right of others who happen not to share these “religious” convictions to kill, enslave, and exploit.

By the expedient of classifying pro-life convictions about abortion and embryo-destructive experimentation as “Roman Catholic dogmas,” Cuomo smuggled into the premises of his argument the controversial conclusion he was trying to prove. If pro-life principles were indeed merely dogmatic teachings—such as the teaching that Jesus of Nazareth is the only begotten Son of God—then according to the Church herself (not to mention American constitutional law), they could not legitimately be enforced by the coercive power of the state. The trouble for Cuomo was that pro-life principles are not mere matters of “dogma,” nor are they understood as such by the Catholic Church (whose beliefs Cuomo claimed to affirm) or by pro-life citizens, whether they happen to be Catholics, Protestants, Jews, Muslims, Hindus, Buddhists, agnostics, or atheists. Rather, pro-life citizens understand these principles and propose them to their fellow citizens as fundamental norms of justice and human rights that can be understood and affirmed even apart from claims of revelation and religious authority.

If Cuomo wanted to persuade us to adopt his view that people have a right to destroy nascent human life, it would have been incumbent on him to present a rational argument in defense of his position. It will not do to suggest, as Cuomo seemed to do, that the sheer fact that the Catholic Church (or some other religious body) has a teaching against these practices, and that some or even many people reject this teaching, means that laws prohibiting the killing of human beings in the embryonic and fetal stages violate the right to freedom of religion of those who do not accept the teaching. If that were anything other than a fallacy, then laws against killing infants, owning slaves, exploiting workers, and many other grave forms of injustice really would be violations of religious freedom. Surely Cuomo would not have wished to endorse that conclusion.

Yet he provided no reason to distinguish those practices putatively falling within the category of religious freedom from those falling outside it. So we must ask: If abortion is immunized against legal restriction on the ground that it is a matter of religious belief, how can it be that slavery is not similarly immunized? If today abortion cannot be prohibited without violating the right to religious freedom of people whose religions do not object to abortion, how could Cuomo say that the Thirteenth Amendment’s prohibition of slavery did not violate the right to religious freedom of those in the nineteenth century whose religions did not condemn slaveholding? Cuomo could not respond to this challenge by asserting that, religious teachings aside, slaveholding really is an unjust practice and abortion is not; he took pains to assure us that he believed abortion is nothing less than the unjust taking of innocent human life. Although the former governor said that the Catholic Church “understands that our public morality depends on a consensus view of right and wrong,” in the mid-nineteenth century no social consensus existed on the question of slaveholding. Still, it would be scandalous to argue that Catholics should have opposed a constitutional amendment abolishing slavery in the nineteenth century—or legislation protecting the civil rights of the oppressed descendants of slaves in the mid-twentieth century—on the ground that “prudence” or “realism” requires respect for “moral pluralism” where there is no “consensus” on questions of right and wrong.

Cuomo presented another fallacy when he suggested that laws against abortion and embryo-destructive research would force people who do not object to such things to practice the religion of people who do. No one imagines that the constitutional prohibition of slavery forced those who believed in slaveholding to practice the religion of those who did not. Would Cuomo have had us suppose that laws protecting workers against what he, in line with the solemn teaching of every pope from Leo XIII to Francis, considered to be exploitation and abuse have the effect of forcing non-Catholic factory owners to practice Catholicism?

At another point, in denying that he displayed any inconsistency as governor with his willingness to act on his anti-death-penalty views but not on his anti-abortion views, Cuomo claimed that when he spoke of the death penalty, he never suggested that he considered it a “moral issue.” Then, in the very same paragraph, he condemned the death penalty in the most explicitly, indeed flamboyantly, moralistic terms: “I am against the death penalty because I think it is bad and unfair. It is debasing. It is degenerate. It kills innocent people.” He did not pause to consider that these are precisely the claims pro-life citizens make against the policy of legal abortion and its public funding—a policy that Cuomo defended in the name of religious liberty.

The fact is that pro-life citizens of every faith oppose abortion and embryo-destructive research for the same reason we oppose postnatal homicide: because these practices involve the deliberate killing of innocent human beings. Our ground for supporting the legal prohibition of abortion and embryo-destructive research is the same ground on which we support the legal prohibition of infanticide, for example, or the principle of noncombatant immunity even in justified wars. We subscribe to the proposition that all human beings are equal in worth and dignity and cannot be denied the right to protection against killing on the basis of age, size, stage of development, or condition of dependency.

Thus the claim that one can be “personally opposed” to abortion or embryo-destructive research yet support their legal permission and even public funding collapses—though many politicians, of both parties, make this very claim. By supporting abortion and embryo-destructive research, one unavoidably implicates oneself in the grave injustice of these practices.

Of course, it is possible for a person wielding public power to use that power to establish or preserve a legal right to abortion while at the same time hoping that no one will exercise the right. But this does not let such a person off the moral hook. For someone who acts to protect legal abortion necessarily wills that abortion’s unborn victims be denied the elementary legal protections against deliberate homicide that one favors for oneself and for those whom one considers to be worthy of the law’s protection. Thus one violates the most basic precept of normative social and political theory, the Golden Rule. One divides humanity into two classes: those whom one is willing to admit to the community of the commonly protected and those whom one wills to be excluded from it. By exposing members of the disfavored class to lethal violence, one deeply implicates oneself in the injustice of killing them—even if one sincerely hopes that no woman will act on her right to choose abortion. The goodness of what one hopes for does not redeem the grave injustice—the evil—of what one wills . To suppose otherwise is to commit yet another fallacy.

In the run-up to the 2004 presidential election, Archbishop Raymond Burke of St. Louis offered an answer. He declared that public officials who support abortion and other unjust attacks against innocent human life may not be admitted to Holy Communion, the preeminent sacrament of unity. Pro-life citizens of every religious persuasion applauded the archbishop’s stand.

Critics, however, were quick to condemn Archbishop Burke. They denounced him for “crossing the line” separating church and state. But this is silly. In acting on his authority as a bishop to discipline members of his flock who commit what the church teaches are grave injustices against innocent human beings, Archbishop Burke was exercising his own constitutional right to the free exercise of religion; he was not depriving others of their rights. Freedom is a two-way street. No one is compelled by law to accept ecclesiastical authority. But Archbishop Burke—and anyone else in the United States—has every right to exercise spiritual authority over anyone who chooses to accept it. There is a name for people who accept the authority of Catholic bishops. They are called “Catholics.”

In many cases, it is not only silly but also hypocritical to charge that bishops who exclude pro-abortion politicians from Communion are “crossing the line separating church and state.” A good example of this hypocrisy comes from the Bergen Record , a prominent newspaper in my home state of New Jersey. John Smith, the bishop of Trenton, did not go as far as Raymond Burke had gone in forbidding pro-abortion Catholic politicians from receiving Communion. Bishop Smith did, however, in the words of the Bergen Record , “publicly lash” then-governor James McGreevey, a pro-abortion Catholic, for his support of abortion and embryo-destructive research. In an editorial, the Record accused the bishop of jeopardizing the delicate “balance” of our constitutional structure. The paper contrasted Bishop Smith’s position unfavorably with President John F. Kennedy’s assurance to a group of Protestant ministers in Houston in 1960 that he, as a Catholic, would not govern the nation by appeal to his Catholic religious beliefs.

Since the Record had seen fit to take us back to 1960 for guidance, I thought I would invite its editors to consider a case that had arisen only a few years earlier than that. In a letter to the editor, I proposed a question that would enable readers to determine immediately whether the editors of the Bergen Record were persons of strict principle or mere hypocrites.

I reminded readers that in the 1950s, in the midst of the political conflict over segregation, Archbishop Joseph Rummel of New Orleans publicly informed Catholics that support for racial segregation was incompatible with Catholic teaching on the inherent dignity and equal rights of all human beings. Archbishop Rummel said that “racial segregation is morally wrong and sinful because it is a denial of the unity and solidarity of the human race as conceived by God in the creation of Adam and Eve.” He warned Catholic public officials that support for segregation placed their souls in peril. Indeed, Rummel took the step of publicly excommunicating Leander Perez, one of the most powerful political bosses in Louisiana, and two others who promoted legislation designed to impede desegregation of diocesan schools. So I asked the editors of the Bergen Record: Was Archbishop Rummel wrong? Or do Catholic bishops “cross the line” and jeopardize the delicate constitutional balance only when their rebukes to politicians contradict the views of the editors of the Record? To their credit, the editors published my letter—but I am still waiting for them to reply to my question. 2

The Bergen Record was hardly alone in expressing anger, even outrage, at Catholic bishops for teaching that the faithful must never implicate themselves in unjust killing by supporting legal abortion and embryo-destructive research. The editors of the New York Times , for example, also scolded the bishops, insisting that “separation of church and state” means that no religious leader may presume to tell public officials what their positions may and may not be on matters of public policy. But when Archbishop Rummel excommunicated the segregationist politicians in the 1950s, far from condemning the archbishop, the editors of the New York Times praised him. They were right then; they are wrong now.