Dobbs Defeated

How Bad Laws Deform a Nation

In a recent lecture I gave on what Christians can do to fight against the evil we see in our nation I brought up the point (by no means original to me) that a nation’s laws have a vital role in shaping the morality of the people of that nation.

This is a point famously made by Aristotle and repeated and refined by many throughout Christian history. Many Christians will argue that a nation’s morality shapes its laws (which is true), but it is absolutely essential that we understand that it works the other way as well. I think a strong argument can be made that the function of laws in shaping morality is even more important than the fact that culture shapes laws. Laws are bright red lines indicating exactly what should and should not be done. They remove ambiguity about what is required of a citizen. Admittedly, in a nation with corrupt laws, what is clearly required is often the opposite of what is good. But it can at least be said that laws are much more definite in their transformation of behavior than culture.

Many examples could be provided for how this could work in a just political order. No one disputes the fact that laws banning certain drugs, alcohol (during prohibition), bump stocks on guns, and speeding significantly lower the instances of such things. An example I used was abortion. I insisted that, if abortion were outlawed, we would see a radical diminishment in the number of abortions, which is exactly what we should desire. In fact, if proponents of abortion are correct we’d only see abortions happening among those who were willing to do so clandestinely in back alleys with coat hangers. Presumably, contrary to such proponents, that number would be vanishingly small.

The claim that many (even many pro-life advocates) make is that women who get abortions do not know that they are killing an innocent life. It is incontrovertible that this claim is false in many instances. I suspect it is false in most instances, but for the sake of argument, one could assume that there are some women (and men pressuring them) who do not in fact clearly understand that what they are doing is wrong.

Clear laws against abortion in the states, and hopefully at the national level, would serve to teach anyone contemplating an abortion that to do so is morally wrong. That is what all laws do, and that is what they should do, assuming of course that the laws are just. Legislatures passing such laws are even more important than the fact that the Supreme Court struck down Roe v. Wade in the recent Dobbs case. I say this, following Hadley Arkes, because (among other things) in striking down Roe v. Wade the Supreme Court did not actually indicate anything about the moral status of abortion. Instead, the conservative majority simply “avoid[ed] moral reasoning altogether” through their favored principle of “originalism,” the notion that judges are not in any way to evaluate laws morally, but simply to comment on whether a contemporary application of a piece of legislation is in harmony with the precise wording of that legislation or not. That would mean, as Arkes notes, that the courts can have nothing to do with determining whether anything “was specious in the moral reasoning that produced” the supposed right to abortion.

My point, again, was that laws banning abortion would make it crystal-clear to everyone that abortion is wrong. It would certainly be the case that most people would avoid secret abortions simply out of fear of punishment, but the behavioral impact of laws is more significant than that. They send unmistakable signs to everyone under their jurisdiction that certain things must not be done.

Arkes makes a similar point in his recent article, however, that I had not considered. We have lived in a nation where our laws themselves have been teaching us the exact opposite of the truth for 50 years. The impact of this is clear. With Roe v. Wade, Arkes writes, “abortion was converted overnight from something to be abhorred, discouraged, forbidden, into something to be approved, celebrated, promoted.”

After half a century guided by such perverse notions is it any wonder that “there were women in the country who were certain that something of profound moral importance was being taken away from them?” The laws of our nation, in other words, were doing exactly what all laws do, they were teaching us and forming us morally. It just happens to be that what they were teaching us to value was evil. And so with the overturning of Roe v. Wade, “Something [women] regarded as an anchoring right of their personal freedom was being stripped from them, if they happened to live in the wrong state.”

And so it turns out, Arkes correctly argues, that the Supreme Court’s decision in the Dobbs case has not had the desired effect. How could it? When the American people have been morally deformed by the teaching function of bad laws how could it be otherwise? Unsurprisingly, in light of this fact, many ballot initiatives to ban, or radically restrict, abortion in the states (even ones thought to be conservative) have recently failed. The Supreme Court, in striking Roe v. Wade down on the purely originalist grounds that there is no “right to abortion emanating from the Constitution” (Arkes) insisted that the matter should simply be sent back to the states to be decided legislatively. And so it has been, but with dismal results.

All laws tell men how to live. If they are good laws they “make the citizens good by training them in habits of right action” (Aristotle, Nicomachean Ethics II.i.4-5). But, as Arkes has shown, if they are evil laws they will make citizens bad by training them in habits of wrong action. The sooner conservatives realize that neither legislatures nor courts can be morally neutral, the better. Progress toward a just political order will remain exceedingly difficult otherwise, no matter how many minor legal and legislative victories occur from time to time.

It is time to get radical, to get to the real root of the problems ailing our nation, to move beyond timid attempts to convince our opponents that we do not desire to pass and judge laws based on a definite moral framework of right and wrong. Those on the left do not hide their moral reasoning. Nor should we, on abortion or anything else.

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