What would John Courtney Murray say?

...In current speech, connotations have clustered round the word that form a barrier to an understanding of its classic sense Today, of course, the word is often taken to mean simply "majority opinion" These usages, however valid elsewhere, are departures from the technical constitutional sense that the word bears in the Western tradition The validity of the consensus is radically independent of its possible status as either majority or minority opinion Moreover, the Declaration of Independence did not hazard the conjecture, "This is the convergent trend of opinion among us...

...and (3) numerous religious groups approve it as legally permissible and morally right in many if not most circumstances...

...In the memo and in passing comments elsewhere, Murray refers to the distinction between public and private morality, and argues that contraception is of the latter type...

...Contraception may be immoral according to Catholic teaching, but because it is a private matter between two adults, and the gravity of the infraction is not severe, the sale and use of contraceptives ought not to be prohibited Finally, Murray also appeals to religious liberty, citing the fact that a number of other religious denominations allow for contraception He admits limits to religious liberty—violations "against public peace, against public morality, or against the rights of others" are to be prohibited by law—but the sale and use of contraceptives to and by married couples transgress none of them In her essay, Segers moves directly from these comments on law and contraception to law and abortion, since contraception is a matter of privacy, so is abortion She wntes "[Murray] argued that contraception was a matter of private morality because (1) the practice was widespread, (2) many people do not consider it to be wrong...

...It is the correspondence of beliefs to that reality that makes the beliefs true He is explicit on this pointEvery proposition, if it is to be argued, supposes an epistemology of some sort The epistemology of the American Proposition was, I think, made clear by the Declaration of Independence in the famous phrase...

...These concerns include, as Dworkin notes, the danger of American doctors following the practice in the Netherlands, where lethal injections are given incompetent or unconscious patients who have no way of making their desires known Dworkin adds that the risk of persons requesting assisted suicide out of a sense of guilt that they are burdening their loved ones is "a more plausible version of the slippery slope argument" Still, he concludes that the nsk of any slippery slope is only "a speculative one" as opposed to the "great and known evil" of allowing people to die "in great pain or a drugged stupor...

...Judge Rothstein made the link with the abortion rulings of the Supreme Court explicit with direct quotes from the 1992 case, Planned Parenthood v Casey "The suffenng of a terminally ill person cannot be deemed any less intimate or personal, or any less deserving of protection from unwarranted governmental interference than that of a pregnant woman Like the abortion decision, the decision of a terminally ill person to end his or her life 'involves the most intimate and personal choices a person can make in a lifetime,' and constitutes a 'choice central to personal dignity and autonomy.'" In other words, Judge Rothstein's presumption is that the decision is a private one She also tries to circumscribe the right to privacy, by arguing that in the case of assisted suicide, such a right applies only to terminally ill, mentally competent adults This is because, the state has a "compelling interest" which includes "deterring suicide by young people and others with a significant natural life span ahead of them .. [T]his case is not about people for whom suicide would abruptly cut life short " It will be important to follow this effort to limit the right to privacy in cases of assisted suicide The New York Times (May 6, 1994) has made a passionate case that Dr Jack Kevorkian lacks "deep knowledge of his patients or the diseases that afflict them," and that his rhetonc is "messianic", if limited, assisted suicide is to become a legal reality, "all those concerned with insuring that doctor-assisted suicide is an available but carefully administered option, had better get into this fray...

...However, even if this were never to occur, the analogy with abortion indicates that there would be another slide...

...and (3) numerous groups approve it as legally permissible and morally acceptable in many instances as part of a moral duty to responsible parenthood " At the core of Segers' s interpretation of Murray is her understanding of his concept of consensus...

...When pressed by the prosecution, Kevorkian equivocated, "I had a fairly good idea that he would die, but my expectation was that his suffering would end " The fact that the jury did not convict him when, under the law, it should have, is a strong indicator of where much of public sentiment lies In post-trial interviews with jurors, the language of private choice came to the fore...

...On the other hand, assisted suicide is analogous to contraception in that—at least in the cases that Rothstein and Dworkin want to allow—the person to be killed not only consents, but actively seeks out the assistance Here, the pnvacy of the relationship between doctor and patient is analogous—with some crucial disanalogies—to the pnvacy of the spousal relationship in the purchase and use of contraceptives...

...However, with the increase in literacy rates and the concomitant rise in people's awareness of their human dignity such a government is no longer necessary...

...they also constitute the most prudent way to proceed if we are concerned about the common good of the earthly city ? 22...

...he scholarly literature has begun to address what might be said about abortion in the context of Murray's social theory One example is Mary Segers's essay, "Murray, American Pluralism, and the Abortion Controversy" (in Robert P Hunt and Kenneth L. Grasso, eds , John Courtney Murray and the American Civil Conversation, Eerdmans, 1992...

...The two distinctions are related because matters of private morality are not to be 16 translated into public law except in extreme cases where a grave evil is involved...

...Participation lends support to a program that is immoral, but decisions for greater integrity may leave Catholic practitioners and hospitals so marginalized that their service m other areas will be compromised If physician-assisted suicide, on however limited a basis, is made legal, the very questions that Catholic medical professionals are beginning to address now with regard to the possible inclusion of abortion in national health care policy will arise again, only this time with more force It will no longer be possible to single out abortion as an isolated issue The question will have to be asked whether the practice of medicine in America is fundamentally at odds with Catholic values and norms I rom the perspective of the Murray tradition, then, there appear to be a number of parallels between abortion and assisted suicide Both involve at least the high probability that a human life is being taken This leads to the presumption that the issues are matters of public morality Against the argument that assisted suicide is a private matter between a person and her physician, the Catholic tradition counters that suicide is an act against the common good Moreover, the fact that the legal protection of presumably private choices inevitably leads to the call for positive governmental support suggests that the human perCommonweal 21 son is more social than liberal political theory, with its accent on the individual, recognizes The question of precisely what laws to seek to put in place will always depend on prudential judgment that takes into consideration the state of the American public While consensus is not reducible to public opinion, legislators are wise to recognize the limits of leading with the law Intermediate institutions have an irreplaceable role in society The most neglected requirement of the Catholic community is its obligation to exemplify through its own practice the kind of community where official teaching on abortion and assisted suicide is plausible It is only in this way that there can be any hope that other persons, communities, and constituencies will reshape their beliefs on these two fundamental issues Aiding and joining women in the care of the children for the full eighteen years that is required, and providing hospice care for the duration needed are not only ways to exemplify the "true visage of the Church of God's kingdom...

...I don't feel it's our obligation to choose for someone else how much pain and suffenng they can go through I feel each person should be able to make their own choice " This statement makes clear that the law itself, and not Kevorkian, was on trial If the jury thought the law was fair, he would have been convicted In deciding the case, the jurors, in effect, threw out a law that was in their minds not so much unconstitutional as in conflict with their feelings and beliefs...

...it is, among other things, the concrete precondition for bnnging morality and law closer together Exactly what laws are appropriate at what point in time remains a matter of prudential judgment What Murray's writings leave us is simply a direction in which the law should go Judgments about the adequacy of any proposed abortion law must be made in terms of two questions (1) In comparison to the laws in place, does it move in the direction of a greater harmony between Catholic teaching on objective morality, on the one hand, and law, on the other7 (2) Have we as a church been successful in helping to shape a society where a more restrictive law is plausible7 There has been much 19 reflection and action on the first question and not enough of either on the second The National Conference of Catholic Bishops' 1985 "Reaffirmation" of their earlier "Pastoral Plan for Prohfe Activities" states that aiding women who might otherwise consider abortion in the care of their children is simply an "ideal " While there are numerous pregnancy care centers nationwide, their efforts are dwarfed by the magnitude of the problem of unintended pregnancies...

...The pope was simply writing in a different historical context Because of the presence of the impenta multitudo ("illiterate masses") in Leo's time, a paternalistic government linked to the Catholic church was necessary...

...People have shaped their lives around the expectation that abortion services will be provided It is then a small step to the argument that abortion services ought to be provided in a national health-care plan What began as a negative right to privacy—a freedom from government interference—has become in the space of twenty years a positive demand for services administered and paid for by the state Through the process of taxation or payroll deduction, many persons deeply opposed to abortion would be coerced into supporting a practice that goes against their consciences At the present time, it may seem only a remote possibility that physicianassisted suicide will become part of a national health plan No doubt, such prospects for abortion services appeared similarly remote in 1973 The slippery slope that I am referring to here, then, is quite different from the one that Dworkin and others highlight There may well be a danger that once physician-assisted suicide is allowed for mentally competent, terminally ill patients, the practice will spread to allow other forms of euthanasia...

...If the embryo-fetus is in all probability a person, then abortion possibly goes beyond the first limit, probably transgresses the second, and almost certainly violates the third One might argue that official Catholic teachings on the status of the embryo-fetus and the morality of taking its life are wrong, and Segers suggests as much in her article However, the question is what can we say within the context of the concepts that Murray has provided us...

...The same criteria apply to the issue of abortion...

...It would be very difficult to make a similar case on abortion one would have to say, flat out, that popes as different as Pius XII, John XXIII, Paul VI, and John Paul II are all wrong The understanding of doctrinal development offered in Murray's wntings leaves little—if any—room for such a claim Any argument on abortion made from within the Murray tradition—that is, within the context of the moral and social theory he provides us—must begin, therefore, with three presumptions- that official Catholic teachings on the status of the embryo-fetus and the morality of taking its life are true, that as a result abortion is a matter of public morality, and that laws limiting recourse to abortion are appropnate...

...Moreover, if the embryo-fetus is in all probability a person, then the presumption must also be that abortion is a matter of public morality: a human life is at stake Finally, if the embryo-fetus is in all probability a person, then taking its life would not be a matter of religious liberty Religious freedom has limits It cannot include acts "against public peace, against public morality, or against the nghts of others...

...Murray took public opinion, particularly that of religious leaders, to be a possible indicator of what the truth might be on a particular matter, but he was careful not to reduce truth to such opinion Murray's realist epistemology is of particular import for the issue of abortion If it is descriptively true, as official Catholic teachings say, that the embryo-fetus is, in all probability, a human person, then the presumption must be that it is also morally true that one ought not take its life...

...Public opinion on assisted suicide is also difficult to read Voters in California and Washington have rejected measures that would have legalized euthanasia, but by relatively small margins...

...Segers's argument would require a different understanding of doctrinal development, a changed episte18 mology, and an altered understanding of consensus This makes her case that she is responding from within the context of Murray' s moral and social theory rather strained I do not think that her argument can be sustained in the end ' hat is left unanswered so far is the question of precisely what kind of laws are appropriate Here, Segers's use of the distinction between morality and law is illuminating—as long as it is not made into a separation between morality and law While thp presumption is that matters of public morality should be addressed by the law, the relationship between the two is not a one-to-one correspondence This is because the public may not be ready to receive a law that simply mirrors what is morally true Murray was cautious about the degree to which law should lead public opinion "Law and morality are indeed related, even though differentiated That is, the premises of law are ultimately found in the moral law And human legislation does look to the morahzation of society But, mindful of its own nature and mode of action, it must not moralize excessively, otherwise it tends to defeat even its own more modest aims, by bringing itself into contempt" It is the tension inherent in the understanding of morality and law being "related but differentiated" that makes it difficult to prescribe a precise law In public debate on abortion, the tensed relationship has snapped, with the two sides of what has been dubbed the "culture wars" taking what remains in opposite directions one side claims that (objective) morality ought to be translated directly into law while the other side counters that (private) morality and law are utterly separate From the perspective of the Murray tradition, both of these arguments fail How is the tensed relationship between morality and law to be maintained7 In the case of abortion m the United States, the two need to be brought closer together, that is, law must be brought closer to objective morality if the two are to remain in relationship However, simply changing the law will not be sufficient because of the problem of "contempt" for any law that would now seek to limit access to abortion services The only way to avoid the problem of possible contempt is to change public opinion Put another way, in order to change the law so that there will be less distance between it and what Catholic teaching argues is objective morality, it is necessary to begin with means other than the law itself For example, in wnting on censorship, Murray was clear that particularly in the area of sexual belief and practice, law cannot lead "No society should expect very much in the way of moral uplift from its censorship statutes Indeed, the whole criminal code is only a minimal force Particularly in the field of sexual morality the expectations are small, they are smaller than anywhere else " In the same article on censorship, Murray indicates the appropriate starting point intermediate institutions "[Law] enforces only what is minimally acceptable, and in this sense socially necessary Beyond this, society must look to other institutions for the elevation and maintenance of its moral standards—that is, to the church, the home, the school, and the whole network of voluntary associations that concern themselves with public morality in one or another aspect " He goes on to comment that persons in such institutions, especially those associated with the Catholic community, should not do everything that is legal for them to do Certain forms of activity would have "the disastrous effect of obscuring from the public view the true visage of the church of God's kingdom of truth and freedom, justice and love " Therefore, even in instances where protests, blockades, and boycotts are legal, such activities may not be reflective of the church as a community of the people of God "The chief danger is lest the church be identified in the public mind as a power-association " We are left, then, with this problem We need to help shape public opinion so as to reduce the distance between American law and Catholic teaching on abortion Law itself is a bad vehicle for this It is necessary to turn to intermediate institutions, particularly the church itself How can the Catholic community become "the true visage of the church of God's kingdom of truth and freedom, justice and love" and not simply a powerassociation7 Segers makes a recommendation that is suggestive "Were Murray alive today, I think he would stress the church's positive role in society rather than its political role in shaping a more restrictive abortion policy Murray would hold that prudence dictates that the church should not focus primarily on using coercive law to restrict abortion...

...He also makes a distinction between morality and law...

...In a society increasingly characterized by the distorted rhetoric and siege tactics of special interest groups, the practice of dialogue, indeed, appears to be vanishing The practice is in particular danger where fundamental beliefs are at stake...

...Public morality is a "function of consensus" and such consensus is lacking for laws prohibiting abortion But Segers misunderstands Murray's concept of consensus It cannot be reduced to public opinion and the practices of the day Murray is clear on this point when he wntes It has been pointed out to me more than once, in discussions of the American consensus, that the word is misleading...

...It is the affirmation...

...Whatever case could be made for the practice of assisted suicide being private in its early stages of legal acceptance, it will inevitably become part of a government policy that requires positive public support from citizens who have deeply held moral and religious beliefs against it Taxes are only one way this can manifest itself...

...We hold these 17 truths to be self-evident...

...response from the Murray tradition might offer a two-pronged approach First, the gravity of what is at stake in assisted suicide is much greater than that of contracepi tion Therefore, even if it could be argued to be a matter of private morality, it should be one of those instances where the law still ought to prohibit the practice There are at present about thirty states that have such laws Unlike the case of abortion then, it is not a matter of putting new laws into place, but primarily of maintaining those that are already on the books Still, given the tenuous nature of whatever consensus may exist against assisted suicide, it is imperative that Catholics address the issue of the role that intermediate institutions can play In particular, the church can foster attitudes and practices which make the norms of Catholic teaching more plausible and possible to live by This would require an expansive practice of hospice on the part of the Catholic community...

...Still, TODD DAVID WHITMORE is assistant professor of Christian Ethics at the University of Notre Dame For 1994-95, he is a Henry Luce III fellow in theology and a member of the Center of Theological Inquiry in Princeton, New Jersey Professor Whitmore, with J Leon Hooper, S J, is co-director of the Woodstock Theological Center/University of Notre Dame Project on John Courtney Murray, which is funded by the Lilly Endowment The project has featured two conferences, with the proceedings forthcoming in The Growing End Retrieving and Renewing the Thought of John Courtney Murray This article's publication is supported by funds from the Lilly Endowment this should not keep us from trying to discern what we might say in the context of the social theory he left us...

...How then to respond from within the context of Murray's social theory "> The indicators at first appear mixed On the question of privacy, there are analogies with both abortion on the one hand and contraception on the other Suicide is analogous to abortion—and therefore not a matter of privacy—because the grave matter of taking a human life is involved Indeed, with suicide, it is certain that one is taking a human life, while with abortion, it is a strong probability When the question is abortion, the moral injunction is that it is wrong to risk murder...

...Murray's account of doctrinal development was shaped by an understanding of histoncal consciousness that allowed him to argue for a change in Catholic teaching on churchstate relations without saying that Leo was wrong...

...If schools seek to make another argument on any of these points, the burden of proof is on them to show how they are operating within the Murray tradition...

...How is one to enter into dialogue in a pluralistic society while remaining true to one's own religious or moral tradition...

...The questions of abortion and physician-assisted suicide are salient cases in point They take on a linked urgency because of a Seattle federal district court judge's ruling against laws prohibiting assisted suicide: the decision was based on present abortion law favoring the right to privacy and freedom of choice Using Murray's corpus—his concepts and distinctions—for direction is especially difficult here because he did not speak on either abortion or assisted suicide...

...1) the practice is widespread now and was widely practiced before 1973, when it was illegal...

...Catholic medical professionals and hospital administrators would have to decide what degree of participation in such a policy would be possible without sacrificing integrity...

...rather, the church's role in this controversy should be to exemplify Christian charity by using its resources to assist women who are involuntarily pregnant" Such assistance appears to me to be precisely in line with what it means for the church to be a "visage" of the community of God Such a community, by its practice, helps to create in a noncoercive manner a context within which Catholic teaching on abortion appears more plausible and life in accordance with it more possible The only problem is with the way in which Segers appears to pose this activity as an alternative to efforts to shape law She suggests the church is to aid women "rather than" help shape public law As a result, she tends to separate law and morality in a way that is foreign to Murray's social theory, though it is consistent with her argument that abortion is a private matter However, from the perspective of a tradition that seeks to keep law and morality related, aiding women is not an alternative to law...

...Efforts to demonstrate state interest on abortion have met with very limited success In part this is because there is difficulty in identifying a consensus on precisely what restnctions should be put in place Rothstein, however, appears confident that such consensus is possible with regard to assisted suicide, and that confidence is echoed by Ronald Dworkin, a philosopher of law and the author of Life's Dominion An Argument about Abortion and Euthanasia (Knopf, 1993) In an op-ed piece in the New York Times, he addresses the Seattle ruling and the concern that it will lead down a "slippery slope...

...As in the case of aiding women with unintended pregnancies, it would have to be of a magnitude we have yet to fully realize conceptually or in practice The second prong of the argument for laws prohibiting physician-assisted suicide is that the practice is not, in the end, a private one Traditional Catholic arguments against suicide have included the case that it is a sin against the common good, suicide robs the commonweal of a person who can still contnbute The core of this position is the belief that the human person is fundamentally social However true this may be— and I think that it is—it is not likely to have immediate appeal in a society that valorizes the individual and personal choice In such a society, private shades into public at the point where one person's choice is in some way coercive of another person's way of life...

...Cushing looked to Murray for advice...

...In such a context, there are real difficulties in making the case that official Catholic teaching on abortion is wrong For example, in his wntings on churchstate relations, Murray was quite careful to shape his argument so that he could say that Leo XIII was not wrong on religious freedom...

...We hold these truths " Or in the equivalent formula "This is the public consensus " What is at the core of Murray's concept of consensus, with its reference to "truths," is a realist epistemology moral truths are grounded in the structure of reality itself...

...ON ABORTION & EUTHANASIA TODD DAVID WHITMORE In recent years, there has been a renaissance of interest in the work of John Courtney Murray, including conferences on his writings, conferences which have issued in edited volumes formed around the question, "What can we retrieve from Murray's work that will help us address the problems of our day9" This interest is not merely historical, but arises, in part, out of a concern that society may be losing its moorings Perhaps Murray—the man who both preferred and exhibited the "cool and dry" discourse of a civil society—can provide some tools to guide our reflection The effort to retneve Murray' s work extends well beyond strictly religious boundaries, for example, in Michael Perry's Love and Power- The Role of Religion and Morality in American Politics (Oxford, 1991) Perry's effort to develop an understanding of "ecumenical political dialogue" is indebted in large part to Murray...

...A version of the question is on the ballot in Oregon this November Perhaps more telling is the response of the jury in the Jack Kevorkian case in Michigan Under Michigan law, Kevorkian should have been convicted Physician-assisted suicide is illegal However, there is a "medication clause" in the law to allow the prescription of drugs that might shorten a patient's life even as they relieve pain This is so that the law can not be used to challenge the prescription, for instance, of low doses of morphine Still, Kevorkian seized on this clause to make the case that the real and only aim was to relieve suffering, even though carbon monoxide—used to kill Thomas 20 W Hyde, who was suffenng from Lou Gehng's disease— has no medicinal value and is certain to bring about immediate death...

...Today, when the serene, and often naive, certainties of the eighteenth century have crumbled, the self-evidence of the truths may legitimately be questioned What ought not to be questioned, however, is that the Amencan Proposition rests on the forthright assertion of a realist epistemology...

...Civility dies with the death of dialogue...

...The Catholic community has hardly begun to comprehend adequately—let alone respond to adequately—the enormity of the task of creating the kind of society where Catholic teaching on taking the life of the embryo-fetus is more plausible, and life in accordance with it more possible n May 3, Judge Barbara Rothstein of United States District Court in Seattle ruled that a 140-year-old ban on assisted suicide in the state of Washington violated the Fourteenth Amendment...

...Here one can draw from an analogy with abortion, but this time to argue in the opposite direction that Rothstein and Dworkm wish to go Over the course of the twenty-plus years since Roe v Wade, abortion, although founded on a right to privacy, has become a question of public morality and law For example, in Casey, the plurality opinion took recourse in the doctrine of "reliance " That is to say, they judged that even if Roe v Wade is not the most felicitously argued ruling, so many persons have built their lives around its existence that it should remain the law of the land...

...The epigraph to the key chapter in Perry's book quotes Murray, and points up the anxiety of those who are trying to retrieve his work...

...By analogy to Murray's brief but to-the-point comments on contraception, she argues that abortion is a matter of privacy and therefore ought not to be restricted by law The comments on contraception come primarily from a memo Murray wrote to Cardinal Richard Cushing of Boston in 1964 or 1965 when Cushing was asked to respond to efforts to repeal laws against contraceptive use...

...2) many people do not consider it to be wrong...