University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship Spring 1-1-1991 The Politics of Virtue: Animals, Theology, and Abortion Elizabeth B. Boyer University at Buffalo School of Law Alan Freeman University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Legal Theory Commons, and the Religion Law Commons Recommended Citation Elizabeth B. Boyer & Alan Freeman, The Politics of Virtue: Animals, Theology, and Abortion, 25 Ga. L. Rev. 923 (1991). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/756 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. ARTICLE THE POLITICS OF VIRTUE: ANIMALS, THEOLOGY AND ABORTION Elizabeth Mensch* Alan Freeman** * Professor of Law, SUNY at Buffalo School of Law;, B.A., 1965, New School for Social Research; M.A.T., 1967, Cornell; J.D., 1978, Buffalo; L.L.M., 1979, Harvard. ** Professor of Law, SUNY at Buffalo School of Law;, A.B., 1964, Brown; LLB., 1967, New York University. The authors are very grateful for the insightful and challenging comments we have re- ceived from friends and colleagues who took the time to read our lengthy manuscript. Thanks to Gregory Alexander, Michael Ariens, Milner Ball, Beth Buckley, Ruth Colker, Tom Disare, Lucinda Finley, Marjorie Girth, Mary Ann Glendon, Trina Grillo, George Hezel, Christopher Lasch, Isabel Marcus, Michael McConnell, Gary Peller, Michael Perry, Stephanie Phillips, Richard Posner, Jack Schlegel, Howard Vogel, Joan Williams and Steven Winter. Earlier versions of this article were presented at a SUNY/Buffalo Faculty Forum in October 1989, at Tulane Law School in November 1989 and at Duke Law School in January 1991. O 1991 by Elizabeth Mensch and Alan Freeman. 923 GEORGIA LAW REVIEW [Vol. 25:923 TABLE OF CONTENTS INTRODUCTION ....................................... 925 I. LIFE AN D DEATH/NATURE AND NAZIS ................. 939 A. Animals and People ......................... 939 B. Women, Nature and Nazis ................... 953 II. SOURCES OF MORAL DISCOURSE SINCE WORLD WAR II. 963 A. The Nazi Shadow ........................... 963 B. Natural Law and Catholic Tradition .......... 966 C. Neo-Orthodox Protestantism ................. 985 D. Abortion and Natural Law ................... 1012 III. SCHISM AND SEPARATION: RELIGION AND MORALITY IN THE 1960S ....................................... 1019 A. Background: Post-War Dilemmas .............. 1020 B. ProtestantFundamentalism .................. 1039 C. Secular Liberalism/Religious Conservatism .... 1046 IV. THE MORAL STATUS OF THE ABORTION ISSUE: A TALE OF Two CONFERENCES .................................. 1079 A. Abortion as Morally Debatable ............... 1079 B. The Seeming Triumph of Secularism ......... 1103 V. AFTERWORD ......................................... 1131 1991] THE POLITICS OF VIRTUE 925 It is easy . to understand why protest becomes a distinctive moral feature of the modern age and why in- dignation is a predominant modern emotion.... [P]rotest is... that negative phenomenon which char- acteristically occurs as a reaction to the alleged invasion of someone's rights in the name of someone else's utility. The self-assertive shrillness of protest arises because the facts of incommensurability ensure that protestors can never win an argument; the indignant self-righteousness of protest arises because the facts of incommensurability ensure equally that the protestors can never lose an ar- gument either. Hence the utterance of protest is charac- teristically addressed to those who already share the protestors' premises. The effects of incommensurability ensure that protestors rarely have anyone else to talk to but themselves. This is not to say that protest cannot be effective; it is to say that it cannot be rationally effective and that its dominant modes of expression give evidence of a certain perhaps unconscious awareness of this. ALASDAIR MACINTYRE' INTRODUCTION If protest, so aptly described by MacIntyre, has become the characteristic form of moral discourse in our culture, abortion is its paradigmatic subject. As we began to write this article, a new Su- preme Court Justice was about to be reviewed by the Senate; me- dia coverage suggested' that the abortion issue was the only one that counted in assessing the fitness of the nominee.2 One is tempted to blame the media for fanning hysteria, yet it is all too 1 A. MACINTYRF, AFrER VmTuE A STUDY IN MORAL THEORY 71 (1984) [hereinafter A. MACINTYRE, A R VIRTURE]. 2 See, e.g., Gorey, Supreme Confidence, TimE, Sept. 24, 1990, at 46. "IT]he bachelor from Weare, N.H., keenly senses that he has been chosen by Bush and history to cast perhaps the deciding vote on whether to overturn Roe v. Wade, the landmark 1973 decision that made abortion legal in all states." Id. See also Cohn, The "Soon-to-Be" Supreme, NEwsvTE_, Sept. 24, 1990, at 27. "To the frustration of committee liberals and women's-rights activists, Souter unflappably insisted on his prerogative to avoid the all-important question of abor- tion.' Id. GEORGIA LAW REVIEW [Vol. 25:923 apparent that a Supreme Court decision, Roe v. Wade,3 has be- come an ideological commodity invested with awesome powers and significance, to be defended at all costs by one side and annihi- lated, also at all costs, by the other. The rhetoric is appropriately extreme. Those who are "pro-life," who may number as many as half the population, regard the other half as actual or potential murderers; those who are "pro-choice," who may also number as many as half the population, regard the other half as violating the fundamental human rights of women.' For sociologists Peter and Brigitte Berger, "the abortion issue reveals a highly significant rupture in the moral fabric of contem- porary Western societies." Lacking any moral consensus, one finds a "moral pluralism"' that is mutually and contemptuously intolerant. One is drawn to recall slavery and prohibition as the historical analogues to this controversy. In the absence of any common moral ground for debate, the usual American move is to invoke the coer- cive force of the law. As the Bergers observe: [T]his moral difference touches directly on an important area of actual conduct in social life, therefore demands legal regulation, and therefore makes it very difficult for people amicably to "agree to disagree." 3 410 U.S. 113 (1973); see also Doe v. Bolton, 410 U.S. 179 (1973) (Roe's companion case). I A review of opinion poll data, with due respect for its fallibility, leaves one with the impression that some 20-25% of the American public believe that abortion should be illegal in all or nearly all circumstances, some 20-25% believe that it should be legal in all circum- stances and the rest will vary, depending on the form of the question, the timing of the abortion (first trimester versus later trimesters) or the reason for the abortion (rape or phys- ical danger to the mother versus family size or simply inconvenience). See, e.g., C. CONDIT DECODING ABORTION RHETORIC: COMMUNICATING SOCIAL CHANGE 147-51, 167-68, 170 (1989); Callahan, The Abortion Debate: Is Progress Possible?,in ABORTION: UNDERSTANDING DIFFER- ENCES 309, 313 (S. Callahan & D. Callahan eds. 1984) [hereinafter ABORTION: UNDERSTAND- ING DIFFERENCES]; Segers, Abortion and the Culture: Toward a Feminist Perspective, in ABORTION: UNDERSTANDING DIFFERENCES, supra, at 229, 232-34. See generally Lamanna, So- cial Science and Ethical Issues: The Policy Implications of Poll Data on Abortion, in ABORTION: UNDERSTANDING DIFFERENCES, supra, at 1-23. On the distinction between opinion polls and "public opinion," the latter reflecting the actualities of disproportionate power in the process of opinion formation, see C. CONDIT, supra, at 7-8. 'B. BERGER & P.L. BERGER, THE WAR OVER THE FAMILY: CAPTURING THE MIDDLE GROUND 74 (1983). o Id. 1991] THE POLITICS OF VIRTUE 927 .. It is only logical, then, that each side seeks the coercive support of state power-the "pro-choice" side no less than the "pro-life" side.... The law. ., may con- tinue to uphold abortion against those who consider it murder, deepening their alienation from the society; or the law may reverse itself and proscribe abortion once again, thereby creating a new explosion of "crime" for which the prohibition era provides a good preview. A sociologist must believe that "victory" would be Pyrrhic in either case.7 That the abortion issue has become intractable, as observed by the Bergers, is not to say that it must be so or that it has always been so. Some seem to have an investment in proclaiming and per- petuating its intractability, as does Laurence Tribe in his recent book," in order to advance his implicit agenda in favor of the pro- 7Id. at 75-77. 8 L TRaIB, ABORTION: THE CLASH OF ABSOLUTES (1990). From an advocacy perspective, the strategy of Tribe's book is to keep the two sides as far apart as possible, especially empha- sizing the pro-life position as necessarily incapable of compromise, so as to leave the reader who is unwilling to criminalize all or nearly all abortions with no choice but to reaffirm Roe v. Wade. For a similar reaction to Tribe's book, see Recent Publications,25 HARv. C.-C.L. L REv. 625, 625-29 (1990). For instance, the author notes that "[wihile [Tribe] critiques both the pro-life and pro-choice positions, the bulk of his criticisms are reserved for the pro-life pro- ponents. Thus, Tribe's desire for compromise is somewhat thwarted by his apparent intent to fuel pro-choice advocates with criticism of the pro-life position." Id. at 626. Tribe's repeated rejection of potential areas of compromise is troubling in view of what he proclaims is the purpose of the book.