As with everything here, I am trying to formulate an argument; an argument which will be subject to revision. The Dobbs decision has led to a particular moral argument, which I am trying to think through. I am using the Dobbs opinion as a basis for thinking through this position.
I will stipulate at the outset, that coercing one person to participate in the religious rites of a particular religion would be a moral wrong. As a Christian, I understand that faith is a necessary element of any true practice and adherence of the Christian religion; and that an action done without persona faith would be an empty ritual. It is possible to understand the efficacy of religious rites as more akin to a spell which is efficacious if performed correctly. I also would consider forcing someone to make a profession pertaining to God, whether a confession or a denial, would be a moral wrong because it would violate the intrinsic worth of a human being.
However, the argument that one who opposes abortion is “forcing their religion” does not fall into the realm of coerced religious expression. It is rather an argument concerning meta-ethics (an analysis of the basis of upon which one may make an ethical decision).
First proposition: All legal decisions are moral decisions. A law which prohibits murder is a moral decision. A law which prohibits theft is a moral decision. Even procedural rules have a moral unpinning. For instance, before a case can proceed against a defendant, the plaintiff (or the State) must first give notice to the defendant. The opportunity to receive notice, to respond, to participate, are explained as something which is necessary for a “fair” decision. In the law, this is often referred to as “due process.” But note, that argument that something is “fair” or “reasonable” is a moral argument.
We don’t feel the moral weight of the decision the same when it comes to murder or the right to receive notice, because the moral decision is widely held. When everyone holds to the same moral conviction, that conviction appears obvious and commonsense.
Try this: ask someone to explain why murder is wrong. They will answer something like, “you can’t kill people.” Then ask, “why not?” In most instances, you will end up with something like, “because.”
Now if you run into a moral philosopher you will obtain a more sophisticated argument.
This leads to
Second Proposition: The Dissent in Dobbs Relies Upon Moral Assertion
When one looks to the dissent in Dobbs, it is apparent that the argument is not about the scope and meaning of the law at issue (the Mississippi law or the meaning of the words used in the Constitution), but rather upon a preceding moral argument. For instance: “Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life.” (Diss, p. 2)
The argument raises terrible a wrong (I think the laws pertaining to coercive rape are too lenient), rape. It then says, that if the rape victim does not abort the child she will “destroy her life.” That is a curious argument on a number of grounds. But for the moment, we cannot avoid the conclusion that this is a moral argument.
The dissent is not arguing that the Constitution provides for abortion in these instances. The dissent does not argue from the existing law as written (here the constitution), which would be a legal argument. Instead, the dissent makes an assertion about what the law should be: that is a moral argument. Then, almost immediately thereafter, the dissent plays an interesting game with rhetoric: “Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.” Diss, p. 3.
Notice is what is happening here: The dissent saying, my position is mere commonsense. The dissent is climbing up a moral ladder and then vanishing the ladder behind it. It makes a moral argument and then denies that its argument is moral. It contends other people are making a moral argument, but the dissent is “above” (?) such petty position. The implicit argument is that moral decisions are subjective, personal, and should not be “imposed.”
By the way, this is why people will often revert to saying their own position is backed by “science.” “Science says” this or that. One reason for that rhetorical move is that “science” is objective; while morality is subjective; and objective is better than subjective when it comes to deciding whether something is right or wrong (which is a moral decision). It is a game with words.
Leaving “science” aside, let’s get back to the Dissent’s rhetorical move to mask its desire to impose a particular morality upon the country.
Here is the trick in the argument: The Dissent is also making a moral argument. It merely sees its moral position as so obvious that to disagree with it is to be absurd, beyond the pale in some way. it denies its position is “moral,” because it is “true.” Again, there is an implicit claim to objectivity. [Notice also what is implied in this rhetorical move: if my position is obvious and objective, then you must be either stupid (because you cannot see it) or a bigot (because you refuse what is plainly true) or evil (you know what is morally demanded and you are purposefully subverting what is true).
In fact the argument that you are “imposing” your “morality” is itself a moral argument.
The structure of this argument is claim I am merely asserting something which is obvious, such as gravity makes rocks fall. You however are arguing for miracles.
Here is the fundamental moral assertion made by the Dissent: “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.”
Now, I am not disputing that moral assertion nor am I defending it. I am merely noting that it is a moral assertion.
When we survey history, it would be easy to find numerous instances of legal or moral decision making wherein the various propositions, “autonomous being” “full equality” “substantial choice” are contested propositions. Any resonance those arguments have with someone alive today is the result of moral persuasion which took place previously.
Take equality before the law: that is a moral argument. It is not hard to find instances of laws (even today) wherein people are treated different depending upon the identity of the parties in a dispute. The history of religious, ethnic, sex based, distinctions are manifold. Other people have made different moral decisions on these points. I am not by any means defending such laws; I am merely noting that those laws arose out of different moral intuitions.
The reason for those different legal standards lies with the moral conclusions which were first made.
Thus, the Dissent is making a two-fold movement: First, it is making a moral assertion Second, it denies that it making a moral assertion and contends only its opponents are contending for morality. Third, the implicit argument is the Dissent is contending for what is “right” and “obvious”.
This makes the argument incoherent or deceptive at one-level. The contention that I am not arguing for morality while making a moral argument.
A law can be “wrong” or “right” to the extent it comports with a moral standard.
But on what ground can a moral standard be wrong or right?
Third proposition: What is the manner of judging between moral standards?
This is what the argument is really about: What is a permissible basis for coming to a moral conclusion? On what ground can one contend for a moral conclusion, which will then be translated into a law?
Let’s consider the basic contention of the dissent: A woman is entitled to autonomous decisions when it comes to abortion. The rationale is “full equality.” There are arguments here about autonomy and what equality means; but let’s bracket those for a moment.
I will begin with the moral proposition to which I whole-heartedly adhere, that women have full moral equality, value, worth, et cetera, as a man. The history of the world includes horrifying misuse and subjugation of women.
When we come to that basic moral proposition, what is the basis of making that assertion. I can make on the basis that all human beings are image bearers of God. I admittedly ground that moral decision in a religious principle. (But that religious principle also leads me to conclude the baby prior to birth is worthy of value; hence, my moral calculus will become more complicated than the one who assigns value only to the adult woman.)
What then is the dissent’s basis for making the moral assertion that women are worthy of “full equality”? What is the ground for it?
There are any number of moral theories, Kant’s categorical imperative; a quasi-Darwinian pragmatism, Rawls “veil of ignorance,” Nazi racial superiority, Liberation Theology, et cetera, et cetera. I am no moral philosopher, nor could I begin to even give a list of all of the schools of moral philosophy.
So when we come to this question about enforcing religion, what it really means is that you cannot use a religious basis for coming to a moral conclusion. The argument is that it is proper to assign moral value to an adult woman, but it is improper to assign moral value to that same human being prior to the time the umbilical chord to her mother was cut.
What is the moral basis for such a standard? Perhaps it is something along the lines of moral value only adheres to those who possess a certain degree of self-awareness. That may be so, but why? Why assign value there? If someone is in a medically induced coma, should their moral value lessen?
What is the moral calculus for deciding between which moral theories are appropriate for beginning to make moral decisions? Can I use a Kantian framework? If I cannot start from the categorical imperative, why not? What is the meta-ethic?
For instance: There are some who oppose abortion on personal grounds: I was a person who would have been aborted (inconvenience, rape, physical complication). I was not (for some reason). I oppose abortion, because abortion implies my life was not/is not valuable. Is that a permissible basis to conclude abortion is wrong without it being a “forcing” of religion?
Is it only a narrative about the future that matters? Is the story I was not aborted a sufficient argument. Or are narratives merely limited to potential futures? “If I bring this child to term, I will suffer this wrong.” Are we limited to stories which have a bad outcome? What of stories where the unplanned birth brought joy? How does one weigh the moral value of the various narratives?
If the imperative is simply I can do what I want, are there limits? What is the theory which defines those limits? We are back to a moral theory. Is there any moral theory here deeper than personal desire? Why is that a sufficient basis to assert a claim to moral justification?
What if I use the categorical imperative (or veil of ignorance) and define human beings with an umbilical chord within the category of people with whom I could change positions? I could conclude that abortion is a moral wrong, because I would not want to be aborted.
What then is the permissible basis upon which one can discuss the morality of abortion, which will then be translated into some law? Both “permissive” and “restrictive” laws are equally impositions of morality.
Laws against murder impose a moral sanction upon murderers; laws against theft impose a moral sanction upon thieves. Just because most of us are appalled at murder, does not make the decision less an imposition of morality.
It seems that in the end, the moral argument is actually a meta-ethical argument as to what can be used in making a moral decision. It is a debate over one’s theory of ethics.
Now I actually don’t think a concern over ethics, much less meta-ethics, is really in play here. I think that most people have made intuitive moral decisions without much thought. Their feeling on the moral decision is so intense and visceral that it is believed not as the result of an ethical decision but as something which is unquestionably true in the way sunlight is true. They feel it so; they have not come to any reasoned conclusion.
(Why should anyone else take your emotion as the basis for my ethic?)
This makes the ability to sway anyone remarkably difficult, because it will first require the participants to the conversation to be willing to consider as a first step, perhaps I am completely wrong. Then, how did I make this conclusion?
This is the reason why those who change their positions are typically people who a personal experience. You will many of the arguments phrased in terms of one’s own life and consequence thereto. I was not aborted. I was the victim of a terrible crime which resulted in a pregnancy.
Perhaps that is the default moral theory of our age: a narrative justification of an emotive response (which would comport with Hume, interestingly).
As I said, this is still tentative in its articulation.