Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The following note was submitted by a practicing attorney, who wishes to remain anonymous.
An article published recently by Slate should add yet more evidence that law and morality are intertwined in the popular mind, that what is legal or illegal impacts what people believe is moral or immoral. The article takes the form of an extended comment, edited for length and clarity, by the director of an abortion clinic in Granite City, Illinois, across the river from St. Louis. The Granite City clinic has seen a substantial increase in out-of-state women seeking abortions since the Dobbs ruling and subsequent enforcement of restrictive laws and bans in nearby states such as Missouri, Kentucky, Tennessee, and Indiana. Slate has been conducting occasional interviews with the director about changes they have seen since Dobbs. Here are a few excerpts from that article:
Patients are more strongly voicing feelings like they are doing something that’s wrong or illegal. Or they’re experiencing a larger amount of confusion about their decision to terminate because there’s this bigger overarching idea of “Well, if the Supreme Court or the government says that this isn’t legal, then I’m clearly doing something wrong.”
At the clinic, we hear over and over, “Oh, it’s illegal in my state. Oh, I can’t do that.”
Patients are also dealing with a larger amount of indecision and internalized stigma. They’re saying, “Oh, I don’t want to murder my baby,” or statements that reference this larger discussion that we’ve all been hearing. It’s really disheartening to hear patients say these things, and it’s also really exhausting.
One long-running debate in conservative political and legal circles concerns the teaching function of law. Classical legal theory accepted as a given that the law’s purpose is to instruct and form members in the moral virtues of the community. No, law does not strictly track morality, but citizens do intuit the moral foundation of the law. If an act is legal, then it must be moral; if it is illegal, then it must be immoral in some way.
Many on the libertarian right and most modern legal scholars have disagreed with this notion. In some form or fashion they buy into the mantra popularized by Andrew Breitbart that “politics is downstream from culture.” That is, we must first create a moral citizenry in order to produce moral laws. Law and morality are independent; whether a person thinks a given act is moral is not determined on the basis of whether that act is legal. Rather, “men are more to be induced to be good willingly by means of admonitions, than against their will, by means of laws.”
That quote is the first objection written by Thomas Aquinas in his Summa Theologica I-II, Q. 95, art. 1. To refute that objection, Aquinas cited St. Isidore of Seville, who wrote, “Laws were made that in fear thereof human audacity might be held in check, that innocence might be safeguarded in the midst of wickedness, and that the dread of punishment might prevent the wicked from doing harm.” The Slate article, written by those committing the immoral act of abortion, confirms the position of Aquinas and Isidore against the libertarian objection.