Peñalver and Weigel on voting for Obama

George Weigel adds to the debate about whether one can vote for Obama in light of his pro-abortion stance. (I discussed this issue earlier here.) Meanwhile, Robert George thoroughly substantiates the claim (was anyone doubting this?) that

Barack Obama is the most extreme pro-abortion candidate ever to seek the office of President of the United States. He is the most extreme pro-abortion member of the United States Senate. Indeed, he is the most extreme pro-abortion legislator ever to serve in either house of the United States Congress.

George could have also pointed out that the Freedom of Choice Act, which Obama has promised to legislate, would probably dash the hopes of ever bringing judicial review to Roe v. Wade.

Eduardo Peñalver, like many of the Commonweal band, thinks Weigel's argument is false. He also believes Pope John Paul and Cardinal George were mistaken in asserting that the right of the unborn to not be murdered must be protected by law. Somehow he believes, like segregation, this issue just gets embroiled in a legislative and judicial quid pro quo: ideally, such laws would be superfluous, since no one would be doing these actions anyway. I wonder, in what society have laws against murder ever been unnecessary? Drawing the analogy with segregation, Peñalver claims, "the state may sometimes choose (for any number of valid reasons) not to interfere with private conduct, even though that means that some private parties might thereby be permitted to engage in racial subordination."

This is obviously false for both cases: the law does not prohibit private acts of segregation, but public ones. Furthermore, abortion is never "private conduct", which should go without saying, for similar reasons that polygamy isn't, and so on.

Peñalver also falls into the mistake of seeing abortion and war as equivalent evils. Even though the invasion and overthrow of Iraq was unjust, this does not mean it is equivalent with abortion, which is murder. The crime of waging an unjust war does not share in the same moral genus as murder, for a number of reasons. Now, if non-combatants are targeted and killed as a policy of war, or if the war is simply the murder of civilians (not really war) as Vikings would wage, that's different. One can see the evil that war brings, and the tragedy that the deaths involve, but as a teacher of the law, Peñalver should be able to judge that an unjust war is evil for reasons that are different than why abortion is evil. Furthermore, the tiff over evils as "intrinsic" is a red herring: masturbation is an intrinsic evil, but surely no one would say that once committed, both abortion and masturbation are simply evil, and we should be equally concerned about the occasions of each. Abortion is intrinsically evil, war is not, but that is not the issue: it is possible to weigh the proportion of an offense against the common good. And as John O'Callaghan pointed out (see post below):

Obama’s position is that our federal constitutional order can, does, and should exclude a class of human beings from the protection of law, while McCain’s position is that it should not. This is a difference of justice at the foundation of any social order; one position destroys the conditions necessary for the common good, while the other does not. It is difficult to imagine what proportionate reasons there are for ignoring a position that destroys the conditions necessary for the common good.

It is debatable whether we are even still technically at war with Iraq, or in fact now are just doing large scale police work for the new Iraq. Perhaps it is better to say, we are trying to hold together a nation constantly threatened by civil war and terrorism. Either candidate will have to deal with this fact on that level. Now it is true that McCain's militarism and imperialist zeal gives much cause for concern. But in truth, Obama has not separated himself that much from McCain in these matters, but seems open to the use of war as statecraft in not-altogether-dissimilar ways. Moreover, Obama will not be able to withdraw from Iraq immediately, nor is it certain that this would now, the situation being what it is, be the best thing. But even under the argument that Obama will get us out in one year, while McCain will leave us there for ten, let's say, there fails to be an equivalence with abortion.

Abortion is easily the greatest crime of modernity, if not history. Because of its hidden nature, it doesn't demand the emotional reaction that other visible atrocities possess, like the Holocaust. Certainly though, any faithful Catholic (or human being with a not-yet-dulled-conscience) after a bit of reflection should be able to grasp the enormity of this evil. Nonetheless, its consequences are not so hidden. It is a hinge in the culture of death. The disavowal of life which proves inconvenient, or facing the responsibility of caring for lives that depend on a true sense of solidarity, surely draws the lines in what the alternatives in cultures would offer.

The more difficult question is alluded to at the end of his article: the "likelihood of progress on abortion against the likelihood of progress on Iraq." I'm sure that the latter is more likely than the former. After the debate last night, with McCain's lameduck responses on abortion, and the reality of what a reformer president like McCain would do if given the chance to nominate a Supreme Court Justice in a Democratic congress, it is far from a sure thing that we will get a Roberts or Alito. But as a friend of mine pointed out, unlike Bork who was too honest, Roberts and Alito showed how a constructionist candidate can get through the hearings: say little, sound very smart on the law, smarter than the questioners, avoid direct answers on Roe, etc. Someone like that could get through again, it's possible. But would another Justice like those two be nominated again? Under Obama, never. Under McCain, perhaps.

But far worse, if Obama wins (which he probably will), and Congress passes and the president signs a bill like the FOCA, then the conservative Justices will probably respect the legislated law of the land, since none of them think abortion is in the constitution, either way. Well, at least we know that with Scalia.

In the end, a real serious consideration needs to be made: one candidate will surely do more than has ever been done before to instantiate abortion rights as a part of American law, and another may continue to hold together a weak status quo that is keeping that from happening, and may possibly give the Supreme Court the chance to send the issue back to States which would seriously decrease the abortions in this country. Is this issue so critical that it is a game changer, forcing a vote for faithful Catholics? On that, I'm not sure. It does seem clear however that is indeed a critical issue.

I'll conclude with a response Cardinal George gave to a question of John Allen's, just the other day:

Therefore, in your eyes it’s not purely a matter of prudential judgment whether Roe v. Wade should be overturned?

It can’t be. If you’ve got an immoral law, you’ve got to work to change that. You’ve got children being killed every day. It goes on forever. That’s the great scandal, and that’s why there’s such a sense of urgency now. There’s no recognition of the fact that children continue to be killed, and we live, therefore, in a country drenched in blood. This can’t be something that you start playing off pragmatically against other issues.