Roe v. Wade at 40: An Interview with Legal Scholar and Theologian Cathleen Kaveny

By Marie Griffith | January 23, 2013

As of this month, it has been 40 years since the Supreme Court handed down the Roe v. Wade decision that legalized abortion. To mark this historic ruling, Marie Griffith, editor of Religion & Politics, interviewed Cathleen Kaveny, an American legal scholar and Catholic theologian who has written extensively on life issues, feminism, and ethics. They discussed her most recent book, Law’s Virtues: Fostering Autonomy and Solidarity in American Society. Kaveny is John P. Murphy Foundation Professor of Law and Professor of Theology at the University of Notre Dame. She is a visiting professor in the Religion Department at Princeton University in the spring term of 2013. This conversation has been edited for length and clarity.

R&P: You write eloquently in this book about your position being one that is “pro-life without being pro-culture wars.” Describe what you mean.

CK: My basic commitment is to the dignity and value of all human beings, and I include the unborn and the dying in those categories. I would like to see a legal framework that honors that. At the same time, I think the way our disputes over abortion and even euthanasia (though it’s a somewhat different debate) have gone undermines our attention to what we have in common together as a nation, what we do agree on; and interferes with our ability to discuss complicated issues of law and public policy. Some of these questions are really, really hard questions. Abortion is a really hard question, even if you do see the unborn as having equal value, because unborn life is really physically dependent upon a woman and puts a physical burden on her, and that’s a really unique situation. So we have a lot of issues we need to talk about, and a culture war mentality doesn’t let us talk about those hard questions in ways that say, well, you know I can see your point even if I don’t come down in the same place. So I guess that’s really what I wanted to say.

R&P: Can you see those kinds of conversations taking place behind the scenes? Classrooms, for instance, or smaller conference venues where the cameras aren’t watching?

CK: I think they do. I think that E.J. Dionne had a really good comment on that  a few years ago. Basically, he was saying that most of the volume on these hot-button issues are taken up by (say) 10 percent of the population clearly on the one side and 10 percent clearly on the other. In my view, opposing activists tend to feed off each other and leave no room for honest, nuanced, and even anguished conversations that we need to have. He was saying that the culture wars run through most people—because they have very ambivalent feelings about these issues. I’d like to reclaim the public space for the discussions we need to have. In a sad way, the activists on both sides feed off each others’ energy and they almost honor each other more than the people who are raising questions on each side because they validate each others’ view that this is a clear issue with a clear resolution, even in a pluralistic society; and anyone who expresses any doubt or question is immediately shut down. And I think the media does feed this, at least the form of media we’ve got now. You know, you’re booking someone for a show so you get one person clearly on the one side and one clearly on the other, and you’re looking for a fight. It’s turning political discussion into wrestling or something, and it’s wrong.

R&P: Throughout the book, you reflect at length on moral disagreement and how, specifically, we should respond to other citizens who disagree with our premises on issues such as when life begins, or our conclusions. How should those who hold a strong pro-life position, as you do, interact with people on the other side? And then I want to ask how would you like to see pro-choice citizens talk with those on the other side?

CK: As I’ve continued to teach law over the years, I’ve been so much more impressed by our American project and what we’ve managed to accomplish, what we agree on. I teach contract law at Notre Dame, in the law school, and the case law shows how we as a society peacefully handle all sorts of moral questions on a day-to-day basis: what is reasonable, what is negligent, what kind of respect do we owe each other? I see this in the Americans with Disability Act, the Civil Rights Act, this idea of an inclusive community that values the dignity of every individual. I hold our nation’s unsung common commitments as a touchstone, because I think it’s important if we can situate our disagreements about these hard questions within broader areas of agreement, you know, not that we go immediately toward the hard question that we disagree on, because that encourages us to turn someone we disagree with into a moral monster much faster.

R&P: And so that’s what you mean when you talk about law as a moral teacher.

CK: Right. You know some liberal legal philosophers say, law doesn’t teach values or it’s not supposed to do that, it’s just supposed to preserve maximum freedom without taking a stand on anything. Well, our law takes stands on lots of things, and it’s imbued with moral judgments. Some of them are wonderful and hard won (the Americans with Disabilities Act, the Civil Rights Acts, the Family and Medical Leave Act), and some are more homey, like some of the judgments in contract law, for instance. One of my favorite cases involves a dance studio that sold a little old lady something like $18,000 worth of dance lessons in the late 1950’s. The court upheld a jury verdict setting aside those contracts for dance lessons. It not only gave her the money back, it gave her punitive damages too! Our society has a norm that we don’t take advantage of old and vulnerable people in contracting . . . There are so many norms we can find we don’t pay attention to, about honoring one another, respecting one another, protecting the vulnerable and so on, that I think ought to be highlighted before we talk about our disagreements.

So that would be the first thing. And then I guess what I would say to the pro-life side, and also to the pro-choice side is: you know, try to see why the issue is hard. What is the best situation/case you can put for the people on the other side of the issue? What do they care about that you can connect to? And then I think you get to a position where you can say, “Well, I can see how you feel that way; that really is an important issue. And it’s not that I deny that’s an important issue, it’s just that in this case, I think the other is a more important issue.” I think that’s a better place to have a conversation than seeing somebody as utterly opposed to, you know, the value of human life on the one hand or women’s dignity and equality and autonomy on the other.

R&P: Right, but I’m very interested in where you began, which is thinking about the law and why that matters. Maybe part of the problem is poor education of students at every level, with the values that are enshrined in our legal system.

CK: And we automatically all go to constitutional values first: right to privacy, right to life, etc. I think we’ve got so much more interesting and helpful and less controversial things in our day-to-day law. For example, workaday contract law says we’re going to enforce promises that it’s reasonable for someone to have relied on. Well, who decides what’s reasonable reliance? We’ve got a whole texture of social and legal norms helping us see when it’s reasonable to rely on a promise and when it’s not. And we agree on that, and most of the time we understand that. So look at what we have in common before we start dividing ourselves up into different camps. And then try to preserve as much as we can, in terms of how far could we go with somebody. I don’t believe there is a completely neutral position from which to do ethics in our pluralistic society. The best you can do, whatever side you’re on, is to say, “Ok, here’s my view, here’s my commitment, here’s my presuppositions, I’m going to put it out there and I’m going to try to take you into account as a person of good will who’s thinking about these things with as much care as I am; and I’m going to try to apply the golden rule to you, even if I know you don’t agree with me.”

You and I are both educators, and one of the tasks we have as educators is to try to create that context of mutual respect in discussion. At least for our students: to create that possibility, so that they remember it after they graduate and say, “Well, we don’t need to approach this controversial issue in a superheated and nasty way.”

R&P: I was very struck in your book by some of the problems with argumentation on the pro-life side, such as the loose talk of abortion as an “intrinsic evil.” You have this wonderful critique of how a term with analytic precision gets bandied about as a political tool. Why does this matter?

CK: The term “intrinsic evil” is about as technical a term in Catholic moral theology as there is. Much moral theology developed in the context of the sacrament of confession, where the priests are hearing people confess their sins. Seminary professors after the Council of Trent started writing these manuals of moral theology, where they went through and characterized human actions in different ways. There are all kinds of really finely grained material in there to help confessors assess whether something’s a sin and how serious it is. So the term “intrinsic evil” is a term that explains why an action is wrong, not how wrong it is. A harmless lie is an intrinsic evil, for example, but not a serious evil . . . I think one way we can talk ourselves down from the fight is to use our language with precision, and not prophetically. “Intrinsic evil” is a very important, useful but very limited concept in Catholic thought. But it sounds really horrible. So using language for how it sounds is really a type of manipulation, and I don’t think trying to manipulate people is a great way of trying to convince people you have to respect as fellow citizens.

R&P: I was fascinated by your deeply nuanced discussion of “complicity,” which is something that I think troubles citizens of all political persuasions: the degree to which we are complicit with the decisions made by the officials for whom we vote. How can we wrestle with this problem more productively?

CK: It’s a fascinating and really difficult topic, and we don’t have the concepts we really need to deal with it yet. The Catholic categories draw distinctions, depending on factors such as how close or how far you are from the bad act to which your act contributes. The trouble is, a lot of what we’re talking about is very remote connections, and we don’t have the language to analyze this. So, say you buy things that are made in sweatshops in developing countries. How do we think about that? We’ve only got a way of thinking about our own agency? How do we think about acting collectively, and our responsibilities with respect to that? I think this is the emerging problem of the twenty-first century, and I’d love to see more coordinated work on that. It would draw on philosophy, game theory, etc. So how do we think about agency—that’s the big question—in a way that accounts for the globalized self?

R&P: And I appreciate the position you take that a rich pro-life position doesn’t always just say, abortion is the #1 issue and everything else is secondary or even inconsequential, by comparison.

CK: Yes, well that’s not the way life works. When you start labeling issues #1, #2, etc., that’s not how we build a life. You’re always attending to many different things at once. So what I was trying to say there is, you have to focus on fundamental issues but you also have to focus on urgent issues. Take the metaphor of a house: you have to focus on the foundation, yes, but you also have to make sure that the roof isn’t burning, and that there’s some furniture and some heat in the house. Part of what we need to recognize is that you just can’t build a society or look at societal values like they’re layer cakes, to use another image.

R&P: Your book, of course, came out before the Newtown shooting, the catalyst for the public discussion we’re having right now about guns and the prevention of gun violence. This issue of guns was not a huge one in your book, but of course preventing violent massacres like that at the Sandy Hook Elementary School is also a life issue. Regarding the current conversation about ending gun violence: how does this fit into your conception of a rich pro-life position?

CK: Well, I think we need to look at all the pieces of this. Gun violence is an important issue. You know, I don’t understand, myself, some of the NRA positions. My own position would be to restrict highly dangerous guns. But I think what we need to do on this issue is also to see what’s at stake here on all sides. I don’t understand that yet. One of the things for academics to look at is how do various groups in our society think about guns? Why do some people value them? What sort of vulnerability and power does this convey in this society? I don’t know if we’ve done enough work about what guns are and what they mean, socially. But also for religious people, you know, the lines between sickness, mental illness, and evil: you know, these are enduring questions that religious traditions have grappled with. You know, I look at the shooting in Newtown and it’s hard to see that as anything other than a really evil act. But at the same time, it’s clear that the shooter was mentally impaired in some way. How do we think about the relationship between sickness and evil, and what our responsibilities are to address that? Have we gone so far in favor of autonomy that we’re not looking at these broader issues and thinking about the responsibilities of our mental health facilities, including, when appropriate, involuntary commitment? So the gun piece has to be looked at in connection with these other pieces too.

R&P: Of course, the Roe v. Wade decision has a major anniversary approaching. Many on the pro-life side, at least at the extreme, see that decision as both the product of and reinforcement for a precipitous moral decline in America. And that’s often bound up with antipathy for the women’s rights movement and for feminism, etc. You’re someone who draws much more careful distinctions and has a much more nuanced position on this. How do you respond to this? And how do you think about this anniversary of Roe v. Wade and what it means?

CK: What I tried to do in the book was to contrast Roe v. Wade with the assisted suicide decisions, which nobody really pays any attention to—in a good way. What happened with the assisted suicide issue, was the Supreme Court said you’ve got to work it out yourselves in the late 1990’s. And people didn’t like it, everybody wanted their own side to be embedded in constitutional law. But everyone accepted it, and since then we’ve been negotiating a kind of settlement through the democratic process.. Now people fight about assisted suicide state by state, and if they lose they come back and fight it another year. There’s a possibility for kind of an adjustment. Part of the trouble with Roe v. Wade is that once something is constitutionalized, it becomes very, very hard to make adjustments, and the people who have lost feel like they’ve lost for all time. So if that happens before the social settling of an issue, you get a situation like we’re in now over abortion. What will be interesting is what happens when the Supreme Court hears the DOMA (gay marriage) cases. Will the Court constitutionalize protections for this, going more the Roe route, or will they say, you guys work it out for yourselves? That’s the real question, how the Court handles that set of issues. So generally speaking, I think Roe frustrated a lot of the right-to-life people because they felt they had nothing more to say on the issue, that they couldn’t go back and convince.

You know one of the best books I’ve read on the abortion debate is Kristin Luker’s Abortion and the Politics of Motherhood. What it does is show your views on abortion tend to be embedded in a broader worldview. You know, both worldviews respect women but they have different options available for women and different expectations for women; and I think that helps contextualize the debate too. I think women tend to feel devalued by other women, so a lot of the women in the right-to-life movement feel that their roles as wives and mothers are really devalued in the feminist movement. And that only has a tiny bit to do with the abortion issue; it has to do with broader social currents. And I think women with dual vocations, to family life and to a career, see their lives or a part of their lives as being devalued by the other side, as if it’s calling into question their femininity and commitment to their own children. So I think it’s wrong to put all of this on the abortion issue. Roe settled the issue sort of prematurely and abruptly, in a bolt from the blue; and it fits in with these other issues, but I think they are much broader than that.

R&P: Is there anything else you would like to say to readers about the larger stakes of your project?

CK: I really admire the American legal system. I love the fact that we are a country that’s engaged in this great pluralistic experiment. And I see our law as not being devoid of values, as empty and hollow; I see it as really having richly, deeply contextualized values. I think you can see it as promoting autonomy—we want people to have the dignity of working out their own life—but also solidarity. And if we see ourselves as arguing about what the details of that are, I think we can have a better and more mutually respectful conversation. At least that’s what I’m hoping!