Banning Contraception? The Art of the Possible

By Dr. Jeff Mirus ( bio - articles - email ) | Jan 13, 2012

Phil Lawler’s brilliant essay on contraception and gay marriage (On same-sex marriage, who are the real ‘extremists’?) reminds me of why we are so fortunate to have him as part of the team that runs the show here. Two recent pieces in which I try to make broader and more abstract points about politics pale in comparison, and for obvious reasons. Nonetheless, contraception and gay marriage may also serve as case studies in the application of the less exciting principles which ought to be at work in deciding such questions politically.

Bishops and Laymen; Principles and Politics

In my brief survey of the values highlighted by Pope Benedict XVI in his address to the Holy See’s diplomatic corps (Papal Diplomacy, Values, and Ourselves), even I could see that this was somewhat boringly abstract, with no practical policy recommendations into which one could sink one’s teeth. And yet it is precisely such practical policy recommendations which were religiously to be avoided in the Pope’s address, for two reasons. First, of course, Benedict could hardly address specific policy recommendations for all the different situations throughout the world in one overall speech.

Second—and this is something the Catholic laity must never forget—it is not the province of popes and bishops to prescribe specific public policies. Not only do they have no charism to do so, but by the Church’s own teaching this is reserved to the laity, who should be as jealous of their own proper role in temporal affairs as popes and bishops are of theirs in teaching faith and morals, and in governing the Church. Phil Lawler is a layman; he may state categorically that the sale of contraceptives ought to be made illegal, here and now, in all the jurisdictions of the United States. Pope Benedict XVI may not. To teach infallibly that contraception is a grave evil is within the Pope’s vocational competence and not Phil’s; to formulate the best public policy for dealing with that evil is within Phil’s vocational competence, and not the Pope’s.

So when the hierarchy of the Church attempts to Catholicize politics (which the Church certainly ought to do), it should do so at the level of principle. This may be dull at times, abstract, repetitive and even apparently impractical. That’s just fine, for it is up to the rest of us to make things interesting by investing the various principles with concrete, pragmatic punch—that is, through effective policies.

Similarly, in my recent essay on how human fallibility conditions good politics (Ignorance, Ideology, Sovietology and Provisional Politics at Home), I concluded that “the best political solutions are honestly conceived, carefully planned, justly limited—and provisional.” Heck, I might as well have entitled this lackluster article “On Prudence”. Nothing is more calculated to bore than prudence!

And yet it takes great prudence to deal with widespread public evils, such as—to take two hardly random examples—contraception and homosexual behavior. It is remarkable, by the way, how similar these two evils are, but that observation will anger many “right thinking and red-blooded Americans”, and it is an argument for another day.

Government Must Not Promote Evil

It is clear as a matter of principle that government should not promote anything that is morally evil, nor even recognize a moral evil in a positive light (which, of course, given the teaching function of official pronouncements, laws and policies, is simply an initial form of promotion). This negative principle is among the easiest of principles for good government to implement. Applied to the problem of homosexuality in the United States, it is easy to translate this negative principle into policy: No public policy should be enacted that gives special protection to homosexual behavior, that provides recognition and benefits to homosexual relationships, or that confers any special dignity on homosexual “couples”or households, including especially the dignity of “marriage.” Similarly, no government policy or program of any kind should encourage the use of contraception, which is also a moral evil.

Again, perhaps the first principle of politics is that government ought not to promote or encourage moral evil in any way. But things get considerably more complex when we raise the question of whether government should attempt to eradicate a particular moral evil. Should it ignore, regulate, civilly punish or criminalize this or that evil? Should governments in the United States ignore, fine, or imprison those who engage in public homosexual acts? Should government rely on other citizens or police informers to discover and prosecute those who engage in homosexual acts privately? And now that contraception is practiced in various forms by well over three-fourths of all couples, what means should government use—if any—to end this evil practice?

Clearly the common good would be dramatically enhanced by the voluntary reduction or disappearance of the (all too closely-related) gay and contraceptive lifestyles. But what forms of active suppression on the part of government would actually have the overall result of promoting the common good? What degree of intrusion into personal life is compatible with the common good? How enforceable must a law be to avoid bringing the law itself into disrepute, thereby eroding the common good in other ways? How do we factor in the law of unintended consequences? Do we believe we know enough of the answers to take a stab at it?

I repeat my maxim that “the best political solutions are honestly conceived, carefully planned, justly limited—and provisional.” That is, the best political solutions are prudent.

A Case Study: Contraception

In the essay already cited, Phil Lawler argues that, as a matter of Constitutional law properly understood, the several States can ban the sale of contraceptives. He goes on to ask: “But why stop there…. Should the states ban the sale of contraceptives?” And he answers: “Absolutely.”

It is necessary to parse this carefully. The word “should” in this question admits of more than one meaning. In fact, there are a number of different “should” questions that ought to be running through our minds when we consider Phil’s formulation:

1. Should a given society, if it wishes to be good and healthy, eschew contraception?
2. Should every government in every situation punish all those who either facilitate or engage in contraception?
3. Should a good government, all other things being equal, prohibit the sale of contraceptives?
4. Should every State in the United States, under the particular circumstances of the present moment, vigorously enforce a prohibition on the manufacture and sale of contraceptives generally?
5. Should the previous statement apply only to abortifacient contraceptives?
6. Should any of these things be done by executive policy or judicial fiat, or should they be done only by formal laws, which presume some democratic process?
7. If some aspects of the contraception problem are to be made illegal, should the penalties be particularly severe?
8. Should government involvement be aimed at instruction or discouragement (as with smoking) rather than direct eradication?
9. And so on

Please note that Phil Lawler provides ample evidence for an affirmative response to question 1, but he does not come even remotely close to an affirmative answer to question 2. His policy position, as enunciated in the essay cited, clearly lies somewhere in the range of 3 and 4, with presumed sympathy for 5 as a good start, and without seeking to address most of the later questions. I have no quarrel with Phil on this. He provides ample room for working things out admirably, and he is a superior strategist. I am notoriously weak on political strategy; I have little choice but to leave it to those who are more competent.

But the devil is in the details which underlie these questions and others like them, and it is worthwhile to point out that an affirmative response to each of these “should” questions, or any particular combination of them, will have a very different impact on the common good generally, on the public’s willingness similarly to engage other questions, and on the success of the specific effort to reduce the use of contraception. The difficulty of gauging these consequences means that good people can favor different specific political solutions without disagreeing at all about the proposition that a healthy society does not contracept.

Beyond Politics

Another aspect of all this is the need to think beyond politics. Here the Church comes back into view, for surely the ideal situation is a well-evangelized body of citizens who are, by and large, committed to living according to the natural law, and who are happily enabled to see the natural law more clearly precisely because they have assented to Revelation. This is why any government which is inhospitable to Christianity is either foolish or evil. This too is a discussion for another day, but in considering politics we must avoid the trap of thinking that it is the only tool we have for enhancing the common good. We must also avoid the trap of thinking we must eradicate every evil from this life, as if this is our one chance for paradise—unless, of course, we wish to be totalitarian.

We are, however, a long way from utopia, though in many respects (based on past utopian experiments) we must thank God for it. It is true that politics is never the only thing; in fact, it is never even the main thing. But it does have a role to play, and we neglect it at our peril.

Inescapably, good politics is governed by prudence, which is the one virtue that coordinates all the others to craft the best response to a particular real situation. Yes, politics must be guided by principles, and it is the Church’s role to enunciate the right principles. I would argue further that the Church must do a better job of prioritizing her principles when she applies them to politics. But again, and without violating any principles, every political initiative is to be governed by prudence. Politics remains always the art of the possible. It is boring old prudence that keeps politics interesting. And without it, politics will be neither human, nor humane.