Ryan McMaken – June 2, 2019
With the heating up of the abortion debate, the phrase “legislate morality” has come back into more frequent use. This week, the Washington Post printed a letter to the editor with the headline “Anti-abortion legislation is Prohibition all over again.” The author complains: “Prohibition was an attempt by government to legislate morality.”
Similarly, state legislator Kirk Hatcher of Montgomery, Alabama, who opposed the state’s legislation that nearly bans abortion, states “We can’t legislate morality … We can’t legislate hearts.”
And last week, DNC activist Marisa Richmond declared the problem with the GOP these days is it’s “trying to legislate morality … That’s not the role of government.”
When used, the general formula is this: “that law I don’t like amounts to legislating morality! And we all know you shouldn’t do that.”
The problem with this inane line of argument, of course, is that nearly every law involves legislating morality of some sort.
It doesn’t exactly require an outlandish amount of study to see that laws against murder and theft are cases of “legislating morality.” Courts, legislators, and lawgivers in most times and places have declared murder and theft (however defined) to be illegal acts precisely because most considered these acts to be immoral. Laws against fraud exist because cheating people is regarded as immoral. Laws against rape exist because its morally repugnant. Certainly, there may be other reasons also given for making these activities illegal. Outlawing theft and fraud are good for economic growth, for example. But if the opposite were shown to be true, it’s hard to image many people deciding that swiping a child’s bike from his driveway ought to be perfectly legal.
But we don’t have to limit our analysis to big and obvious cases like murder. How about laws regulating minimum wages? Is not the argument here that it’s somehow immoral to pay people below a certain amount? Certainly, proponents of minimum wage laws are known to denounce opponents as “greedy,” “inhumane” and a number of epithets, all of which amount to calling the people in question immoral. If creating a minimum wage is not a matter of legislating morality, then why are the laws’ opponents immoral for doing so?
The welfare state is similarly based on calls for legislating morality. The claim, of course, is that it’s immoral to leave families without some sort of taxpayer-funded safety net. Opponents of such schemes, of course, ” just want people to die! “
Indeed, it’s difficult to think of many laws at all that aren’t justified in some way on a moral foundation. Consider, for example, a local law on whether or not County X will have three DMV locations or two. This might seem at first like a mere administrative question, but the argument for there being three locations could be this: “Don’t the people of Tinyville deserve a DMV location that is convenient? Do the proponents of only two DMV locations think the rural people of this county have all day to drive to Bigsville to register their cars? We rural folk have families and jobs too!”
The retort could be “the people of Tinyville want to steal even more money from the taxpayers of Bigville to fund their unnecessary extra DMV location!”
And so on.
So, when opponents of abortion declare anti-abortion laws to be matters of legislating morality, what they really mean is “these laws are based on a version of morality I don’t like.”
After all, there’s nothing “morality-free” about the pro-abortion position. The position is that it’s immoral to restrict a woman’s freedom to get a legal abortion. This is so immoral in their minds, that they denounce anti-abortion activists as being hatemongers, enemies of women, or worse.
For them, the answer lies in — you guessed it — legislating morality through federal laws prohibiting state and local governments from enacting abortion restrictions.
Meanwhile, anti-abortion activists think the unborn baby is a person who deserves legal rights. Thus, their version of legislating morality involves prohibiting what they see as the killing of a person.
The fundamental difference between the two sides is not one of one side legislating morality while the other side doesn’t. Both sides just want laws that reflect their own moral views.
Does the “Crime” Have a Victim?
The abortion debate helps to illustrate that the real issue behind whether or not a law legislates morality is whether or not there is an identifiable victim.
From the pro-abortion point of view, if the unborn baby is not really a person, then the “crime” has no victim. On the other hand, the anti-abortion position is that there is a clear and identifiable victim.
This distinction comes into play in other contexts where the term “legislate morality” is used. In the case of the Drug War, for example, those who oppose drug prohibitions claim there is no identifiable victim. That is, the drug user is using potentially harmful substances of his own free will. Similarly, opponents of prohibitions on prostitution argue that both the prostitute and his or her client are willing participants in a contractual relationship.
Thus, in these cases, it is argued, there is no victim, and it would be immoral to prevent these people from doing as they please.
The other side, of course, might argue that there are real victims in these cases. They might argue that prostitutes aren’t really willing participants, or that drug users aren’t making free choices due to ignorance or addiction.
Thus, when the author of the Washington Post letter compares alcohol prohibition to anti-abortion laws, he’s missing an important point. Nearly everyone today regards alcohol prohibition as foolish because most regard the drinking of alcohol (in most cases) as a victimless activity. But opponents of abortion maintain that is not the case when it comes to deliberately terminating a pregnancy.
But in all these cases, the argument hinges on whether or not there are victims — and not whether one side is legislating morality.
This article was originally published at Mises.org. Ryan McMaken is a senior editor at the Mises Institute. He has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
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