Henry James described, in one of his stories, a procession on a Sunday in Rome at St. Peters’. “The bright immensity of the place,” he wrote, “protected conversation and even gossip. It struck one not as a particular temple, but as formed by the very walls of the faith that has no small pruderies to enforce.” It must be no small point of serenity for Governor Mario Cuomo to know that the Church will readily survive his renditions of its teachings, just as it manages to encompass other forms of gossip and small conversation. Cuomo must know that, in the long sweep of time, the vexing he has caused for his Church will seem but a minor noise in the landscape, and that any effort on the part of the Church to address his effronteries would probably appear to many onlookers as a gesture out of scale, a project, for the Church, in enforcing small pruderies.
Mr. Cuomo has been moved to address himself in a portentous way, in public lectures and essays, in speeches at Catholic universities, to the tension between religion and politics. That tension has been described as a conflict between private beliefs and the commitment of a public official to the enforcement of the law. What moves him to these exertions in philosophy is the need to reconcile his professions as a Catholic with the position he has taken in public as a defender of the most expansive “right to an abortion.” And we have had the chance now to examine closely the speeches that Mr. Cuomo thinks sufficiently polished to offer the world as his most refined thoughts on these matters of theology and law.
When Cuomo sets out then to explain to the reading public the relation between religion and law, we can expect to brace ourselves for the kind of illumination we might receive, say, if Mr. Don Rickles delivered himself of a few weighty observations on the general subject of “Rabbis and Jurisprudence.” But as it turns out, theology is not the only important subject that is rendered hazy in these essays and pronouncements. As we move through these texts, we find the gradual fading of both “law” and the vocation of “politics”: The meaning of law itself begins to dissolve in the features that mark its nature and integrity. But of course, the making of binding laws is the feature that marks the distinct character of the polis, or the polity. As the meaning of law begins to dissolve, the essential attributes of politics begin to dim in the same measure. As Cuomo sets forth his understanding of the ends of politics and the proper concerns of the law, the life of politics and law is virtually emptied of its moral significance. The domain of politics is a place, apparently, where the practitioners strenuously avoid imposing on their constituents anything resembling a moral judgment. But in that event, what are we to make of the man who has made it his vocation to become a practitioner in this field? Why has he chosen to spend his days in a vocation in which—by his own insistence—his moral understanding cannot supply a legitimate ground for his judgments?
Cuomo has been enduringly open to the reproach that he has placed politics above his Church; that he has not honored, as a political man, the convictions that he professes to share with other Catholics on the evil of abortion. His defense has been to warn about the intrusion of religion into politics. He has sought to brand as religious zealots or fanatics those people who would use the law to protect the unborn. But Cuomo has also conceded that religious leaders have held a strategic place in propelling the civil rights movement, and that presence of clerics has not made the end of racial equality sectarian or fanatic. The engagement of religious conviction he has found altogether wholesome on civil rights, but the same claim to religious conviction on the problem of abortion he regards as deeply threatening and illegitimate. As he remarked in a speech at Notre Dame, “the arguments start when religious values are used to support positions which would impose on other people restrictions they find unacceptable.”
Have we been moved here to a world other than the one we have inhabited? Was the “movement” for civil rights—this vast summoning of moral energy—not in fact directed to the end of moving politicians to “legislate”? And by that, did we not mean that the partisans of civil rights were seeking to forbid racial discrimination with the force of law—forbid it, that is, with the prospect of punishment? The making of laws was necessary precisely because there was a need to impose on people a pattern of conduct they found unacceptable; a course of conduct they would not have chosen for themselves if left to their private choice.
But of course this is, and will ever be, the logic of law. The law imposes a rule of action as binding, even for people who disagree with its maxims. It is precisely the function of the law to displace personal choice with a public obligation. Just why that is the case was much clearer to public men when they remembered the connection that was traditionally understood between the logic of morality and the logic of law. We might recall the matter indirectly in this way: If we come to the recognition that it is wrong, say, for parents to torture their children, we would not mark that recognition in a coherent way if we merely offered parents tax incentives to stop. To come to the recognition that the torture of infants stands in the class of “wrong” is to say that it would be wrong for anyone—for everyone—to do it; that anyone may rightly be restrained from torturing children. To say that any act stands, then, in the class of a wrong is to come to the conclusion that we would be justified in forbidding it to anyone—which is to say, we would be justified in forbidding it with the force of law.
That does not mean, of course, that it would be prudent to reach every wrong with the hand of the law. But when we understand the ground of the “wrongness” in any act, we establish the ground in principle on which we could be justified in legislating. And it would indeed be hard to make sense of any move toward legislation if we sought to detach the scheme of legislation from the moral sense that must be implied in the project. Whether people press for laws that protect the environment or the homeless, they are convinced that they are trying to do something just or right, or offer a remedy for a wrong.
Legislating Morality
When Mario Cuomo or Geraldine Ferraro insist, then, that they may not “legislate morality,” it might be easy to attribute these declamations to a certain innocence, were it not for the fact that these people are engaged in “legislating” almost every day of their lives. They are imposing laws as binding, and in every case they are imposing them on people who are not exactly eager to be instructed or tutored, or to have the law prescribe for them a different way of conducting their business. One would hardly gather, from Cuomo and Ferraro, that they are routinely in the business of legislating morality. Nor would one guess that legislators find a steady part of their work these days in making decisions about the beginning and end of human life.
In this vein, Cuomo let slip an admission that must undercut the cliches of any Catholic politician who would decry the attempt to legislate a “Catholic view” on the beginning of human life. In his speech at Notre Dame in 1984, Cuomo remarked that “even a radically secular world must struggle with the questions of when life begins, under what circumstances it can be ended, when it must be protected, by what authority; it too must decide what protection to extend to the helpless and the dying, to the aged and the unborn, to life in all its phases.” May a woman claim welfare support for a child when that child is still in her womb? May the unborn child be regarded as a separate human life when it comes to the inheritance of property, or the right to sue on his behalf against a negligent driver? If legatees may inherit their legacy only when Uncle Julius has died, it makes a difference as to when, precisely, Uncle Julius may be considered dead. May those legatees themselves be invested with a license of “substituted judgment” to declare, on behalf of Uncle Julius, that he wishes his life to be ended and his estate to begin emitting checks?
Cuomo understands that even a government of atheists would have to legislate an understanding about the beginning and end of human life. But in that event, the question must be asked: Why is this understanding not enough, in itself, to put in place the framework that protects unborn children? No sectarian view needs to be added to this framework for the sake of insuring, say, that Jews or Koreans, left-handers or backgammon players, are covered by the laws of homicide. The question should be turned around: One is obliged to ask just why the child in the womb should not be protected by the same laws that bar the killing of human beings—or even the unwarranted killing of animals? On this point, in raising critical questions, the Catholic Church has not offered any perspective that has been narrowly or distinctly “Catholic.”
Cuomo himself has recognized that point, but without quite grasping its import. “Abortion,” he has complained, “is treated differently” by the Church. The Church does not seek to legislate, for the community at large, the exacting view of Catholics on the matters of divorce or contraception. In those domains, the Church has recognized that it is appealing to a special regimen of self-denial, and it offers an invitation to people who are willing to share in that demanding life of belief and practice. Cuomo, however, does not grasp the distinction that on the matter of abortion, the Church has argued more narrowly within the canons of moral reasoning, or in the style that has been identified as “natural law”: the arguments in this field are accessible, by nature, to all creatures of reason.
Why the Unborn?
And so, if we return to the framework that Cuomo himself has put in place, we would require no arguments that are distinctly “Catholic” if we merely put the question in a principled form: Why should unborn children not be covered by the laws that protect life—what is it that they are lacking? Children in the womb may lack the power of oral expression, but so do deaf mutes. The fetus may lack arms or legs in its early stages, but there are many people who have lost one or more of their arms or legs, or who have been born without power over their limbs. It cannot be a matter of moral consequence that the offspring within the womb are small or weak, dependent or unwanted, for the laws on homicide surely make no discrimination for height, strength, or the condition of dependency. A retarded, disabled person, confined to a wheelchair, does not lose any attributes necessary to his standing as a human being or as a person with a claim to the protection of the law. Cuomo, in his large nature, would easily encompass these recognitions. Where, then, is the problem? And where is it necessary to reach out to any ethic that is sectarian and Catholic for the sake of recognizing these simple points?
The public finds nothing inscrutable in the raising of these questions, and nothing in them seems to divide the country. But Cuomo has not cared to put the problem to his constituents through the prism of these questions. He has been content, rather, to fly to the slogan—as serviceable as it is false—that the community is too divided to legislate on the question of abortion. Or as Cuomo puts it, when a “pluralistic community” is so divided on a moral question, it becomes irresponsible to legislate in the absence of a “consensus view of right and wrong.”
But if this is a principle of action, it is a principle he does not seem to respect on any other matter of moral consequence. The Governor has found it quite practicable to preserve his own opposition to capital punishment, even when it means standing against a strong consensus of opinion in the public and the legislature. He has found it defensible to cite, as the ground of his judgment, his religious convictions; and he has shown not the slightest willingness to accede to the opinion, held by most of his fellow citizens, that the gravest penalty would be warranted for those characters who have committed the most heinous crimes, without a trace of remorse, and demonstrated their own want of respect for human life. Evidently, Cuomo is unaffected by any misgivings about the religious provenance of his judgments when it is a matter of according a certain sanctity to the lives of the vicious and the guilty. It is only the “sanctity of innocent life” that fills him with the most debilitating doubts about the clarity of his judgment and the use of his legal powers.
Pro-life Consensus
On the question of abortion, the evidence has been plain, in countless surveys, that the public has not been divided on the willingness to use the law to restrict many abortions. Politicians are usually far more attentive to public opinion polls than they are to the works, say, of Thomas Aquinas; but in that event, we must wonder how Cuomo has failed to notice that most people in the country—and a majority of women—believe that life begins, not at the first trimester, but at conception. Most people think abortions may be justified to save the life of the mother, and in cases of rape and incest, but they reject the notion of abortions for the sake of convenience, or for the sake of easing a financial strain on the family. And the public is dominantly hostile to the notion of “elective abortions,” which are ordered up for just any reason a woman regards as sufficient. As Richard Doerflinger put it, after a comprehensive review of the polls, over 60 percent of the people in the country reject about 90 percent of the abortions that have been permitted under Roe v. Wade.
That much has been known for a long time. The astounding point, which has become more visible only in this past year, is that these attitudes are shared even by those people who describe themselves right now as “pro-choice”: they, too, would favor a dramatic scaling down of the volume of abortions that have been permitted under Roe v. Wade. But they call themselves “pro-choice” because they are unaware that Roe v. Wade permits abortions to be performed, for any reason whatever, at any stage of pregnancy.
Faced with this constellation of opinion, a Catholic politician with wit and a sense of prudence would see some simple paths before him. Without jolting the public, he could take some modest, first steps toward protecting the lives of unborn children, and in the meantime he could break out, to the innocent public, some dramatic news. For example, what if he suggested that we begin, as a first step, with a measure of this kind: that we simply agree to save the child who survives the abortion. In any given year, there are not many cases in which a child survives an abortion, but the question bears a significance in principle that runs beyond the volume of cases. For one thing, it would establish that the right of any child to live could not hinge on the question of whether anyone happens to “want” her. For most of the public it would come as startling news that these children are not protected now, that they have not been protected under the rules that were legislated by the Supreme Court.
One modest step may easily beget another. A public that has absorbed the reasons for taking the first step may be more than prepared to consider the moves that plausibly follow: Even people who are pro-choice are willing to restrict abortions in the third trimester, and perhaps also in the second. They may be persuaded to bar those abortions chosen because of the sex of the child, to bar the performance of this surgery on minors without the knowledge of parents, or to require the consent of the father before a child is destroyed (a proposition that has commanded the support of most women in the country).
Statesmen vs. Opportunists
To keep taking these steps is to keep putting these questions to the public; and to keep putting the question is to give the public practice again—perhaps to give it practice for the first time—in thinking seriously about the justifications for abortion. The shrewdness of a public man comes in knowing that, through steps of this kind, he may reshape the “consensus” of opinion. He may draw citizens into a compelling problem, lead them through a series of questions, and bring them past critical thresholds, to a point at which they may be ready to consider measures far more serious than anything they had contemplated in the past. Despite his claims to prudence and to the arts of a political man, this is the art of statesmanship in which Cuomo has shown the least interest. In fact, he seems to have taken it as his distinct mission in the politics of his state to make sure that his citizens are never confronted with any disarming proposal that may lead them into serious reflection about the matter of abortion.
And yet, it has been an important point of camouflage for Cuomo to contend that his differences with the Church have been differences solely of prudence, or of what he has called “political judgment.” He professes to share the convictions of the Church on the human standing of the unborn child; he insists that he merely disagrees with the Church on the most practicable way to achieve respect for those human lives in a community that is politically divided. Still, when the leaders of the pro-life movement have sought to take a path of prudent compromise, he has responded with ridicule. In this vein, the bishops have in the past supported the Hatch Amendment, a measure that would have returned the question of abortion to the states. Of course, under that regimen, states like New York and California would have established some rather liberal rights to abortion. But for the bishops, that measure was the only practical possibility at the moment for returning the question of abortion to the province of legislation, to a condition in which it was legitimate again for legislators, somewhere in the country, to enact measures into law for the sake of protecting unborn children. This was a necessary and serious project, but Cuomo was willing to dismiss it with the observation that “it wouldn’t have done what the Church wants to do—it wouldn’t have created a deep-seated respect for life.” But did Cuomo expect the bishops to do nothing, to take no steps to protect life or to begin the education of the public, until they could accomplish, at once, the perfection of all their ends? We seem to find here a curious inversion: Who is taking the course now of the prudent political man, and who is taking the path of the utopian or the religious purist?
The posture, of course, was feigned. Cuomo was willing to insist on all or nothing here because he really preferred that nothing be done. It might have been said, on behalf of the bishops, that nothing in the Hatch Amendment was inconsistent with their commitment in principle to put the “right to abortion” in the course of extinction. Nothing in that arrangement would have undercut their teaching about the wrongness of abortion. But in striking contrast, nothing offered by Cuomo in the name of prudence manages to touch the substantive question of abortion. He has struck the pose, made the sounds of “prudence.” He has proclaimed that his official tolerance for abortion cannot imply that “we should stand by and pretend indifference to whether a woman takes a pregnancy to its conclusion or aborts it.”
He has suggested that there are “practical ways” of teaching a respect for life, even while we honor the law created in Roe v. Wade. And what are those “practical ways”? Anything to compel people to pause, or seek an alternative to abortion? Here is what he has offered:
The people who call themselves “pro-choice” can support the development of government programs that present an impoverished mother with the full range of support she needs to bear and raise her children, to have a real choice… And those who gather under the banner of “pro-life” can join in developing and enacting a legislative bill of rights for mothers and children, as the bishops have already proposed.
If Cuomo were still a ballplayer, he might contribute free tickets to pregnant mothers; if he were a baker, he might offer loaves of bread. And as a liberal Democrat, in our own time, he offers up more social services, administered by the state, supported by public taxes; services that can be administered and received without hinting, even in the faintest way, at the wrongness of abortion. What Cuomo has proposed, in the name of prudence, is not a policy that establishes the point in principle and then reaches a tentative compromise. What he offers instead is a host of measures that studiously avoid the question in principle and safely spare the public from any need to face searching questions about the practice of abortion.
Feigned Prudence
Could this record be chalked up to inadvertence or to a want of imagination? Or is it more plausible to find, in this record, a design of willfulness? Do we have what Mark Twain once called the “moral sense”: the sense that permits us to understand what is right—and avoid it. In the commentaries inspired by Cuomo, none has been so precisely, and so devastatingly, accurate as the commentary that was offered on this point by Monsignor William Smith, a professor of moral theology at St. Joseph’s Seminary:
Prudence, of course, is a virtue…. But like all virtues it has its enemies; some are tricky counterfeits. St. Thomas Aquinas calls one form of counterfeit prudence by its proper name, astutia, a shrewd form of “cunning”…. When in the pursuit of some end (right or wrong), one takes ways and means that are not genuine but feigned and specious—that is astutia. When one advocates abortion-funding, advocates the continued legalization of abortion and supports political abortion planks, while proclaiming personal opposition to abortion, one must ask: Is this prudence or its opposite, astutia?
To the list compiled by Monsignor Smith, we could add now: the willingness to campaign against Republicans in the state legislature by making “abortion rights” the critical point of distinction between the political parties. Cuomo has been willing to raise the practice of abortion from a regrettable expedient, which may have to be tolerated, to a “right” which deserves to be encouraged, spread, fashioned into a principle, and enshrined in our statutes. A political man who has sought to lead the public in this way in its understanding of abortion cannot pretend to share, any longer, the principles that animate the bishops and the teaching of his own faith.
The Governor will no doubt claim his own sovereignty in reporting the true state of his own convictions. And yet, he gives himself away on this matter in ways he no longer seems to notice. Thus, in an offhand comment, he complained that while we dispute over abortion, real injuries, real hurts, go unremedied: “While we argue over abortion,” he remarked at Notre Dame, “the United States’ infant mortality rate places us sixteenth among the nations of the world. Thousands of infants die each year because of inadequate medical care.” Apparently, the deaths of 1.5 million infants in abortions each year, in this country, do not figure in the reckoning of “infant mortality.” One recalls the exchange between Huck Finn and Aunt Sally: Huck claims that his boat was delayed because “we blowed out a cylinder-head.”
“Good gracious! Anybody hurt?”
“No’m. Killed a nigger.”
“Well, it’s lucky; because sometimes people do get hurt.”
Cuomo’s statement can be intelligible only on the assumption—incorporated firmly in the understanding of the speaker—that he does not regard those deaths as real deaths, because he does not regard those beings as real infants. Is the matter not plain now beyond any attempt on the part of Cuomo to controvert it? No one who uttered that sentence could plausibly claim to share, in any degree, the convictions of the Catholic Church about the standing of those children as human lives.
Charming Bigotry
Looking past the charm of Cuomo, it must be said that his record describes a pattern of brazenness that is offset or softened only by its vulgarity. In many respects, he has merely moved along the venerable paths of liberal yahooism: He has sought to embarrass the Catholic Church when it has had the temerity to take its own moral teachings seriously, and make his own life, as a politician, that much harder. But to this familiar project he has added an ingredient that is novel and truly mischievous: What he has sought to deny now, in effect, is the right of the Church to speak with its own authority on the internal life of the Church and the things that constitute the Catholic communion.
When Cardinal O’Connor has dared to offer a criticism of Cuomo’s position on abortion, he has been attacked for breaching the wall between church and state. But even when the Cardinal has hinted on the withholding of communion, the Church has never presumed to issue orders to Cuomo, or to other Catholic politicians, to withdraw from their political offices. That the voters of New York are inclined to put in office people who favor an expansive right to abortion is a state of affairs that the Church is powerless to alter. If Cuomo is determined to make himself sound and act like a typical liberal politician in New York, the Church has not denied his right to do that moral surgery on himself, or the right of New Yorkers to preserve him as their Governor.
But what the Church does claim the right to say is that Mr. Cuomo cannot claim the office of misleading other Catholics about the teachings of their own faith. And in saying that, the Church must find itself saying, with regret, but saying nevertheless, that Cuomo simply may not hold the views he professes and claim to be, at the same time, a “faithful Catholic.” If the Church were to preserve its silence, it would have to become complicit in the most serious confusion, or deception, of its members. By implication, it would be crediting the claim that is contained in every one of Mr. Cuomo’s speeches on the subject: that the central authorities of the Church have no claim to speak in a more “authoritative” way on the doctrines of Catholicism—on the things that constitute the life of a “faithful Catholic”—than any other Catholic, or any Catholic in public office.
The estimable Bishop of Peoria, John Myers, has recently offered a carefully drawn, scholarly statement, directed to this point. Myers has explained, again, that
The practice of abortion has been condemned by Christian teaching since the earliest days of the Church. Over the centuries, the magisterium has never deviated from its clear and firm teaching that the direct killing of innocent human beings, whether born or unborn, is always gravely wrong. Belief in the inviolability of all innocent human life is thus integral to Catholic faith. [Italics added.] No faithful Catholic may form his or her conscience according to any norm authorizing the taking of innocent life, whether by abortion or any other act, on the grounds that the life in question is too young, too old, useless, insignificant, unwanted, or otherwise unworthy of protection.
Bishop Myers went on to explain that one becomes formally complicit in a wrongful act of abortion, one formally cooperates in the project of abortion, “when one performs abortions, or acts to encourage, counsel, facilitate, or make abortions available.” To suggest that people who are complicit in abortions would have the standing of Catholics, that they are in a condition to participate in the communion that binds the Church, is to indulge a political act at the cost of the coherence and integrity of the community of faith.
This is, altogether, stern stuff. But is it not also the meaning that has been plain for centuries in the idea of a Church that is “catholic and apostolic”? After all, Cuomo has been free to attach himself, as a Christian, to a church that makes the congregation itself the sovereign authority in the doctrine that will bind its members. He could have become, in short, a Congregationalist. Or he could have pursued his religion in a form that leaves each individual free to be his own interpreter of the cardinal texts of Christianity. But Cuomo, in his mature years, chose to preserve himself in a Church with a notably different scheme of governance. The doctrine, in this Church, would not depend on the vagaries of majorities in each congregation; that doctrine would be formed by a more distant, disinterested authority, drawn from all parts of a Church that was universal in its reach. It would work with a traditional canon, with theologians schooled in the most demanding ways of that tradition, and it would trace its authority back to the first Peter and the first “appointment.” If that is not the regimen under which Cuomo wished to practice his faith, he has had ample means of detaching himself from this encumbrance. And he has had, within the vast terrain of Christianity, churches that would fit more aptly the terms he has defined for his relation to his Church, namely, that he has the authority to reject, or invert, the teachings of the Church, without affecting in any way his claim to share the convictions that mark what it means to be a Catholic.
Cuomo has remarked, during his troubles with Cardinal O’Connor, that the Church has been a source of consolation in his life. And yet, as a wise colleague of mine observed, one would think that the consolation of the Church comes from the serene conviction that what it is teaching is true. Or it might be another source of consolation that the teaching of the Church is founded on sources of understanding that are well beyond the manipulation of voters and majorities, even of governors and bishops, in any single country. Cuomo has put himself in the most melancholy position: He can hold to the views on abortion that play well in New York, but he cannot claim to be at the same time “a faithful Catholic” without denying the authority of the Church to pronounce on what it means to be a faithful Catholic.
We have seen recent cases of Orthodox Jews in New York who preferred to take their chances in rabbinic courts, where they were likely to lose, rather than contest their claims in a civil court, where they were likely to win. They would not wish to “win” at the cost of establishing, in principle, that on the matters that are most important in their lives they would accord a sovereign authority to the secular law over the religious law. Mr. Cuomo apparently does not realize that he is now teaching an analogous lesson about the authority his Church bears for his members. To put it starkly, if he denies the Church’s claim to define its teachings, he is denying nothing less than the right to preserve, in America, the character of that Church which is, distinctly and recognizably, Catholic. Is that something he would wish to do even to advance the humane ends of his political life? And is that what anyone could truly call an act of love?