The Public Good and the Problem with Libertarianism

There is much that could be criticized in the New York Times’ recent op-ed on abortion. To claim, as the author seems to do, that the piece calls for a new step forward in talking about abortion is about as persuasive as the claim that Republican lawmakers’ tweeted thoughts and prayers represents a new step forward in talking about gun control, although the latter at least have the advantage of keeping the length of their statements proportionate to their originality of thought and moral seriousness. The plain truth is that there is very little to be said about legalized abortion, for or against, that has not already been said innumerable times, and to reply to Shrage’s essay with the standard pro-life talking points, as true as that reply might be, is unnecessary. Any moderately informed person knows (or ought to know) in outline what a pro-lifer would say to the points made in the essay.

More interesting would be to consider the way in which pro-lifers frequently grant an assumption that run through the article, albeit without adequate defense, which is that the government ought not to take a stance on the moral goodness or badness of private actions. Not all people on the pro-life side would say this, of course, but in my admittedly anecdotal experience, quite a few young pro-lifers lean in the socially libertarian direction, with the presumption being that the government generally should not involve itself in or take sides upon moral debates. The government, in this view, should restrict its regulation of behavior to what is necessary to protect the public good, by means of things like protecting citizens from harm and enforcing contracts.

This seems to be the view taken in Shrage’s essay, as illustrated with a few excerpts.

It is well known that members of our society hold vastly different views about when personhood or a human life begins, about our moral obligations to our genetic offspring, or what kind of sexual acts are permissible. That is to be expected. A pluralist, democratic society can accommodate a good amount of such disagreement. Yet it is necessary that we do reach a strong consensus about how to regulate a public service, and so moral, political and philosophical analyses should aim to illuminate the issues that can help generate such a consensus…

So what about abortion? How should governments restrict or regulate the abortion services offered by medical professionals or facilities? Because this is an issue about good medicine, we need to focus on health risks and outcomes instead of personal ethics…

The essay proceeds, of course, in the usual manner of pro-choice advocacy; namely, begging the question against the pro-life stance by simply ignoring the question of the moral status of the fetus, except in the last third of a woman’s pregnancy. There is no need to linger here to show why this approach is problematic, except perhaps to note in passing that for someone who purports to have the answer to how Americans ought to talk about abortion, Shrage does not seem to be interested in addressing what critics of the practice actually say.

The more interesting part is when she draws the implicit distinction between “good medicine” and “personal ethics.” Citizens of a pluralist society such as our own are so used to hearing this sort of distinction made – a doctor’s personal beliefs versus his duty to his patients, a legislator’s private ethics versus his duty to his constituents, and so on – that many are unlikely to have ever considered that the view might be problematic. Yet it only takes a moment’s consideration to see that the distinction between good medicine and ethics is nonsense. Medicine is a value-laden profession of its very nature, in that proceeds according to a belief in certain moral goods. It is clearly insufficient to speak of medicine as if it was merely constituted by a knowledge of the human body, or of how to manipulate it, for this definition would not exclude actions that either deliberately damage the patient’s health, such as amputating a limb without cause or infecting the body with a virus. Medicine, as Aristotle noted, by nature aims at the health of the body as a basic good.

But in aiming at health as something good in itself, the very practice of medicine assumes an ethical framework. It is a self-contradiction to speak of a practice that presupposes moral propositions as being morally neutral. And if medicine is not morally neutral, then clearly ethical arguments are relevant to the practice of medicine.

Someone might object, as I’m sure Shrage would, that the key distinction is between private ethics and public ethics, only the latter of which is relevant to the legal regulation of medicine. This too is nonsense. There is no such thing as “private ethics” as a field of moral belief distinct from “public ethics.” All ethical claims depend on assumptions that certain things are in themselves good or bad, and if an action or end is intrinsically good or evil, then of necessity it must be good or evil for everyone. Moral assertions are by nature universal. The only real distinction that approximates what the essay calls private and public ethics is between ethical claims on which there is widespread agreement and ethical claims on which there is not.

When restated in terms of this distinction, the argument made in the op-ed – which, by the way, is more or less the argument made nationwide in defense of  legalized abortion, removing drug regulations, comprehensive sex education in public schools, etc. – is that ethical beliefs which the vast majority of Americans share should control public policy, while ethical beliefs on which there is widespread disagreement should not.

The argument in this form lays bare a common equivocation on the term of public good: does “the public good” mean what is actually good for the public, or what some suitable majority of the public believes is good for itself? The distinction is hardly trivial. Only on the first view can any attempt at social reform or civil disobedience that goes against the beliefs of most citizens be justified, and certainly no morally decent person could deny that such things have in fact been justified at least some of the time. The latter view opens the door to legal and moral relativism of the worst sort. To affirm that the public good can be decided by majority vote is to deny any real distinction between good and fiat.

But if we take the former view, then we are led to a conclusion which is unlikely to sit well with libertarian pro-lifers: the government must, if it is consistent, explicitly embrace a particular philosophy of what the public good actually is. Claims of absolute moral and philosophical neutrality are inadmissible. This does not mean, of course, that the government must become involved with every minutia of citizens’ personal lives, but it does mean that no a priori objection can be made to claims that the government should regulate the market, the purchase of firearms, education, pornography, drugs, prostitution, carbon emissions, and so on, on the grounds that it isn’t the government’s job to tell people how to live / businesses how to operate. Of course, the legitimacy of these claims does not follow automatically from the objective notion of the public good. They must be defended with arguments, which may or may not be successful. The point is that they cannot be ruled out from the start on the grounds that the government has no conceivable right to interfere in these areas. If someone believes that the government should prohibit abortion in most cases – as we all should – then it is inconsistent for him to dismiss out of hand claims that the government should prohibit or regulate other private actions.

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