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 CNS Story:

SCALIA-ABORTION May-3-1996

Scalia says state should allow abortion if majority wants it

By John Thavis
By Catholic News Service

ROME (CNS) -- If the majority in a democratic society want
abortion, then the state should allow it, U.S. Supreme Court
Justice Antonin Scalia said in Rome.

Likewise, if a majority is against the practice, the state
should be able to ban abortion -- not because the government
answers to a higher moral law, but because it should carry out the
will of the people, he said.

Scalia made the remarks May 2 at a Rome conference on politics
and the common good, sponsored by Gregorian University.

In a prepared speech and in response to questions, he said a
government should not determine policies according to moral
principles, unless those principles are shared by the majority.

"I do not know how you can argue on the basis of democratic
theory that the government has a moral obligation to do something
that is opposed by the people," he said.

"If the people, for example, want abortion, the state should
permit abortion, in a democracy. If the people do not want it, the
state should be able to prohibit it as well," he said.

The idea that democracies must answer to an objective moral
law has been a key teaching in recent documents of Pope John Paul
II. In an encyclical on abortion and other life issues last year,
he wrote that this "natural law" was an obligatory point of
reference for civil law.

"Democracy cannot be idolized to the point of making it a
substitute for morality," the pope said.

In his speech, Scalia said the responsibility of government is
not spiritual, but that of protecting person and property and
ensuring the conditions for prosperity.

"I don't believe a Christian ought to choose his form of
government on the basis of which will be most conducive to his
faith any more than he ought to choose a toothpaste on that
basis," he said.

Modern Christians, of course, should not support a government
that suppresses the faith or that sanctions the taking of innocent
human life. But they should remember that the test of good
government is not "whether it helps you save your soul," he said.

To illustrate why he thinks the mix of religious motives and
governmental policies are not always good, he examined what he
termed "socialist" policies of the modern welfare state.

"The allure of socialism for the Christian is that it means
well," he said. But state aid to the poor and cradle-to-grave
social services may not necessarily serve Christianity's interest,
he said.

"Christ did not preach a chicken in every pot, or the
elimination of poverty in our lifetime," he said.

In fact, he said, it can be argued that the
"governmentalization of charity" reduces the Christian motivation
for giving and deprives people of "opportunities for
sanctification."

"People ask themselves, 'What need for me to give a beggar a
handout? Do I not pay taxes?"' he said.

Scalia said welfare socialism basically teaches people that the
world owes them a living. This has helped eliminate the traditional
humility among the recipients of charity, a quality singled out by
Christ, he said.

"The transformation of charity into legal entitlement has
produced donors without love and recipients without gratitude,"
he said.

He wondered whether the increasing government monopoly on
social services had also played a part in the decline of women's
religious orders in the West and the closing of Catholic
orphanages, schools and other institutions.

The moral element in these private church-run services has been
eliminated from state-sponsored institutions, which from a
government point of view is good and proper, he said. But the
increasing state control of areas like education cannot be
considered good for Christianity, he said.

Today schools hand out condoms, provide advice on birth control
and abortion and teach that homosexuality must not be regarded as
wrong, he said.

"It is not my purpose to criticize these developments, only
to observe that they do not suggest that expanding the welfare role
of government is good for Christianity," he said.

Scalia's position that democratic majority rule does not answer
to a higher moral law prompted objections from some conference
participants who wondered, for example, about the protection of
minority rights when it runs into the "will of the people."

"You protect minorities only because the majority determines
that there are certain minorities and certain minority positions
that deserve certain protection," Scalia said.

In the United States, such basic rights such as free speech and
religious freedom have been considered so important that they are
protected in a special way in the Bill of Rights, he noted.

"The minority loses, except to the extent the majority, in its
document of government, has agreed to accord the minority rights,"
he said.

Jesuit Father Carl Huber, dean of the philosophy faculty at
Gregorian, said he had "some qualms" about this view of majority
rule, recalling that in his native Germany some 50 years ago a
majority backed legal decrees against the Jews.

"I think there are instances that are beyond constitution and
beyond majority," he said. He cited the traditional church
teaching that an unjust law is not a valid law.

Scalia answered that, in his view, when a government is doing
bad things, the duty of a good Christian is to persuade fellow
citizens to change the policy. But a democracy cannot accept people
presuming to judge what is good or bad and imposing it upon the
majority, he said.

He said appealing to natural law was not the answer in a
democratic society.

"To talk about the natural law is not to talk about something
we all agree upon," he said.

END


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