Modesty and Moralism: Justice, Prudence and Abortion - A Reply to Skeel & Stuntz

99 Pages Posted: 4 Nov 2007  

John M. Breen

Loyola University Chicago School of Law

Abstract

In a recent article, Christianity and the (Modest) Rule of Law, law professors David Skeel and William Stuntz argue that American law should be modest in its ambitions. They contend that law is not an appropriate response to many social problems, including abortion. They argue that the rule of law suffers when law attempts to regulate that which it cannot change - a vice they refer to as "legal moralism." Skeel and Stuntz make these arguments from an Evangelical Christian perspective.

This essay examines Skeel and Stuntz's ideas concerning legal modesty and legal moralism, particularly regarding abortion. I argue that their essay could have benefited from a more thorough engagement with the Christian intellectual tradition.

I also argue that Skeel and Stuntz undermine their claim that law is frequently incapable of affecting social change by relying on Gerald Rosenberg's deeply flawed discussion of abortion prior to Roe v. Wade. By relying solely on Rosenberg's book, Skeel and Stuntz ignore evidence that abortion increased following the state reform efforts of the late 1960s and early 1970s and the decision in Roe.

Many commentators have argued that law should be used in a non-coercive manner to curb the incidence of abortion through greater social assistance to women and families. I show that data indicates that these sorts of laws would have a marginal effect on the nearly 1.3 million abortions that take place each year.

Skeel and Stuntz see that culture enjoys a priority over law in influencing individuals' choices. However, they misunderstand the importance of law in shaping culture. I argue that abortion as a social problem cannot be resolved solely by legal means. Instead, law should be part an effort of cultural transformation. I offer the example of how law has worked with cultural norms in significantly reducing the incidence of drunk-driving fatalities beginning in the 1980s.

Keywords: abortion, legal moralism, legal modesty, social problems, problem resolution

JEL Classification: H53, H41, I18, K32

Suggested Citation

Breen, John M., Modesty and Moralism: Justice, Prudence and Abortion - A Reply to Skeel & Stuntz. Harvard Journal of Law and Public Policy, 2008. Available at SSRN: https://ssrn.com/abstract=1026697

John M. Breen (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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