"You can't legislate morality." You hear it all the time in Washington, DC. Some Americans assume that there is something unseemly about making laws based on moral standards. Such a notion is absurd, of course. All laws are based on someone's moral standards, someone's view of how things ought to be. Nevertheless, there is a vocal element that insists that morality and law should be completely separate.
These radical separationists are the first to say, "I didn't break any laws when they are caught in a scandal. If accused of dubious business practices, they defend by saying, "It's not against the law." If caught committing adultery in a seedy hotel room they plead, "It's not against the law." If criticized for treating human embryos as raw material to be manipulated and destroyed, they intone, "It's not against the law."
Applications of new technologies can give rise to profound legal and ethical dilemmas. This is especially true in the field of biotechnology where the law-morality dichotomy is proving to be an enormous problem. Many scientists believe that, so long as it is legal, there should be no limit on what they can do in their laboratories. When it comes to scientific experimentation, the question, "Can I?" in the technical sense is often followed by the question, "May I?" in the legal sense. Sadly, that is often as far as the inquiry goes. The question that all too often goes unasked is, "Should I?" The assumption that anything which is legal is morally permissible is not valid, especially in the area of bioethical decision making. Those who look only to the law for guidance in making sound bioethical decisions will be poorly served. The law is seldom an adequate ethical guide in the biomedical field. Here's why:
Law follows rather than leads. Advances in the biomedical arena are occurring so rapidly that they often occur in a legal vacuum. Frequently, there simply is no law that governs decision making in a given area of biomedicine. The reason is that the fields of biology, medicine, and the law move at vastly different paces. Changes in the law, by design, occur at a ponderously slow pace. "Delay" is the hallmark of change in the law. Not so with science and technology. Thanks to the "magic" of microchips and other state-of-the-art technology, changes are occurring so rapidly in scientific fields that by the time the law is applied to a given area, it is often out of date because technology has moved the field light years ahead. Decision making in the biomedical field, thus, often occurs in uncharted legal waters. In a legal vacuum, that which is not prohibited is permitted. But merely because something is permitted, however, doesn't mean it is right.
Law is political. Law is usually made in a highly charged political environment. Anyone who has ever been involved in the legislative process knows that the merits of the matter are often irrelevant to the ultimate outcome of a proposed law. Money, special interests, partisan politics, procedural shenanigans, and political clout often drive the legislative process. Political expedience frequently prevails over principled decision making. Because of this, the law is seldom an adequate standard by which to gauge ethical decision making in the biomedical field.
Law does not rest on a transcendent standard. In the arena of ethics, right and wrong are judged by a transcendent standard. Something is viewed as morally right or wrong based on whether it comports with a "higher" law. That higher law may be deemed the Law of Nature or of Nature's God; but it is deemed to be, in all events, something that is true and binding on everyone. In the legal arena, however, transcendent standards are frequently jettisoned. Lawmakers and judges often view themselves as the highest authority, and their pronouncements are deemed final and binding. This view of the law is called "legal positivism" and is rooted in the notion that the "law" is what judges and lawmakers say it is! This view has not always prevailed. Martin Luther King, Jr., reasoned, "How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law...One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." Dr. King's views mirror those of St. Augustine, who declared, "An unjust law is no law at all." Our laws should always be rooted in the higher law binding on all men, but, sadly, sometimes they are not. Therefore, the law is not always a reliable guide for our behavior.
Abraham Lincoln, arguing against the institution of slavery, maintained that "[no]body has a right to do wrong." His point very simply was that no one has the right to degrade or harm a person and call it their right. In many quarters, Lincoln's argument would carry little weight in America today. In our "enlightened" secularized society, the relationship between moral truth and the law has been broken. Morals and ultimate values may be deemed to have a place, but only outside the legal arena. Nowhere is this better illustrated than in the area of abortion. The "right" to abort a child results from the Supreme Court's decision to give primacy to so-called "rights of privacy and personal autonomy." Because of the weight given by the Court to the interests an individual has in personal autonomy and privacy, a woman's right of privacy was deemed by the Court to outweigh any claim her unborn child had to a right to life. Nowhere in its decision did the Court address the morality of a mother killing her unborn child.
In contrast, the transcendent moral law, spelled out in the Scriptures, recognizes the worth, value and dignity of all individuals, including children. A careful examination of Scripture on subjects relating to the sanctity of life, marriage, and the family (all of which are implicated in many biomedical decisions) yields numerous conflicts with our current civil law. Because of recent changes in the foundations of American law, Christians will do well to look to the law of God, as well as to the law of the land, when seeking guidance in making sound biomedical decisions.
The Psalmist declared, "The law of the LORD [not the law of man] is sure, making wise the simple." Rarely are there decisions that call for greater wisdom than the life-and-death judgments that are involved in the biomedical field. May God grant us the wisdom to discern not only that which is legal, but also that which is right.
Ken Connor is Chairman of the Center for a Just Society in Washington, DC and a nationally recognized trial lawyer who represented Governor Jeb Bush in the Terri Schiavo case. Connor was formally President of the Family Research Council, Chairman of the Board of CareNet, and Vice Chairman of Americans United for Life. For more articles and resources from Mr. Connor and the Center for a Just Society, go to www.ajustsociety.org. Your feedback is welcome; please email firstname.lastname@example.org