Memo to Cardinal Cushing on Contraception Legislation 1
John Courtney Murray, S.J.
In the mid-1960s Richard Cardinal Cushing asked Murray for recommendations concerning a Catholic response to a Massachusetts law that would decriminalize the supplying of artificial contraception devices. At this time Murray apparently maintained the natural law immorality of artificial contraception. Here, however, he argued that Catholics ought not oppose the law and that they ought to offer appropriate witness to both the morality of contraception and the public uses of civil law. For Murray's later judgments concerning contraception, see "Toledo Talk" in the appendix to this collection—Editor.
In my opinion, Catholics may and should approve amendment of Sections 20 and 21 of Chapter 272 of the General Laws of Massachusetts.2
The necessary amendment would permit doctors and responsible agencies to give contraceptive information to those who request it, and hence permit the sale of contraceptives on such responsible
recommendation. Whether the amendment should go farther than this is not now so clear.
There are, I think, two general lines of argument.
1) The first argument is based on the differential character of law and morality and on the distinction between public and private morality.
It is not the function of civil law to prescribe everything that is morally right and to forbid everything that is morally wrong. By reason of its nature and purpose, as the instrument of order in society, the scope of law is limited to the maintenance and protection of public morality. Matters of private morality lie beyond the scope of law; they are left to the personal conscience.
An issue of public morality arises when a practice seriously undermines the foundations of society or gravely damages the moral life of the community as such, in such wise that legal prohibition becomes necessary to safeguard the social order as such. So, for instance, offenses against justice must be made criminal offenses, since justice is the foundation of civil order.
Moreover, the scope of law is further limited to the protection and maintenance of relatively minimal standards of public morality. A minimum of public morality is a social necessity. On the other hand, the force of law is coercive (disciplina cogens metu poenae), and men can normally be coerced into the observance of only minimal standards.
These norms of law hold with particular force for a free society, in which government is not paternal and the jurisprudential rule obtains: "As much freedom as possible; as much restriction and coercion as necessary."3
Furthermore, the measure of public morality that can and should be enforced by law is necessarily a matter of public judgment,
especially in a democratic society. The people whose good is at stake have a right of judgment concerning the measure of public virtue that is to be enforced on them, and concerning the manner of public evils that are to be repressed.
Again, by reason of the function of law, there must be a reasonable correspondence between the moral standards generally recognized by the conscience of the community and the legal statutes concerning public morality. Otherwise laws will be unenforceable and ineffective and they will be resented as undue restrictions on civil or personal freedom.
In certain cases, the law may be "ahead" of the public conscience, or some segments of it; so, for instance, in the matter of racial equality. Here, however, justice and constitutional guarantees are at stake. On the other hand, in the field of sex morality the public educative value of law seems almost nil. For instance, it is useless to attempt to suppress fornication, or even adultery, by law.
In our present case, the crucial issue is whether contraception is an issue of public morality or of private morality. The question is disputed among Catholics.
I think that the case for affirming contraception to be matter of private morality is sufficiently conclusive in our present circumstances. It is not merely that the practice is in fact widespread, or that so many people do not consider it to be wrong. The more decisive reason is that the practice, undertaken in the interests of "responsible parenthood," has received official sanction by many religious groups within the community. It is difficult to see how the state can forbid, as contrary to public morality, a practice that numerous religious leaders approve as morally right. The stand taken by these religious groups may be lamentable from the Catholic moral point of view. But it is decisive from the point of view of law and jurisprudence, for which the norm of "generally accepted standards" is controlling.
It may be argued that contraception raises an issue of public morality because it has public consequences—an effect on the birth rate, on family morality, on the rise of hedonism, etc. On the other hand, it does not seem that these public consequences can be controlled by law. It further seems that the effort at legal control results in other social evils—contempt for the law (already widespread), religious strife within the community, etc.
The conclusion is that amendment of the birth-control statutes is permissible and even advisable on grounds of a valid and traditional theory of law and jurisprudence.
2) The second—and secondary—argument derives from the concept of religious freedom. The forthcoming conciliar declaration will assert that the concept includes a twofold immunity from coercion.
First, a man may not be coercively constrained to act against his conscience. Second, a man may not be coercively restrained from acting according to his conscience, unless the action involves a civil offense—against the public peace, against public morality, or against the rights of others.
But the practice of contraception involves no such civil offense. Therefore the principle of religious freedom should obtain. And laws in restraint of the practice are in restraint of religious freedom.4 I call this argument secondary because it supports the prior argument, that contraception is a matter of private morality.
So much for the case favoring the amendment. There remains, of course issues of prudence.
First, the amendment should be put through with as little public agitation as possible. Let there not be another referendum, which stirs popular passions, raises false issues of power and prestige, and divides the community on the moral issue when it should be united on an issue of law and civil freedom.
Second, Catholics must make publicly known the grounds of their approval, namely, that they, like all citizens, are bound on the principles of law, jurisprudence, and religious freedom.
Third, Catholics themselves must be made to understand that, although contraception is not an issue of public morality to be dealt with by civil law, it remains for them a moral issue in their family lives, to be decided according to the teaching of the Church. Because contraception is made legal it is not therefore made moral, any more that it should be made illegal simply because it is immoral.
Catholics might well take this public occasion to demonstrate that their moral position is truly moral, that is, it is adopted freely, out of personal conviction and in intelligent loyalty to their Church.
The final prudential question is the most difficult: What shall the authorities of the Church say publicly about the proposed amendment? In a sense, it is a pity that they should have to say anything. The authority of the Church declares the moral law—that contraception is contrary to the moral law.5 But the authority of the church does not decide what the civil law should be. This decision rests with the civil community, its jurists and legislators.
Obviously, the Church has the right of moral judgment on the legal order and its statutes. Normally, however, this right is exercised in a negative sense, that is, the church declares that a piece of legislation is contrary to the moral law. The Church does not normally declare in antecessu that a piece of legislation is acceptable, especially when—as in the present case—the grounds of acceptability are legal, jurisprudential, and civic.
On the other hand, there is the concrete situation, in which confusion and uncertainty of conscience will ensue, unless the church makes an official statement.
I would suggest therefore that the public statement should distinguish (with Pius XII in Ci riesce6) between the questio iuris and the questio facti. The former is concerned with matters of principle—moral, legal, jurisprudential, and the principles of religious freedom. The latter is concerned with the actual amendment to the law and with Catholic approval of it as a matter of civic conscience, informed by all the principles stated.
Perhaps the essential thing is to make clear: (1) that from the standpoint of morality Catholics maintain contraception to be morally wrong; and (2) that out of their understanding of the distinction between morality and law and between public and private morality, and out of their understanding of religious freedom, Catholics repudiate in principle a resort to the coercive instrument of law to enforce
upon the whole community moral standards that the community itself does not commonly accept.
The conclusion might be an exhortation to Catholics to lift the standards of public morality in all its dimensions, not by appealing to law and police action, but by the integrity of their Christian lives. This, to set the birth-control issue in its proper perspective.
(1)Editor Note: No previous publication. Found as "Memo to Cushing on Contraception Legislation," Murray Archives, file 1-43.
(2)Editor Note: Massachusetts General Law 272, § 20 imposed penalties of not more than three years jail or $1000 fine for advertizing or dissemination of information directed to inducing miscarriages or preventing conception. § 21 imposed similar penalties for "selling, lending or giving away an instrument or other article intended to be used for self-abuse, or any drug, medicine, instrument or article whatever for the prevention of conception," and also any advertizement or information distribution concerning such practices. The May 10, 1966, passage of General Law 272, § 21A approved physician distribution of contraceptive means by way of prescription and the dissemination of contraception information by qualified health personnel. It still did not allow direct advertizement or distribution of such devices through vending machines.
(3)Editor Note: This double phase was at the heart of Murray's argument for civil religious freedom (at this time under discussion at the Second Vatican Council). In Murray's 1964e: "The Problem of Religious Freedom," the maxim was presented as an outgrowth of an Anglo-American "great act of faith in the powers of the people to judge, direct, and correct" the government. That is, the maxim emerged within a particular historical society. In Murray's last argument for religious freedom, he linked the maxim immediately to a notion of the human person, prior to and formative of government (see 1968: "The Human Right to Religious Freedom" in 1993: Religious Liberty: Catholic Struggles with Pluralism.)
(4)Editor Note: Unless Murray were here ready to claim that judgments concerning contraception arise out of revealed sources, not from natural law analysis, it is difficult to see what this religious liberty appeal adds to his first argument, except to highlight the fact that judgments concerning contraception differ from denomination to denomination, and that Catholics should hesitate when, as mentioned above, leaders of other religious communities differ from Catholic magisterial judgments.
(5)Editor Note: For Murray's response to the 1967 Majority Report that endorsed artificial contraception, see "Toledo Talk" in the appendix to this volume.
(6)Editor Note: A talk given in December 1953 by Pope Pius XII to Italian Jurists on religious freedom and intolerance. Murray's interpretation of that talk at Catholic university immediately led to his silencing.