"<Quid est Veritas?>" Human Freedom After Casey

John R. Meyer

A recent issue of <Crisis> contains an interesting article by 
Russell Hittinger entitled "Et tu, Justice Kennedy?",1 which 
provides a detailed historical review of the juridical <iter> and 
thought processes leading up and subsequent to <Roe v. Wade>.  The 
principal thesis of that work is that the interpretation of <Roe> 
is centered upon a reaffirmation of what is commonly termed the 
"central holding" of <Roe>.  The content of the "holding" notion 
includes two primary arguments:  i) the Fourteenth Amendment 
understanding of "liberty" includes a woman's decision to abort a 
pre-viable fetus, and ii) overturning Roe poses a threat to 
"social stability," "the rule of law," and the "integrity of the 
judiciary."  Hittinger comments that "what makes Casey different 
from our previous judge-made laws on abortion is the <migration> 
of the abortion right from privacy to liberty."  The three cited 
justices explain that "at the heart of liberty is the right to 
<define> one's own concept of existence, of meaning, of the 
universe, and of the mystery of life."

Hittinger succinctly records for us the juridical itinerary 
culminating in the Casey decision, which for all practical 
purposes is a radical endorsement of the human person as self-
constitutory.  The <First Things> editorial of October summarizes 
the Court's view of human freedom as "the liberty of self-will, 
self-expression, and indeed self-constitution."  Initially, the 
Supreme Court determined that "the right to privacy" prevents 
civil interference in the marital life of people.  Thus state 
statutes forbidding the sale or use of contraceptives was declared 
unconstitutional (<Griswold v. Connecticut> [1965]) because it 
would allow an unjust invasion of the mutual marital relationship.  
In 1971 the Court ruled that the sale of drugs or instruments of a 
contraceptive nature cannot be prevented by State law (<Eisenstadt 
v. Baird>).  The application of the "right to privacy" proved 
inadequate in this case because civil intervention affected only 
individuals and not the marital relationship <per se>.

The earlier <Griswold> decision had described the "right to 
privacy" as "surrounding the marriage relationship" whereas in 
<Eisenstadt> it now comes to <inhere> in the individual.  <Roe v. 
Wade> (1973) amplified the notion of this right to encompass a 
panoply of supposed individual values, psychological, social, 
economic, and others.  All of these are very important but at the 
same time circumstantial considerations which do not alter the 
essential nature of the act of abortion.  <Roe> effectively 
extracted the notion of the mutual relationship of the persons in 
the institution of matrimony by affirming the exclusive and 
unilateral right of one type of individual, the woman, to procure 
an abortion.  In <Bowers V. Hardwick> (1986) the "right to 
privacy" was restricted to the marital state as the Court refused 
to <extend> the "right to privacy" to include homosexual sodomy.  
But in his dissenting opinion Justice Blackmun said that the 
notion of "right to privacy" had to be <redefined> by introducing 
the concept of "self-definition."  He wrote that this right was 
essentially one of autonomy understood as "the ability to lay 
claim to one's own personality through free choice."  The <Casey> 
decision actually makes use of this re-definition of "the right to 
privacy" in order to promote an almost unlimited conception of 
human freedom in the area of sexual activity, whether procreative 
or not.

Whether there has been a "migration" of thought is less important 
than what this decision patently affirms:  "human beings define 
who they are."  Anyone who believes in the existence of a divine 
Creator will find this description of liberty as an usurpation of 
the prerogatives that only properly speaking pertain to God.  Only 
God can <define> what he creates precisely because he gives his 
creatures all of their being.  We therefore suggest that a return 
to a non-skeptical assessment of truth in morality is of essential 
importance if we hope to reach any form of common agreement as to 
what good moral conduct consists of.  As St. John records for us, 
"<veritas liberabit vos>" (Jn. 8:32), the truth will set you free.  
One contemporary moral theologian suggests that free moral choices 
constitute what we <are> and what we <become>, not what we define 
ourselves to be.2  Perhaps the ideas of free choice and self-
determination are not incompatible after all; the real problem 
lies in <defining> what we are and what we can or cannot licitly 
do as morally acting persons.

What is really at issue here is the question of what exactly 
should it mean for us to be "pro-choice," not as it is commonly 
understood in "abortion-right" parlance but as a free moral act.  
One certainty has come to light in the abortion controversy:  each 
human being is personally responsible for the choices they make 
and legal statutes should focus on the common good rather than 
that of the individual.  Our times call for a deep work of 
cultural and religious formation in order to enable the individual 
members of society to conform their conduct, in both private and 
public affairs, to the laws "written" into our human nature by 
God.

<I. Human Freedom in Light of the Casey Decision>

The rather ominous quotation cited by Hittinger from Lawrence 
Tribe and Peter Rubin's book <Abortion:  The Clash of Absolutes> 
(1990) is particularly revealing:  "[the abortion right is the] 
liberty not to be moulded physically and psychologically into a 
mother."  Although any citation taken out of context can be easily 
misinterpreted, in this instance, the underlying presuppositions 
seem to be rather obvious.  Human liberty or freedom has been 
erected as an absolute right beyond the measure or standard of any 
thing or any one other than the individual <in se>.  The 
celebrated right to life, liberty and the pursuit of happiness 
enshrined in the Declaration of Independence, designed to protect 
and guarantee religious freedom, has become an exclusively 
individual right.  It is a right which can be agreed upon by 
consensus but not be delineated by authority.  We could interpret 
Tribe and Rubin's description of the "abortion right" as ascribing 
the power of controlling the freedom of a woman to a pre-viable 
fetus.  Implicit here is the idea that the unborn child usurps the 
mother's freedom to act as she wishes, or at least it compromises 
her options for action.  But is this really true?

It could be contested that once a woman has conceived a fetus, 
whether viable or not <extra uterum>, she is already a mother.  
But using the orientation of these authors perhaps we could 
paraphrase the above description to read:  "the potential child is 
a <thing>, precisely because it is incapable of voluntary human 
acts, a thing that alters the <personality> of a responsible human 
being," i.e., the potential mother.  Of course most people who 
defend the "abortion right" would respond that it is not the fetus 
nor the putative father that robs a woman of her freedom but 
rather any legislative barriers that prevent access to 
abortifacient agents or abortive surgical procedures, because 
these restrictions deny a woman the exercise of her free choice.  
The most important right for a woman, they contend, is the right 
to terminate the only thing which can truly be given by one human 
being to another, <life.>  Such an argument is incorrect, morally, 
because free choice is not directly affected by legal dictates:  
legislation serves to guide the good moral conduct of citizens and 
strives to ensure the common good of all members of society.

Clearly, moral education needs legislative science, but its 
function is to educate and to promote the good use of our 
faculties as children of God.  Aristotle perceived this and placed 
great importance on the role of the legislator and the State  in 
contributing to the pursuit of virtue by the citizenry.  He writes 
in the Nicomachean Ethics:  "legislators should urge people toward 
virtue and exhort them to aim at what is fine."3  Excellent laws 
express the personal attention of the State for the education of 
the people, "for just as in cities the provisions of law and the 
[prevailing] types of character have influence, similarly a 
father's words and habits have influence, and all the more because 
of kinship and because of the benefits he does; for his children 
are already fond of him and naturally ready to obey."4

The question we propose to address here is how can a concept of 
human freedom, understood as unlimited personal liberty, have 
developed in a culture and a society which is built on the respect 
for the dignity of the human person?  Perhaps this can be 
explained, at least in part, by the fact that personal dignity is 
not a human invention of our nation's Founding Fathers but is a 
revealed truth of faith.  Man is created in God's image and 
likeness (cf. Gen. 1:26), thus man, like God, is both free and is 
capable of self-knowledge through his actions and his dealings 
with others.5  Moreover, this dignity is not only manifest in an 
intrinsic fashion as creatures made in God's image, but we are 
also intelligent beings.  Therefore, we can act by way of good 
moral choices to attain our natural and supernatural end:  
happiness in this life and a hundred-fold more in the next when we 
act and choose according to God's will.  And it is precisely the 
conscience which enables us to make good judgments and sound 
choices.

Human actions are something like words through which we give 
ourselves an identity as moral beings; our moral character is 
acquired <by us> through the choices we freely make.  Although it 
is true that we are free to choose what we do, we are not free to 
determine or define what we do as right or wrong.  Human dignity 
includes the capacity to understand in some measure what God 
expects of us and to freely choose to relate ourselves to Him 
through our actions by acting and living in accord with right 
reason.  Aristotle believed that happiness is avidly bound up with 
a life of reason concerned with action:  man's good is his good 
functioning _ "the activity of the soul in accordance with 
virtue."6  And the best and most perfect virtue is <sophia> or 
understanding whose specific activity is <theoria>, 
contemplation.7  As Christians, we understand that our highest 
activity is not simply an appreciation for what is good action but 
that God enables us to discover what is a good action in the 
concrete circumstances and the moral context of each act.  As a 
matter of fact our life is a <colloquium> with God in which we 
enjoy a participation in his life, "[we] participate in the light 
of the divine mind."8

<II. The Dignity of the Human Person>

One of the most characteristic cultural traditions of our time is 
a heightened awareness of the inherent dignity of the human person 
as the authentic foundation of human freedom.  Unfortunately, many 
of our contemporaries have forgotten, or at least they do not seem 
to realize, that this fact is known both by way of human reason 
<and> the revealed Word of God.  The latter is especially 
important because it concerns the origin or source of human 
dignity and thus is important for a clear appreciation of its 
inherent value.  The Church magisterium has discussed this "truth 
of man," of man's special dignity, on several occasions.9  Of 
particular interest for us is the Declaration, <Dignitatis 
humanae>, which states that "all men . . . are by their own nature 
impelled, and are morally bound, to seek the truth" _ "they are 
bound, too, to adhere to the truth they know and to order their 
whole life according to the requirements of the truth."10  True or 
sound moral judgments of conscience require that one both know and 
recognize the dictates of the truth.  John Henry Newman pointed 
out, however, that this judgment of conscience is not easily 
performed as a disinterested operation because we can readily cede 
to rationalizations:  "the aim of most conscientious and religious 
men is not how to please God, but how to please themselves without 
displeasing God."

Another consideration we should consider is that the incarnation 
of the Word of God shows that man is not merely like God but that 
he is called to be God-like.  We are constituted as beings which 
are essentially receptive to God's divine life; we are creatures 
that are made for God.  In the words of St. Augustine, "you have 
made us for yourself, O Lord, and our hearts are restless until 
they rest in you."11  William May has pointed out that we find 
both in St. Thomas and the teachings of the Second Vatican Council 
that human beings possess a two-fold dignity, both being intrinsic 
to our <being>.  One is an endowment or gift, and the other is an 
achievement or an acquisition.12  How then might we proceed in our 
discussion of good human free choice?  One promising approach is a 
discussion on the relationship of truth to conscience.13

The personalism of John Paul II addresses the "truth about man" 
and suggests that it is centered on the <selfhood> of the human 
person.  The Holy Father understands this to mean that the norms 
of moral conduct grow out of the truth about our personal being.  
Thus moral norms must be internalized and not simply applied from 
"outside"; we as persons are made for the truth, and we can only 
<live in truth> if we understand it.14  A man can be good and act 
well only if he is truly wise.  When applied to matrimony the love 
present between a man and a woman is centered on their capacity 
for <self-donation>.  And this capacity of making oneself a gift 
to another is founded on selfhood and the process of active self-
determination through free moral acts.  Although a relationship of 
a mother to a gestating child differs from the nuptial union of 
marriage, it is easy to see how the mother's act of self-donation 
in the marital state gives the potential child a share in her own 
life and the life of her spouse.

The love between husband and wife serves as the context of a new 
creative moment by God; it is the medium of selflessness in which 
God communicates new life.  This life is, in its deepest sense, 
the gift of "personhood."  It is a gift that cannot be given by 
them but must come from God.  We find ourselves face to face with 
the problem of how God gives a person their existence.  The 
creative intervention of God does what we cannot do:  only God can 
create the "person" in the context of mutual human love.  
According to the classical definition of the person, he/she is 
<sui iuris et alteri incommunicabilis>, a law unto itself and 
incommunicable to others.  The "Law of God" is written into our 
personal nature <and> we cannot communicate it to another.  
Moreover, the willingness to bring a pre-viable life to term 
consolidates the initial community of love in which conception 
occurs.15

One might object to this "romantic" appreciation of sexual union 
by citing the fact that the generation of human life outside the 
context of marital communion is not prevented by God.  There seems 
to be no divine provision for the authenticity of human self-
donation between two persons prior to the creation of a new human 
life.  Actually, this fact is not really a problem to our 
discussion but does in fact support the personalist approach to 
human love.  In the mind of Karol Wojtyla the most radical form of 
human self-giving takes place between a man and a woman in the act 
of <spousal> love, a type of love which entails the surrender of 
oneself to another.16  And this spousal surrender is possible 
precisely because the human person is <sui iuris> (belongs to 
him/herself).  This fact affords the possibility of <selling> 
oneself to another, of throwing one's "self" or "person" away in 
acts of love that lack the guarantee of authentic self-donation, 
the mark of permanent commitment.  God respects our freedom so 
much that he does not violate the laws of nature set into motion 
by our free human acts.  He does not prevent a bad human act even 
when it is an abuse of one's own self and the <person>ality of 
another human being.

A man who simply "takes" a woman, in the absence of an authentic 
mutual offering of "self" performs a physical act akin to the 
marital one, but that act does not affect the "interiority" of 
either person.17  Each one remains excluded from the inner self of 
the other, merely using one another's physical abilities for 
egotistical gain.  In order to appropriate the good that inheres 
in the other person each one must allow themselves to be known in 
a personal manner.  This demands that the subject be open to the 
self of the other, and that they be willing to accept and grant 
full autonomy to that other self.  We could say that these 
predisposing elements to true human love prepare each one to be 
receptive to the self-donation of the other and to the gift of 
spiritual life from God.18

Where there is no commitment of one person to another there is no 
authentic love, no true gift of one to the other, and thus there 
is no deep love for the possible resultant human life of such a 
union.  This would in part explain why abortion on demand is so 
widely acclaimed in societies that do not effectively educate in 
the virtue of chastity and legalize marital divorce.  The 
permanence of the family is not guaranteed by the legislative body 
nor is the indissolubility of the marriage bond viewed as a good 
but rather as an onerous burden.19

<III. Moral Acts as Self-Determining Actions>

The subjectivity of human acting addresses the phenomenon of self-
determination as well as that of self-awareness or self-presence.  
One can make a distinction between what occurs "in man" and what 
he/she does by way of free choices, and this is most evident to a 
person when they consider an action in relation to the truth, when 
we make judgments with the conscience.20  The attraction or power 
of a moral responsibility, duty, or obligation draws us out of 
ourselves, but it also reminds us that it is we who dispose 
ourselves to act in a specific manner; we determine what we are by 
way of our moral acting.21  Only man exists for his own sake, and 
the dignity of his/her selfhood is decided or determined by each 
person through their moral actions.  For this reason we say that a 
human person truly determines their destiny.  Our lives are not 
simply in the hands of blind fate or good fortune.22  Aristotle 
writes a principle in the soul which gives rise to both good 
natural desire and correct intellectual and deliberative desire, 
and that principle is God.23

God is a final cause for the soul, not the efficient cause.  Thus 
man lives in obedience to the commands of the soul and not as a 
direct response to divine guidance.  For the Philosopher God is 
the supreme <arche> but our intellectual faculty possesses a two-
fold <arche>, one that enjoys "contact" with God and the other 
which is influenced by the senses and directs our actions.  God 
does not issue commands to us but rather we command ourselves.  
Wisdom or understanding is the epitactic <arche> that is capable 
of commanding us for the sake of God and in order to serve and 
contemplate Him.  Choices that move us to the contemplation of God 
are best because the Deity is the noblest criterion of judgment;