As Lysander Spooner explained, vices are not crimes. The best way to have a moral populous is not to demand morality by fiat – the morality itself that was chosen to enshrine in law may be wrongheaded; the punishment may not fit the crime; who has the right to tell others how to act(?); etc. Even great Catholic theologians knew confusing vice and crime is a likelihood of the state:
The question is: Does the fact that it is immoral mean it should be illegal?
The National Catholic Register and other Catholic news outlets simply assume that if something is immoral, then it should be illegal.
This attitude, however, is not in line with historical Catholic thinking about the role of civil government and the state. A case can certainly be made that hormonal contraception is both physically harmful and immoral. But this is a completely separate issue from debating whether or not something is illegal. If one’s assumption that all harmful and immoral things should be illegal, then one should be honest and make that known, rather than dancing around the issue, as so many of Jindal’s adversaries are doing.
I’m forced to wonder then, if the people who advocate for state control and regulation of contraception are also in favor of making adultery and fornication illegal. Certainly, in the age of STDs, those things are both immoral and potentially damaging physically. Should they be illegal too?
It has never been the position of the Church, or of any reasonable person, I daresay, that just because something is immoral, it should therefore be illegal. Even from a non-religious perspective, of course, this is an important distinction, as was repeatedly noted in Rothbard’s The Ethics of Liberty. Many things that are immoral may not justify proscription by law.
To see evidence of this, we only need consult two of the Church’s most respected theologians: Thomas Aquinas and Augustine of Hippo, both of whom concluded that prostitution and fornication should remain legal.
Historian Vincent Dever provides a nice summary on this issue:
Having concluded that fornication and prostitution were gravel immoral,
it would seem obvious that Aquinas would want to engage every force against them, especially civil law. Oddly enough he does not. Instead he notes that the state should allow fornication and prostitution to exist for the sake of the common good. Relying on the well-known passage from Augustine’s De ordine, Aquinas advocates tolerance of prostitution by noting: “Accordingly in human government also, those who are in authority rightly tolerate certain evils, lest certain goods be lost, or certain evils be incurred: thus Augustine says [De ordine 2.4]: ‘If you do away with harlots, the world will be convulsed with lust.'” If these social practices were to be suppressed, the public reaction might be such as to threaten the peace of society.
Far from being theocrats, as so many vulgar critics of the medievals claim, the medievals like Aquinas were actually in favor of greatly limited civil government, which had little use or purpose beyond the maintenance of peace. Civilized society of course, could not function while wars raged everywhere, so civil governments were tolerated for the maintenance and safety of society. The idea, however, that civil governments should pass regulations governing people’s food and medicine, and then have such regulations enforced with an army of bureaucrats, would have seemed ridiculous to the medieval mind.
Dever continues in summarizing Aquinas:
While civil law does forbid certain vicious acts such as murder and theft, and requires certain acts of virtue such as caring for one’s children and paying one’s debts, it cannot “forbid all vicious acts” nor can it prescribe “all acts of virtue.” Aside from the fact that it would supplant the need for eternal law, why cannot civil law be enacted to prohibit all vicious activities? The goal of human law is the temporal tranquility of the state and not eternal salvation. Given this goal of temporal peace and order, Aquinas notes that the mandate of human law is to prohibit “whatever destroys social intercourse” and not to “prohibit everything contrary to virtue.” The main reason for civil law’s inability to prohibit all vice is that it cannot effect a full internal reform of an individual. An individual in their personal moral life is wounded by original sin and can only be restored by God’s grace. Therefore the coercive and educating power of human law is inefficacious in this realm. Aquinas asserts, then, that human law cannot “exact perfect virtue from man, for such virtue belongs to few and cannot be found in so great a number of people as human law has to direct.
Any reading of Aquinas’ works on politics makes it quite clear that “civil government,” for there was no “state” as we know it in the 13th century, does not exist to reform people’s minds or to increase their virtue, or to protect them from themselves.
Dever goes on:
Given these limitations of civil statute in regard to virtue and vice, Aquinas goes on to assert that human law leaves many sinful things unpunished and the example he uses is simple fornication, under which he has included prostitution. He clearly wants to include fornication and prostitution under that category of vices that human law cannot control and which must be left to eternal or divine law. Yet could not a case be made that prostitution is one of those activities that destroys social intercourse and so should be prohibited by civil statute? [Aquinas’] general principle, by which the state would tolerate prostitution without approving it, is that human laws “leave certain things unpunished on account of the condition of those who are imperfect, and who would be deprived of many advantages, if all sins were strictly forbidden and punishments appointed for them.”
So, if our finest theologian thinks that even gravely immoral acts such as prostitution and fornication should be legal, why should contraception not fall into this category?
To maintain that civil government in fact exists to regulate what pills we take illustrates that 21st-century Catholics have drunk the modernist Kool-aid and accepted the modern idea that civil government exists to regulate every aspect of our lives.
The moral status of contraception, like that of prostitution and fornication, is a settled matter in Catholic teaching. Those Catholics who disagree might be more comfortable in another church. The role of civil government in this matter, on the other hand, is another matter completely.
Those who think that states should be in the business of providing corporate welfare to health care providers and pharmaceutical companies in the form of prescription drug regulation, have the burden of proving that adults are incapable of determining what substances should be put in their bodies, and that state regulation would not lead to just the sort of society-damaging effects detailed by Aquinas and Augustine in their discussions on prostitution.
This entire discussion, however, will be null and void with in a hundred years, when we will look back on this age of government prohibitions of drugs and guns and labor and laugh to think that there was ever such a time when we thought that government could actually enforce such laws. The realities of commerce and technology are already outpacing the state, and in the not-too-distant future, we Catholics will once again be left on our own, as we were for most of the past 2,000 years, and this short age of lazily invoking the state to fight our battles for us will be over