Morality Policy

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Morality policy is any policy that seeks to use the coercive power of government to impose or legitimize one set of fundamental values or norms over a competing set (or sets) of values or norms. One key distinction of morality policy is the fundamental nature of the competing values; these policies represent the clash of deeply held, core beliefs rather than a simple conflict over the best or most efficient means for government to achieve its policy ends. A second key distinction is that, although morality policy most often takes the form of governmental regulation, it does not take the usual form of regulation of economic behavior but rather regulation of social relationships or interpersonal conduct. These two distinctions of morality policy ensure a third important trait of the policy type: the average citizen knows something about these policies, usually forms a strongly held opinion about these issues, and is often willing to take political action to enforce his or her view. High levels of public engagement and conflict are thus easily seen in connection with all of the major types of morality policy, including abortion, gun control, LGBTQI rights and same-sex marriage, capital punishment, school prayer, pornography, gambling, sex education, the right to die, affirmative action, and religious liberty cases.

OVERVIEW AND HISTORY

The framers of the U.S. Constitution were faced with a daunting challenge as they attempted to rectify the weaknesses inherent in America’s first attempt at self-government, the Articles of Confederation (1781). Under the Articles, the states had too much individual power, making it impossible for the Confederation to act as an effective unit and threatening the long-term stability and integrity of the new nation. While a stronger central government was thus necessary, a national government with too much power that threatened to tyrannize its people was also undesirable. Of particular concern to the framers was the challenge of crafting the 13 states with all of their diversity—in cultures, economies, and values—into one coherent whole. Their solution was the American federal system, a central facet of which is the Tenth Amendment.

MORALITY POLICY AND ITS NATIONALIZATION: THE ABORTION ISSUE
Abortion policy in the United States presents a useful example of morality policy politics and evolution. First, the issue of abortion unquestionably fits all aspects of the broad definition of morality policy, as follows:
1. Abortion policy uses the coercive power of government—whether or not conducting and/or receiving an abortion is deemed criminal behavior and therefore subject to legal sanctions—to impose one view of the “rightness” or “wrongness” of abortion.
2. The competing values in this policy area are clearly fundamental, for those who view the procedure as the taking of a life as well as for those who view it as a matter of personal liberty.
3. Although elements of abortion policy have economic implications—whether or not poor women have equal access to the procedure, for example—the policy itself represents the regulation of individual, personal behavior and not economic behavior.
4. High levels of public engagement and conflict are commonly associated with the abortion issue, from annualized protest events such as the “March for Life” to national polls that report that a majority of Americans feel strongly about the issue and are more likely to contact their congressional representatives or to give time and money on the issue.
The history of abortion policy in the United States also demonstrates the pattern of nationalization that is associated with American morality policy making, as the following timeline suggests:
* Colonial period—Despite the commonality of abortion, no governmental entity attempted to regulate the practice. Even the Roman Catholic Church allowed abortion before “quickening,” or the point in time when a pregnant woman first feels the movement of the fetus.
* 1821—The political community addresses the abortion issue in the United States for the first time when the State of Connecticut outlaws abortion after quickening (typically, between the sixteenth and eighteenth week of pregnancy). Three other states quickly follow suit.
* 1854—Pope Pius IX moves forward with a powerful change in policy on abortion; by 1869, excommunication for physicians who perform abortions becomes the new Roman Catholic Church policy.
* Post–Civil War Period (1861–70)—In response to the change in Roman Catholic Church policy and heavy lobbying by the newly created American Medical Association, most states pass laws that severely restrict abortion.
* 1962—The abortion issue receives national attention when Sherri Finkbine, a popular television personality, is forced to fly to Sweden to seek an abortion after realizing that she had taken thalidomide, a drug proven to cause severe fetal abnormalities. Soon after, an epidemic of German measles (which also causes serious deformities) sweeps the United States, further increasing public interest in abortion policy reform.
* 1965—Unsuccessful in its efforts to persuade enough legislators to change state laws banning the sale of birth control information or devices, Planned Parenthood (assisted by lawyers from the American Civil Liberties Union) turns to the courts with a test case strategy. The strategy is successful with the Griswold v. Connecticut ruling, in which the Supreme Court finds these state laws unconstitutional based on a right to privacy. The decision lays a foundation for women to claim the right to terminate a pregnancy grounded in the same right to privacy.
* 1967—The first annual convention of the National Organization for Women adopts the Bill of Rights for Women, representing the first formal call for the repeal of state abortion laws. Other rights organizations soon follow suit, including the American Civil Liberties Union.
* Early 1970s—The campaign to repeal state abortion laws leads 14 states to revise their laws to allow abortions in some circumstances, and 4 additional states repeal their restrictive abortion statutes altogether. Change in the states is viewed by activists as frustratingly slow, however, and a multitude of test cases are launched around the country by interest groups who seek to invalidate state abortion laws.
* 1973—Supreme Court rulings in two test cases, Roe v. Wade and Doe v. Bolton, formulate national policy on the abortion issue for the first time. Based in part on the precedent set in Griswold, the Court finds that a woman’s constitutional right to privacy outweighs the state’s right to regulate abortion under its reserve powers, at least during the first trimester of pregnancy. Responsibility for abortion policy in the United States is thus transferred from the states to the federal courts as the abortion laws of all but four states are invalidated.
* Post–Roe v. Wade—Rather than providing the final word on the abortion issue, the Supreme Court’s decision in Roe v. Wade actually initiates the real abortion debate, pushing the issue onto the national agenda. Anti-abortion activists immediately begin to press for a constitutional amendment to overrule the decision, requiring the involvement of Congress, as does passage of the Hyde Amendment (cutting off federal funding for abortion) in 1976. Executive orders soon follow that implement the gag rule (banning discussion of abortion in federally funded clinics) and ban fetal tissue research, abortions in overseas military hospitals, and aid to international family planning organizations that include abortion counseling, further nationalizing and intensifying the debate. In addition, the Roe and Doe decisions opened up the question of how far a woman’s right to privacy extends and, thus, how far the states can go in restricting the abortion procedure. Anti-abortion groups therefore quickly mobilize at the state level to lobby state legislatures for more and more restrictive abortion statutes, forcing pro-choice groups to test them for constitutional muster in the court system. The result of the nationalization of abortion policy has therefore been the continued involvement of the federal courts, a string of controversial Supreme Court decisions (for example, Akron v. Akron Center for Reproductive Health, Inc. in 1983, Webster v. Reproductive Health Services in 1989, Rust v. Sullivan in 1991, Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, Bray v. Alexandria Women’s Health Clinic in 1993, Stenberg et al v. Carhart in 2000, Gonzalez v. Carhart in 2007, and Whole Woman’s Health v. Hellerstedt in 2016), and continued policy conflict. Indeed, the Post-Roe period has been an incredibly turbulent one for women’s reproductive rights at the state level, with most states legislating at least some restrictions (such as counseling, mandatory delay, and parental notification/consent laws) and a few implementing a complex web of legal and practical obstacles to access an abortion procedure.

The Tenth Amendment to the U.S. Constitution says simply, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, the Constitution enumerates the powers of the national government, reserving all of the rest for the states and the people. These reserve powers, as they have come to be known, give the states their own sphere of authority and, therefore, substantial power within the federal system. Specifically, the reserve powers provide states with the authority to legislate for the public health, safety, and morals of their citizens. Thus, morality policy making was reserved for the states, allowing the states to deal with the diversity of needs, interests, and values found within them. Examples of the dominance of state regulation of moral issues are numerous, from state anti-obscenity laws that date back to the founding of the republic to the state regulation of the abortion procedure that began in the 1800s (see side bar).

Although morality policy was thus once viewed as the sole responsibility of the states, the history of morality policy making demonstrates that the national government has assumed more and more responsibility for these issues. Increased federal influence in morality policy making can be explained, in small part, by an overall trend toward greater national power and control in American federalism generally. This shift to national power at the expense of state power can be traced to a variety of influences, including Supreme Court decisions expanding the power of the national government (such as McCulloch v. Maryland in 1819 and Gibbons v. Ogden in 1824), amendments to the U.S. Constitution (in particular, the Sixteenth and Seventeenth Amendments), the passage and implementation of New Deal legislation, and the increasing dependence of the states upon federal grants-in-aid.

However, a fuller explanation for an increase of federal activity in the area of morality policy arises from a tendency by groups dissatisfied with state regulations on specific moral issues to look to the federal government for assistance. The leaders in employing this tactic were the civil rights activists of the 1950s who, frustrated by the lack of progress in achieving racial equality in the states, looked to federal courts and the U.S. Supreme Court, in particular, for relief. They were able to bring their grievances with state regulations to the federal courts, in part, because the Supreme Court has argued since 1925 that most of the limitations on governmental action that are contained in the Bill of Rights also apply to the states. Known as the Incorporation Doctrine, this interpretation of the Constitution by the Court holds that the Due Process Clause of the Fourteenth Amendment requires that state and local governments also guarantee the rights contained in the first ten amendments to the Constitution. Although the Court has not incorporated all of the protections in the Bill of Rights, it has chosen to selectively limit the rights of states by requiring them to respect most of the other freedoms.

The Incorporation Doctrine thus opened the way for civil rights activists to turn to the federal courts with a strategy of “test cases,” or cases that are specifically chosen by an interest group to advance their policy agenda. The test case strategy was attractive for its potential ability to bring about change outside of the normal political process, an ability that springs from two distinct characteristics: first, that moral conflicts necessarily involve questions of civil liberties and civil rights; and, second, that the judicial branch is able to respond to and protect minority rights in a way that legislatures (dominated by majority rule) cannot. The triumph of the civil rights activists’ test case strategy in Brown v. Board of Education in 1954 thus quickly became a model for change that was enthusiastically adopted by other aggrieved minorities and individuals who felt that a state (or states) had violated their rights.

Beginning with the Brown decision and then with a 1957 ruling that state laws regulating pornography were unconstitutional infringements on freedom of the press, the Supreme Court has intervened in the area of morality policy innumerable times. In three cases spanning from 1962 to 1963, for example, the Court ruled that school prayer was a violation of the Establishment Clause of the First Amendment, striking down the practices of 37 states that required or condoned the reading of the Bible in their public schools. In 1973, the Court legalized abortion during the first trimester of pregnancy, effectively nullifying abortions statues in 46 states, and in June 2015, the Supreme Court found that the Constitution guarantees a right to same-sex marriage. Indeed, cases concerning affirmative action and race relations, church/state relations, obscenity and child pornography, gun control, appropriate methods for executing prisoners on death row,, birth control and abortion, and religious liberty continue to fill federal court dockets. Thus, the history of morality policy in the United States is the story of the nationalization of decision making over moral issues as federal courts have shifted legal jurisdiction and policy responsibility from the states to the federal government.

AFFECTS OF MORALITY POLICY NATIONALIZATION

One of the advantages of American federalism, as described above, is the ability of the states to tailor public policy to suit the needs, interests, and values of the public in each state and local community. This important function of federalism is particularly critical in the area of morality policy, where core values are at stake and a large amount of variation in those values exists. States can thus be seen as “moral communities” that differentiate their policy response to moral issues based on local values and beliefs. As long as morality policy remains in the domain of state governments, congruence can likely be achieved between majority public opinion and morality policy making, minimizing conflict. Once morality policy is nationalized, however, it is no longer possible for government to tailor its policy choices to local values, with the result that a single policy (and therefore one set of values) is forced upon all states and communities.

One effect of morality policy centralization is therefore that national morality policies often do not reflect the preferences of subnational communities, causing a significant number of citizens to be profoundly unhappy with the policy. Since many citizens are highly engaged on moral issues, the obvious result is political conflict and fractious, extended debate. As this debate is over intensely held beliefs, neither side is willing to compromise and true policy resolution is unlikely if not impossible. The abortion issue represents an excellent example of this affect; the 1973 Roe v. Wade decision pushed the issue onto the national agenda, where supporters on both sides of the issue find themselves locked in a bitter battle that defies resolution (see the side bar). In short, the centralization of morality policy can destroy the power of federalism to stabilize morality policy making, ensuring continuous and bitter policy conflict.

The disjunction between national morality policy and the preferences of subnational communities also gives rise to a second effect of nationalization: noncompliance. When national morality policy and local public opinion do not match up, states and communities may simply choose to ignore national policy. Noncompliance with school prayer bans in areas of the South with high levels of cultural conservatism and religiosity (the “Bible Belt”) suggests how this effect can be felt. For example, a nationwide study of 464 schools conducted by H. Frank Way two years after the Supreme Court ruled school prayer unconstitutional found that a majority of teachers in the South continued to conduct Bible reading, prayers, and grace in school. And in 2001, the chief justice of the Alabama Supreme Court erected a 2.5-ton monument to the Ten Commandments in the rotunda of the State Supreme Court building. Chief Justice Roy Moore’s refusal to remove the monument, even in the face of a federal court order to do so, was telling. This same Chief Justice Moore made history in September of 2016 when he was again suspended, this time for ordering Alabama’s state probate judges to refuse to issue marrige licenses to same-sex couples in defiance of the U.S. Supreme Court’s ruling in Obergefell v. Hodges.

Thus, morality policy making under federalism ensures governmental responsiveness to local values, more congruence between public opinion and morality policy making, and greater compliance with government policy. When morality policy making becomes nationalized, however, compliance is often lessened and divisive political conflict becomes the norm. The negative consequences of these outcomes are potentially quite severe: divisiveness and noncompliance undermine the integrity of the federal system as well as the overall legitimacy and stability of American government. Of particular concern is the blow to federalism’s ability to unite 50 diverse states under one banner. Furthermore, any centralization of power at the national level restricts the ability of states to check the power of the national government within the federal system, raising the very threat of tyranny that the framers so assiduously fought to prevent.

Stephanie A. Slocum-Schaffer

Last updated: January 2018

BIBLIOGRAPHY:

Thomas R. Dye, American Federalism (Lexington, MA: D. C. Heath, 1990); Christopher Z. Mooney, “The Decline of Federalism and the Rise of Morality-Policy Conflict in the United States,” Publius: The Journal of Federalism 30, nos. 1–2 (Winter–Spring 2000): 171–89; Melody Rose, Safe, Legal, and Unavailable? Abortion Politics in the United States (Washington, DC: CQ Press, 2007; and Raymond Tatalovich and Byron W. Daynes, eds., Moral Controversies in American Politics (New York, NY: Routledge, 2014).

SEE ALSO: Abortion; Affirmative Action; Articles of Confederation; Bill of Rights; Brown v. Board of Education; Capital Punishment; Civil War; Education; Enumerated Powers of the U.S. Constitution; Executive Orders; Federal Courts; Fourteenth Amendment; Gibbons v. Ogden; Grants-in-Aid; New Deal; Roe v. Wade; Seventeenth Amendment; Sixteenth Amendment; Tenth Amendment; Webster, Daniel; Women’s Rights