At 5 p.m. on September 29th, pro-life activist groups affiliated with the ActsFive29 project—including Live Actions, Priests for Life, and the American Family Association—began a seventy-two hour rally in opposition to a January Department of Health and Human Services (HHS) mandate which, according to conservative pundits at outlets such as National Review, “erodes” religious freedom by requiring employer health places to cover contraceptives and abortion-inducing drugs. Over that weekend, from September 29th and October 1st, sixty-six pro-life protesters were arrested—some multiple times—for praying and demonstrating in a “restricted” zone directly outside of the White House. Can these actions be justified as an act of civil disobedience?
In his seminal 1971 work A Theory of Justice, John Rawls defined civil disobedience as “a public, nonviolent, and conscientious act contrary to law” committed “with the intent to bring about a change in the policies or laws of the government.” Elaborating on this loose definition, Rawls presented four specific conditions which actions must satisfy to qualify as civil disobedience: (1) they must be contrary to law; (2) they must be motivated by conscientious concerns, as opposed to personal gain, and be political in both justification and audience; (3) they must be public; and (4) they must be nonviolent.
Last week’s pro-life protests certainly had the latter two features. The groups involved made every effort not only to pray in public but also to make the rally known to the public and Christian media outlets, and unlike the bombings of abortion clinics, no one’s property or person suffered any harm at the decidedly peaceful rally. Likewise, in keeping with Rawls’ first condition, the groups acted contrary to the law. According to J.C. Derrick, covering the protests for the Christian-oriented WORLD Magazine, police arrested the protesters for their “failure to obey lawful commands.” Though there may be some question as to whether the protests needed to be illegal, suffice it to say the protesters planned the rally knowing that hosting it in that zone would be considered illegal.
Rawls’ second condition has several subparts to it which may not be so easily fulfilled. While a cynic may suggest that the broader efforts against the HHS mandate are simply part of Republican partisans’ campaign to deny Obama evangelical and Catholic votes this November, it does seem that these individual activists were motivated by their conscience. Though their religious objections may not be validated under Rawls’ own “conception of civil society and the public good,” the protests were justified by those moral principles which define the protesters’ Christian conception of civil society and the public good. Rawls’ definition may exclude the protesters’ distinctly religious basis, but it is not immediately apparent to me why whether the act is based on religious objections is relevant to whether an act constitutes civil disobedience. Reasonable people could think that the HHS mandate is a good law but still recognize that the activists themselves oppose it on the grounds that, in their eyes, the mandate makes them complicit in the “murders” of the unborn, which they see as a severe threat to the social and moral welfare of our nation. Here, I think Rawls’ definition may be a bit too narrow. Rawls might object that the pro-life cause does not represent the “the sense of justice of the majority,” but this seems to me to be a problem with Rawls’ definition rather than a shortcoming of this act of civil disobedience. It seems likely that the actions of Rosa Parks in 1955 most likely did not have the majority’s prejudiced sense of justice in mind in Montgomery.
Regardless, the protesters have made sure to present in the issue in a way that could appeal to even pro-choice advocates. Bryan Kemper, a youth director for Priests for Life, claims that failure to take a stand against Obamacare and the HHS mandate will result in “religious freedom and the First Amendment” being “trampled before our very eyes” as the mandate, he says, requires employers to disobey their God. Kristina Garza, campus outreach director for a pro-life group participating in the rally, characterized the mandate as coercing Christians “to pay for things that violate [their] religious convictions.” Though the protesters may be mistaken in framing the mandate as unconstitutional, Kemper and many conservative commentators make the case that the mandate violates the First Amendment rights of Christian employers, which is intended as an appeal to the majority’s sense of justice.
Finally, Kemper and others at the rally claimed that their intent was to show their fellow Christians, legislators, and the executive that the mandate must either be changed to ignored, so it does seem that their actions were political in audience as well as justification as outlines above. With all four of these conditions met, it seems that the protests do qualify as an act of civil disobedience on Rawls’ definition.
However, to Rawls, acts of civil disobedience may still not be justified. Rawls additionally requires that: the act itself must be (1) a last resort after all legal means have been exhausted; (2) the disobedience must oppose a clear and substantial injustice; (3) the agents must, in the interest of fairness, consent to others committing the same crime in other instances; and (4) the acts must have some chance of success in bringing about the change sought.
Once more, let’s start with the last condition. Whether the pro-lifers can successfully spur legislative change seems to be a difficult question since it is not apparent whether the nation could be mobilized in opposition to the mandate, but suffice it to say that for Rawls’ definition, enough Christian voters oppose the mandate for the protests to not be “too likely to fail.”
As for the second requirement, Rawls may not identify this mandate as a substantial and clear injustice, but it seems to me that the pro-life protesters would not be willing to be arrested three days in a row for any cause which was not “clear and substantial” from their perspective.
When it comes to fairness, the waters more muddied. Rawls seems to put a lot of focus on the agents’ beliefs, which may be unknowable in this particular instance. Since these protesters did not interfere with competing protests for liberal causes on Capitol Hill, it seems like we can grant this to them. More importantly, because Rawls’ fairness requirement focuses so much on the subjective beliefs of the individuals, I think this justifies our earlier focus on whether the act counts as civil disobedience according to the beliefs of protesters as opposed to our own concepts of what constitutes a “substantial” injustice.
Looking at Rawls’ first condition presents the largest problem: was this protest a last resort? Granted, the mandate does not seem likely to be overturned at this point, so lobbying in Congress may not be a possibility, especially since they’re out of session at the moment. However, as I suggested earlier, their getting arrested to stand in opposition to the law does not seem to have been necessary. The only thing illegal about the rally and prayer demonstration was the location. Since the activists were not explicitly trying to change the law restricting speech in that particular zone outside of the White House, it seems as though the act of disobedience itself was unnecessary and not last resort, as there are very many legal places where they could hold the same protest to express these same ideas without being arrested.
In conclusion, it does seem that per Rawls’ definitions, the protests could be considered an act of civil disobedience from their perspective or to anyone who believes in the moral imperative of overturning the mandate, but the acts seem hard to justify on Rawls’ view since the same protest could have occurred without breaking any laws had the protesters prayed outside of the restricted zone. Given that the law they were breaking was unrelated to their cause, it seems that the protesters may have only disobeyed the law as part of an attempt to draw media attention to their movement. Perhaps an act utilitarian would argue that that media attention would justify the arrests and illegality of the protest, but the protests failed to receive much media coverage despite the arrests. Therefore, I do not think Rawls would agree that this was a justifiable case of civil disobedience.