Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, September 16, 2004

Conscience Clauses and Institutional Autonomy

By Rob Vischer

My post on conscience clauses (below) prompted this response from my colleague Susan Stabile:

I read with interest both Rob’s comment and the CNN report on conscience clauses in the health care industry. I have taken the position that Catholic employers should not be forced to provide contraception coverage for their employees. (I published an essay on this issue in the Spring 2004 issue of The Catholic Lawyer and have recently completed a longer treatment of the subject.) However, as I read some of the examples in the CNN article and Rob’s comments about moral responsibility of professionals, I have some misgivings. It seems to me that it is one thing to say that a Catholic organization should not be forced to violate its (institutional) conscience by paying for its employees to do something the organization believes to be a moral wrong. I’m less comfortable saying that an individual Catholic employee opposed to birth control who works for a profit (nonreligious) pharmacy is entitled, based on his/her individual beliefs, to not provide a service the employer makes available to its customers. What I’m struggling with is where one draws the line (if at all) and would be interested in hearing other people’s thoughts.

I think Susan raises a good point. Normally I'm concerned with our society's elevation of individual autonomy over associational autonomy. Are conscience clauses part of that trend? If we defend the right of Catholic organizations to carve out a pro-life identity for themselves, should we be more hesistant before requiring other organizations to sacrifice their own institutional priorities to the individual consciences of their employees?

Rob

Wednesday, September 15, 2004

Conscience Clauses on the Rise

By Rob Vischer

CNN has a not especially sympathetic report on the growth of "conscience clauses" in the health care industry. Here's an excerpt:

In Congress and states nationwide, anti-abortion activists are broadening efforts to support hospitals, doctors and pharmacists who -- citing moral grounds -- want to opt out of services linked to abortion and emergency contraception.

A little-noticed provision cleared the House of Representatives last week that would prohibit local, state or federal authorities from requiring any institution or health care professional to provide abortions, pay for them, or make abortion-related referrals, even in cases of rape or medical emergency.

In Mississippi, a bill became law in July that admirers and critics consider the nation's most sweeping "conscience clause." It allows all types of health care workers and facilities to refuse performing virtually any service they object to on moral or religious grounds.

And in states across the country, anti-abortion organizations and a group called Pharmacists for Life are encouraging pharmacists to refuse to distribute emergency contraceptives, which they consider a potential form of abortion.

"We've seen increasing organization and networking to get more pharmacists to refuse to provide EC -- not just in the Bible Belt but all over," said Gloria Feldt, president of the Planned Parenthood Federation of America. "It's part of the anti-choice arrogance in which they believe they have the right to impose their ideology on everyone else."

I've addressed this issue previously on this blog. The 20th century offered a parade of harms spawned by the failure to assume moral responsibility for one's conduct, a failure exacerbated by the rise and narrow conception of professional roles. As such, it should not be tremendously controversial to ensure that professionals maintain their moral agency. It should be of far greater public concern that Ms. Feldt and Planned Parenthood would require that professionals forfeit their own moral identities whenever they enter the marketplace and function simply as empty vessels for whatever goods or services are permitted by law and desired by the consumer. Perhaps even more remarkable is that Ms. Feldt can complain about the imposition of ideology with a straight face.

Rob

"Polycentric Law"

By Rick Garnett

Law Professor Randy Barnett has an interesting post over at the Volokh Conspiracy, discussing "polycentric legal orders. Barnett discusses what he regards as the advantages of a polycentric order in his book, "The Structure of Liberty." My own interest in the subject was sparked by Professor Harold Berman's phenomenal "Law and Revolution." , which explored the roots in the 11th-12th Century "papal revolution" of the western legal tradition. MOJ readers and bloggers will likely appreciate the connections and consonance between defenses of "polycentric legal systems" and the principle of subsidiarity.

Rick

More "On Legislating Morality": Fornication in Virginia

By Rick Garnett

Following up on Michael's post (below) about adultery laws in Turkey, here is a recent Washington Post article, by law professor Jon Turley, called "Of Lust and the Law." Discussing (and criticizing) anti-fornication laws, Turley writes:

Last month, John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage. Like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens.

These morality laws go back to the church-based "bawdy courts" of 13th-century England. Yet, the Bushey case illustrates that there are prosecutors today who remain eager to perform this quasi-ecclesiastical role -- to publicly defend the institution of the monogamous marriage, and the unwed, from the ravages of lust and desire. Because these are often unrecorded misdemeanor cases, the specific number of prosecutions is impossible to determine. However, the Bushey case is far from unique. . .
This latest adultery prosecution, in a county circuit court in Virginia, should motivate us to finally ban our American version of bawdy courts and force ambitious prosecutors to focus on our courtrooms rather than our bedrooms.

For 32 years, John Bushey, 66, served as the attorney for Luray -- a small Shenandoah Valley town of 4,500 people. He had been married for about 18 years to Cindy Bushey, the town's clerk. John Bushey, however, had an affair with Nellie Mae Hensley, 53, and after the affair ended, Hensley seemed to prove the adage "scratch a lover, find a foe." Instead of going to the betrayed spouse or to her minister, she went to the police. While Hensley was divorced, Bushey was married and therefore subject to a criminal adultery charge, a misdemeanor.

The Bushey case seemed like the perfect vehicle to get the U.S. Supreme Court to finish work that it began in the 2003 case of Lawrence v. Texas, when the Court struck down anti-sodomy statutes. At one point, Bushey agreed to pursue such a course, and the American Civil Liberties Union took up his case. He kept changing his mind, however, first pleading guilty, then withdrawing the plea and pledging to fight as a matter of principle. Finally, in August, he surprised many observers by accepting 20 hours of community service as punishment for his offense. (His former lover publicly expressed outrage that
Bushey would not receive a criminal record for his adulterous affair with her.)

Unfortunately, with his last-minute acceptance of punishment, Bushey implicitly accepted that the state of Virginia has a right to punish him for his moral failings. The far more important question is not Bushey's faithfulness to principle (or to marriage), but the continuation of this archaic criminal provision . . .

A famous 1953 study by Alfred Kinsey found that 50 percent of married men and 26 percent of married women had engaged in adultery by age 40. A recent study by Ball State University reported that women under 40 have caught up to men in adulterous affairs. Other studies have shown that between 5 to 15 percent of married couples have "open marriages." If Virginia were going to prosecute evenly, untold married couples in the state could be subject to prosecution when a former lover opted for the satisfaction of a public charge to heal private injury. . . .

It should be obvious that such laws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence, but the Court did not actually set these laws aside when it ruled anti-sodomy statutes unconstitutional, even though it stressed that anti-sodomy laws further "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." While the Court did not address anti-fornication or adultery statutes, the dissenting justices specifically noted that the decision placed such laws in jeopardy. Self-described "morality advocates," however, have resisted. Thus, Virginia cannot criminalize the act of sodomy between consenting adults but can often prosecute the same adults for having sex in any form under the adultery law.

Del. David B. Albo (R-Fairfax), who is in charge of streamlining Virginia's criminal code, doesn't approve of outsiders tampering with morality laws. The Lawrence decision, he complained, is "a perfect example of how the Supreme Court is inserting its own views into Virginia law." Of course, Albo appears to have less of a problem when inserting his own moral views into the bedrooms of Virginia adults. Virginia, which is seeking to repeal its anti-fornication and anti-sodomy statutes, decided to keep adultery a crime.

Del. Brian J. Moran (D-Alexandria) insists that adultery must remain a crime because "adultery is wrong, and we were not going to eliminate a criminal action even though it has been infrequently prosecuted." While many would agree adultery is wrong, there are plenty of things that are "wrong" but not crimes, such as betraying boyfriends or girlfriends in unmarried but monogamous relationships. Finally, the law is currently applied in a ridiculous fashion with only Bushey and a few others pulled out for prosecution from a virtual sea of adultery. . . .

Citizens should be able to police their marriages without the help of the Commonwealth of Virginia or the other 23 states. These laws have not deterred many adulterous spouses. They invite arbitrary prosecutions in courtrooms replete -- it is statistically certain -- with adulterous prosecutors, cops, jurors, clerks or judges.

And, these same courts are inundated with divorce cases of proven and admitted adultery by individuals who are never prosecuted -- making such prosecutions as random as a societal drive-by shooting.
Since the days of the bawdy courts, women are no longer deemed chattel and towns no longer maintain a "whore's chair" for public humiliation of adulterers and fornicators.

Bawdy courts have no place in a nation that cherishes individual choice and privacy. Let's put an end to them -- and leave morality prosecutions as a matter of historical interest for 13th-century scholars.

Now, I usually enjoy and learn from Turley's commentary, and I agree that anti-fornication laws are unwise. Still, what I take to be the premise of Turley's critique -- namely, that criminal laws that enforce traditional morality are, for that reason, unconstitutional and unjust -- strikes me as quite mistaken.

Turley says (unfairly, in my view) that "like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens." But all political communities "use criminal penalties to police the morality of [their] citizens." The question is not, in my view, whether the criminal law should reflect and protect "morality"; the (harder) question is to what extent the criminal law should do this.

There are, as MOJ readers and bloggers know, all kinds of good, prudential reasons to avoid excessive legal moralism. The criminal law need not and should not codify morality wholescale. Not every sin or vice is or should be a crime. Maybe Turley is trying to say not that criminal law should not enforce "morality", but that it should not enforce sexual morality. I tend to agree with this latter proposition, if only because -- in light of the dominant views on these matters -- it is probably not feasible or cost-effective (as Turley discusses) to criminalize sexual immorality. But I wish that Professor Turley had taken more care to avoid sweeping claims about "morality prosecutions." Aren't all prosecutions, in the end, "morality prosecutions"?

Rick

Tuesday, September 14, 2004

On Legislating "Morality": "Christian" Europe v. "Muslim" Turkey

By Michael Perry

[An item of interest from tomorrow's New York Times.]

Adultery a Crime? The Turks Think Again and Say No
By SUSAN SACHS

Published: September 15, 2004

VAN, Turkey, Sept. 14- After suffering a wave of criticism from European Union officials, women's groups, newspaper columnists and finally from its own members, Turkey's governing party abandoned a proposal on Tuesday to criminalize adultery.

Even so, the party, which has sought for two years to reassure Turks and foreigners that it had no Islamic fundamentalist agenda, may have lost important political good will at home and abroad.

"Especially now, when Turkey is doing so much for E.U. membership, the fact that they're trying to bring in this law raises questions about them," said Gulseren Demir, a caseworker at the Women's Association in Van, in southeastern Turkey.

"To tell you the truth," a co-worker, Alev Sahar added, "we never trusted them."

The proposed adultery law had been debated in the news media during the past month, while Parliament was in summer recess, and Prime Minister Recep Tayyip Erdogan had repeatedly said he endorsed it as a way to preserve the family.

His Justice and Development Party had been expected to introduce it on Tuesday when the deputies reconvened to vote on a voluminous new penal code. But by the end of the day, with protesters in the streets and some European officials darkly warning that it smacked of fundamentalism, the proposed law had not made an appearance. No one even stepped forward even to claim ownership.

Party officials said the proposal, once fiercely defended by some deputies, had won few supporters during a closed party meeting the night before.

"There is general agreement that we will not propose that kind of thing right now," said Reha Denemec, a deputy chairman of the party. "We've got something like 340 different articles to get passed - we did 60 or so in four hours - and it's very important to do these things right now."

During its brief and contentious public life, however, the adultery proposal shone an unwanted spotlight on the backgrounds of the party leaders. Most are veterans of Welfare, a more militantly Islamist party that briefly ruled in a coalition government in the mid-1990's. The army removed it from power in 1997.

Mr. Erdogan was a senior Welfare member and a former mayor of Istanbul who spent time in jail in 1999 for reciting a poem in public that talked of mosque minarets as bayonets. His action has not been forgotten by the powerful military establishment, which sees itself as the guardian of Turkey's secular system.

But since sweeping into power nearly two years ago after his party won nearly two-thirds of the seats in the Parliament, the prime minister and his party aides have generally sidestepped issues that might make the military and the nationalists bristle.

Instead, he has shuttled continuously between Turkey and European Union countries, vigorously promoting Turkey's bid to begin accession talks leading to membership. He has also presided over wholesale changes in the Constitution, a rewrite of the administration law, revisions of the civil code and, now, some hundreds of proposed amendments to the penal code - all to bring the country's laws in conformity with European Union standards.

The European Commission in Brussels is expected to decide whether to recommend a date for accession talks at its meeting on Oct. 6. European Union leaders are expected to vote on the matter at their summit meeting in mid-December.

A number of those leaders have already expressed doubts about whether Turkey, a majority Muslim country, belongs in Europe. In the face of those misgivings, the sudden appearance of the adultery proposal last month brought a sharp warning from Günter Verheugen, the European Union's enlargement commissioner.

During a visit to Turkey last week, he said, he bluntly asked Mr. Erdogan why the adultery issue was being raised now, and he warned the Turkish leader that it would undermine its campaign for acceptance in Europe.

Suspicion about the intentions of the party, which is known by its Turkish abbreviation, A.K.P., has never really evaporated, despite its general popularity as a can-do government and its near-total dominance of Turkish politics since its success in municipal elections around the country six months ago.

Even the party's supporters appeared puzzled at the attempt to legislate morality - adultery is forbidden in Islam, as it is in most religions - at a time when Turkey has been trying to prove its European credentials.

"It's true that people's suspicions about the A.K.P. were awakened," said Selahaddin Direck, a contractor and businessman in Van who has been an enthusiastic supporter of the party and Mr. Erdogan.

Even though the region is conservative and might have favored outlawing adultery, he added, there was no particular demand.

"Maybe another time, or on another platform or in another presentation, the issue can be put on the agenda again," Mr. Direck said. "But at the moment, E.U. membership is more important than such debates. So it was very unfortunate. I don't think there could have been a worse time to introduce such a debate."

Criminalizing adultery could bring more harm to women in a country where honor killings, the murder of women who are suspected of dishonoring their families through their sexual conduct, are still not uncommon, according to the Women's Association.

"There is already lots of violence against women," Ms. Demir said. "This law would endow the man with even more authority and power, and could increase the number of crimes against women."

A previous adultery law in the criminal code punished a man if it was proved that he had set up housekeeping with a woman or installed her in a house. But it punished a woman simply for having sexual relations with a man other than her husband. Turkey's highest court ruled that law unconstitutional eight years ago, saying it discriminated against women.

Norma McCorvey's effort to re-open Roe

By Rick Garnett

Here is a link to the decision by the 5th Circuit dismissing Norma McCorvey's (i.e., "Roe")'s Rule 60(b) motion seeking to re-open Roe. The opinion is authored by Judge Edith Jones, who also adds a separate concurring opinion noting the "iron[y]" that "the doctrine of mootness bars further litigation of this case since this case was born in an exception to mootness and brought forth, instead of a confined decision, an 'exercise of raw judicial power.'"

Rick

Monday, September 13, 2004

Euthanasia and the Slippery Slope

By Rick Garnett

Blogger Amy Welborn discusses, and links to, a disturbing article by Wesley Smith about the euthanizing of disabled children in the Netherlands:

For anyone paying attention to the continuing collapse of medical ethics in the Netherlands, this isn't at all shocking. Dutch doctors have been surreptitiously engaging in eugenic euthanasia of disabled babies for years, although it technically is illegal, since infants can't consent to be killed. Indeed, a disturbing 1997 study published in the British medical journal, the Lancet, revealed how deeply pediatric euthanasia has already metastasized into Dutch neo natal medical practice: According to the report, doctors were killing approximately 8 percent of all infants who died each year in the Netherlands. That amounts to approximately 80-90 per year. Of these, one-third would have lived more than a month. At least 10-15 of these killings involved infants who did not require life-sustaining treatment to stay alive. The study found that a shocking 45 percent of neo-natologists and 31 percent of pediatricians who responded to questionnaires had killed infants.
It took the Dutch almost 30 years for their medical practices to fall to the point that Dutch doctors are able to engage in the kind of euthanasia activities that got some German doctors hanged after Nuremberg. For those who object to this assertion by claiming that German doctors killed disabled babies during World War II without consent of parents, so too do many Dutch doctors: Approximately 21 percent of the infant euthanasia deaths occurred without request or consent of parents. Moreover, since when did parents attain the moral right to have their children killed?

As lawyers and law students know, the "slippery slope" claim is simultaneously one of the most often criticized, and most often employed, forms of argument. For a fabulous article discussing and evaluating the argument, see "The Mechanisms of the Slippery Slope," by law professor and uber-blogger Eugene Volokh. I'm inclined to agree with what I take to be one of Volokh's many important points, namely, that "slippery slopes" are real, and a "real cause for concern."

Rick

Sunday, September 12, 2004

Catholic teachers and unions

By Rick Garnett

Here is an interesting article from today's New York Times -- with the unfortunate, but typical, headline, "Employment by Dogma?" -- about "teachers at five Catholic schools [in Brooklyn and Queens who] insist that the church has ignored its own tenets of social justice by engaging in unfair labor practices against their union." According to the article, "New York State has backed up the charge with a complaint against the Brooklyn diocese."

According to the article, "the impasse in the Brooklyn Diocese, where about 145 other Catholic schools remain without a union, presents a problem for a church with a tradition of social justice teachings that uphold not only the right to unionize, but also an employer's duty to pay a just wage. Those ideals are bumping up uncomfortably against the economic realities of declining enrollments, shrinking budgets and closings."

No one denies, I imagine, that teachers in Catholic schools do heroic work for not-nearly-enough money (time to put more money in the weekly envelope!). The analysis in this article, though, strikes me as a bit simplistic. Here is more:

While church teachings do not mandate unions, they have supported the right to join them as a way of both ensuring the dignity of employees and giving them a level of bargaining power. Stephen J. Pope, who teaches moral theology at Boston College, said that much of it was laid out in 1891 by Pope Leo XIII, whose encyclical on capital and labor, "Rerum Novarum," tried to show how capitalism could produce a just economic system. The centerpiece, Mr. Pope said, was the concept of a just wage. "A worker has to be able to support himself and his family," Mr. Pope said. "That includes not only wages now, but also an array of benefits and rights including health care, dental care, a right to occupational work safety."

I wonder if the kind of dynamics and power imbalances to which Leo XIII was speaking in 1891 -- and which still, I believe, give rise to a need for labor unions today -- are really present in the context of Catholic schools? I tend to be skeptical, generally, about extent to which teachers' unions promote the common good. Even if I weren't, though, it seems to me that the profit motive that, so the argument goes, creates incentives for "capital" to short-change "labor" is not present when we are talking about parish elementary schools. But maybe Lucia, Stephen, or others can set me straight . . .

Rick

Friday, September 10, 2004

Amy Uelmen's "The Spirituality of Communion"

By Greg Sisk

Several weeks ago, the “communion controversy” was the subject of several postings on the Mirror of Justice, which in turn prompted our co-blogger Rob Vischer to encourage a couple of us to further develop our thoughts into articles suitable for publication in the Catholic Lawyer later this fall. Toward this end, my University of St. Thomas colleague Chuck Reid and I prepared a piece, titled “Abortion, Bishops, Eucharist, and Politicians: A Question of Communion,” a link to which is located near my name on the Mirror of Justice.

I now want to highlight for your attention a wonderful further addition to this discussion, an essay by our co-blogger Amy Uelmen, titled “The Spirituality of Communion: A Resource for Dialogue with Catholics in Public Life.” This piece, which also will be published in the Catholic Lawyer, is also accessible by a link next to the listing of Amy’s name on the Mirror of Justice.

The communion controversy, that is, the question of whether pro-abortion politicians thereby break communion with the Church such that they should either be denied or encouraged to withhold from taking the Eucharist. A crucial element of that debate, from all perspectives, concerns the appropriate pastoral response, including dialogue between the Bishop and political leaders within the diocese. Amy’s piece thoughtfully explores how that dialogue might unfold, what it would reveal, and how it can made more fruitful. More importantly, Amy’s essay emphasizes the spiritual elements of communion and John Paul II’s call to generate a life of communion in the Mystical Body in our churches and homes. In other words, Eucharist should be appreciated as “our greatest resource on the journey” and therefore a means to nurture the efforts “to build an authentic culture of life.”

Amy’s piece is not a simplistic “I’m-Okay-You’re-Okay” approach (quite the contrary, as she appreciates the need we all feel for redemption). Nor does she mean at all to deprecate the discipline of a rigorous examination of conscience before receiving communion, including an inquiry into fidelity to the Church’s moral teaching. Rather, Amy takes things to the next step. With those fundamentals in place, how do we draw upon the “precious resource” of communion, the real presence of Christ, and thereby “move beyond and transform the polarizing and paralyzing tensions that plague not only the Church, but much of the broader political discourse.”

Greg

"Wrongful Life" lawsuits

By Rick Garnett

Today's Los Angeles Times includes this story, "If Only We'd Known," about two parents who are filing a "wrongful life" lawsuit because "they were denied the opportunity to decide whether to abort the pregnancy, something they would have weighed had they known the child would be born with a disabling defect that can result in paralysis, profound learning disabilities and fluid on the brain." The articles notes, among other things, that "the rise in wrongful-life suits and the threat of legal responsibility for a child's defects puts obstetricians in the uncomfortable position of recommending, if not insisting on, abortion when there is the slightest doubt, said one physician." (Note: The LA Times requires registration).

Rick

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