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.

Friday, January 6, 2006

"Abortion Rights in Latin America"

By Robert John Araujo, SJ

Several weeks ago in mid-November, Rick asked an important question about the Human Rights Committee report on the status of abortion in Peru. At that time I offered a few observations. In my view, the Committee’s report was not a legal opinion; moreover, the authors who drafted it did not offer a solid understanding of international law and authentic human rights issues. At the time, I could not address one of Rick’s questions concerning the procedural issues. Since my earlier response, I was able to obtain a copy of the report and discovered that Peru is a party to the International Covenant on Civil and Political Rights additional protocol that enables individuals to bring their complaints to the Committee. This is not permitted under the Covenant itself. In any event, the complaint of the seventeen year old “author” came before the Committee through the procedures of the additional protocol. The Center for Reproductive Rights headquartered in New York served as counsel to the “author” of the complaint.

Today’s New York Times published an editorial on this report of the Human Rights Committee under the title “Abortion Rights in Latin America.”

Download abortion_rights_in_latin_america_nyt_1606.mht 

I fear that the editorial authors present an inaccurate picture of the applicable law to their readers. With regard to liberalizing abortion “rights,” the Times editorial asserts that “international pressure” is helping to liberalize abortion legislation in Latin American countries. It cites the November Committee report that Rick and I discussed in support for its position. In spite of the rhetoric, the Times and the Center for Reproductive Health fail to acknowledge the reality of the situation. Their language refers to a “severely malformed fetus”—but they cannot escape the fact that this little girl was also born and lived for several days after she was living in her mother's womb. Sadly, neither the Times nor the Center for Reproductive Health nor the Human Rights Committee apply any of the provisions of the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child to the infant girl. To them, she remains a “severely malformed fetus”—a something but not a somebody; therefore, she is not a human being, a person, a child, who merits the protection of international law. Strikingly, when one reads the Covenant and the Convention on the Rights of the Child, this infant is a human who should also be the beneficiary of the protection of these two instruments, but the Times, the Center for Reproductive Health, and the Human Rights Committee will not admit this. Their interpretations of these two instruments are flawed.

But the story does not end here. Just before Christmas, a new ally from the European Union, namely the EU Network of Independent Experts on Fundamental Rights, has issued an “opinion” concerning the protection of conscience. In reality, the “opinion” is designed to eliminate the right of conscience that involves the Church and its members. The “Experts” focus on the EU Member States that have concordats with the Holy See regarding the protection of conscience of those who are exempt from certain activities including having a role in performing abortions (and other procedures that may include euthanasia) or same sex unions/marriages. The Experts suggest that there is a higher law, namely their interpretations, which trumps the right to conscience, which is interestingly enough is a protected subject of the International Covenant on Civil and Political Rights.

At this stage, I point out that Catholic Legal Theory has a lot to say about these sinister developments. In the meantime, the flawed understandings and interpretations that the Times heralds as "international pressure" grow stronger.   RJA sj

George on Academic Freedom

By Rob Vischer

Robert George defends academic freedom against those who ask, "Doesn’t the defense of academic freedom collapse into the self-stultifying denial of the possibility of truth? Doesn’t it make freedom, rather than truth, the ultimate academic value?"  George invokes the Second Vatican Council in countering that we must "respect freedom even where truth is known securely" because:

[F]reedom—freedom to inquire, freedom to assent or withhold assent as one’s best judgment dictates—is a condition of the personal appropriation of the truth by the human subject—the human person—for the sake of whom—for the flourishing of whom, for the liberation of whom—knowledge of truth is intrinsically valuable. And it is intrinsically valuable not in some free floating or abstract sense, but precisely as an aspect of the well-being and fulfillment of human beings—rational creatures whose flourishing consists in part in intellectual inquiry, understanding, and judgment and in the practice of the virtues which make possible excellence in the intellectual question.

Rob

Thursday, January 5, 2006

The Pro-Life Cause (as imagined by Peter Singer)

By Rob Vischer

Peter Singer has weighed in on the scandal surrounding Korean scientist Woo-Suk Hwang's flawed stem cell research (HT: CT), arguing that the ethical implications of the research strike a mortal blow to the pro-life movement:

[T]he ethical significance of such research goes far beyond the undoubted importance of saving critically ill patients. Proving the possibility of cloning from the nucleus of an ordinary human cell would transform the debate about the value of potential human life, for we would find that potential human life was all around us, in every cell of our bodies.

For example, when President George W. Bush announced in 2001 that the US would not fund research into new stem-cell lines that are created from human embryos, he offered the following reason: Like a snowflake, each of these embryos is unique, with the unique genetic potential of an individual human being.

But it is precisely this reasoning that is threatened by what Hwang and his team claimed to have achieved. If it is the uniqueness of human embryos that makes it wrong to destroy them, then there is no compelling reason not to take one cell from an embryo and destroy the remainder of it to obtain stem cells, for the embryo's unique genetic potential would be preserved.

This possibility highlights the weakness of the argument that abortion, too, is wrong because it destroys a genetically unique human being. By this reasoning, a woman who finds herself pregnant at an inconvenient time could have an abortion, as long as she preserves a single cell from the fetus to ensure that its unique genetic potential is preserved.

Maybe I'm not privy to the conversations where these arguments are being made, but the thrust of the pro-life argument as I understand it is not that fetuses should be protected because they are genetically unique, but because they are human beings.  (On this front, of course, Singer retreats to his longstanding claim that human life is valuable not as human life but only to the extent that it exhibits certain functions -- functions conveniently not exhibited by embryos, fetuses, or even infants.)

Rob

James Skillen on Just War and U.S. Policy

By Thomas Berg

James Skillen, founder and president of the Center for Public Justice, has done years of good work in Christian political philosophy, especially with the rubric of "sphere sovereignty," which is something like the Calvinist version of subsidiarity.  Now Skillen has a book out on U.S. foreign policy and, among other things, just-war thought.  With or Against the World? America's Role Among the Nations (Rowman & Littlefield)  Sounds like a rich work, from this review in The Christian Century:

In this provocative, wide-ranging and well-reasoned book, James Skillen, president of the Center for Public Justice, analyzes the roots of the deep ambiguity in U.S. foreign policy. The humble and modest view of a constitutionally limited state, Skillen contends, stands in sharp contrast to the grandiose religious vision of a redeemer nation that will bring freedom to the entire world. . . .

Also critical of Jean Bethke Elshtain [in her book Just War on Terror], Skillen contends that she fails to place war in the broad context of just governance and that she takes a narrow, negative view of just war as a matter of responding to evil by punishing evildoers. Because a true just war is a response to a specific instance of unjust aggression and has a reasonable chance of succeeding, "working to stop terrorism cannot justifiably be called war if one is making careful use of just war criteria." The best way to fight terrorism, Skillen says, is not by war initiated by a particular state but by a cooperative international effort of just governance, just policing and policy that responds to underlying irritants that cause terrorism to flourish.

There's more, on the mixture of morals and self-interest in foreign policy, the nature of just war, the interpretation of Romans 13 (on the purposes of the state), and the nature of peacemaking by the Christian Church as a global institution among other global institutions.

Tom

School Choice Struck Down in Florida

By Thomas Berg

I’ve been on a hiatus from blogging because of publishing and family commitments – and have been enjoying just reading my comrades’ rich discussions – but New Year’s the time to start again ….

The Florida Supreme Court just struck down the state’s “Opportunity Scholarship” program for students in failing public schools to receive free education in another school, public, secular private, or religious.  The basis for the invalidation was not that the program included religious schools – a basis that Rick and I had argued against in an amicus brief in the case – but rather that it violated the state’s duty “to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”  The court read “adequate provision” in the second sentence as restricting the means of satisfying the obligation of “adequate provision” in the first sentence; the provision

specifies that the manner of fulfilling this obligation is by providing a uniform, high quality system of free public education, and does not authorize additional equivalent alternatives [such as private schools].

I’m not an expert on the Florida Constitution, but the court’s reasoning here seems quite unpersuasive.  The key language was added (and in parts amended) by a ballot referendum in 1998, and as the dissent points out, the stated purpose of the measure was simply “to emphasize the importance of education and to provide a standard for defining ‘adequate provision.’”  The dissent adds that during the hearings that led to putting the proposal on the ballot, the issue of school choice was debated with no conclusion reached, and

Nowhere in th[e official ballot summary given at the polls] were the voters informed that by adopting the amendments, they would be mandating that the public school system would become the exclusive means by which the State could fulfill its duty to provide for education.

In contrast to this review of the context of the ballot measure, the majority relies mostly on the abstract axioms that in general, different parts of a provision should be read together and that the expression of one means is the exclusion of others – neither of which provides any reason for ignoring the specific context of the ballot measure.  Moreover, if the second sentence were meant to take the quite substantial step of restricting the means by the first sentence’s duty of “adequate provision” can be satisfied, one would expect the second sentence to say not that “adequate provision shall be made for . . . public schools,” but that “adequate provision shall be made by [or through] public schools.”

It certainly appears as though opponents of school choice have snuck a prohibition against it into the state constitution by means of the court’s decision.

At least, though, the ruling does not discriminate against religious schools by excluding them alone from a choice program left open to secular private schools.  And because the language of “adequate provision” in two contiguous sentences is far more unusual in state constitutions than is language that could be used to exclude religious schools alone, the Florida ruling seems likely to have less of a negative effect on school choice in other states.

Tom

UPDATE: Columnist John Tierney in the New York Times (subscription only, I think) roundly attacks the decision, touching on another important legal point:

[P]arents in Florida worry that more programs are in jeopardy, like the scholarships given to thousands of disabled students in private schools. Or the many charter schools in the state, which may not suit the judges' personal vision of a "uniform" system.

The FL SCT justices offered some extremely unconvincing rationales for distinguishing some of the existing programs that already gave aid to private schools.  The result-oriented nature of the decision was particularly apparent in this aspect.

Responses to Rick and Rob

By Amy Uelmen

Rick, re your comment about chaplain disclaimers: I am in the midst of preparing for the first day of my CST & the Law seminar, which starts with Richard Gaillardetz’s essay on the Ecclesiological Foundations of Modern CST in Ken Himes’ new collection.  I was just contemplating the “dialogic discernment” which emerges from reflection on how to apply scripture and tradition to a local situation.  OK, the language of the chaplain disclaimer may be a little awkward, but what’s the harm in acknowledging the concrete fact that some folks are still struggling with these questions, and making the effort to meet folks more than half way?  I’m not sure if an effort to reach out with these kinds of assurances necessarily validates prejudice. 

Rob, re your thoughts on praising God in the midst of suffering: what came to me was that perhaps there is a fourth response which focuses less on sovereignty and more on mystery: in the midst of suffering, to contemplate that the greatest expression of God’s love is not through a show of power or causal control over circumstances, but the mystery of shared suffering, through the cross.  One reason for praise is that the mystery of the cross means that God’s real and transforming presence of love is a reality – even in the midst of our struggles with the fallen state of the world which may have caused the accident – and this is the reason why “it is well with my soul.”

Amy

Access to Adequate Health Care a Basic Human Right?

By Michael Perry

Louisville Courier-Journal
December 8, 2006

Catholic bishops: Health care a 'moral right'
By Peter Smith

Kentucky and the nation have a moral obligation to improve a situation in which millions of people lack health care and many more face cuts in Medicaid services, the state's Roman Catholic bishops said yesterday.

The four bishops issued a seven-page document citing the "moral right" to affordable and quality health care.

"Access to adequate health care (is) a basic human right, necessary for the development and maintenance of life and for the ability of human beings to realize the fullness of their dignity," Louisville Archbishop Thomas C. Kelly, chairman of the Catholic Conference of Kentucky, wrote in a statement accompanying the document.

"A just society is one that protects and promotes the fundamental rights of its members with special attention to meeting the basic needs of the poor and underserved, including the need for affordable health care," Kelly wrote.

The joint statement comes as Kentucky officials plan to raise costs and cut some services, changes that would affect nearly 700,000 state residents who receive some form of Medicaid.

The state, facing a $425 million Medicaid shortfall in its current budget year, is seeking federal approval for the actions.

More than 500,000 Kentuckians, or one in eight residents, lack health insurance, according to statistics from the Census Bureau and the Kaiser Family Foundation. The foundation estimates that more than 45 million people are uninsured nationally.

"Affordable and accessible health care for those not covered by Medicaid is an essential safeguard of human life, a fundamental human right, and an urgent state and national priority," the bishops said in their statement.

"Reform of the state's and nation's health-care system, rooted in values that respect human dignity … is a moral imperative."

In addition to Kelly, the statement was signed by Covington Bishop Roger J. Foys, Lexington Bishop Ronald W. Gainer and Owensboro Bishop John J. McRaith.

[To read the Kentucky Bishops' statement, click here.]
_______________
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Religion, Balance, and the AALS

By Rick Garnett

Yesterday, here at the AALS annual meeting, I sat in on a program sponsored called "workshop on a search for balance in the whirlwind of law school."  In the afternoon, one of the seven "concurrent sessions" (in addition to "affective", "contemplative practices", and "connection to purpose") was "religion in law school". 

Now, I suppose this is progress:  It is a good thing that the AALS is now willing, officially, to acknowledge that religion -- like "contemplative practices" --  might, for some people, function as a useful coping mechanism in law school.  And, the program speakers I heard (Ellen Pryor, Samuel Levine, Bob Cochran) were interesting and informative. 

What would be *real* progress, though, would be for the AALS to welcome the enterprise of those of us who think that the content of our thinking *about* law is (and long has been) and should be shaped and informed by religious teachings and traditions.

I also noticed, in the materials handed out by one of the speakers -- the chaplain at one of the law schools sponsored by the Society of Jesus -- a copy of the text that, I gather, is provided to students, to explain the chaplain's role and activities.  That text included this (in my view) regrettable language (I'm paraphrasing):  "The chaplain's role is not to pass judgment on students or their levels of faith commitment, nor should the presence of the chaplain be taken as an endorsement of efforts to use religious faith to exclude others."  Sigh.  I recognize that, in the real world, such a disclaimer might be useful, if not necessary, for creating some room for the chaplain to work.  Still, why -- at a law school affiliated with the Society of Jesus -- should it fall on the chaplain to justify his or her position and work by issuing such assurances?  Don't such disclaimers validate, or implicitly endorse, frustratingly persistent prejudices or ignorance about religion and faith?

Wednesday, January 4, 2006

Compendium of the Catechism

By Rick Garnett

The Compendium of the Catechism of the Catholic Church is (finally) out and available.  It looks like a great resource.

Praising God in West Virginia

By Rob Vischer

In the wake of the Asian tsunami, we explored the intellectual quandary that suffering poses for those who believe in God.  In the wake of the awful turn of events in West Virginia, a slightly different question arises: to what extent should Christians attribute the mining accident to God, and how should that inform our response?  Here's an excerpt from the news coverage of the mining accident:

[A local resident] said the tragedy has shaken the faith of some in the community, who "don't even know if there is a Lord anymore," she said. "We had a miracle, and it was taken away from us."

John Casto was at a church where families had gathered when the false report arrived, and later when the terrible news was announced. After the first report, "they were praising God," he said. After the second, "they were cursing."

Let me make clear that I would likely have shared the reactions of the family members, praising God at the seeming miracle, cursing as it was snatched away.  But nevertheless the sequence makes me wince: if God is responsible for the miners' rescue, is God not also responsible for their deaths?  And if God is responsible for both, should not Christians praise God for his sovereignty regardless of the outcome?  But if the miners' deaths flow from the fallen state of the world and were not specifically brought about by God's design, does God deserve praise when rescuers' heroics overcome nature's operation?

It seems that there are three potential responses in this context: praising God for his sovereignty regardless of whether the miners happen to be rescued, leaving to the realm of mystery whether God intervened in the created (and fallen) order in any particular context; attributing the fate of the miners to human and natural forces and leaving God out of the equation; or praising God when the results comport with our understanding of how God should exercise his sovereignty and cursing when the results conflict with that understanding, implicitly assuming that the preferred results are evidence of God's specific intervention.

My inclination is that the first option most clearly reflects humanity's relationship with God (though I can't claim to have successfully followed it in the midst of my own suffering), as beautifully expressed by the classic hymn:

When peace, like a river, attendeth my way,
when sorrows like sea billows roll;
whatever my lot, thou hast taught me to say,
It is well, it is well with my soul. 

Note that this sentiment does not preclude us from working to alleviate suffering, but simply establishes God's sovereignty in the midst of that suffering.  Other thoughts?

Rob

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