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.

Wednesday, March 1, 2006

Death and Wal-Mart

By Rick Garnett

I don't know if anyone has linked -- in the context of our engaging back-and-forth about physicians, pharmacists, and conscience -- to this recent essay, from the Washington Post, by Dahlia Lithwick.  In the piece, "Wal-Mart and the Death Penalty," she writes:

The similarities between the doctors and the pharmacists are striking: Both are refusing to participate in the performance of services acknowledged to be lawful -- capital punishment and abortion/contraception. Both cite as grounds for refusal their professional interest in promoting, as opposed to ending, human life. . . .

Are our varying, even conflicting, legislative responses to these professional choices ultimately about a distinction between abortion and the death penalty, or is there some principled difference between what doctors and pharmacists do? . . .

Physicians and pharmacists who refuse to participate in what they deem to be killing have more in common than many of us might like to admit. But the most important distinction between them has to do with their differing relationship with patients. The law recognizes that doctors' special relationship with their patients warrants a legal privilege: Their discussions are kept secret. You may like and trust your pharmacist. You may even trust him with intimate details about your yeast infection. But your pharmacist has neither the tools nor the right to probe details about rape and abuse, incest and health risks. Which is why pharmacists who interpose between decisions made by a doctor and her patient are overstepping not just moral but legal boundaries -- and undermining another professional relationship that is fundamentally different from their own.

The right of conscience is a subjective one. And no one disputes that a pharmacist's moral objection to dispensing certain drugs is as heartfelt or urgent as a physician's refusal to inject lethal doses of sodium thiopental. But as a legal or legislative matter, the inquiry should begin, not end, with that moral objection. Legal regimes that balance an individual's right to opt out against safeguards for patients (like making it the pharmacy's responsibility to provide timely alternatives) are good compromises. Similarly, if physicians cannot supervise executions consonant with their professional obligations, we may need to devise some new form of capital punishment that does not require a doctor's intervention to ensure against violent, painful death.

There should and will always be space in this country for conscientious objectors. But it cannot and should not follow that murder is murder is murder.

Thoughts?  Is it the asserted lack of a special relationship between a pharmacist and her customer that justifies distinguishing in law between doctors' conscientious objection to participating in legal lethal injections and pharmacists' objections to participating in dispensing some legal products?

Religious freedom and domestic surveillance

By Rick Garnett

A few days ago, Michael helpfully linked to a Sightings essay by Jonathan Rothchild on "Religious Freedom in a Time of Domestic Surveillance."  The piece described and criticized several troubling instances of "intrusion on civil liberties of religious groups" and emphasized that:

[In] and through the exercise of these liberties and their relational dimensions that individuals construct and affirm the common good.  The common good depends on the delicate balance of rights and duties, freedom and authority, and means and ends that cannot impugn basic expressions and experiences of the human journey -- such as the exercise of religious freedom and critique.

I share (what I took to be) Michael's concerns about these intrusions, and Mr. Rothchild's view that security concerns -- while valid and weighty -- should not serve as an excuse for delegitimizing dissent, particularly dissent that is nurtured and informed in expressive associations and religious communities.  I have to say, I was reminded of how Attorney General Janet Reno's Task Force on the Violence Against Abortion Providers Conspiracy, in the course of its investigations, reportedly spied on Roman Catholic Cardinal John O'Connor of New York, Feminists for Life, and the U.S. Bishops' Conference of the Roman Catholic Church.

Torture

By Eduardo Penalver

I want to thank Michael for raising a point that has been bothering me for some time.  I feel like Catholic Democrats come in for a great deal of criticism (increasingly from the hierarchy itself, but especially from Catholic Republicans) for voting for a party whose positions depart from categorical Church teachings on abortion.  Of course, when we point out that Democrats have (at least traditionally) been closer to official Church teaching on a number of other issues, from war to the death penalty to poverty, the stock response is that these are more flexible teachings on which reasonable people can disagree. 

Fair enough, but torture is not such a teaching.  The Church's teachings on torture are as absolute as its teachings on abortion.  And here we have an administration that has repeatedly engaged in activities that any reasonable person would consider to be torture.  (The torture memo is in the worst traditions of lawyering.  I don't think there is any possible way to conceive of it as a good faith attempt to provide bright legal lines for interrogators.  It's clearly an attempt to provide the narrowest possible (not even plausible) reading of the prohibition of torture.  Note -- I do not think that Rick was defending the memo on these grounds, but I want to rule out that interpretation of the memo and take the strong position that this administration affirmatively supports torture as state policy.  If the torture memo itself is not enough to get me there, I would point towards the policy of rendition as perhaps even more damning, not to mention the goings on at Guantanamo and Abu Gharib.)

I think Michael's question is an important one because the Church's recent emphasis on abortion and homosexuality in its public statements, and in particular the behavior of some bishops during the last election, has left many people with the impression that Church is increasingly partisan in a way that has not been true in the past.  A willingness by conservative voices in the Church to publicly go after the administration on its blatant disregard for Catholic norms on torture would go a long way towards removing that impression.

There is also a sense that some have expressed that George, Finnis, and some of their New Natural Law allies have an unseemly obsession with homosexuality (and perhaps with sexual ethics in general).  Their preoccupation is often defended in terms of the Church's categorical teachings on those subjects, but, again, that does not adequately distinguish those issues from torture.  So, in this regard as well, an effort on their part to be as visibly critical of torture as they have been of other questions would go a long way towards disarming some of their critics.  In the absence of such efforts, one is left with the impression that partisan loyalties are playing a decisive role in shaping Catholic political discourse.

RFRA and the "ministerial exception"

By Rick Garnett

A few days ago, Howard Bashman blogged about an interesting, recent case in the Second Circuit.  In this case, "[t]he majority concludes that the Religious Freedom Restoration Act of 1993 may preclude a minister's federal age discrimination claim against his church, thereby eliminating any need for the Second Circuit to consider whether to adopt the controversial 'ministerial exception' to the ADEA."  Tom Berg (and many others) know more about this than I do, but I gather it is still the case that the Supreme Court has never stated clearly that the "ministerial exception" (or something like it) is required by the Religion Clause itself.

"Is There a Natural Human Reason?"

By Rick Garnett

On April 8, the Lumen Christi Institute in Chicago is hosting what looks like a really good conference, "Is There a Natural Human Reason?"  The speakers include Russ Hittinger, Paul Griffiths, and John O'Callaghan (whose thoughts have frequently appeared here on MOJ).

Michael's question

By Rick Garnett

After linking to my colleague Cathy Kaveny's new essay in Commonweal on the "torture memos" -- which, as Michael says, is well worth reading -- Michael asks, "[h]as Robby George (Princeton, Politics) written anything critical of the 'Torture Memo'?" 

Now, I assume that none of us has any doubt -- at least, none of us could reasonably have any doubt -- that Professor George agrees entirely with Michael that torture is immoral and unjustifiable.  I assume we also all agree that "torture" is not self-defining, and that a government lawyer or administration is not immoral or corrupt for trying to find a definition of that term that is both workable and legally and morally defensible.  (Which is not to say that the definitions employed or defended in the "torture memos" are workable and morally and legally defensible).  And, I would hope we could agree that Professor George is not obligated, by virtue of his support for the Bush Administration's position on, say, abortion, to write articles about the immorality of torture or of the Bush Administration's approach to interrogating detainees.  Certainly, he could oppose without reservation the Bush Administration's policy relating to interrogation of detainees but still reasonably decide that, because many, many others are quite willing and able to criticize this policy, it is his (more lonely) lot to devote his time and energy to, say, writing in opposition to embryonic-stem-cell research or the abortion license.

Ash Wednesday and Lent

By Steve Bainbridge

Over on my personal blog, I have some thoughts on my plans for Ash Wednesday and Lent.

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