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.

Tuesday, September 26, 2006

Responding to George

Robert George says:

So, however much one might dislike Republican policies in other areas, it’s clear that the death toll under the Democrats would be so large as to make it unreasonable for Catholic citizens, or citizens of any faith who oppose the taking of innocent human life, to use their votes and influence to help bring the Democratic party into power.

First, to be clear, I intended my post about the Democrats' new abortion initiative to focus solely on the abortion issue and to expose the contestable empirical claims underlying certain magesterial statements about the relationship between abortion's morality and its legality.  That is why I posed my assumptions as assumptions and did not defend their plausibility against Rick's response  Rick's decision to fight my hypothetical, while it generated an interesting post, does not really address itself to the fairly narrow question about morality and law that I raised in my post.  The same goes for George's expansion of the issue to include stem cells.

George's decision to bring in the stem cell research is fine with me.  I agree with him that, considered from the perspective of the question of which party to vote for (again, not the question I raised in the post), his point is a relevant one.  Fortunately for Catholics who want to vote Democratic, I have other reasons to doubt George's conclusion that it is "categorically unreasonable" for Catholics to vote for Democrats.  I have set those out in previous posts and in my most recent Commonweal essay, so I don't need to repeat them at length here.  They boil down to the observation that George and others who hold his view about the reasonableness of voting for Democrats do not behave as one would expect of people who really believe that abortion and stem cells are so important that they trump all other issues. 

(While I'm on the subject, and contrary to what some posters here have said below, the comparison of abortion to slavery is inapt no matter what time frame one chooses.  It is inapt from the perspective of current hindsight because it attempts (for rhetorical effect) to incorporate into the abortion debate a (present) consensus about slavery that does not exist for abortion, and it is inapt from the perspective of the 19th century because opponents of abortion simply lack the zeal of 19th century abolitionists.) 

This suggests to me that claims like George's that the abortion/stem cell debate is so important that it trumps everything else is based on an assumption about the morality of abortion that George does not actually hold.  Indeed, contrary to what George suggests, my argument is even stronger for stem cell research than it is for abortion.  As George's post implicitly concedes, his favored party has not pushed for the criminalization of stem cell research but merely seeks to block federal funding, and many prominent Republicans dissent (as he notes) even from that position.   The Republican party is content to allow for private and state funding of stem cell research, a fact that makes the difference between Republicans and Democrats on this issue seem more one of degree than kind.  If stem cell research were the horror George claims it is (and needs it to be for his extreme assertion that it is categorically unreasonable for a faithful Catholic to vote for Democrats), why does he tolerate such a wishy washy position from the Republican party on this issue?  Surely a ban on stem cell research would be far easier to enforce than a ban on abortion, so I don't see how the sorts of prudential considerations that might mitigate against the prohibition of abortion can support a similar flexibility about stem cell research.

Moreover, as Rob notes below, the George move has the consequence of rendering operationally irrelevant for voters EVERY OTHER THING the Church has said about justice in ANY OTHER context.  This is a very serious problem for George.  There might be situations in which such a single issue becomes overridingly important for Catholic voters, but those situations would have to be very exceptional.  It would seem to me that we should place a heavy burden on anyone who claims that an issue justifies such a consequence.  As I said above, I would expect to see a little more urgency on the part of those who assert that abortion is such an issue.  Their lack of action suggests to me that the abortion/stem cell move in support of a claim that it is "catgorically unreasonable" for Catholics to vote for Democrats is primarily rhetorical.  To be clear, I am not arguing that George does not think abortion is wrong, even gravely wrong.  Nor am I saying that Catholics are unreasonable if they conclude that, all things considered, the Democratic view on abortion and stem cells requires them to vote Republican (or to abstain from voting).  I do, however, question whether George really acts as we would expect from one who believes that abortion and stem cell research are so evil and so important that they trump the rest of Catholic political thought, including thought on important issues like torture, racism, and preemptive war.  Rob asks the key question:

If President Bush expressly endorsed the torture of suspected terrorists but maintained his opposition to embryo destructive research, would reasonable pro-life citizens still be "bound to Republicans?"   

I can't help but note with some sadness and dismay that we've moved well beyond the situation where this is merely a hypothetical question. 


A letter to a tenured professor

In Books & Culture, Andy Crouch writes back to Edward Wilson.  Crouch has written about evangelicals and environmentalism.  Wilson, as readers probably know, has a new book, which takes the form of a letter, urging greater attention to urgent environmental issues, to a fictional minister.

Embryonic Stem Cell Research: Two Responses to My Post

In response to my post yesterday (here), I have received these two very informative/helpful responses.  Thanks so much to Robby George and Carter Snead (Notre Dame, Law) for their messages.

Dear Michael:
 
If we lay aside the profound ethical issues pertaining to the deliberate destruction of human embryos, there are good reasons to prefer stem cells derived from embryos created by somatic cell nuclear transfer (cloning) to those obtainable from IVF "spare" embryos being stored in assisted reproduction clinics.  First, the spare embryos are stored in a frozen condition (cryopreservaion). It is possible that the freezing has a negative impact on the embryos and the cells harvested from their inner cell mass.  ("Embryonic" stem cells are produced in the lab by culturing these inner cell mass cells.  Pluripotency appears to be induced by the culturing process.) Second, very few IVF cryopreserved embryos are actually available for use in biomedical research.  Even if President Bush's restrictions on federal funding of embryo-destructive research were lifted, there would be fewer than 12,000 embryos available for funded research.  If embryonic stem cells were ever to become useful in regenerative medicine (as Senators Kerry and Edwards and Ron Reagan Jr. said they would be in the last campaign), this would be only a tiny fraction of the number needed for the treatment of even a single disease (Juvenile Diabetes, Parkinson's, what have you).  The IVF spares would quickly be used up and it would be necessary to produce a massive number of additional embryos.  But the most important reason is the third:  the IVF spare embryos are of very limited utility in regenerative medicine because they are not a genetic match to the person needing treatment. They are, after all, products of the genetic lottery.  Cloned embryos, by contrast, are a genetic match to the somatic cell donor.  So scientists could produce a cloned embryo using a somatic cell from the patient needing treatment, then treat the patient with stem cells produced by "disaggregating" the embryo.
 
Given the advantages of cloned embryos over the IVF spares, I have been trying to persuade people who support the use of the spares (whether or not they are willing to go along with cloning) to shift their allegiance to alternative methods of producing pluripotent stem cells---methods that give us the advantages of cloning, but without creating or killing embryos.  There are two leading possibilities.  In the first, known as "altered nuclear transfer," the basic cloning technology is used, but genetic and or epigenetic alterations to the somatic cell nucleus (and possibly the oocyte cytoplasm) are made prior to its transfer to the enucleated ovum to ensure that embryogenesis cannot occur.  What is produced is a nonembryonic entity that is the biological (and thus the moral) equivalent of a teratoma or a complete hydatidiform mole. Rudolf Jaenisch's research at MIT has shown that pluripotent stem cells (indistinguishable from those obtained from embryos) can be produced from these entities.  (I should note here that some pro-lifers object to altered nuclear transfer because they believe--mistakenly in my view--that it would produce a damaged or disabled embryo, rather than a truly non-embryonic, tumor or mole-like entity.)   The second alternative method is even more exciting.  In what is known as "dedifferentiation," an ordinary somatic cell is "reprogrammed" to, in effect, return it to its primitive, stem cell state.  The most celebrated work in this area so far is that being done by Kevin Eggan at Harvard.  He used existing embryonic stem cells (I believe they were taken from the presidentially approved lines) as the reprogramming agents.  (Another possibility would be to use egg cytoplasm, which will also effectuate the reprogramming by causing an overexpression of key transcription factors, such as Nanog and Oct 3/4---factors that control other genes.)  Eggan's use of existing embryonic stem cells leaves a problem to be solved, namely, an extra set of chromosomes is left in the stem cells produced by the process.  A way will have to be found to remove them for usable cell lines to be produced.  Dr. Yuri Verlinsky in Chicago says that he has solved this problem, but his research has not been published.  (My understanding it that he is going for a patent.)  A number of other people are working on it, including a very important stem cell researcher in Australia named Alan Trounson.
 
Altered nuclear transfer has a problem that cloning also has, namely, oocytes are needed.  The same is true in forms of dedifferentiation using oocyte cytoplasm as an epigenetic reprogramming agent.  Where will the eggs come from?  Today when eggs are needed (eg., in in vitro fertilization), they are obtained by subjecting women to hormonal stimulation in a procedure known as "superovulation."  This is painful and potentially dangerous.  In my statements in favor of further research on altered nuclear transfer, I have always said that I am absolutely opposed to the use of superovulation.  If we cannot find another way to obtain the needed oocytes, I am for abandoning the project.  My fear is that any strategy requiring hundreds of thousands and eventually millions of eggs will result in the exploitation of poor women -- probably in developing nations where the poor are even more vulnerable than they are in the U.S. and Europe.
 
A couple of weeks ago, a team led by Professor Yamanaka in Japan published research showing that they had dedifferentiated somatic cells using neither embryonic stem cells nor egg cytoplasm.  They immersed the cells in a bath containing factors found in standard reprogramming agents.  I believe their research used mouse cells.  If they can now do it using human cells, it will be a great thing.
 
But even then, our excitement must be tempered by the knowledge that embryonic stem cells and their equivalent cannot now be used in therapies because of their tendency to tumor formation.  No one knows when, if ever, they will have therapeutic utility.  The problem is profound, and no one seems to have much of an idea of how to go about solving it.  That is why there is not a single embryonic stem cell-based therapy even in stage one of FDA clinical trials.  (By contrast, there are about 1,200 adult stem cell-based therapies in trials -- some quite far along.  A few have already been approved.) Cells are stabilized naturally during gestation by an unimaginably complicated process of intercellular communication.   This leads some supporters of embryonic stem cell research to say that the real value of embryonic stem cells is in basic research, the construction of disease models, and the testing of pharaceutical products; not in regenerative medicine.
 
I hope that these comments are responsive to your inquiry (and not more than you wanted to know).
 
Best wishes,
Robby
 
===========================================
Robert P. George
McCormick Professor of Jurisprudence
Director, James Madison Program in American
    Ideals and Institutions
Princeton University
244 Corwin Hall
Princeton, NJ  08544
(609) 258-3270
(609) 258-6837 (fax)
[email protected]


Hi Michael:

I hope you are well.  If you are wondering why someone would support so-called
therapeutic cloning, you might find the following chapter of the PCBE's 2002
cloning report useful:

http://www.bioethics.gov/reports/cloningreport/research.html

This chapter sets forth what I believe to be the most powerful case for cloning
for biomedical research.  It also contains the most powerful case against
cloning for biomedical research.

A few points to keep in mind:  It has been estimated that literally millions of
embryos (preferably of diverse genetic profiles) will be necessary to realize
the aspirations of stem cell researchers.  Such aspirations include the
development of disease/injury-specific (and immune-compatible) ES cell lines
for regenerative therapies (should they ever arrive), as well as the
development of models for study.  Among the 400,000 supernumerary embryos in
cryopreservation, less than 3% have been designated by their caretakers for use
in research.  Thus, there is a problem of scarcity that requires the production
of embryos solely for the sake of research (either by SCNT or IVF).

As always, it's important to be clear-eyed about the state of the science.
Scientists have yet been unable to isolate embryonic stem cells from cloned
human embryos.  The only researcher who claimed success in this regard is the
now-discredited Dr. Hwang, who not only flouted basic principles of ethical
research involving human subjects (by paying poor women, and coercing his lab
assistants into "donating" ova), but also falsified all of his research
findings.  This is not to say that derivation of stem cells from cloned embryos
is impossible in principle, but no one has been able to do it so far despite
many concerted efforts and millions of dollars spent.

Hope this is helpful.

Best,
Carter

"Torture Is always Wrong"

Law prof Paul Campos (Colorado) explains:

Torture is wrong. It is always wrong, at all times, in all places, no matter what good one imagines might come from torturing a fellow human being.

It is wrong because to torture a fellow human being destroys the torturer's own soul as surely as it destroys the body and mind of his victim.

Here is a basic truth, understood by all religions and peoples who have not yet sunk into total barbarism: Mortality is only possible if there are certain things we must refuse to do under any circumstances. You do not "balance" the costs and benefits of torturing your fellow men, because it does not profit a man to gain the world if he loses his soul.

UPDATE:  "Five Reasons Torture Is Always Wrong," from Christianity Today.

The Pope, Islam, and reciprocity

Thanks to Michael for linking to the Commonweal interview with Fr. Madigan.  At one point, discussing the issue of "reciprocity," Fr. Madigan says:

There are many calls in Europe to restrict the rights of Muslim citizens and immigrants until full and equal rights are accorded Christians in Muslim majority countries-Saudi Arabia is the case usually cited. Some commentators have interpreted the Holy See’s recent references to reciprocity as a concern and a demand for reciprocal rights as a condition of further dialogue, and an encouragement for Western governments to use Muslim citizens’ rights and freedoms as leverage to achieve reforms.

Such a strategy can be reconciled neither with the gospel nor with explicit Catholic teaching about the basis of religious freedom being rooted in the dignity of each person.

This seems quite right to me.  That is, the fact (and, unfortunately, it is a fact) that few Muslim nations accord anything like religious freedom to their citizens certainly would not justify Western nations violating the human-dignity-grounded religious freedom of Muslims living in those nations.  It is worth making clear, though, that neither the Pope nor the Holy See has ever suggested that such violations would or could be justified.  Instead, the Pope and the Holy See have -- quite rightly, in my view -- challenged Muslim nations, and urged all of us to challenge Muslim nations, to respect the human rights of their citizens (Muslim and non-Muslim alike).  Fr. Madigan is right to note that we should not demand reciprocity as a "condition" for dialogue; that said, we should, I think, continue to make clear our view that this dialogue is less likely to be productive if Muslim nations fail to respect their citizens' religious freedom.

Response to Tom re PWSA

I am happy to agree with Tom that "[g]iven that many programs have some but not total success, making the question one of weighing costs and benefits, the bar ought not to be set too high when the program bears on the question whether women will perceive themselves able to take care of their children, born and unborn."  And, I agree that, assuming there are no concerns about counter-productivity, "pro-life citizens and voters should weigh the benefits of potentially reducing abortions as quite high, justifying substantial social expenditures."  And, with respect to WIC, my point was certainly not to suggest that the qualified criticisms one might reasonably direct at the program warranted opposing the PWSA, but only to note, as a general matter, that pro-life citizens -- Democrats and Republicans alike -- should not abdicate the responsibility of trying to craft policies that actually work well, and efficiently.

Are Pro-Life Democrats Categorically Unreasonable?

Robert George asserts that "however much one might dislike Republican policies in other areas, it’s clear that the death toll [from embryo destructive research] under the Democrats would be so large as to make it unreasonable for Catholic citizens, or citizens of any faith who oppose the taking of innocent human life, to use their votes and influence to help bring the Democratic party into power."  I respect this view (and greatly respect the scholar offering it), but it raises a few questions for me:

First, is it "unreasonable" for pro-life citizens to vote for Democrats because Republicans' policies in other areas such as immigration, welfare, taxes, the environment, and foreign policy are at least arguably morally acceptable, or does the degree of harm threatened by Democrats in this single area render Republicans' policies in other areas irrelevant?  For example, if President Bush expressly endorsed the torture of suspected terrorists but maintained his opposition to embryo destructive research, would reasonable pro-life citizens still be "bound to Republicans?"   

Second, is it prudent (or even possible) to quantify and rank the harms threatened by the federal funding of embryo destructive research versus the harms threatened by other immoral government policies as a bright-line equation for determining a single acceptable voting option?  For example, if President Bush authorized a preemptive invasion of a nation in a manner that conflicted with just war principles, should the resulting civilian casualties be tallied as harms facilitated by a citizen's support of his administration given the certainty of the casualties, even though they were not specifically intended?  If tax cuts and opposition to minimum wage increases could be conclusively demonstrated to diminish the ability of certain citizens to maintain a standard of living consistent with human dignity, could the negative impact on human flourishing be entered into the equation even though it falls short of a literal destruction of human life? 

Third, does the effect of single-issue voting actually deter the party on the wrong side of the issue, or by effectively shutting down the competition for votes on other issues, does it give license to the party on the correct side of the issue to disregard other pressing moral concerns without fear of reprisal on election day?

Rob 

Monday, September 25, 2006

more on Pregnant Women Support Act

Thanks to Rick for his positive comments on the Pregnant Women Support Act.  He asks whether I

would agree that it would not necessarily be "telling and disturbing" for a conservative to oppose a particular measure that was presented by its supporters as part of an effort to reduce abortions?  I do not think it should necessarily be seen as allowing "knee-jerk hostility" to spending to trump concern for unborn children to raise questions about the effectiveness of programs like, say, WIC [Supplemental Nutrition for Women, Infants, and Children, for which the bill would increase funding].

I certainly agree that we ought to examine the effectiveness of government assistance programs, and that to call for such examination and reexamination is not "knee-jerk hostility."  At the same time, would Rick agree with the following:  Given that many programs have some but not total success, making the question one of weighing costs and benefits, the bar ought not to be set too high when the program bears on the question whether women will perceive themselves able to take care of their children, born and unborn.  (The connection between such perceptions and abortion is plain: studies show that the perceived inability to afford to raise a child, often an additional child, is the first or second most frequent and most influential reason women give for having had abortions, and not surprisingly abortion rates are disproportionately high among the poor (with the disparities growing).)

If there is no claim that a particular assistance program is counterproductive, and the questions about it are only whether its benefits come at too high a cost, then I'd think that pro-life citizens and voters should weigh the benefits of potentially reducing abortions as quite high, justifying substantial social expenditures.  (Not unlimited, of course, but substantial.)  This should follow, shouldn't it, from the belief that abortion is the greatest, or among the greatest, moral tragedies or scandals in America today.

I note that the American Enterprise Institute study to which Rick links, according to its summary page, does not conclude that WIC is altogether ineffective, let alone counterproductive, but only that claims for its cost-benefit savings -- in terms of reduced Medicaid expenditures -- have been significantly exaggerated, and that the findings call for reforms but not for "abandoning or even cutting the program."  The study also recognizes that the most "needful families . . . see[m] to benefit most from WIC," and that supporting decent nutrition "for even a small number of children, especially poor childre[n] -- without harming others and without exorbitant spending -- would be an ethical benefit not captured in purely economic benefit-cost calculations" (a recognition that ought also to apply to potential reductions in abortion from assistance programs).  Finally, the summary page indicates that other researchers on WIC (from whom the AEI researchers commendably solicited responses) argue that, although some reforms are appropriate, the AEI study is "overly pessimistic about the program's impact."  Considering the qualified nature of these criticisms of WIC -- just one part of the overall proposal -- it seems to me that for these questions to block the overall package on such an important matter as reducing abortions would make the tail wag the dog.  It would indeed be "telling and disturbing."

Tom

Elite Universities and the Class System

[I assume that many MOJ-readers are are associated with colleges or universities, whether as students or as faculty.  So, this piece may be of interest to those many readers.]

Poison Ivy

Sep 21st 2006
From The Economist print edition

Not so much palaces of learning as bastions of privilege and hypocrisy

AMERICAN universities like to think of themselves as engines of social justice, thronging with “diversity”. But how much truth is there in this flattering self-image? Over the past few years Daniel Golden has written a series of coruscating stories in the Wall Street Journal about the admissions practices of America's elite universities, suggesting that they are not so much engines of social justice as bastions of privilege. Now he has produced a book—“The Price of Admission: How America's Ruling Class Buys Its Way into Elite Colleges—and Who Gets Left Outside the Gates”—that deserves to become a classic.

Mr Golden shows that elite universities do everything in their power to admit the children of privilege. If they cannot get them in through the front door by relaxing their standards, then they smuggle them in through the back. No less than 60% of the places in elite universities are given to candidates who have some sort of extra “hook”, from rich or alumni parents to “sporting prowess”. The number of whites who benefit from this affirmative action is far greater than the number of blacks.

The American establishment is extraordinarily good at getting its children into the best colleges. In the last presidential election both candidates—George Bush and John Kerry—were “C” students who would have had little chance of getting into Yale if they had not come from Yale families. Al Gore and Bill Frist both got their sons into their alma maters (Harvard and Princeton respectively), despite their average academic performances. Universities bend over backwards to admit “legacies” (ie, the children of alumni). Harvard admits 40% of legacy applicants compared with 11% of applicants overall. Amherst admits 50%. An average of 21-24% of students in each year at Notre Dame are the offspring of alumni. When it comes to the children of particularly rich donors, the bending-over-backwards reaches astonishing levels. Harvard even has something called a “Z” list—a list of applicants who are given a place after a year's deferment to catch up—that is dominated by the children of rich alumni.

University behaviour is at its worst when it comes to grovelling to celebrities. Duke University's admissions director visited Steven Spielberg's house to interview his stepdaughter. Princeton found a place for Lauren Bush—the president's niece and a top fashion model—despite the fact that she missed the application deadline by a month. Brown University was so keen to admit Michael Ovitz's son that it gave him a place as a “special student”. (He dropped out after a year.)

Most people think of black football and basketball stars when they hear about “sports scholarships”. But there are also sports scholarships for rich white students who play preppie sports such as fencing, squash, sailing, riding, golf and, of course, lacrosse. The University of Virginia even has scholarships for polo-players, relatively few of whom come from the inner cities.

You might imagine that academics would be up in arms about this. Alas, they have too much skin in the game. Academics not only escape tuition fees if they can get their children into the universities where they teach. They get huge preferences as well. Boston University accepted 91% of “faculty brats” in 2003, at a cost of about $9m. Notre Dame accepts about 70% of the children of university employees, compared with 19% of “unhooked” applicants, despite markedly lower average SAT scores.

Why do Mr Golden's findings matter so much? The most important reason is that America is witnessing a potentially explosive combination of trends. Social inequality is rising at a time when the escalators of social mobility are slowing (America has lower levels of social mobility than most European countries). The returns on higher education are rising: the median earnings in 2000 of Americans with a bachelor's degree or higher were about double those of high-school leavers. But elite universities are becoming more socially exclusive. Between 1980 and 1992, for example, the proportion of disadvantaged children in four-year colleges fell slightly (from 29% to 28%) while the proportion of well-to-do children rose substantially (from 55% to 66%).

Mr Golden's findings do not account for all of this. Get rid of affirmative action for the rich, and rich children will still do better. But they clearly account for some differences: “unhooked” candidates are competing for just 40% of university places. And they raise all sorts of issues of justice and hypocrisy. What is one to make of Mr Frist, who opposes affirmative action for minorities while practising it for his own son?

Two groups of people overwhelmingly bear the burden of these policies—Asian-Americans and poor whites. Asian-Americans are the “new Jews”, held to higher standards (they need to score at least 50 points higher than non-Asians even to be in the game) and frequently stigmatised for their “characters” (Harvard evaluators persistently rated Asian-Americans below whites on “personal qualities”). When the University of California, Berkeley briefly considered introducing means-based affirmative action, it rejected the idea on the ground that “using poverty yields a lot of poor white kids and poor Asian kids”.

There are a few signs that the winds of reform are blowing. Several elite universities have expanded financial aid for poor children. Texas A&M has got rid of legacy preferences. Only last week Harvard announced that it was getting rid of “early admission”—a system that favours privileged children—and Princeton rapidly followed suit. But the wind is going to have to blow a heck of a lot harder, and for a heck of a lot longer, before America's money-addicted and legacy-loving universities can be shamed into returning to what ought to have been their guiding principle all along: admitting people to university on the basis of their intellectual ability.

A Question About Embryonic Stem Cell Research

Given these two recent posts (here and here), I am puzzled.  Can someone--anyone:  Robby George, Rick Garnett, anyone--help me solve the puzzle.

Let's assume that we agree with Louis Guenin--as of course both Robby George and Rick Garnett do--that
 "[i]f you and I are human individuals, so too are early embryos."  We can nonetheless reasonably disagree about whether embryos created in the course of IVF may be used in embryonic stem cell research.  Robby and Rick are of the view that IVF embryos may not be so used.  Guenin and others are of the view that IVF embryos may be so used.  This is a reasonable disgreement among persons who agree that "[i]f you and I are human individuals, so too are early embryos."  For Guenin's position, click here.

HOWEVER, one who agrees that
"[i]f you and I are human individuals, so too are early embryos" cannot, as I see it, support therapeutic cloning.

So why would any large organization many of whose members agree that
"[i]f you and I are human individuals, so too are early embryos" (e.g., the Democratic Party) want to support therapeutic cloning rather than support just the use of embryos created in the course of IVF?  Supporting the former rather than just the latter seems so unnecessary.

That's my puzzle.

Robby, Rick, anyone:  Can you help me understand?
_______________
mp