Mirror of Justice

Monday, October 8, 2007

Wills, abortion, and "religious issue[s]"

Michael's recent post, regarding Martin Marty's column on Garry Wills' new book, Head and Heart: American Christianities, touches on the same claim mentioned in this Newsweek story ("A New Ambivalence: Long a black-and-white issue, abortion is now seen more as an argument to be fostered, not settled.") Put aside the cringe-worthy and contentless title. The piece includes this:

Religious thinkers like Garry Wills, a Roman Catholic, have begun to say that abortion should not be a religious issue. In his new book, "Head and Heart: American Christianities," Wills argues that even the popes have said that abortion is a matter of natural law, governed by reason and science, not religion. "There is no theological basis for either defending or condemning abortion," he says.

I do not know what the Newsweek writer is trying to say here. Sure, "abortion is . . . governed by reason and science." What is supposed to follow from this observation? From the tone of the piece, the suggestion seems to be that because abortion is not "governed" by religion, but instead by "natural law", it follows that the "centrist approach" (i.e., tolerating the current abortion-on-demand regime) is the one to choose. But, I would think that Pope Benedict XVI, for example, would be happy to concede that "abortion" is governed by "natural law," "reason", and "science", and would observe that abortion's immorality is not something knowable only via revelation (apparently, to be "governed" by religion is to be beyond "reason"). What's the point here?

As for Wills . . . Obviously, he's a gifted writer, etc. etc. But it's hard to take very seriously the statement that "there is no theological basis for either defending or condemning abortion", unless Wills means to say (and I don't think he does) that "theology", strictly speaking, is not necessary to reach the conclusion that abortion should be condemned. Of course there is a "theological basis" for condemning abortion ("Believe in infant baptism? Hell, I've seen it done!"). Wills (apparently) just does not buy the arguments. (Does he really think it is a strong argument to say that abortion is not treated in the Sermon on the Mount?) As for his (very, very) tired "gotcha" argument (i.e., "pro-lifers are hypocrites, because they don't treat women who get abortions as murderers, and don't have funerals for hair cuttings") . . . no, they aren't. It is not unfair, I think, to expect better from Wills.

By the way, Alan Wolfe's review of Wills' book is here.

Letter on Abp. Tutu and St. Thomas

By Thomas Berg

Since the issue has come up on the blog, and since it touches on aspects of a Catholic university's identity, readers might be interested in a letter from 18 members of the St. Thomas (Minnesota) law faculty to university president Fr. Dennis Dease and vice-president for academic affairs Thomas Rochon, criticizing the university's recent decision to veto an invitation to Archbishop Desmond Tutu to speak at St. Thomas as part of a youth conference on peacemaking. The signers include the St. Thomas contingent on MOJ.

October 8, 2007

Dear Father Dease and Dr. Rochon,

We are members of the School of Law faculty with a variety of political and religious perspectives. We write in our capacity as faculty of the University of St. Thomas and with respect for the leadership you provide the University. We are concerned by the recent decision to veto an invitation to Anglican Archbishop Desmond Tutu to speak at St. Thomas. We urge you to reconsider this decision and to join in inviting Abp. Tutu to speak in the Twin Cities.

In general, the appearance at UST of a Nobel-Peace-Prize winner, a major figure in the nonviolent movement against apartheid, would be a magnificent opportunity for the University community. Although the conference at which Abp. Tutu would speak is sponsored by an outside group, without a doubt his appearance here would benefit UST students, faculty, and staff, and enhance the University’s reputation as a place engaged in dialogue with figures of international distinction. We are distressed at the rejection of this opportunity, and especially at the rationale that the administration has publicly asserted: that the University should not host a speaker who, in comments on the Israeli-Palestinian conflict, has said things that are offensive or “hurtful to members of the Jewish community.”

At the outset, we note that the asserted rationale here is not that Abp. Tutu has been invited to speak directly to the Israeli-Palestinian conflict during his appearance at UST. Rather, the administration’s rationale, that he has made statements that are hurtful to some on other occasions, reflects a far more restrictive attitude toward hosting speakers who are distinguished but in some way controversial.

To reject a distinguished speaker based on worries that his words may cause hurt or offense to some is entirely at odds with the search for truth that should characterize a Catholic university. Speech taking positions on controversial subjects will often be offensive or hurtful to some people. Nevertheless, a Catholic university should be willing to open itself to such speech – and criticisms of that speech – in order to learn the truth. Only with such an approach can a university carry out its mission of “consecrat[ing] itself without reserve to the cause of truth” (Ex Corde Ecclesiae ¶4 (our emphasis)). To give controlling weight to worries about hurt or offense cannot be reconciled with the University’s charge to pursue “all aspects of truth . . . without fear but rather with enthusiasm, dedicating itself to every path of knowledge” (id.). We could easily cite secular academic norms as well, for in this case they harmonize with Catholic norms.

That an otherwise distinguished speaker should be rejected because he has made statements on disputed political issues that hurt or offend some people is a principle of breathtaking scope. Under this rationale, it appears, the University would refuse to invite former President Jimmy Carter or Prime Minister Margaret Thatcher to speak on any matter of human rights or public affairs. Proposals for speakers who have worthwhile ideas but are less well known might fare even worse under this calculus.

We recognize that Abp. Tutu has spoken on a broad range of issues, and that his opinions do not always comport with the views of the Catholic Church. However, Abp. Tutu was to receive no award, honor, or generalized endorsement from the University; and his views on issues other than those he has been invited to address simply are not relevant in this particular case.

We urge that the administration issue Abp. Tutu an invitation in connection with the Peacejam conference, and in the absence of an invitation, that the University issue a statement acknowledging that it was a mistake to reject the invitation on the ground that has been offered.

Respectfully,

Ann Bateson, Thomas Berg, Elizabeth Brown, Teresa Collett, Robert Delahunty, Neil Hamilton, Robert Kahn, Joel Nichols. Julie Oseid, Charles Reid, Elizabeth Schiltz, Gregory Sisk, Susan Stabile, Scott Taylor, Robert Vischer, Fr. Reginald Whitt, Virgil Wiebe, Jennifer Wright

Advance Directives on Withdrawing Food & Water

By Elizabeth Schiltz

A reader had the following comment on Paul Wojda's question about advance directives about withdrawing food & water in PVS:

Under what circumstances would the burdens of ANH (artificial nutrition & hydration) justify its discontinuation for patients in PVS? [Obviously, if such an intervention were futile, it would not be morally obligatory to pursue (or morally blameworthy to discontinue).] Given the nature of PVS, it wouldn't be right to say that the burdens come in the form of physical or emotional suffering. The Explanatory document issued by the Vatican seemed to suggest that the expense of ANH is not usually prohibitively burdensome. Indeed, the general "exceptions" to the norm of continued ANH sketched out by the document seem quite narrow:
“When stating that the administration of food and water is morally obligatory in principle, the Congregation for the Doctrine of the Faith does not exclude the possibility that, in very remote places or in situations of extreme poverty, the artificial provision of food and water may be physically impossible,”
“Nor is the possibility excluded that, due to emerging complications, a patient may be unable to assimilate food and liquids, so that their provision becomes altogether useless. Finally, the possibility is not absolutely excluded that, in some rare cases, artificial nourishment and hydration may be excessively burdensome for the patient or may cause significant physical discomfort, for example resulting from complications in the use of the means employed.”
“These exceptional cases, however, take nothing away from the general ethical criterion, according to which the provision of water and food, even by artificial means, always represents a natural means for preserving life, and is not a therapeutic treatment. Its use should therefore be considered ordinary and proportionate, even when the “vegetative state” is prolonged.”

So it is difficult (though not impossible) to imagine a case in which discontinuation of ANH would be morally sound. It is doubly difficult to imagine how one could anticipate with certainty (and describe with legal clarity) these cases such that he or she could accordingly formulate his or her advance directive.

While the CDF document and explanatory text do not squarely address the question raised by Paul, they do strongly indicate that the circumstances in which a PVS patient would be burdened by ANH are exceedingly rare.

"Powerful Lobbies" and Natural Law

By Rob Vischer

I appreciate Fr. Araujo's reminder that a just social order requires prudence not only on the part of the judiciary, but also by other government officials and private citizens. I also agree that the courts cannot always be blamed for overreaching or social engineering since they can't simply ignore claims brought by groups who are pursuing their own social agendas. Nevertheless, I have a couple of comments. First, the specter of "powerful lobbies" is too frequently invoked, in my view, as an easy means of condemning instances in which citizens in association seek to persuade the legal/political authorities to adopt their vision of the good. Often, it is true, the proposed vision of the good is grounded more in the self-interest of those doing the proposing, rather than in some more authentic attempt to cultivate the common good. But are the citizens (and their associations) who are behind challenges to laws calling for the arrest of adults for consensual sexual conduct in the privacy of their homes really a "powerful lobby" that needs to be resisted? Can't they just as easily be portrayed as voices for limited government and human dignity, standing up against majorities on behalf of the marginalized? In the early part of the last century, should citizens concerned about state laws closing down Catholic schools have waited until they could convince their neighbors, one by one, that such laws are unjust, or should they have brought a constitutional claim to strike down the laws? Do those parents, teachers, and schools fall into the category of "powerful lobbies," or are they exempt because their action is brought on behalf of the "natural moral law?" And since few litigants believe that they are advocating against the "natural moral law," wouldn't this be the exception that ate the rule?

Second, how would the natural moral law play out in the case of Lawrence v. Texas? It's not obvious to me why the natural moral law would support the state's efforts to criminalize sexual conduct between consenting adults in private. At the very least, it seems highly debatable. And that's why, in my view, invocation of the natural moral law as a guiding framework in our legal system is not particularly helpful: when all reasonable people reach agreement on its content (e.g., slavery, genocide), the natural moral law appears to reflect the conclusions we've already reached. At times when disagreement on an issue is widespread (e.g. abortion and same-sex marriage), then the natural moral law's own indeterminacy does not do a whole lot to overcome the disagreement. Unless we're willing to invest ultimate interpretive authority in an institution (e.g., the Church) that lies beyond the reach of majority opinion, I'm not sure what the natural moral law adds to the conversation.

Gary Wills (and Martin Marty) on Abortion

By Michael Perry

Sightings
10/08/07

Garry Wills on the Abortion Question

--Martin E. Marty

"But is abortion murder?" Garry Wills asks the question in his new book, Head and Heart: American Christianities. In this enlightening book—you will hear much about it—Wills explores how the Enlightenment heritage interacts with the Evangelical heritage, which Wills treats evangelically at least until the last chapter, "The Karl Rove Era." This Wills sees as a corruption of both traditions. I had read Wills's manuscript, and couldn't wait to see it in print. I'd say more about its qualities, but must hurry on to how he answers the question posed above. He finds the abortion question important because it is the "wedge issue," the one that evokes absolutist claims that have political effects.

Wills contends, "It is not demonstrable that killing fetuses is killing persons. Not even the Evangelicals act as if it were. In that case, the woman seeking the abortion…is killing her own child." If the fetus is regarded as a person, why would the murderous mother be exempt from the death penalty, in which most Evangelicals believe? And many Evangelicals allow abortion in the case of rape or incest. That won't work: "We do not kill people because they had a criminal parent." Some allow for abortion to save a life. Wills asks, "Why should the mother be preferred over the 'child' if both are, equally, persons?" Why opt for the "certitude" of murder over only the "danger of death?"

Wills, himself a Catholic, raises the temperature even higher: "Nor did the Catholic Church treat abortion as murder in the past. If it had, late-term abortions and miscarriages would have called for treatment of the well-formed fetus as a person—calling for baptism and Christian burial." But this was never the case. "And no wonder," says Wills. The subject of abortion is not scriptural, "it is not treated in the Ten Commandments, the Sermon on the Mount, or anywhere in the Jewish Scripture, the New Testament or the creeds and the early ecumenical councils." Augustine? He could never find in Scripture "anything at all certain about the origins of the soul." And the most notable Thomas Aquinas, "lacking scriptural guidance" and using Aristotelian distinctions, "denied that personhood arose at fertilization by the semen. God directly infuses the soul at the completion of human formation."

Wills refutes arguments that abortion is a religious issue, and that anti-abortionists are acting out of religious conviction. No, it is not a theological matter at all: "There is no theological basis for either defending or condemning abortion." Even the popes say it is a "matter of natural law, to be decided by natural reason," and the pope is not an arbiter of natural law. Informed conscience, said super-convert John Henry Newman, has to come first in matters of this sort.

Wills concludes: When anti-abortionists claim to be "pro-life," they are inconsistent. Only people like Albert Schweitzer can be called consistently pro-life. "My hair is human life," yet the barber does not preserve it. What matters is not "human life" but "the human person." Sonograms of the fetus reacting do not show a human person: "All living cells have electric and automatic reactions." Don't get Wills wrong: "It is not enough to say that whatever the woman wants should go. She has a responsibility to consider..." But, he asks, do religious or political authorities have the right to take over that responsibility? Take it from there.

[Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.]

Democracy and the Constitution

By Robert John Araujo, SJ

I would like to thank Patrick for his posting Friday on Benedict XVI’s October 5^th address to the International Theological Commission in which the Pope made the case for natural law as the foundation for democracy. Amongst other important points made during this allocution, the Holy Father noted that “[a] positivist conception of law seems to dominate the thought of many scholars (and, I would add, some lawyers and the litigants they represent).” The Pope elaborated on this crucial point of his speech by indicating that this attitude leads to the tendency to “ethical relativism” that plagues the contemporary world. Patrick’s posting concludes with Benedict’s observation that, “The advance of individuals and of society along the path of true progress depends upon respect for natural moral law, in conformity with right reason, which is participation in the eternal reason of God.”

These thoughts of the Holy Father, as provided by Patrick, frame the context for a few observations on a major essay published in yesterday’s Boston Globe by Christopher Shea entitled “Supreme Downsizing.” [HERE] Mr. Shea makes the argument that

The nine members of the US Supreme Court wield extraordinary power over American Society: Last term alone, they struck down school desegregation plans in two cities, rewrote Congress’s new rules for campaign-finance reform, and modified the free speech rights of high schools students.

Shea’s essay relies on the work of Professor Adrian Vermeule of Harvard Law School (principally Judging Under Uncertainty [Harvard, 2006]), to fortify his case that since the Court “now has two blocs of justices who tend to vote together”… “momentous questions of policy” can be determined by one justice who is the swing vote. [Italics mine] I would like to suggest that this is not a new phenomenon for the Court. The Supreme Court of the United States has often reflected political tensions and divisions that have appeared across American society since the Republic’s founding. But for Shea, the situation that “now” exists provides justification for reexamining the Constitutional authority of the Court which “perhaps… shouldn’t be in such a powerful position.”

According to Shea, Vermeule’s work demonstrates that the Court “should stay out of controversial matters of politics and law almost entirely, deferring—except in painfully obvious cases—to the wisdom of the elected representatives in Congress.” Otherwise, only “perpetual rancor and inconsistency” will result, which are “the bane of good law.” The Globe article presents no insight for determining which cases fall into the “painfully obvious” category requiring the intervention of the Court.

It strikes me that if Shea has correctly identified a serious malady in our republican democracy, dependence and reliance on the “natural moral law” could be an excellent antidote to the woes identified in his Globe article. But it is necessary to return to some other elements of the Shea article which, I believe, undermine his thesis. Relying again on Vermeule’s work, Shea asserts that the nation might be better if it had no “Supreme Court rulings barring anti-abortion laws and anti-sodomy statutes.” I would not disagree with this point. But it is important to ascertain who was responsible for not only the rulings but who brought the cases that led to these decisions. The exercise of right reason suggests that these rulings were not something that the Supreme Court necessarily welcomed. They well could have been unavoidable due to the untiring efforts of powerful lobbies advocating permissive access to abortion and the institutionalization of same sex marriage. If legislatures would not produce the results these interest groups insisted on, the courts, including the Supreme Court, just might.

This is what has happened in the context of legislation addressing abortion and sex. There may well be many members of the Supreme Court who would have preferred not having to decide the merits of the lawsuits filed by these interest groups, but, the Constitution of the United States requires that the judicial department, which includes the Supreme Court, provide interested parties due process of the law.

It may well be, as Shea argues, that there is a need to step back from these issues, but is it purely the responsibility of the Supreme Court? Shea’s appropriation of Vermeule’s advice would appear better directed toward the lobbies that instigate these lawsuits rather than toward the judges who are under an obligation to decide them. With that in mind, “good law” may reign once again.

The Pope’s October 5^th exhortation made this point, albeit in more general terms. The instability of the law with which Mr. Shea and Professor Vermuele are properly concerned is not simply a question for judges alone. It is a responsibility for all who are involved with decision-making that involves all members of society—be they judges, legislators, administrators, or citizens. The natural moral law provides a sound, available remedy to many of the concerns identified by Shea and Vermeule, and it is a remedy to be exercised by all, not just by some members of our democratic society. But if the positivist mentality (especially that of the interest groups who are responsible for instigating the litigation of which Shea and Vermeule speak) continues, the sound base of democracy, the moral natural law, will erode and the problems mentioned by Shea and Vermeule will likely continue. Those of us who are concerned about lawyer formation and Catholic Legal Theory would not be the only ones who could profit from the Pope’s wise words. Our students—citizens and future lawyers, legislators, administrators, and judges—would also be the beneficiaries of his counsel. RJA sj

Facts, Experts, and Cultural Predispositions

By Thomas Berg

At Balkinization, Dan Kahan describes the findings of a study, by he and others at Yale Law School's Cultural Cognition Project, trying to pinpoint ways in which people's cultural predispositions affect their perceptions of facts. The project of untangling these two where possible is relevant to all of us who in some way address "culture wars" disputes, since those are often are complicated by disputes over the facts. This study focuses on people's perceptions of expert opinions on facts:

Of course, it shouldn’t come as news to anyone that people tend to listen to policy experts they find knowledgeable and trustworthy, particularly on relatively novel issues that turn on uncertain empirical claims. But our study helps to reveal what makes ordinary people find experts credible: an affinity between the experts’ perceived cultural values and their own. This finding too shouldn't come as a shock, yet it's a truth that is consistently missed by many public policy advocates, who tend to assume that all they need to do to persuade the public on some risk issue (global warming, gun control, etc.) is amass reams of evidence from people whose authority derives solely from their technical training and expertise.

According to Kahan, the study suggests that cultural polarization over the facts can be reduced

if those interested in a constructive and educational discussion of [an] issue take care to assure that members of the public perceive that there are policy experts of diverse values on both sides of the debate.

Tom

Sunday, October 7, 2007

Vincentian Center Poverty Conference

By Susan Stabile

MOJ readers who will be in the New York area next weekend will be interested in knowing that on Saturday, October 13, the St. John's University Vincentian Center for Church and Society will host its biennial Vincentian Chair of Social Justice Poverty Conference. The theme of this year's conference is "The Just and Moral Society: From Ideal to Reality." Notre Dame law professor John Coughlin, O.F.M., will deliver the keynote, suggesting some basic criteria for evaluating a just and moral society within our global society. The afternoon will feature a number of simultaneous workshops, including one on the Right to and Responsibility for Employment, at which I will be speaking. A full description of the day's events can be found here.

Saturday, October 6, 2007

Death Penalty Moratorium

By Susan Stabile

Although I recognize this is not a universal view, I am convinced that the death penalty is inconsistent with Catholic Social Thought. The dignity of the human person, our creation in God's image, demand that we seek alternatives to the death penalty.

A resolution calling for a global moratorium on the death penalty will be introduced at the UN General Assembly's October 2007 Session. The resolution, which is expected to be widely supported, is seen as a major step in the effort to end the death penalty.

October 10, 2007 has been named World Day against the Death Penalty and the World Coalition against the Death Penalty has information on its website about various initiatives to support the resolution.

(HT: famvin)

Friday, October 5, 2007

"[P]articipation in the eternal reason of God."

By Patrick McKinley Brennan

Benedict XVI: Natural Law Is Base of Democracy

Says Ignoring It Is a Crisis for Human Civilization

VATICAN CITY, OCT. 5, 2007 (Zenit.org).- Benedict XVI says that natural law must be the foundation of democracy, so that those in power are not giving the chance to determine what is good or evil.

The Pope said this today when receiving in audience the members of the International Theological Commission, who had just completed their annual plenary meeting, held in the Vatican this week under the presidency of Cardinal William Levada.

The Holy Father discussed with the theological experts what he considers the antidote to "ethical relativism."

Natural law, the Pontiff explained, is "the norm written by the Creator in man's heart," which permits him to distinguish good from evil.

But, he contended, partly because of "c ultural and ideological factors, today's civil and secular society is in a situation of confusion. The original evidence for the foundations of human beings and of their ethical behavior has been lost, and the doctrine of natural moral law clashes with other concepts that run directly contrary to it.

"All this has enormous consequences on civil and social order. A positivist conception of law seems to dominate the thought of many scholars."

Benedict XVI explained that according to these scholars, "humanity, or society, or in effect, the majority of citizens, become the ultimate source for civil legislation."

Unnecessary relativism

He continued: "The problem that arises is not, then, the search for good but the search for power, or rather the balance of power.

"At the root of this tendency is ethical relativism, which some people even see as one of the principle conditions for democracy because, the y feel, relativism guarantees tolerance and mutual respect.

"But if this were true, the majority at any given moment would become the ultimate source for law, and history shows with great clarity that majorities can make mistakes.

"True rationality is not guaranteed by the consensus of the many, but only by the openness of human reason to the reason of the Creator and by listening together to this Source of our rationality."

Freedom

Benedict XVI affirmed that natural law is actually a guarantee of freedom.

He explained: "When fundamental essentials are at stake: human dignity, human life, the institution of the family and the equity of the social order -- in other words the fundamental rights of man -- no law made by men and women can subvert the norm written by the Creator in man's heart without society itself being dramatically struck ... at its very core.

"Thus natural law is a true guara ntee for everyone to live freely and with respect for their dignity, protected from all ideological manipulation and from all arbitrary abuses of the powerful.

"No one can disregard this appeal. If by reason of a tragic clouding of the collective conscience, skepticism and ethical relativism managed to annul the fundamental principles of natural moral law, the very democratic order itself would be profoundly undermined at its foundations."

The Pope said that men and women of all faiths should combat this possibility.

He said: "Against such clouding -- which is a crisis for human, even more than for Christian, civilization -- the consciences of all men and women of good will must be mobilized, both laypeople and followers of religions other than Christianity, so that together they may make an effective commitment to creating ... the conditions necessary for a full awareness of the inalienable value of natural moral law.

"The advance of individuals and of society along the path of true progress depends upon respect for natural moral law, in conformity with right reason, which is participation in the eternal reason of God."