Over the past several days, several MOJ contributors have discussed the issues of abortion and the responsibility of Catholics (be they citizens or officials) in public life. On this past Friday, November 16, the Boston Globe published an op-ed piece by Professor David O’Brien of the College of the Holy Cross. Although the Globe identified him as a professor of Catholic studies, he is more accurately a professor in the History Department and former director of the Center for Religion, Ethics and Culture, an initiative whose “programs foster dialogue that respects differences, and provides a forum for intellectual exchange that is inter-religious as well as interdisciplinary, intercultural, and international in scope.” Professor O’Brien’s essay entitled “Common Ground on Abortion” is [HERE] and is a critique of Sean Cardinal O’Malley’s criticism of Democrats in the Commonwealth of Massachusetts on which the Globe reported a day earlier. It does not appear clear to either Professor O’Brien, the Boston Globe, or five of the six letters-to-the-editor writers responding to the O’Brien essay [HERE] that the Cardinal’s words are going to apply equally to any public official or citizen, regardless of party affiliation or independence from party affiliation when he or she supports abortion, either directly or indirectly. Moreover, Professor O’Brien, the Globe, and most of the letter writers do not mention the Faithful Citizenship document just adopted by the United States Conference of Catholic Bishops at their fall meeting concluded last week [HERE], which addresses concerns about other issues raised by the Globe, Professor O’Brien, and most of the letters-to-the-editor writers.
Many things need to be said about the O’Brien essay. I shall comment on three of his assertions today.
The first is this statement:
Their [referring to Boston Mayor Menino, Senator Edward M. Kennedy, and Congressman Jim McGovern, who had been identified in the previous sentence] supporters know that these Catholic politicians are prochoice but not proabortion; to call them proabortion is an insult to politicians and voters alike. The major difference between these prochoice advocates and their antiabortion critics is their recognition of and respect for the hard won autonomy and moral agency of women.
I must differ with Professor O’Brien’s characterizations. To call these public officials “pro-choice” rather than “pro-abortion” is a superficial distinction making no matieral difference. When one examines the public statements and positions of these three officials, the difference evaporates. By stating that they are “pro-choice,” they are asserting that women have the “right” to take the lives of their unborn children and that they as public officials support this “right” (i.e., no one, including the state, may infringe on this “right”). As public officials, they are supporting this right, and their respective records demonstrate that they do not want this “right” curtailed by anyone under any circumstances. It is strange that those on the other side of this vital issue are labeled by Professor O’Brien as “anti-abortion”, but I digress. I think the Globe was more accurate in describing Governor Deval Patrick as being “pro-abortion” when it said in a brief article [HERE] on the same topic of the O’Brien essay:
Gov. Deval Patrick says he respects O’Malley and the church, and that there are “hard issues on which people of conscious [sic] differ.” The pro-abortion governor says people don’t have to agree on everything to work together. [Italics mine]
A second statement of Professor O’Brien’s meriting comment today is this:
Another thing about these officials is accountability: Politicians must consult citizens before taking positions on specific legislation, and they are accountable to those citizens for the positions they take. The cardinal consults no one but his colleagues and superiors in taking his position, and is accountable only to his superiors for the consequences of his actions.
I take comfort knowing that the Massachusetts public officials who are pro-choice/pro-abortion (there is, in fact, no distinction as I have indicated) will be consulting me before taking positions on specific legislation. I will be especially alert to watch my e-mail, monitor my voice mail, and read my conventional post knowing that I will be consulted on legislation dealing with these matters, such as HR 6067 to which Professor O’Brien refers. It is not only unfair but wrong for Professor O’Brien to allege that the Cardinal is accountable to no one. We are all accountable, as Catholics, to God for what we do and what we fail to do. As a “professor of Catholic studies,” Professor O’Brien does not mention that Cardinal O’Malley is a successor to the Apostles of Jesus Christ and therefore has a special accountability in this regard.
The final statement on which I’ll comment today is Professor O’Brien’s concluding remark:
Unfortunately Catholic Church support [for HR 6067] is limited because the bill includes support for education about contraception. On this bill and others like it, the Massachusetts congressional delegation can provide the only answer needed to Cardinal O’Malley’s unwise assault.
As of this writing, the text of HR 6067 is not yet available on the Congressional website, so it is not possible at the time to examine its text carefully. I have examined, however, Cardinal O’Malley’s words on the underlying matters relating to the O’Brien essay. They are not an assault; they are the words of a citizen and of a bishop who is charged by the Church to teach authentically about the most fundamental human right of all—the right to life. Without this right (as the Cardinal has been defending it) all other claims to rights are subject to forfeit. If there is an offensive being conducted, it is to be found in the actions of those who ridicule what the Cardinal has said and done in the faithful execution of his responsibilities as shepherd and pastor. Let us also not assume that this is the sole issue which divides American citizens, including Catholics. Other major issues in the Commonwealth of Massachusetts, including embryonic stem research, marriage, adoption, gambling, and euthanasia, are already the subjects of vigorous debate and are rightful topics for the Church’s proposing what is moral and what is not about them. RJA sj
This, from MOJ-reader and 1L Stephen Braunlich:
"It seems to me that even if the death penalty has deterrent effects the faithful
Catholic cannot find in that deterrent a reason to support capital punishment.
The thrust of the argument is that "Punishing X for murder by taking his life
deters others from murdering. Deterring others from murdering is good.
Therefore capital punishment is good." That rationale would excuse the
utilization of one person in order to prevent something an ill for which they
are not guilty. In this way it strikes me as being similar to the killing of an
embryonic human in the name of research which would cure Parkinson's in
another. While a good end may come (either preventing a murder or Parkinson's)
in both cases the means to achieve it is the utilization of another's body
against their will (killing them).
Turning to the Catechism, "the
traditional teaching of the Church does not exclude recourse to the death
penalty, if this is the only possible way of effectively defending human lives
against the unjust aggressor." (CCC 2267). If I'm reading this correctly, the
Church is teaching that capital punishment may only be permitted when it is
applied to the murderer after his deadly act and is the only way to protect the
population from future murders committed by him. This is very different from
applying capital punishment to murderer X in order to prevent not-yet-murderer Y
from killing people."
Thanks to Michael P. for the link to Adam Liptak's piece on the death penalty and deterrence. I don't think he will disagree with my view that the fact that X "saves lives" (as, I am willing to assume, just for the sake of argument, the application of the death penalty does, in some sense) does not tell us whether or not X is morally permissible (even if it is a factor that might, with respect to some acts and contexts, weigh in X's favor). This is one reason why, in my view, the (so-far-unsubstantiated) claims that, say, embryo-destroying research will, somehow, improve the health of ill and disabled people do not provide particularly powerful support for the assertion that it is morally permissible to engage in such research.
Saturday, November 17, 2007
Does the death penalty save lives? Assume for the sake of discussion that the death penalty *does* save lives: Would that be a reason for a faithful Catholic to support the death penalty? If not, why not?
As a point of departure as you pursue this inquiry, read the following article:
New York Times
November 18, 2007
Does Death Penalty Save Lives? A New Debate
By ADAM LIPTAK
For the first time in a
generation, the question of whether the death penalty deters murders
has captured the attention of scholars in law and economics, setting
off an intense new debate about one of the central justifications for
capital punishment.
According to roughly a dozen recent studies, executions save lives.
For each inmate put to death, the studies say, 3 to 18 murders are
prevented.
The effect is most pronounced, according to some studies, in Texas
and other states that execute condemned inmates relatively often and
relatively quickly.
The studies, performed by economists in the past decade, compare the
number of executions in different jurisdictions with homicide rates
over time — while trying to eliminate the effects of crime rates,
conviction rates and other factors — and say that murder rates tend to
fall as executions rise. One influential study looked at 3,054 counties
over two decades.
“I personally am opposed to the death penalty,” said H. Naci Mocan,
an economist at Louisiana State University and an author of a study
finding that each execution saves five lives. “But my research shows
that there is a deterrent effect.”
The studies have been the subject of sharp criticism, much of it
from legal scholars who say that the theories of economists do not
apply to the violent world of crime and punishment. Critics of the
studies say they are based on faulty premises, insufficient data and
flawed methodologies.
The death penalty “is applied so rarely that the number of homicides
it can plausibly have caused or deterred cannot reliably be
disentangled from the large year-to-year changes in the homicide rate
caused by other factors,” John J. Donohue III, a law professor at Yale
with a doctorate in economics, and Justin Wolfers, an economist at the University of Pennsylvania, wrote in the Stanford Law Review in 2005. “The existing evidence for deterrence,” they concluded, “is surprisingly fragile.”
Gary Becker, who won the Nobel Prize
in economics in 1992 and has followed the debate, said the current
empirical evidence was “certainly not decisive” because “we just don’t
get enough variation to be confident we have isolated a deterrent
effect.”
But, Mr. Becker added, “the evidence of a variety of types — not
simply the quantitative evidence — has been enough to convince me that
capital punishment does deter and is worth using for the worst sorts of
offenses.”
[To read the rest of this interesting, important article, click here.]
This is from John Breen:
Thanks to Rick Garnett for posting the SSRN links to my two articles, John Paul II, the Structures of Sin and the Limits of Law (forthcoming in the Saint Louis University Law Journal) and Modesty and Moralism: Justice, Prudence and Abortion — A Reply to Skeel & Stuntz (forthcoming in the Harvard Journal of Law & Public Policy).
Thanks also to Bill Stuntz for joining the conversation here at MOJ.
[With respect to "the consistent lesson of American history, including the history of abortion and abortion law itself"], Bill confines his research regarding the incidence of abortion in the era of criminalization to a single source, namely, Gerald Rosenberg ’s deeply flawed discussion of the subject in his book A Hollow Hope (1991). . . . Bill and David ignore the rich literature that shows that the practice of abortion increased exponentially following the state reform efforts of the late 1960s and early 1970s and the Supreme Court’s decision in Roe v. Wade.
As Rick notes in his post, this history is set forth in great detail in Joseph Dellapenna's masterful work, Dispelling the Myths of Abortion History (2006). Although Bill and David ’s article was published prior to Dellapenna’s book, the underlying sources upon which Dellapenna relies were freely available. I review these sources in critiquing Rosenberg’s troubled work and by extension, the Skeel-Stuntz modesty thesis as it applies to abortion.
Indeed, Bill and David’s claim that prudence demands that abortion should be left to the influence of cultural norms rather than subject to legal regulation appears to make sense only because they ignore the way in which the law significantly reduced the incidence of abortion in the era prior to Roe. The law was indeed an effective teacher – a role that Bill and David consistently understate in their essay.
Bill further states that if “there is ever a genuinely pro-life political majority in the United States . . . [it] should try to use government policies to promote . . . means of encouraging and helping young women in distress, not hammering those who make bad choices.” I agree that the state should help women with unwanted pregnancies in a variety of ways, including the provision of greater social assistance. However, in the second article mentioned above, I show – based on data from other well-developed countries that allocate more resources to such women – that such efforts will likely have only a marginal effect on the incidence of abortion.
Bill does not – either in his articles or in his post – provide any reason for believing that pro-life legal efforts need to wait, in sequential fashion, for a moral renovation of the culture to be completed. Instead, the relationship between law and culture is dynamic, mutually informing and reinforcing. Thus, in the papers mentioned above, I argue that the proper strategy for reducing the incidence of abortion requires a multi-faceted approach in which culture and law work in tandem. Indeed, contrary to those who oppose the coercive use of law and those who advocate a strategy of “culture first,” I argue that both culture and law – including the criminal law – have a significant role to play in reducing the frequency of abortion.
Here I draw upon the recent historical example of the reduction in drunk-driving fatalities that began in the 1980s. This reduction (from 26,000 in 1982 to 16,000 in 2005) was the result of new laws, stiffer penalties, and more aggressive enforcement, as well as the diffusion of a significant cultural message at the grass-roots level from organizations such a MADD and the like. The data shows that when combined with this cultural message, the law had a significant effect beyond the particular instances in which it was enforced. That is to say, it taught the cultural values that it embodied.
Friday, November 16, 2007
In the sidebar under my name, I've posted a new paper titled The Morally Distinct Corporation: Reclaiming the Relational Dimension of Conscience. Here's the abstract:
The law has tended to deal with conscience at points of direct conflict between the individual and the state, but rights of conscience have also been invoked in a recent series of high-profile disputes between the individual and non-state associations. This trend is driven by a generally laudable commitment to minimize external interference with an individual's moral autonomy, but we must remember that the vibrancy of conscience depends in part on the vitality of the associations against which the right of conscience is currently being invoked.
Missing from our conversation about conscience is a robust articulation of its relational dimension - i.e., the notion that the dictates of conscience are defined, articulated, and lived out in relationship with others. Conscience is shaped externally; our moral convictions have sources, and our sense of self comes into relief through interaction with others. Conscience, by its very nature, directs our gaze outward, to sources of formation, to communities of discernment, and to venues for expression. When the state closes down avenues by which persons live out their core beliefs - and admittedly, some avenues must be closed if peaceful co-existence is to be possible - there is a cost to the continued vitality of conscience. It is not just a vague allegiance to moral pluralism that should underlie our legal system's reluctance to restrict the independence of the myriad associations that make up the vast space between person and state; it is a commitment to freedom of conscience. Put simply, if our society is to facilitate an authentic and robust liberty of conscience, we cannot reflexively favor individual autonomy against group authority; we must also work to cultivate the spaces in which individuals come together to live out the shared dictates of conscience.
This article is part of a bigger project outlining how the law can better support this relational dimension of conscience in a variety of areas. Here I explore the broad implications that conscience's relational dimension has for our understanding of corporations and their role in society. The exploration has three components: first, connecting liberty of conscience with the common good, explaining why institutional autonomy is an essential component of both; second, examining whether for-profit corporations may properly be considered venues for the communal expression and implementation of conscience, looking specifically at the capacity of corporations such as Wal-Mart to carve out moral identities as marketplace actors that diverge from the norms embraced by the broader society; and third, analyzing the tension between a corporation's moral identity and the exercise of conscience by dissenting community members, particularly employees.
As always, I'd welcome readers' comments.
The preliminary results of a John Jay College study on the sexual abuse crisis, presented to the American bishops during their meeting in Baltimore this week, show that sexual abuse of minors by Catholic clergy reflects "overall changes in behavior, attitudes, and media representations in American society" rather than "something distinctive about the Catholic church that led to the sexual abuse of minors."
While some apparently took comfort in the fact that the behavior or Catholic priests was not worse than anyone else's, Cardinal George made some comments about religion and society that are worth serious thought:
"The more interesting question, though, is whether or not the church herself, and particularly the priests and bishops, should be held to a moral standard that is higher than that of the general populace. That was raised by one bishop very astutely, saying that we should not be relieved to find out that our own standards just conform to what is the normal behavior, what has become so in the last several decades.
"Speculatively, and I'm not sure whether you're interested in the question or not, but [the results of the study] point to a sociological thesis or question: Is religion an independent variable? Or is it simply reduced to a cultural reality that can be explained in terms of something other than religion itself? If that's the case, then the secularists shouldn't be disturbed about religion, because it has nothing original to say anyway, and it's not going to impose itself on anybody's behavior. That's a very important question. It's not going to be decided here, and I don't know the answer to it. I have different answers depending upon which sociologist I talk to. I think that however this thing finally turns out, it will inform the larger issues that are now before us in this country about secularism, the influence of religion in society, and all those good questions that we're not going to discuss directly here."
See John Allen's current NCR column for a more detailed report of the study and the bishops' reaction.
Yesterday, November 15, the Third Committee of the UN General Assembly adopted a draft resolution, L 29, Moratorium on the Use of the Death Penalty [Download l_29.pdf ]. The draft resolution will now be forwarded to the General Assembly for adoption. Usually, but not always, the success (or failure) of the draft resolution in the Committee is a good indicator of what the GA will do. Normally, a draft resolution that fails in Committee will not be able to advance to the GA, but there have been exceptions. The GA will begin to consider the resolutions adopted by the Committees in late November and continue throughout December. Seventeen attempts were made to amend the draft resolution, but each effort to amend failed. The final vote [Download l29_voting_sheet.pdf ] adopting the draft resolution was: 99 in favor (designated “Y”); 55 in opposition (designated “N”); 33 abstaining (designated “A”). Those States with neither a Y, N, or A before their name either were not present, or if present, did not activate their voting machine during the vote. Assuming that the GA adopts this draft resolution, it will revisit the subject next year in the subsequent General Assembly. RJA sj
