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, December 5, 2007

By Michael Perry

 

December 7, 2007 / Volume  CXXXIV, Number 21

EDITORIAL

Utmost Care

The Editors

It has long been the teaching of the Catholic Church that taking extraordinary measures to prolong life in the case of serious illness is not morally obligatory. Where such measures are judged by the patient or proxies to be futile or excessively burdensome, they can be stopped. A recent statement by the Congregation for the Doctrine of the Faith (CDF) concerning the morality of removing feeding tubes from patients in a persistent vegetative state (PVS) has thrown that teaching into question.

The statement, in fact, appears to contradict the traditional criteria used to determine whether a particular medical treatment is ordinary and proportionate and therefore obligatory, or extraordinary and disproportionate and therefore optional. Caregivers for someone like Terri Schiavo-kept alive for fifteen years in PVS despite having suffered massive and irreversible brain damage-are now being told that removing her feeding tubes amounted to euthanasia. Equally problematic, under the CDF’s new ruling Catholics may no longer leave an advanced directive stipulating that they do not want to be kept alive indefinitely in PVS.

When to discontinue a medical treatment thought futile or unnecessarily burdensome is a torturous decision, one that Catholic tradition has long approached in a casuistic and nuanced way. As Daniel P. Sulmasy, OFM, writes in this issue (“Preserving Life?” page 16), even though the CDF statement is narrowly drawn, a danger exists that Catholics will now think that removing feeding tubes is prohibited in all circumstances. But that is not the case. Patients facing imminent death may still forgo such treatments. Whether patients who are incapable of feeding themselves and will never regain consciousness can be said to be dying is part of the moral conundrum surrounding PVS.

As Sulmasy points out, perhaps the best way to understand the CDF’s action is to see it as part of the Vatican’s strenuous efforts to resist the legalization of euthanasia in Europe-“an extreme position to counter extreme positions.” Unfortunately, the CDF statement goes too far, and seems nearly impossible to reconcile with the church’s otherwise sophisticated and widely respected contributions to how to think about end-of-life decisions in a world where medical technology, rather than morality, increasingly dictates what is done. Historically, the church’s teaching has been patient-centered and flexible enough to allow the sick and the dying (and those caring for them) to weigh many factors in determining whether a treatment is obligatory or not. Preserving physical life has never been regarded as an absolute value. Traditionally, a cost-benefit analysis played a role in the decision. No family is obligated to bankrupt itself to prolong the life of a dying relative. The CDF statement, however, comes close to arguing that such an analysis is no longer permitted for PVS patients in relatively prosperous countries. Equally disputable is the statement’s assertion that feeding tubes, which must be inserted and maintained by medical professionals, are to be regarded as “ordinary” care rather than medical treatment.

As Sulmasy notes, most people’s reaction to the prospect of being kept alive in a condition like Terri Schiavo’s is one of horror. That moral instinct has long been recognized in Catholic teaching, as has the distinction between removing feeding tubes from someone in PVS, thus allowing him to die, and intending his death.

It is hard to imagine a step that could discredit the church’s opposition to euthanasia more than Rome’s insistence that those afflicted with PVS are essentially condemned to spend the last ten, fifteen, or twenty years of their lives-even against their own wishes-in such a condition. Some may consider this a call for moral heroism on the part of PVS patients, their families, and the wider community, but the church has never taught that heroism is morally obligatory.

Cardinal Newman, commenting on the dangers of ultramontane Catholicism, and especially on demands that Rome settle all disputed questions as quickly as possible, urged patience from his fellow Catholics and intellectual modesty from the curia. Appealing to Rome should be a last resort. “So difficult is it to assent inwardly to propositions, verified to us neither by reason nor experience,” Newman wrote, “...that [the church] has ever shown the utmost care to contract, as far as possible, the range of truths and the sense of propositions, of which she demands this absolute reception.”

Newman’s concerns were about dogmatic propositions of faith, but similar concerns are increasingly felt regarding the church’s pronouncements on moral questions. Utmost care must be taken there as well.

Lee and George Respond

By Elizabeth Schiltz

Robby George offers this response to Silver, explaining that "It is excerpted from a reply on NRO to one of the items Professor Silver posted to which you linked."

Patrick Lee and Robert P. George respond: Lee Silver continues to bluster and spin in an effort to depict people who disagree with him as “fundamentalists” who rely on religious faith, rather than science, for their beliefs about matters of biological fact. It is Professor Silver himself, however, who refuses to face up to the scientific facts about human embryos.

The point at issue is whether human embryos are or are not human beings in the embryonic stage of their natural development. We say they are; Silver claims they are not. Here is another way of putting the question: Does the term “human embryo” refer to something distinct from a human being (in the way that terms like “alligator,” “cotton,” and “stone” — or even terms like “human liver” or “human fingernail” — refer to things distinct from human beings), or does it refer to a human being at a certain stage of development (in the way that terms like “infant,” “adolescent,” and “adult” refer to stages of development)?

Plainly, the complete human organism that is now you, the reader, was once an adolescent and before that an infant. Were you once an embryo? If Silver’s view is correct, the answer is “no.” But the truth is that the answer is “yes” — you were once an embryo, just as you were once an adolescent, a child, an infant, and a fetus. The human organism that is now you is the very same organism that began in the embryonic stage and developed by a gradual and gapless process of self-directed growth to the mature stage of a human being. By contrast, you were never a sperm cell or an ovum. The sperm cell and ovum whose union brought you into existence were genetically and functionally parts of other, larger organisms — your parents. But the organism — the new and distinct human individual — who was brought into existence by their union is the organism that is now reading these words.

It is the science of human embryology — not the Bible or any other religious text or authority — that tells us that human embryos are indeed what we say they are and what Silver denies that they are, namely, whole, living individuals of the species Homo sapiens. As complete human organisms, and not mere parts of larger organisms, embryos are radically unlike human gametes, somatic cells, organs, tissues, and the like. If provided with adequate nutrition and a suitable environment, and barring accident or disease, a human embryo will, by internally directing its own integral organic functioning, develop himself or herself from the embryonic into and through the fetal, infant, child, and adolescent stages, and into adulthood with his or her distinctness, unity, and identity fully intact. What happens in successful fertilization or cloning is the production of a new and distinct organism — a complete individual member of the species in the initial (embryonic) stage of its life. None of Lee Silver’s bluster and spin can make that decisive fact disappear.

Ignoring Arguments
The basis of Silver’s denial that human embryos are human beings is his remarkable claim that human embryos are equivalent to human embryonic stem cells. He argues that, since nobody believes that stem cells are human beings, no one should believe that embryos are human beings. But Silver’s premise is not only remarkable, it is indefensible. In a previous posting, we identified the errors in Silver’s attempt to defend it by reference to the possibility of tetraploid complementation. Silver has not made any effort to resuscitate his argument or respond to our refutation. We also observed that if Silver’s remarkable claim were true, other scientists — particularly human embryologists and stem cell scientists with greater expertise than Professor Silver — would confirm it. Why have they not? Silver’s answer is as remarkable as his claim itself. He asserts that scientists know the truth, but they are deliberately hiding it from the public for fear that if it were revealed people would demand new restrictions on stem-cell research. There is no polite way to say this: Professor Silver’s suggestion that there is a massive scientific deception or cover up is ridiculous.



Continue reading

Silvers' Response to George

By Elizabeth Schiltz

Professor Lee Silver brought to my attention this post containing his response to Robby George's response to Silver's argument about ipc cells being morally indistinguishable from embyronic stem cells. 

Pregnant Women Support Act Introduced in Senate

By Thomas Berg

From Democrats for Life of America:

Senator Robert Casey (D-PA) [today] introduced the Pregnant Women Support Act into the United States Senate.  S. 2407, similar to legislation (H.R. 3192) introduced by Lincoln Davis (D-TN) earlier this year in the U.S. House, is designed to reduce the number of abortions by aiding those women who feel they have no other option. . . .

One of the key provisions of the proposal calls for banning the discriminatory practice against pregnant women in the health insurance industry by removing pregnancy from all "pre-existing condition" lists in health care. Other provisions call for making adoption tax credits permanent, provides grants for low-income parenting college students, fully funding the federal WIC program, increased funding for domestic violence programs, and provides free home visits by registered nurses for new mothers.

See previous posts about this legislation here, here, and here.

Tom

Happy Repeal Day!

By Rick Garnett

Yay!

On December 5th, 1933, Utah, the final state needed for a three quarters majority, ratified the 21st Amendment, repealing Prohibition and restoring the American right to a celebratory drink.

"A disaster"

By Rick Garnett

A key Vatican official has called the lack of public funding for Catholic schools in the US “a disaster.” Zenon Cardinal Grocholewski, head of the Vatican’s Congregation for Catholic Education, which includes seminaries, told a Vatican news conference that the US government should do more to allow parents to choose the educational option they desire for their children.

The cardinal, while presenting a new document, “Educating Together in Catholic Schools,” criticized the US system saying, “The state does not recognize full democracy for Catholic schools.” In America, Grocholewski said, the financial strain on the Church, “makes it difficult to achieve the same economic conditions as the state schools.”

More here.

Dawkins jumps the shark?

By Rick Garnett

Check it out.

From a Darwinian perspective, sexual jealousy is easily understood. Natural selection of our wild ancestors plausibly favored males who guarded their mates for fear of squandering economic resources on other men's children. On the female side, it is harder to make a Darwinian case for the sort of vindictive jealousy displayed by Mrs. Tarrant. No doubt hindsight could do it, but I want to make a different point. Sexual jealousy may in some Darwinian sense accord with nature, but "Nature, Mr. Allnutt, is what we are put in this world to rise above." Just as we rise above nature when we spend time writing a book or a symphony rather than devoting our time to sowing our selfish genes and fighting our rivals, so mightn't we rise above nature when tempted by the vice of sexual jealousy?

I, for one, feel drawn to the idea that there is something noble and virtuous in rising above nature in this way. I admit that I have, at times in my life, been jealous, but it is one of the things I now regret. Assuming that such practical matters as sexually transmitted diseases and the paternity of children can be sorted out (and nowadays DNA testing will clinch that for you if you are sufficiently suspicious, which I am not), what, actually, is wrong with loving more than one person? Why should you deny your loved one the pleasure of sexual encounters with others, if he or she is that way inclined? The British writer Julie Burchill is not somebody I usually quote (imagine a sort of intelligent Ann Coulter speaking with a British accent in a voice like Minnie Mouse) but I was struck by one of her remarks. I can't find the exact quote, but it was to the effect that, however much you love your mate (of either sex in the case of the bisexual Burchill) sex with a stranger is almost always more exciting, purely because it is a stranger. An exaggeration, no doubt, but the same grain of truth lurks in Woody Allen's "Sex without love is an empty experience, but as empty experiences go it's one of the best."

Even sticking to the higher plane of love, is it so very obvious that you can't love more than one person? We seem to manage it with parental love (parents are reproached if they don't at least pretend to love all their children equally), love of books, of food, of wine (love of Chateau Margaux does not preclude love of a fine Hock, and we don't feel unfaithful to the red when we dally with the white), love of composers, poets, holiday beaches, friends . . . why is erotic love the one exception that everybody instantly acknowledges without even thinking about it? Why can a woman not love two men at the same time, in their different ways? And why should the two – or their wives -- begrudge her this? If we are being Darwinian, it might be easier to make the case the other way, for a man sincerely and deeply loving more than one woman. But I don't want to pursue the details here.

I'm not denying the power of sexual jealousy. It is ubiquitous if not universal. I'm just wondering aloud why we all accept it so readily, without even thinking about it. And why don't we all admire – as I increasingly do -- those rare free spirits confident enough to rise above jealousy, stop fretting about who is "cheating on" whom, and tell the green-eyed monster to go jump in the lake?

This sounds like Hugh Hefner, circa early 1970s.  On a more serious note, though . . . the objectification is palpable:  "we don't feel unfaithful to the red when we dally with the white."  Well, yeah -- "no duh!" -- but the red, even a fabulous Brunello, is not a person.

Romney's faith

By Rick Garnett

At the Findlaw site, constitutional-law expert Prof. Doug Kmiec (who is, as he discloses, an advisor to Gov. Romney) has an essay called "Religion and Public Life:  Why it's a Good Choice for Presidential Candidate and Governor Mitt Romney to Specifically Address the Topic of his Faith."  Prof. Kmiec writes:

Romney's faith is actually his greatest strength. It defines him as a person of integrity in interpersonal dealings, of service to the nation and community, and of fidelity to his family. These are things that cannot be said about every candidate in the race.

I agree that not "every candidate" for the President is a "person of integrity."  But, I admit, I have some reservations, or at least some questions, about the statement that Romney's faith is "actually his greatest strength" because it "defines him as a person of integrity[.]"  If this means that, in Gov. Romney's specific case, what has formed him to be the "person of integrity" that he is is, in large part, his religious faith (which means, I hope, more than just his subjective dispositions but includes his formation in a particular religious tradition), fine.  But, is the statement intended to suggest that what identifies, or marks, or "defines" a candidate, as a general matter, as a "person of integrity", is his or her "faith"?  Such a statement would strike me as more problematic.  And, I suspect that Prof. Kmiec does not intend this latter suggestion -- to suggest that integrity and faith wax and wane together.  There is a danger, nonetheless, that some will hear it. 

Prof. Kmiec also writes:  "Romney's faith is also the best refutation of the flip-flopper indictment. Being a member of a faith that is constantly under public scrutiny necessarily invites one to check one's presuppositions at the door."  The claim, as I understand it, is that Romney's religious affiliation, and his experience of being an outsider, has made him the kind of open-minded person who can (and has) change his mind when convincing reasons for doing so are presented.  This is interesting; is it plausible?  Don't get me wrong:  I much prefer Gov. Romney's current position on, say, abortion to ones that he has endorsed in the past.  And, I certainly hope the reason for the change is that, out of open-mindedness, he heard and embraced new, better, pro-life arguments (and not that he came to appreciate the fact that, particularly with Mayor Guiliani in the race, a pro-life governor of Massachusetts was more likely to have success in Republican primaries than a pro-choice governor of Massachusetts.)

With respect to the inescapable "Kennedy Speech" comparisons, Kmiec writes:

Kennedy, however, had a special burden that Romney does not bear.Catholicism, prior to the Second Vatican Council, saw itself as entitled to be recognized as a state religion. . . .

The Mormon Church has never claimed that it is entitled to be an established faith of the United States. Moreover, there is no sense in which the Mormon Church could be said, through its leadership, to be seeking to control public decision-making. Indeed, quite the opposite, it would be entirely appropriate for Governor Romney to point out that his faith has been a persecuted faith.

It is not clear to me, actually, that the Roman Catholic Church has not been, like the Church of Jesus Christ of Latter-day Saints, a persecuted church, at some points in our history.  Obviously, the Catholic Church has not been "persecuted" for a while, but I'm not sure the LDS church has, either.  Nor is it obvious to me that the LDS church has not, in the past, and in particular contexts, taken the position that it may and should be "established", in some sense.  (Am I wrong about this?)   

Finally, Kmiec writes, by way of criticism of Kennedy's speech: 

. . .  Kennedy made it clear that in presidential decision-making, he would not be taking instruction from the fathers of the Church. That is as it should be. What was uncomfortable, however, was Kennedy's suggestion that his faith could somehow be separated from his most important life commitments, from caring about the less advantaged to pressing forward on civil rights. Romney, unlike Kennedy, should not hide the virtues of his faith under a bushel.

I share this reservation about Kennedy's speech.  But then, Kmiec says, "Governor Romney is calling America to its better self. Whether the speech he will make about his faith ultimately benefits the Governor as a candidate will depend more upon us than on him -- that is, upon whether we are prepared to judge a person not by the religious book he reads, or by how often he calls himself a Christian leader, but rather by the quality of his words and his work."  It seems a fine line:  On the one hand, Romney's faith is his "greatest strength," and its "virtues" should not be hidden "under a bushel."  On the other hand, Americans are challenged to judge Romney "not by the religious book he reads", but by the "quality of his words and his work."

In any event . . . read the whole thing.  And, I'll look forward to hearing (and to others' reactions to) "the Speech."

Law school tuition & Justice

By Rob Vischer

Brian Tamanaha has long been rattling the cages of his friends and colleagues to start talking about the social justice and fairness implications of skyrocketing law school tuition.  He now wonders:

Every year, law schools sponsor an extraordinary number of conferences on a variety of issues, with justice an often-mentioned theme. Yet I do not recall seeing a conference on the justice-related implications of the high tuition charged by law schools (heading toward $40,000 per year at private schools).

In addition to the points mentioned above, such a critical self-examination might also consider the consequences of the shift away from need-based scholarships, and the fact that in some law schools students at the bottom of the class, those with the most dismal earning prospects, are now subsidizing students at the top of the class, those who stand to earn the most.

Shouldn't Catholic law schools be leading the charge on this, particularly at a time when salary prospects are so far removed from the expectations of most non-elite law school grads?  (It's not an easy problem to solve, I realize.  Law school is too expensive, but that does not mean I think I'm overpaid.  There should be more need-based scholarships, but I still want to attract high-LSAT students.  Etc., etc.)

Hollywood and Unwanted Pregnancies

By Michael Perry

Last summer, there was Knocked Up.  Now there's this, which looks to be an interesting movie:

New York Times
December  5, 2007

Seeking Mr. and Mrs. Right for a Baby on the Way
A.O. Scott

Juno MacGuff, the title character of Jason Reitman’s new film, is 16 and pregnant, but “Juno” could not be further from the kind of hand-wringing, moralizing melodrama that such a condition might suggest. Juno, played by the poised, frighteningly talented Ellen Page, is too odd and too smart to be either a case study or the object of leering disapproval. She assesses her problem, and weighs her response to it, with disconcerting sang-froid.

It’s not that Juno treats her pregnancy as a joke, but rather that in the sardonic spirit of the screenwriter, Diablo Cody, she can’t help finding humor in it. Tiny of frame and huge of belly, Juno utters wisecracks as if they were breathing exercises, referring to herself as “the cautionary whale.”

At first her sarcasm is bracing and also a bit jarring — “Hello, I’d like to procure a hasty abortion,” she says when she calls a women’s health clinic — but as “Juno” follows her from pregnancy test to delivery room (and hastily retreats from the prospect of abortion), it takes on surprising delicacy and emotional depth. The snappy one-liners are a brilliant distraction, Ms. Cody’s way of clearing your throat for the lump you’re likely to find there in the movie’s last scenes.

[Too read the rest of the (positive) review, click here.]

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