Thanks to Michael for posting my colleague (and MOJ alum) Vince Rougeau's recent essay in America magazine. I am, for what it's worth, as confident -- after careful reflection in light of the full range of Catholic teachings -- that a McCain Administration would have been -- all things considered, and on balance -- better for the common good than the Obama Administration will be as Vince is that the opposite is true. Still, I believe that there is much in Vince's essay for all of us, and particularly for Catholics who made the same choice I did, to take very seriously. He is absolutely right that a Catholic in America has to appreciate -- and, I should say, I do -- "the political and cultural concerns of African-Americans and Latinos."
Now, I worry a bit -- perhaps, defensively -- that he paints in places with a bit-too-broad of a brush, seeming to equate statements like mine (above) with blanket refusals to admit that any reflective Catholic (or "real American") could possibly have voted for Obama. Certainly, I hope, notwithstanding the strong statements in his essay about Republican failings, he believes that reflective Catholics could have made the choice I did. All that said, I was struck in particular by this:
Let us consider for a moment the reality of abortion in the United States. Abortion rates (which, by the way, have been in a steady decline for some time) are highest in communities that are disproportionately poor. This means African-American and Hispanic communities, which have poverty rates three to four times those of white communities. What does an all-or-nothing strategy toward criminalization of abortion say to women in these communities, women who are also routinely vilified for having too many babies? Rather than being offered hope through support for the creation of a society in which poor mothers could envision futures of solidarity and participation for their children, they are told that more of them need to be prosecuted as criminals.
Barack Obama’s simple presence in the Oval Office will probably do more to reduce abortions than any possible further restriction of the abortion laws that might have occurred during a McCain-Palin administration. For the first time in American history, women of color can look at their children, particularly their sons, and say with conviction that American society sees them as full, dignified members of the community for whom anything might be possible. Why isn’t that something worth voting for?
Starting with Vince's last question: It seems to me that it *is*, without a doubt, "something worth voting for." For me, it was not enough, but the fact it was not enough does not prevent me (and other Catholics who voted the way I did) from recognizing this particular good result of Pres. Obama's election.
The claim that Pres. Obama's "simple presence" will do more to reduce abortions than anything that could have occurred during a McCain administration is, in my view, not persuasive, if one includes in the calculation the effect of increased public funding for abortions. Yes, the Born Alive Infact Protection Act does not save many unborn children -- though it does, this horrifying story suggests, save some. But there was every reason to believe, on Election Day (and today) that the election of Pres. Obama, combined with a Pelosi-Reid Congress, would result in substantial increases in public funding for abortion.
But put all that aside. I hope that Vince is right, and that the number of abortions goes down during the next 4 (or 8) years. What was (and is) of more concern to me, though, than the number of abortions was the fact that we have (incorrectly) constitutionalized a gravely unjust and anti-democratic rule (i.e., the Roe-Casey regime), a rule whose premise is that some human beings deserve less protection against private violence than do other human beings. It would have been wonderful -- and more consistent -- if a vote for Obama, one that reflected a commitment to equal justice and the worth of all, had also been a vote that made more likely (rather than much, much less likely) the possibility that our constitutional law might reflect that commitment again.
And so, what people like me argued was not so much that no reflective Catholic could ever conclude that Obama was, all things considered, the better choice, but instead that it was a mistake to think that (as Doug Kmiec, for example, seemed to), with respect both to the number of abortions and the justice of the legal regime regarding abortion, the election of Obama would result in improvement.
The issue is not (as I see it), in Vince's words, to tell women that "more of them need to be prosecuted as criminals." This is not a fair representation of the pro-life argument (at least, not of the argument that moved Catholics who voted for Sen. McCain). The aim of those of us for whom hoping that social-welfare programs will reduce abortion is not enough is not to "villify", or even to "punish" -- it is to bring about a state of affairs in which our Constitution permits us to give expression, in law and elsewhere, to our commitment to the full and equal dignity of all human persons.
In the February 6 edition of NCR, there is a book review by Julie Hanlon Rubio, an associate professor of Christian ethics at St. Louis University (a Catholic institution). Professor Rubio is described at the end of the review as "the author of A Christian Theology of Marriage and Family and coeditor, with Charles E. Curran, of Marriage: Readings in Moral Theology No. 15, both from Paulist Press.
The book Rubio reviews is one I have called to the attention of MOJ readers: Todd A. Salzman & Michael G. Lawler, The Sexual Person: Toward a Renewed Catholic Anthropology (Georgetown University Press 2008). (Here's a link to the book at amazon.com, where it's selling much better than any of my books ever did.) To read Rubio's review, click here. Some excerpts:
Todd Salzman and Michael Lawler’s new book . . . is among the most important works in Catholic sexual ethics to emerge
in the last two decades. The authors, professors at Creighton
University in Omaha, Neb. [a Catholic institution], have both written extensively on sexual
ethics and have a thorough knowledge of current theological debates.
They stand firmly within the Catholic tradition even as they argue for
significant change.
Their book will be noticed because of its controversial positions on
contraception, same-sex relationships, cohabitation and artificial
means of reproduction. However, its contribution is its clear
articulation of a person-centered natural-law ethic that offers
Catholics an authentic way to think about sex in relation to their
faith.
Salzman and Lawler, both married Catholics, offer a new approach to
sexual ethics that questions the adequacy of a traditional sexual
morality that says sexual acts must take place within marriage and be
open to life. They show that historical critical scholarship raises
questions about whether these principles are truly scriptural and truly
human. . . .
This book’s authors and other revisionists, on the other hand, offer a
more adequate person-centered ethic in which making good sexual
decisions means discerning whether or not actions contribute to human
flourishing. Sexual acts that are “truly human” must be loving, just
and able to meet the test of “holistic complementarity.”
Complementarity is defined in relation to sexual orientation. For
persons with a homosexual orientation, sexual relationships with a
person of the same sex are complementary and can be loving, just and
moral.
Readers of this blog will recall the analogy made by Notre Dame law student Paul Krog between pre-civil war Spain and the contemporary U.S.:
In both cases you have groups of private individuals intent on wreaking violence on a particular group in society (Catholics and the unborn); in both cases the government refuses protection to the targeted group and implicitly supports the violence while issuing occassional platitudes about it being unfortunate; and in both cases startlingly large numbers of the targeted group are killed. Also in both cases the violence had political benefits and dimensions for the perpetrators and the government protecting them.
Eduardo responded with an overstatement, I think, saying "as I read the history, the destruction of churches and slaying of priests in Republican Spain did not begin until after the beginning of the nationalist uprising, not 'immediately prior' ..."
Hugh Thomas, THE SPANISH CIVIL WAR,would seem to support Mr. Krog: Church burnings began not with the 1936 Nationalist uprising, nor even "immediately prior" thereto, but virtually at the beginning of the Republic, with little hindrance from the authorities. In May of 1931, anarchists set fire to about a hundred churches, some burning to the ground, and to the offices of the conservative newspaper ABC as well. Republican leader Azana hesitated to act, saying that all the convents of Madrid were not worth one republican life. In the end the government blamed the conservatives for provoking the violence, although Thomas says they had only had an outdoor meeting at which two had shouted "Long live the monarchy!" [pp.55-58]
In 1934, after conservatives had won the next round of elections, anarcho-socialists rose in revolution against the Republic. They were eventually put down, although only after quite some success in Asturias. [pp. 129ff] Upon returning to power in 1936, the moderate left declared a general amnesty, releasing revolutionaries with a taste of victory and a desire for vengeance. A "trail of murder and arson spread across the face of the country", abetted (after some hesitation) by fascists who had decided (correctly) that greater disorder would trigger a military rebellion against the Republic, since the Republic was proving itself unable and/or unwilling to stop the violence. [p.153ff]
One of Rick's colleagues at Notre Dame Law School is Vincent D. Rougeau, author of Christians in the American Empire: Faith and Citizenship in the New World Order (Oxford Univ. Press 2008). Vince has a piece in the new issue of America (2/16/09), titled Real Americans, Real Catholics: Race, Religion, and the 2008 Election. Here's a bit:
Given the gravity of the circumstances in which the nation now finds itself,
and the undeniable responsibility many in the Republican Party bear for those
circumstances due to their adherence to agendas steeped in neoconservatism,
libertarianism and free-market liberalism, one would think our fellow Catholics
would at least allow a bit of goodwill toward those of us who could no longer
abide the political status quo. Might Latinos in particular have assessed, quite
reasonably, that John McCain would never be able to get comprehensive
immigration reform past members of his own party, were he ever to propose it?
And who better than Colin Powell could articulate so eloquently what many
African-Americans have long felt about the Republican Party, as if the
condescending and dismissive treatment he received from the neoconservatives in
the Bush administration was not enough to send a rather convincing message about
who really counted?
Still, we were told that no good Catholic could vote for Obama. Or, to make
the point affirmatively, good Catholics must vote Republican.
I suppose Catholics of color were expected to shut up and toe this political
line no matter how devastating a Republican administration might be to our
efforts to announce our presence in this society as something more than
afterthoughts, tokens or entertainers; and perhaps it is time to make something
perfectly clear. We will not be ignored and treated as if our experiences, our
lives and our views are marginal, insignificant and less than central to the
American experience. We will not be condescended to, threatened and bullied as
if we are somehow too stupid to weigh the serious difficulties that attend one’s
political choices when permissive access to abortion is a legal right. Support
for human dignity and the common good cannot be reduced to self-congratulatory
voting for a “pro-life” candidate. Other things also matter. It was encouraging
to see Cardinal Francis George remind his brother bishops at their recent
meeting that racial and economic justice are central pillars of Catholic social
teaching. Indeed, without them, human dignity becomes a rather empty concept.
[To read Vince's whole essay, click here.]
Incoming St. John's law prof Marc DeGirolami responds to Richard Stith's suggestion that the necessity defense might be available to the killer of an abortion doctor:
In the first place, I know of no actual court case in which the necessity defense has functioned as a defense to killing a human being (not even in Dudley & Stephens, when they had to eat the cabin boy to survive). Professor Stith of course could still say that this is because we don't think rightly about the abortion question. But I think that this misses the basic thrust of the necessity defense, which is that the evil chosen must outweigh (in some jurisdictions "substantially outweigh" or "grossly outweigh") the evil avoided. Even if one agrees that abortion is a moral wrong, and even if one agrees with the additional, and different, proposition that it is tantamount to killing a human being (not the position at common law or under the MPC, for whatever it's worth), are we really prepared to say that the evil chosen -- the killing of a doctor -- outweighs (in consequentialist/benefit to society/other moral terms) the evil avoided -- the killing of a fetus (by the doctor). "Outweighs" could carry both utilitarian/consequentialist overtones (it often does in necessity defense cases) or other kinds of moral overtones.
Prof. Stith might respond that because the abortion doctor has the capacity to perform multiple, maybe hundreds of, abortions, that the necessity defense kicks in on purely consequentialist grounds ('Isn't it better to kill one that 100 may live?') The difficulties with this position are two, I think. First, in many jurisdictions, one can't take advantage of the necessity defense unless one thought, reasonably, that the evil chosen would have been effective to abate the danger of the evil avoided. Here, I don't see how someone who murdered a doctor would think that this would reasonably abate the danger of a fetus, or many fetuses, being killed. Wouldn't that person realize that women will simply go to other doctors? Second, it seems to me that there are basic limits on the kinds of consequentialist considerations that can inform the term "outweigh" in the necessity defense context. And murder, in my view, is certainly one of them.
Thursday, February 5, 2009
Killing an abortion doctor is morally wrong at least for the same reason that futile resistance to unjust aggression is morally wrong: Without the hope of success, resistance merely increases the harm. Recourse to arms in the case of abortion is futile for two reasons: (1) It only delays rather than stops the particular abortion, because the mother is almost certain simply to reschedule her abortion with another doctor. (I say "almost certain" because other abortionists are easily available today and because an act of force -- as opposed to a peaceful sit-in, together with a willingness to suffer arrest for the sake of her child-- will appear merely violent and thus will not be likely to change the heart of any pregnant woman.) (2) The killing an abortionist will frighten many Americans, especially since it will be portrayed simply as violence rather than as rescue, and so will close their minds to pro-life arguments. But the only hope of the pro-life side is in the truth of its arguments, since it lacks almost all power. It would be exceedingly immoral so to damage the long-range chances of stopping abortion.
Nevertheless, if some pro-life person did kill an abortionist, although he would in my view have done a very immoral act, he should be defended in court. First of all, an unjust law (like Roe v. Wade, which violates equal protection) is not valid law, according the Evangelium Vitae. But even if Roe were valid, that case only forbids state action to stop abortion. But I assume that the pro-lifer here does not act under cover of state law. So I think he or she has a necessity defense, under Model Penal Code standards, just as (as I recall) a woman in Michigan was recently held to have a necessity defense when she used force to protect her unborn child. A child does not have to count as a constitutional person for the necessity defense to be used.
The necessity defense is arguably concerned more with the immediate consequences of an act, as opposed to the longer term consequences which (I have argued above) make such an act immoral. (Indeed, in light of our long tradition of wide-open prosecutorial and jury discretion, it seems to me possible that our appellate courts would refrain from imposing a duty to convict. That is, the necessity defense seems to me not only technically valid here; it might even stand a chance of being successful, with open-minded people in the jury box and on the bench.)
In a sparkling post that ignited a flurry, Rob argued among
other things that killing 12 year olds is different from killing fetuses, and
that if the former took place we would not stand idly by. As I recall, only one
post addressed the comparison and argued to the contrary that killing a fetus
was more serious because of its relative vulnerability. Assuming it would be
morally permissible to kill a doctor to prevent the killing of a 12 year old
(that is, assuming you do not take a pacifist position), is it morally permissible
to kill abortion doctors? Does the legality of abortion make a difference? Why
should it if you think abortion law is immoral and unjust? For a thoughtful
discussion of many of the issues raised by a "pro choice" proponent who tries to think within the "pro life" framework, see Sherry Colb http://writ.news.findlaw.com/colb/20080109.html. I am interested in why those who are strongly in the "pro life" camp think that such killing would be immoral (to the extent they do) especially if they have something to add to the arguments made by Colb.
Wednesday, February 4, 2009
My colleague here at the University of St. Thomas, Mike Paulsen, has posted an analysis on the Moral Accountability website of the likely and substantial legal consequences should the Freedom of Choice Act be enacted. He concludes that FOCA would have "dramatic and important implications for abortion. It is no mere restatement and duplication of existing Supreme Court decisions (and even if it were, it would remain significant for its entrenchment effects)."
Professor Paulsen's four major points, each of which is developed in further detail in the post, are these:
First, by banning state laws that in any way “interfere with” the choice of abortion before viability - a more abortion-protective standard than exists under present law and a central feature of the bill - FOCA would materially expand abortion rights in several ways. It would invalidate state laws that attempt to persuade women to choose not to have abortions by providing them with information about alternatives to abortion, about the ability of pregnant women to receive state assistance for support of their child, and about the condition and stage of development of the child at the point in pregnancy at which the abortion is sought. FOCA would also likely invalidate “informed consent” laws and 24-hour waiting requirements, on the ground that they “interfere with” the abortion choice. So too, almost certainly, would FOCA void the laws of many states that provide for parental involvement in minors’ abortion decisions. Finally, FOCA’s ban likely would eviscerate state “conscience” laws protecting the right of medical providers and individuals not to provide or assist in providing abortions. FOCA would also invalidate state constitutional provisions (including state constitutional protections of the freedom of speech or the free exercise of religion) protecting pro-life conscience in such fashion.
Second, FOCA also likely would invalidate state law bans on particular methods of abortion, like “partial birth” abortion, that sometimes may be prohibited under current law.
Third, FOCA appears to provide a new federal statutory right to equal state government funding of abortion, where a state provides resources or benefits that support the alternative choice of childbirth and child care and education.
Fourth, and perhaps most significantly, FOCA would serve to entrench abortion rights, in two ways. First, FOCA would provide a federal statutory right to abortion that protects legal abortion at least as much as (indeed, more than) the Supreme Court’s constitutional abortion doctrine under Roe v. Wade and Planned Parenthood v. Casey. In the event the Court were to overrule, limit, or cut back on those decisions, FOCA would provide equivalent or greater legal abortion rights. Second, by so doing, FOCA likely would prevent the Court from ever having the occasion to reconsider (and thus overrule or modify) Roe and Casey in the first place, by rendering such reconsideration unnecessary and pointless. Because a federal statute would in any event protect the abortion right to an equal or greater degree, it would never be necessary for the Supreme Court to “reach” the question of whether the Constitution protected such a right, under usual principles of judicial restraint and avoidance of decision of constitutional questions.
