Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, May 19, 2009

The elephant in the room ...

By Michael Perry

... namely, the disagreement, no less among Catholics than among others--the intractable disagreement--not about the *biological* status of unborn human--yes, HUMAN--life at the successiive stages of its development, but about its *moral* status.

In the United States (and elsewhere), there is a deep and widespread controversy about the moral status of unborn human life at the earliest stages of its development.  Moreover, there is little if any reason to doubt that this controversy will endure.  Referring to "philosophy, neurobiology, psychology, [and] medicine," Garry Wills has observed that "[t]he evidence from natural sources of knowledge has been interpreted in various ways, by people of good intentions and good information.  If natural law teaching were clear on the matter, a consensus would have been formed by those with natural reason." Garry Wills, "The Bishops vs. the Bible," NYT, June 27, 2004.

On the the enduring absence of a consensus, compare Robert P. George & Patrick Lee, "Acorns and Embryos," The New Atlantis, Fall 2004/Winter 2004, www.thenewatlantis.com/archive/7/georgeleeprint.htm, with Michael S. Gazzaniga, "The Thoughtful Distinction Between Embryo and Human," The Chronicle Review, Apr. 8, 2005. See also Anthony Kenny, "Life Stories:  When an Individual Life Begins--and the Ethics of Ending It," [London[] Times Lit. Supp., Mar. 25, 2005, at 3.

Jesuit moral theologian Richard McCormick foresaw that because of this dissensus about the moral status of unborn human life--in particular, about its moral status during early pregnancy--"public policy [would] remain sharply contentious and the task of legislators correspondingly complex."  Richard A, McCormick, SJ, "The Gospel of Life,"America, Apr. 29, 1995, at 12, 13.  See also John Langan, SJ, "Observations on Abortion and Politics," America, Oct. 25, 2004:  "[T]he fact of continuing and intense public disagreement [underlines] how far we are from having a broad public consensus against the practice [of abortion] and of how difficult it would be to . . . enact a legal prohibition against it."  Cf. Clifford Longley, "'The Church Hasn't Yet Made a Mature Appraisal of What Democracy Demands'," The Tablet [London], May 7, 2005, at 11:  "The criminal justice system . . . only works when there is at least a minimal degree of assent by the public to the moral framework in which it operates. . . .  [W]hat you have to persuade the majority of is not just that your moral principle is correct but that it is right to insist that the minority which does not agree with it must nevertheless comply with it too."

For the views of some Roman Catholics on the issue, see Joseph F. Donceel, SJ, "Immediate Animation and Delayed Homonization," 31 Theological Studies 76 (1970); Joseph F. Donceel, SJ, "A Liberal Catholic's View," in Robert Hall, ed., Abortion in a Changing World 39 (1970); Thomas A. Shannon, "Human Embryonic Stem Cell Therapy," 62 Theological Studies 811, 814-21 (2001); Jean Porter, "Is the Embryo a Person?  Arguing with the Catholic Traditions," Commonweal,Feb. 8, 2002, at 8; John Haldane & Patrick Lee, "Aquinas on Ensoulment, Abortion and the Value of Life," 78 Philosophy 255 (2003); Robert Pasnau, "Souls and the Beginning of Life (A Reply to Haldane & Lee)," 78 Philosophy 521 (2003); John Haldane & Patrick Lee, "Rational Souls and the Beginning of Life," 78 Philosophy 532 (2003).  Cf. Anthony Kenny, "The Soul Issue," Times Lit. Supp.,Mar. 7, 2003, at 12.

Consider these passages from an essay that Peter Steinfels, the then-editor of Commonweal, published in Commonweal in 1981:  "[T]he right-to-life movement is naively overconfident in its belief that the existence of a unique "genetic package" from conception onwards settles the abortion issue.  Yes, it does prove that what is involved is a human individual and not 'part of the mother's body.'  It does not prove that, say, a twenty-eight-day-old embryo, approximately the size of this parenthesis (--), is then and there a creature with the same claims to preservation and protection as a newborn or an adult. . . .  Although it is not logically impossible, for example, to consider the great number of fertilized eggs that fail to implant themselves in the uterus as lost 'human beings', a great many people find this idea totally incredible.  Similarly, very early miscarriage usually does not trigger the sense of loss and grief that miscarriage does.  Can we take these instinctive responses as morally helpful? . . .  It is simply not the case that a refusal to recognize Albert Einstein or Anne Frank as human beings deserving of full legal rights is equivalent to the refusal to see the same status in a disc the size of a period or an embryo one-sixth of an inch long and with barely rudimentary features."  Peter Steinfels, "The Search for an Alternative," Commonweal, Nov. 20, 1981, reprinted in Patrick Jordan & Paul Baumann, eds., Commonweal Confronts the Century:  Liberal Convictions, Catholic Tradition 204, 209-11 (1999).  Cf. Jean Porter, supra:  "What can we [Catholics] say to convince men and women of good will who do not share our theological convictions or our allegiance to church teaching that early-stage embryos have exactly the same moral status as we and they do?  It will not serve us to fall back at this point on blanket denunciations such as "the culture of death."  Naturally, these tend to be conversation stoppers.  What is worse, they keep us from considering the possibility that others may not be convinced by what we are saying because what we are saying is--not convincing."

The sixty-four-dollar question:  Who is more unreasonable:  (1) One who denies that Christians (and others) can in good faith reasonably reject the position (even though, of course, one can reasonably accept it too) that unborn human life has the same moral status from the very beginning of its existence as it has as every later stage; or (2) one who rejects the position that unborn human life has the same moral status from the very beginning of its existence as it has as every later stage?

This disagreement--again, among Catholics no less than among others--is the elephant in the room.  The Bible doesn't resolve the issue.  The magisterium may say, clearly and emphatically, what it believes about the issue ... but, again, ""[t]he evidence from natural sources of knowledge has been interpreted in various ways, by people of good intentions and good information.  If natural law teaching were clear on the matter, a consensus would have been formed by those with natural reason."

Now, ponder the implications of this disagreement--this *reasonable* disagreement?--for our politics, for our law, and for our evaluation of those who, like Obama, disagree with the magisterium.  I suggest you re-read what John Noonan had to say at Notre Dame, quoted below in Robertt Araujo's post.

What does Catholic legal theory have to say about this:

By Michael Perry

"The 12-year-old faces a capital murder charge. He is not eligible for the death penalty but could face up to 40 years in prison if convicted."

Here's the AP article, published today:

HOUSTON (AP) -- A 12-year-old Texas boy accused of killing an infant by throwing him to the floor has been released from juvenile detention and into the custody of a relative.

A judge on Tuesday ordered the boy released until his trial. The boy will live with an aunt and be supervised 24 hours a day, including when he is at school.

Officials say the 12-year-old was left alone March 12 at a Houston home with a group of younger children by his mother and the mom of the other kids when he threw 10-month-old Deandre Washington to the floor.

Deandre died two days later. His injuries included two skull fractures.

The 12-year-old faces a capital murder charge. He is not eligible for the death penalty but could face up to 40 years in prison if convicted.

Misusing Fr. Ted's Civil Rights experience

By Rick Garnett

In the Immanent Frame piece to which Michael links below, Michele Dillon writes:

Obama was clearly attentive to the cultural and geographical significance of the site of his speech and, fortunately for him, was able to use the words and actions of Father Ted Hesburgh, that most iconic of Notre Dame figures (and the university’s president-emeritus), to demonstrate his own thesis that common ground is achievable if and once we recognize that despite the intrusive divisions that set individuals at odds with one another, we all share a common humanity. Thus, as Obama recounted, if Ted Hesburgh could first bring together people of sharply divided opinions on race (members of the Civil Rights Commission) and then get them to talk—and fish—with one another, with the result that they formed the foundation for what became the Civil Rights Act of 1964, change on other divisive issues, though a steep challenge, is also possible. Obama’s story about Fr. Hesburgh and his fellow civil rights commissioners was a vivid reminder that once we find we have some particular everyday thing in common with others who otherwise seem strange and even threatening, that particular commonality opens the possibility that the divisions that characterize our lives might be bridged, however unevenly, so that a universal good is achieved.

This passage makes the same mistake I addressed in this earlier post, namely, it completely ignores the fact-on-the-ground that the Roe / Casey regime makes it impossible to have meaningful dialogue, and to pursue good-faith compromise and "common ground", on abortion.

When Fr. Ted gathered the members of the Commission together to talk and fish, he was doing so in a legal context that did not preclude those members from operationalizing in law the common ground at which they arrived.  It is disingenuous to suggest that Fr. Ted's good work with the Commission is analogous to Pres. Obama changing his website language or supporting improved adoption laws.  "Change" on this particular "divisive issue" -- abortion -- is, because of the Supreme Court's overreach, *not* possible, and Pres. Obama is committed (this is not, I assume, a controversial point) to making sure that this impossibility is preserved.  If the Court's caselaw actually permitted the enactment into law of the compromise at which, I am sure, the healthy majority of Americans would arrive, if asked to search for "common ground", then I would be the first to plead with Fr. Ted to invite Pres. Obama and Robby George fishing.  Given the Roe / Casey regime, though (and given Pres. Obama's clear plans with respect to judicial selections), it seems that the common-ground calls are really not much more than calls that pro-life Americans agree to re-brand the pro-choice position as "common ground".

Michael -- do you disagree?

More (great stuff) from Cardinal Bernadin

By Rick Garnett

Here is a passage from Cardinal Bernadin's 1976 testimony before Congress in favor of the Human Life Amendment:

I begin with a fundamental principle. Abortion is not wrong simply because the Catholic Church or any church says it is wrong. Abortion is wrong in and of itself. The obligation to safeguard human life arises not from religious or sectarian doctrine, but from universal moral imperatives concerning human dignity, the right to life, and the responsibility of government to protect basic human rights. Commitment to a constitutional amendment to protect unborn

human life arises from these same basic principles. It is certainly true that the Catholic Church and many other Churches teach that abortion is wrong--just as they teach that racial discrimination is wrong, that exploitation of the poor is wrong, that all injustice and injury to others are wrong. So in my case and that of many other religious persons, religious doctrine powerfully reinforces our commitment to human rights. We are publicly committed on a broad range of domestic and international issues. Within the past week alone, Catholic bishops, continuing a practice of many years' standing, have testified before committees of Congress on full employment and on food stamps. No objections are raised when we give voice to our moral convictions on such matters as these--and that is as it should be. For it is not religious doctrine which we wish to see enacted into law; it is respect for human dignity and human rights--specifically, in this case, the right to life itself. . . .

 

Read the whole thing.  This testimony confirms, I think, that it is misleading to enlist Cardinal Bernadin in support of a "common ground" approach to abortion that rejects, as "all or nothing", calls for just treatment and equal protection for unborn children in law.

Another, More Sympathetic View of Obama at Notre Dame ...

By Michael Perry

... over at The Immanent Frame, here.

on abortion reduction as common ground

By rstith

Reducing the numbers of those who need protection is no substitute for protecting those who need protection. Let's remember that as we accept the President's invitation to work together against abortion. Let's do everything legally possible under Roe and Casey to encourage and support the choice of life over death.

on abortion reduction as common ground

By rstith

Reducing the numbers of those who need protection is no substitute for protecting those who need protection.

Archbishop Chaput on Notre Dame and the issues that remain

By Michael Scaperlanda

Here is the Archbishop's statement from yesterday.

Cardinal Bernadin

By Rick Garnett

Much has been made, in the post-Obama-at-ND commentary, of his (shrewd) invocation of Joseph Cardinal Bernadin.  (See, for example, this piece, at the wonderful site, The Immanent Frame.)  (Cardinal Bernadin, I remember, filed a powerful amicus curiae brief in the Supreme Court, as he was dying, arguing against the constitutionalization of a right to assisted-suicide.)

It strikes me as important to remember, though, that, for Bernadin, the “consistent ethic” idea was never intended to minimize the importance of the abortion question or to excuse opposition to legal protections for unborn children. He said, for example, in 1988, “I don’t see how you can subscribe to the consistent ethic and then vote for someone who feels that abortion is a ‘basic right’ of the individual.” And, in the same interview, he noted that “some people on the left, if I may use that label, have used the consistent ethic to give the impression that the abortion issue is not all that important anymore, that you should be against abortion in a general way but that there are more important issues, so don’t hold anybody’s feet to the fire just on abortion. That’s a misuse of the consistent ethic, and I deplore it.”

The “consistent ethic” is a call to do *better* than contemporary politicians tend to do, it is not an excuse for doing worse than they should.

UPDATE:  Cardinal Bernadin also testified, in 1976, in favor of the Human Life Amendment to the Constitution.  Clearly, his dedication to finding "common ground" did not stop him from believing that the law should protect unborn children. 

Further thoughts on conscience in light of the Notre Dame commencement

By Robert John Araujo, SJ

I am sure that many readers of the Mirror of Justice would concur that a lot has been said on these pages concerning the question of conscience—both from Catholic and other perspectives—over the recent past. I have offered my occasional thoughts, and other contributors have as well. Having read the several addresses delivered at Notre Dame this past Sunday, in particular those of President Obama and Judge Noonan, I have concluded that a few more words are in order in light of what was said by these two individuals who spoke from their respective convictions.

At the outset, I think that it is important to keep in mind the distinction as to whether the subject of conscience is being addressed from a generic, secular perspective or one that is attuned to the development of Catholic legal theory. I am of the view that both perspectives have or can have a great deal in common, but since this is not a book or a scholarly law review essay, I haven’t the space here to elaborate fully the similarities and the differences. Having made this point, I would think that most would agree with my general contention. Both President Obama and Judge Noonan commented on conscience and its role in the res publicae, and what they had to say may sharpen rather than blunt what Catholic legal theory, or at least one version of it, has to propose on the topic.

President Obama offered just a few words on the matter. He said,

Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women.

I ponder what he means by a “sensible conscience clause.” He offered no details at Notre Dame, but I hasten to add that his commencement address was not the forum in which to offer the particulars of what he meant. Nevertheless, I would very much like to know what he considers the necessary elements of his views on conscience protection, and I look forward with intense interest on the elaboration that he will probably offer in the future as the question of conscience continues to enter the public debate.

Judge Noonan offered considerably more. In what I hope is a careful and accurate editing of his address, here is what he said about conscience:

For half a century now, a great debate has gone on in this country about a matter touching the inviolability of human life in a mother’s womb, the rights of a woman with respect to her own body, the duties of doctors, the obligations of parents, and the role of government in a decision that is patently personal and significantly social.

The matter of this debate was too serious to be settled by pollsters and pundits; too delicate to be decided by physical force or by banners and slogans, pickets and placards; too basic for settlement to be based on a vote by judges. The matter was settled—so it seemed—thirty-six years ago. The settlement was still-born. Debate intensified. Debate is not now about to close. At its center are the claims of conflicting consciences.

By conscience, as you graduates of 2009 know, we apprehend what God asks of us and what the love of our neighbor requires. More than the voice of your mother, more than an emotional impulse, this mysterious, impalpable, imprescriptible, indestructible, and indispensable guide governs our moral life. Each one is different. You may suggest what my conscience should say, but you cannot tell me what my conscience must say.

That’s the rub when your moral vision is clear and the other fellow’s is cloudy. You become impatient, the more frustrated if the other fellow is a friend—an old friend or a potential friend. Why can’t he or she see it? To satisfy that frustration by shunning or denouncing your unseeing companion will accomplish little beyond expressing your own exasperation.

Help your cause by hurting your friends? No. What does work is prayer, patience, empathy, and the love that encircles the other person, a fellow creature attempting to do what he or she sees as right.

One friend [a reference, I believe, to Mary Ann Glendon] is not here today, whose absence I regret. By a lonely, courageous, and conscientious choice she declined the honor she deserved. I respect her decision. At the same time, I am here to confirm that all consciences are not the same; that we can recognize great goodness in our nation’s president without defending all of his multitudinous decisions; and that we can rejoice on this wholly happy occasion.

We can rejoice that we live in a country where dialogue, however difficult, is doable; where the resolution of our differences is done in peaceful ways; where our president is a man of conscience. We can rejoice with you, members of the Class of ‘09, as your voices join the dialogue and declare your own consciences on the urgent moral matters that will be settled only when they are settled right.

“Great is truth. It will prevail.” This scriptural text is inscribed on the Laetare Medal. Believing the Bible, sustained by this message taken from it, we can work together. Yes! We can work together, serenely secure in that trust that the truth will out.

 

I apologize for the lengthy quotation, but I think it essential to present what may have been Judge Noonan’s suggestion to President Obama regarding the contents of a “sensible conscience clause.” In my estimation, Judge Noonan was correct in saying that one person’s conscience cannot dictate what another’s should be. Thomas More made a similar observation almost five hundred years ago. In this regard, we can recall Louis Brandeis’s remark about the right to be left alone. The state has no business in interfering with a person’s conscience be it well-formed as I have discussed in previous postings or otherwise. This is not to say that a person who declares himself or herself Catholic can claim that one’s personal conscience is well-formed because of this right to be left alone. As the Judge himself stated, not all consciences are the same. In relation this point, Judge Noonan suggested that a person’s conscience should be in tune with something extending beyond the individual’s private thoughts when he stated that “we apprehend what God asks of us and what the love of our neighbor requires.” He concluded his address with a remark about the greatness of truth which he stated will ultimately prevail. But, what is the source of this truth, and what is its relation to conscience and what I have been attempting to argue regarding its proper formation?

Indeed, a part of conscience is a very private matter, for that is where each of us encounters the essential norms that are not of our own derivation but which we must nonetheless obey if we consider ourselves disciples of Jesus Christ and members of his body, the Church. Judge Noonan was on target when he pointed out that “conscience” is conscious of what God asks and what is due the neighbor. It is here, in conscience, where we who believe in God encounter God in the depth of our individual being. Often times the Church makes this point in her teachings on the natural moral law—the place where we encounter the law of God that is inscribed on our hearts. It is in this inner sanctuary where we find God’s law—God’s commandments engaging our individual being, permeating our essence, encountering us in the fabric of human existence. It is here where we engage and respond to the constant challenge of doing good and avoiding evil.

Conscience, for the Catholic, is not merely the act and response of how one feels about something that has a moral bearing. It is an exercise of reason—right reason where the individual as a disciple of Christ recognizes what is morally good and what is not and then chooses to do what is good and strives to avoid what is not. It is vital to understand that these elections are not purely autonomous but involve the engagement of the individual person with God speaking to the believer. I think it was Newman who said that conscience is God’s “messenger” or “herald.” Judge Noonan mentioned prayer and patience, and it is by prayer that we engage more deeply the message and the Messenger.

Conscience involves the exercise of personal dignity, but it does not stop there. It cannot, for inevitably it brings us in relation to God, to the world, and to our neighbor. Indeed, conscience must be sensible—as President Obama implied—but it cannot be what is convenient, what satisfies a group consensus, or what is necessary to achieve a political compromise. No, the “sensible” associated with conscience is much more. Inevitably, the “sense” associated with it must be inclined to the objective truth that I have previously addressed, and this Truth is God if we are discussing the conscience of the Christian. Otherwise, the Christian’s purported exercise of “conscience” is prone to be an application of subjectivity distant from God and what He asks.

As I mentioned in stating my agreement with Judge Noonan on this point, no person can dictate to another what his or her conscience should hold. However, what a person holds in conscience and how that conscience is formed do not guarantee that his or her conscience is well-formed. For the Catholic, one’s conscience is well-formed by the voice of God speaking to that person. And I believe that the way of testing this is to see whether the Catholic’s conscience is in tune with what God’s Church teaches.

It may be that I and some other members of the Mirror of Justice disagree on this. But for the Catholic’s conscience to be well-formed and for the moral judgments which he or she makes to be in accord with conscience’s proper formation, it is not self-revelation or self-opinion that is determinative, it is the encounter with the wisdom that God. God’s wisdom is available to us in prayer, in human interaction, and through the exercise of right reason. Again, I believe that Judge Noonan and I agree that no person can tell another what he or she must do in the exercise of conscience. But this means that that person’s exercise of the well-formed conscience is not based solely on personal autonomy.  Otherwise the person’s conscience may be in error. This does mean that another person or the state can interfere with his or her “inner voice,” but by the same token it does not mean that this person’s inner voice is correct and without error. The person may have a civil right to believe the error, but the error itself does not. Coming back to the person who, in the exercise of his or her civil right, is in error does not mean that this individual’s view and the subsequent exercise of conscience are consistent with the wisdom of God. It is not the civil authority that makes this determination, but God.

Conscience is a sanctuary from other persons and the state. But it is not a sanctuary from God. It is the ground upon which we, as individuals, meet Him and decide how to respond to what God asks. Conscience may well be the greatest defense a person can have against what the civil authority unjustly demands, but it is not an excuse to exclude one’s self from the mandate of God and the wisdom He offers to us all.

 

RJA sj

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