I admire Judge Noonan immensely, but wish — on this particular occasion — he had been a bit more direct. For the careful listener, intimately familiar with Noonan’s work and American history, there were some powerful thoughts. I worry that the commencement audience, though, did not hear the challenge to President Obama’s unfortunate embrace of injustice that, in my view, Judge Noonan’s remarks contained.
He then seems to argue that common ground can’t occur without consideration that the unborn must be granted legal personhood–which seems to be a winner-take-all approach. But then he later seems to phrase the request that a legal approach to abortion be part of the package more modestly, and Obama has said he is open to that as well, esepcially on the state level, as is Justice Scalia et al.
So, I said (and was, I think, right to say) this:
At some point, it is inescapable: either the unborn child is a human being, and therefore entitled in justice to the protection of the laws, or (s)he is not. The possibilities for, and parameters of, "dialogue" are, it seems to me, closely connected to the answer given this question.
Is this a "winner take all" approach? Maybe, but not necessarily. Sure, the basic pro-life claim is that the unborn child is a human being and is therefore -- as a human being -- entitled to the protection of the laws. Any legal regime that refuses to extend this protection to unborn children -- that singles out one group of persons for exposure to private violence -- is an unjust one.
One can say this, though, while still acknowledging the reality that we live in a world of deep disagreement, and that this disagreement is not, this side of heaven, likely to disappear. One can say this and also agree to settle -- with sadness, I hope -- for "not quite all." The question I have for Gibson, though -- and for the President -- is what, exactly, the abortion-rights "side" is willing to concede, or to give up? To say, "join us in supporting increased social-welfare spending, which we would support in any event but which we are happy to admit might reduce the number of abortions" is not really to colloborate in a search for common ground. To say, "we win, but feel free to come along" is not to compromise.
I accept the fact that, in a non-Roe world, my pro-life position would not likely win out (though, as Judge Noonan said, eventually, the Truth will out.) However, I think Gibson fails to appreciate the fact that, without Roe, pro-life policies that I and healthy majorities do support could be enacted, and now -- because of Roe -- they cannot. It is Roe and Casey, not pro-lifers' "winner take all" approach, that prevents a political compromise, one that reflects the realities of pluralism and deep disagreement.
Gibson says that "Obama has said he is open to" having a "legal approach to abortion be part of the package", but I'm not sure that's right. It is true that the President has, from time to time, suggested that he might support the regulation of late-term abortions, but only if such regulation is hobbled by "health" exceptions that are so broad they swallow the rule. Has the President (either since or before he was elected) ever supported any *other* regulation of abortion (e.g., parental-notice, informed-consent, waiting periods, fetal-pain-awareness disclosure, etc.)? I do not mean this as a rhetorical question. If he has, I would like to know.
It seems to me that the suggested comparison between Justice Scalia's view and the President's does not work. Justice Scalia believes (correctly) that the Constitution does not preclude political communities from deciding whether (or not) they want to regulate abortion, and to what extent. President Obama believes that the range of permissible legislative action -- the size of the arena within which "compromise" and "dialogue" is possible -- is very, very small. And, he has made it quite clear that he will select judges and Justices with an eye toward maintaing the current constitutional regime, which disables the political process from working toward the kind of compromise that his "dialogue" talk purports to welcome.
It is clear that the President is willing to support policies that could have the effect of removing some of the incentives that lead some women to choose abortion. Fine. Is he also willing -- if he is genuinely open to "common ground" solutions, he should be -- to support policies that (to use Sunstein's word) "nudge" women to (what he believes to be?) the correct decision? And, is he willing to actually give something up, to concede something, to the pro-life side, by supporting laws that actually (even if not perfectly or entirely) give effect to the pro-life view that the unborn child is loved by God, has dignity, etc.?
To talk, as the President did at Notre Dame, as if one "respects" the other side, and welcomes their arguments -- indeed, he encouraged pro-life citizens to continue making their case -- while at the same time committing oneself to a legal regime that precludes these arguments from having any real-world policy effects is, it seems to me, a bit disingenuous. To welcome dialogue only when one is sure that one's conversation partner's views have no chance of actually being reflected in real-world policy is not really to welcome dialogue. It is just to strategically humor that partner.
When a loved one is in the hospital, you naturally want to be at the bedside. But what if the staff won’t allow it?
That’s what Janice Langbehn, a social worker in Lacey, Wash., says
she experienced when her partner of 18 years, Lisa Ponds, collapsed
with an aneurysm
during a Florida vacation and was taken to a Miami trauma center. She
died there, at age 39, as Ms. Langbehn tried in vain to persuade
hospital officials to let her visit, along with the couple’s adopted
children.
“I have this deep sense of failure for not being at Lisa’s bedside
when she died,” Ms. Langbehn said. “How I get over that I don’t know,
or if I ever do.”
The case, now the subject of a federal lawsuit in Florida, is being
watched by gay rights groups, which say same-sex partners often report
being excluded from a patient’s room because they aren’t “real” family
members.
And lawyers say the case could affect the way hospitals
treat all patients with nonmarital relationships, including older
people who choose not to marry, unmarried heterosexual couples and
single people who rely on the support of close friends rather than
relatives.
One point of contention in the lawsuit is whether a hospital has a
legal duty to its patients to always give visiting rights to their
designated family members and surrogates.
Robert Alonso, a spokesman for the public trust that runs the Miami
hospital, Jackson Memorial, said it typically did not comment on
pending litigation, but added that the hospital grants visitation if it
doesn’t interfere with other emergency care. “The primary legal point
is that the amount of visitation allowed in a trauma emergency room
should be decided by the surgeons and nurses treating the patients,” he
said.
A similar lawsuit is under way in Washington State, where Sharon
Reed says she was denied access to her partner of 17 years, Jo Ann
Ritchie, who was dying of liver failure. Although the hospital had
liberal visitation policies, a night nurse from an employment agency
insisted that Ms. Reed leave her partner’s room, the lawsuit says.
“One of the things her partner said to her was, ‘I’m afraid of
dying. Don’t leave me alone,’ ” said Judith A. Lonnquist, a lawyer for
Ms. Reed. “That’s why the suffering was so enormous — she felt as if
her partner was thinking she had betrayed her trust.”
In both cases, the couples had prepared for a medical emergency,
creating living wills, advanced directives and power-of-attorney
documents.
As recounted by Ms. Langbehn, the details of the Miami episode are
harrowing. It began in February 2007, when the family — including three
children, then ages 9, 11 and 13 — traveled there for a cruise. After
boarding the ship, Ms. Ponds collapsed while taking pictures of the
children playing basketball.
The children managed to help her back to the family’s room.
Fortunately, the ship was still docked, and an ambulance took Ms. Ponds
to the Ryder Trauma Center at Jackson Memorial. Ms. Langbehn and the
children followed in a taxi, arriving around 3:30 p.m.
Ms. Langbehn says that a hospital social worker informed her that
she was in an “antigay city and state” and that she would need a health
care proxy to get information. (The worker denies having made the
statement, Mr. Alonso said.) As the social worker turned to leave, Ms.
Langbehn stopped him. “I said: ‘Wait a minute. I have those health care
proxies,’ ” she said. She called a friend to fax the papers.
The medical chart shows that the documents arrived around 4:15 p.m.,
but nobody immediately spoke to Ms. Langbehn about Ms. Ponds’s
condition. During her eight-hour stay in the trauma unit waiting room,
Ms. Langbehn says, she had two brief encounters with doctors. Around
5:20 a doctor sought her consent for a “brain monitor” but offered no
update about the patient’s condition. Around 6:20, two doctors told her
there was no hope for a recovery.
Despite repeated requests to see her partner, Ms. Langbehn says she
was given just one five-minute visit, when a priest administered last
rites. She says she continued to plead with a hospital worker that the
children be allowed to see their mother, even showing the children’s
birth certificates.
“I said to the receptionist, ‘Look, they’re her kids,’ ” Ms.
Langbehn said. (Mr. Alonso, the hospital spokesman, says that except in
special circumstances, children under 14 are not allowed to visit in
the trauma unit.)
Ms. Langbehn says she was repeatedly told to keep waiting. Then, at
11:30 p.m., Ms. Ponds’s sister arrived at the unit. According to the
lawsuit, the hospital workers immediately told her that Ms. Ponds had
been moved an hour earlier to the intensive care unit and provided her
room number.
At midnight, Ms. Langbehn says, her exhausted children were finally
able to visit their unconscious mother. Ms. Ponds was declared
brain-dead at 10:45 that morning, and her heart, kidneys and liver were
donated to four patients.
In her lawsuit, Ms. Langbehn is being represented by Lambda Legal, a
gay rights group. “We want to send a message to hospitals,” said Beth
Littrell, a lawyer for the group. “If they don’t treat families as
such, if they don’t let patients define their own circle of intimacy
and give them the dignity and care to be with their loved ones in this
sort of crisis, then they will be held accountable.”
According to a forthcoming Urban Institute study, in the absense of meaningful federal health care reform, "more than 60 million Americans could be uninsured within 10 years as insurance premiums increase to unsustainable levels for individuals, families, and businesses. As a result, private coverage will fall, enrollment in public programs will increase, and the number of uninsured will rise. Middle-income families will be the hardest hit."
I don't confess to have the answer on this issue, but it is clear that our current, primarily employer-based and voluntary, system of providing health insurance coverage is failing millions of Americans. It is equally clear that this is unacceptable from the standoint of the social teaching of the Catholic Church, which views heatlh care as a basic human right, grounded in the dignity of the human person. (See, e.g., Pacem in Terris, par. 11, or JPII's 1979 Address to the Generaly Assembly of the UN.)
The Catholic Health Association has suggested that "[t]he promotion, maintenance, and enhancement of health is a social good with societal responsibility shared by individuals, families, health care providers, voluntary agencies, employers, and governmetns." How that responsibility gets allocated among those various groups so as to ensure access to health care to all Americans is something that must be confronted.
It was a beautiful day -- for me, a sad one, but also, strangely, a somewhat hopeful one -- at Notre Dame.
There will be, in the days to come, a lot said and written about the various events and speeches at Notre Dame this weekend. (Try to find the text or video of the remarks given on the South Quad, at the event sponsored by ND Response, by Fr. John Rafael, of St. Augustine High School in New Orleans, Moving stuff.) I was not able to attend the main ceremony, so I had to follow President Obama's and Judge Noonan's remarks online.
UPDATE: Here is the video of the ND Response event.
I admire Judge Noonan immensely, but wish -- on this particular occasion -- he had been a bit more direct. For the careful listener, intimately familiar with Noonan's work and American history, there were some powerful thoughts. I worry that the commencement audience, though, did not hear the challenge to President Obama's unfortunate embrace of injustice that, in my view, Judge Noonan's remarks contained.
The President said, almost word-for-word what I expected he would be advised to say, and what was politically astute for him to say, and he did so well. To my regret, he did not say "by the way, I've been a doofus when it comes to school choice, and I hereby resolve to put my popularity and charm to good use -- helping kids and promoting religious freedom -- and to appreciate the fact that I don't actually have to kow-tow to the teacher-unions. Oh, and I also now understand -- having come to Notre Dame -- that it really is not such a good thing to constitutionalize a right to private violence against the most vulnerable human beings." Maybe next time.
Over at America, Michael Sean Winters has this review of the President's address: "[t]he speech handed the President’s opponents plenty of ammunition and showed the extent to which the Obama White House is tone deaf to Catholics and our concerns." Fr. James Martin's take is more glowing.
So . . . what next? Will Notre Dame do some honest self-assessment, and ask whether it really has done the kind of things that would make true what we were assured was true, namely, that Notre Dame is entirely and unswervingly pro-life, and "everyone knows" this, so there is no danger of the public getting the wrong idea that the honors accorded the President (the thunderous, sustained applause, the rhapsodic tributes, etc.) indicate an indifference on Notre Dame's part to the seriousness of the injustice involved in our abortion-law regime? Perhaps. I hope so.
UPDATE: Amy Welborn has some thoughts and good questions, here.
In particular, and for those who are inclined to welcome, and take as sincere, the President's stated interest in "dialogue", "common ground", "civility", etc.: At some point, it is inescapable: either the unborn child is a human being, and therefore entitled in justice to the protection of the laws, or (s)he is not. The possibilities for, and parameters of, "dialogue" are, it seems to me, closely connected to the answer given this question. Another point, about the relevance of law to all this. For some of us, calls for "dialogue" and "working together" rings a bit hollow, when these calls take place in a context where the Roe / Casey regime has made it impossible for one side to secure any gains -- even "compromises" -- in politics. It is one thing to say, "let's compromise on the abortion question", and then to work out the details of that compromise in politics. In fact, President Obama's position is that "the Constitution permits hardly any regulations of abortion, and the government ought to subsidize abortion; that said, I'd love to work with you on securing increased funding for social welfare programs that I'm perfectly willing to hope will reduce abortion." For some of us, though, meaningful dialogue would have to include consideration of the possibility that law is a part of the package of abortion-reduction measures.
MoJ-ers will be (or at least should be) interested in a new paper from John Finnis titled Reason, Revelation, Universality and Particularity in Ethics. Here's the abstract:
This address to a philosophical conference on truth and faith in ethics engages in an extended critique of the account of truth in Bernard Williams, Truth and Truthfulness: an essay in genealogy (Princeton University Press, 2002). For any jurisprudential, moral or political theory that affirms natural law needs to respond first to sceptical denials that reason can discover any truths about what ends all human individuals or groups ought to pursue. But any such theory also needs to make clear how it differs from, even when it coincides in moral judgment with, bodies of moral teaching self-identified as part of a divine revelation addressed to everyone. It also needs to show how truths of natural law provide grounds for rejecting, as well as for accepting, particular human claims to be the bearer of such a universal revelation. Parts I to III below address these issues through a critical examination of some contemporary philosophizing which, while acknowledging the warranted universality of the predicate “is true,” withhold that predicate from the principles of practical reason. Parts IV and V address another aspect of universality and particularity about which natural law theory needs to get clear: how the moral norms of natural law, properly as universal as human nature and the community of all people and peoples, nonetheless warrant strong loyalty to specific communities, above all one’s country and one’s marital family.
It is striking that a majority of Americans consider themselves "pro-life" (though, like Rick, I'm not exactly sure what that means). Two aspects of the results are less cheery: no uptick in the percentage of Democrats identifying as "pro-life" and no significant difference in "pro-life" self-identification among Roman Catholics versus the general population (52% vs. 51%).
Patrick Deneen has a bracing critique, here, of the modern "multiversity." It's something of a gut-check for people (like me) who have a lot invested in the "Catholic university" project. Are we on the wrong track entirely? (HT, again: Phil Bess). A bit:
Our current universities no longer undertake what they were designed to achieve, and hence have become largely dysfunctional institutions whose activity - classical liberal education - exists in profound tension with their role - conveyors in the global meritocratic marketplace. It should be recognized that a vast chasm has arisen between what today's colleges and universities are for - the bestowal of credentials - and what they were designed to achieve - a liberal education. The truth is that our colleges and universities are palimpsests - a helpful word that describes a kind of recycled medieval parchment, so rare that it was used and re-used, with old writing often being removed for new and more updated text. Our institutions of higher education are most visibly palimpsests in their buildings: the ancient gothic structures recall a form of education that stressed religious training and vocation, just as the names of the offices of the university - professors (those who "profess faith"), deans (short for "deacon") and provosts (once, a high-ranking church official) - point to the older roles that were once religious and traditional. It is easy to deceive oneself that the universities have not fundamentally changed when one concentrates on the remnants of an eviscerated culture, but the truth is that the old writing has been erased and a new text determines the course of modern education.
Traditionalists and conservatives may decry the decline of liberal education at the heart of the modern university - and its replacement by a Left-wing agenda - but the deeper truth is that liberal education has been more fundamentally and powerfully displaced by demands of global competition. While traditionalists and conservatives might wish to apportion blame to the vast Left-wing conspiracy - particularly those increasingly irrelevant faculty whose postmodernism has become a form of stale institutional orthodoxy - the truth is that the rise of the Left faculty was a response to conditions that were already making liberal education irrelevant, a sort of pathetic and ultimately self-destructive effort to make the humanities relevant and "up to date." These purported radicals - mostly bourgeois middle-class former hippies - were not agents of liberation, but a deeper reflection of the reality of the irrelevance and neglect of the liberal arts in a dawning new age of global competition.
UPDATE: Archbishop Wuerl on Catholic universities and the Church, here, at "The Catholic Key."
The New Hampshire governor has conditioned his support of the state's same-sex marriage bill on the inclusion of robust religious liberty protections, borrowing from a proposal made by our own Rick and Tom (along with three other law profs). As Dale Carpenter puts it, "Make no mistake: a baseline is being established in New England."
