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, September 8, 2009

The Kansas Bishops' Statement on Health Care Reform

By Rob Vischer

Bishops Naumann and Finn issued a statement on health care reform last week.  I am not by any stretch an expert on health care reform, but I think there is much to talk about in the document.  For now, three quick points/questions:

First, I always think it's interesting to see how our worldviews, including our religious worldviews, are shaped by our surrounding culture, and I suspect that the central concerns of these bishops -- defending personal responsibility against centralization and bureaucracy -- might look strikingly American to bishops in other parts of the world. 

Second, was end-of-life counseling "mandated" by any of the reform proposals, as the bishops assert, or was it just covered by the proposals?

Third, according to the bishops, "the right to health care" is merely "the right to acquire the means of procuring [health care] for one's self and family."  If that explanation is accurate, what substance is left to the right?  Who is denying anyone the right to acquire the means of procuring health care?  Is this formulation a prudent concession to economic reality or a hollowing-out of the Catholic social tradition?

Stith on Abortion and the Causal Link

By Rob Vischer

Our own Richard Stith has an excellent essay in the current First Things titled "Her Choice, Her Problem."  An excerpt:

Throughout human history, children have been the consequence of natural sexual relations between men and women. Both sexes knew they were equally responsible for their children, and society had somehow to facilitate their upbringing. Even the advent of birth control did not fundamentally change this dynamic, for all forms of contraception are fallible.

Elective abortion changes everything. Abortion absolutely prevents the birth of a child. A woman’s choice for or against abortion breaks the causal link between conception and birth. It matters little what or who caused conception or whether the male insisted on having unprotected intercourse. It is she alone who finally decides whether the child comes into the world. She is the responsible one. For the first time in history, the father and the doctor and the health-insurance actuary can point a finger at her as the person who allowed an inconvenient human being to come into the world.

Richard earlier posted an earlier version of the essay, but the First Things version is now available here.

Monday, September 7, 2009

Inazu on the Right of Association

By Rob Vischer

If you're interested in Catholic legal theory, any day should be a good day to talk about the right of association, but Labor Day seems like an especially fitting occasion, and John Inazu has posted a nice conversation-starter in the form of his new paper, The Strange Origins of the Constitutional Right of Association.  Here's the abstract:

Although much has been written about the freedom of association and its ongoing importance to the American experiment, much recent scholarship mistakenly relies on a truncated history that begins Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components and introduced the paradigm that continues today. Roberts’s doctrinal framework has been rightly criticized. But neither the right of association nor all of its doctrinal problems start with Roberts. The Court’s foray into the constitutional right of association began a generation earlier, in its 1958 decision, NAACP v. Alabama. This Article offers a new look at the Court’s initial approach to the right of association. I highlight three factors that influenced the shaping of association: (1) the conflation of rampant anti-communist sentiment with the rise of the civil rights movement (a political factor); (2) infighting on the Court over the proper way to ground the right of association in the Constitution and the relationship between association and assembly (a jurisprudential factor); and (3) the pluralist political theory of mid-twentieth century liberalism that emphasized the importance of consensus, balance, and stability (a theoretical factor). I suggest how these factors shaped a right of association with an ambiguous constitutional anchor and an ill-defined doctrinal framework. Despite its shortcomings, the right of association quickly took hold in legal and political discourse and handed the Court a resource that has arguably become more responsive to political pressure than constitutional principle. Part of that whimsicality stems from the Court’s reformulation of the right of association in Roberts. But Roberts cannot bear all of the blame. If today’s freedom of association is less than we might like it to be, the roots of its problems may lie in the political, jurisprudential, and theoretical factors present at its inception.

John is a very promising new scholar in this area; he has contributed to my own understanding of the field, particularly of the Jaycees case.

Sunday, September 6, 2009

The loss

By Michael Scaperlanda

Thanks Michael P.  Setting Bradford's injury aside, ESPN's Pat Forde had these damning words for Coach Bob Stoops and the Sooners: 

Say this much about the Sooners: they're not Michigan. This performance was compelling evidence that they're not violating the 20-hour weekly practice rule in Norman. At times it looked like they'd barely practiced 20 hours all August.

Condolences to Michael S.

By Michael Perry

Here.

Ah, the best laid plans ...

Friday, September 4, 2009

Tony Blair on the importance of faith in the public square

By Michael Scaperlanda

Last week Tony Blair spoke at Communion and Liberation's annual meeting in Rimini.  The full text of his speech is here.  Here are some highlights:

[T]here is not just room, but a growing space today for organisations of civic society to step forward and do things that neither market nor state can do.

Many such activities derive from people of Faith; many from our Church. I think of the work it does in tending the sick, comforting the distressed, befriending those without friends on our streets, in our cities but also in remote parts of Africa where without our Church, driven by our Faith, many would be without hope, without love, even without life itself. I only wish these good works received as much publicity that any failings receive.

But such work has a more profound significance and this I also learnt in my years running the government of a major country. I learnt over time that person and state, even bolstered by community is insufficient. That a society to be truly harmonious, to be complete, also requires a place for Faith.

The limits to individualism are in one sense, plain. We only need to contemplate the financial crisis to understand that the pursuit of maximum short-term profit, without proper regard to the communal good, is a mistake and leads to neither profit nor good. Yet, at a deeper level, the case against a purely individualistic or materialistic philosophy has to be made. Young people today have access to technology, to opportunity, to experiences good and bad on a scale my generation never knew and my father’s generation would find fantastical, like something out of science fiction.

The danger is clear: that pursuit of pleasure becomes an end in itself. It is here that Faith can step in, can show us a proper sense of duty to others, responsibility for the world around us, can lead us to, as the Holy Father calls it “Caritas in Veritate.”

*    *    *

Faith enlarges and enriches the idea of community. The recent Papal Encyclical is a remarkable document in many respects. It repays reading and re-reading. But one strand throughout it, is a strong rejoinder to the notion of relativism, to the description of the human condition in society as just some amoral negotiation or set of compromises with modernity; or even just obedience to the majority opinion. Not that it is anti-technology or anti-modern; or indeed anti-democratic.

But it widens and deepens the relationship between individuals and the community in which they live. It puts God’s Truth at the centre of it. In one passage, it describes humanism devoid of Faith as “inhuman humanism”: “Without God, man neither knows which way to go, nor even understands who he is.”

*    *    *

How will we deal with the world’s scarce resources? Who will speak up for the poor, the dispossessed, the refugee, the migrant? How will we bring understanding in place of ignorance and tolerance in place of fear?

It is into this space that the world of Faith and of course the Catholic Church, the universal Church – itself the model of a global institution – must step.

Political leaders on teir own – I tell you very frankly – cannot do this. Not because they are bad people; but because the context and constraints within which they operate make it hard for them to do so. But they can be helped.

*    *    *

This is surely the role of Faith in modern times. To do what it alone can do. To achieve what neither a person, nor a state, nor a community, on their own or even together, can achieve. To represent God’s Truth, not limited by human frailty, or by the interests of the state or by the transient mores of a community, however well intentioned; but to let that Truth bestow on us humility, love of neighbour, and the true knowledge that indeed passes all understanding.

This is Faith, not as superstition, not as an insurance against life’s pitfalls, but Faith as the salvation of the human condition.

Faith not as magic, not as an escape from life’s complexities, but Faith as purpose in life. Faith, not as a mystery we seek to solve; but Faith as a mystery which expresses the limitations of the human mind.

Faith and Reason are in alliance, not opposition.

They support each other; embrace each other; strengthen each other. They are not in a struggle for supremacy. Together they are supreme.

That is why the voice of the Church should be heard. That is why it should speak confidently, clearly and openly. Because within any nation and beyond it, in the community of nations, the voice of Faith needs to be and must be heard,

It is our mission for the 21st century. For modern times. For the future. Science, technology, all the advances of humankind, do not make its voice less important. They make it more so.

So, even with all the diffidence of someone newly into full communion with the Catholic Church, I say: be strong and of good courage. The best days of our Faith, with God’s will, lie ahead of us.

Thursday, September 3, 2009

Demonization and Hysteria as Par for the Course

By Rob Vischer

Facilitating the common good requires the cultivation of a political culture in which people of opposing views can engage each other in good faith and with open minds.  It took a few years for anti-Bush hysteria to work itself up into such a frenzy so as to preclude much of our national capacity to have a reasoned conversation (Theocrat! Facist! Try Him For War Crimes!); it has only taken a few months for anti-Obama hysteria to reach the same level (Un-American! Socialist! Don't Let Him Speak to Our Children!).  Especially for the type of conversation that is key to pursuing the political priorities contemplated by the Church's non-partisan vision of social justice, these are not encouraging developments.

Catholic Teaching, Senator Kennedy, and Abortion

By Robert John Araujo, SJ

 

 

This posting is not intended to delve into the subject of Senator Kennedy’s views on a variety of issues. Rather, it is an opportunity to bring to the attention of those who visit this site some relevant information about what may have contributed to Senator Kennedy’s change of position regarding the matter of abortion.

I have been reading Albert Jonsen’s 1998 book The Birth of Bioethics. For those unfamiliar with Dr. Jonsen, he most recently taught at the University of Washington’s School of Medicine. He is a Ph.D. holder who studied religious ethics at Yale University in the mid-1960s. At that time, he was a young Jesuit priest. In 1975 he left both the order and the priesthood and married. He has one of the most interesting and credible accounts of how Senator Edward Kennedy and his brother, Robert, had the occasion to encounter a group of priests who provided information to the Kennedy brothers about ethical views on issues such as abortion.

I will state at the outset that I find many of Dr. Jonsen’s conclusions in his book that I have cited regrettable and inconsistent with Catholic teachings on a number of pressing issues. But these disagreements are not the motivation for writing today. It is his account of a meeting he attended in the summer of 1964 at the famous “Kennedy Compound” in Hyannisport, Massachusetts that I discuss. Jonsen’s invitation to attend the meeting according to his account came by way of Fr. Joseph Fuchs, another Jesuit priest, who had taught moral theology for many years at the Pontifical Gregorian University. Then Fr. Jonsen had met Fr. Fuchs on the campus of the University of San Francisco one summer afternoon. According to Jonsen, Fuchs asked him if he would like to attend a meeting that was to take place on Cape Cod to assist Senator Kennedy who was standing for reelection to hear the views of several Catholic theologians so that he, the Senator, could formulate his political stance on the abortion issue. According to his account, Jonsen accepted the invitation and attended the meeting.

Once they arrived in Boston, Dr. Jonsen states that he and Fr. Fuchs were driven “at breakneck speed” to Hyannisport by Fr. Robert Drinan, another Jesuit who was then the Dean of Boston College Law School. In addition to these three priests, all Jesuits, they were joined by two other priests, Fr. Richard McCormick, a fourth Jesuit, and Fr. Charles Curran, a diocesan priest then teaching moral theology at the Catholic University of America. In attendance at the meeting were Senator Edward Kennedy and Attorney General Robert Kennedy. Dr. Jonsen says that he and Fathers Drinan and Fuchs “struggled with the problem posed to us.” However, in Jonsen’s estimation, Fr. McCormick was “particularly articulate.” Jonsen states that to the best of his recollection the theologians agreed with the Church’s teaching that abortion was immoral but were in further agreement that “a rigorously restrictive ethics of abortion into law was unlikely to be enforceable or to achieve its positive goals without significant attendant social evils.” He does not specify in his book what these “significant attendant social evils” were. Jonsen further contends that the theologians present at the Kennedy Compound on that day favored the American Law Institute’s 1962 draft which would withdraw protection from the fetus (during the first twenty-six weeks of its life) and thus allow abortion when a woman’s health was at risk, the fetus had a severe defect, or the pregnancy was the result of rape or incest. This position they advanced did not then nor does it now coincide with the Church’s teaching.

Fifteen years later, Fr. McCormick elaborated in a 1979 his view that most Americans would say that abortion should be legal if the alternative is tragic but unacceptable if the alternative is “mere inconvenience.” He thought that this approach would justify abortion if the mother’s life were at stake, the pregnancy were the result of rape or incest, or the fetus was deformed. He also stated that such a policy would “completely satisfy no one.”

In his “particularly articulate” statement at Hyannisport, Fr. McCormick relied on the work of Fr. John Courtney Murray, another Jesuit priest who had agreed in his writing with Thomas Aquinas that there exists a necessary distinction between morality and civil law by stating that “it is not the function of civil law to prescribe everything that is morally right and to forbid everything that is morally wrong.” In offering this position, Murray had responded to Cardinal Cushing’s request for help when the Massachusetts legislature was considering liberalizing its laws on artificial contraception. In his response to the Boston archbishop, Murray relied on the Thomistic distinction. However, Fr. Murray was very clear that Catholics were not to assume that they could go along with the liberalization in their exercise of conscience for, as he said,

 

Catholics themselves must be made to understand that, although contraception is not an issue of public morality to be dealt with by civil law, it remains for them a moral issue in their family lives, to be decided according to the teaching of the Church... Catholics might well take this public occasion to demonstrate that their moral position is truly moral, that is, it is adopted freely, out of personal conviction and in intelligent loyalty to their Church.

 

 It would be hard today to judge just what impact the 1964 meeting between Senator Kennedy and these five clerics had on the formulation of the Senator’s position on abortion. As we know, the Senator was still publicly opposed to abortion as late as 1971. But, it would be mistaken to believe that Fr. John Courtney Murray’s views could, when all is said and done, have influenced Senator Kennedy in such a way that he could change his opposition to abortion to support of abortion. It is possible that the clerical sympathy with the ALI 1962 draft law may have eventually had an influence on the Senator’s thinking that enabled him to change his position. But even though Fr. Murray was of the view that not all moral issues must be the subject of laws and legal regulation, surely some are—rape, incest, homicide, theft, and perjury just to mention a few examples. Avoiding conception may for some be a moral issue that ought not to be the subject of legal regulation. I, for one, think that it can and ought to be, but I digress. But to suggest that abortion is another “moral issue” that should also fall outside of the realm of legal regulation is implausible given the context of Fr. Murray’s work. I do not think that John Courtney Murray would have extended the Thomistic principle to this grave moral issue.

I know that Susan Stabile has written on the matter of Murray’s thought in the context of abortion, and she may wish to offer her thoughts on the matter. I also know that a friend of the Mirror of Justice, Fr. Greg Kalscheur, has also addressed this subject. He may hold and present a different view.

But on this note I’ll end for the time being: John Courtney Murray was a gifted individual who understood issues clearly and made distinctions sharply with deep reasoning backing him up. I do not think he would place artificial contraception and abortion in the same moral category for the first prevents life from coming into being; the second, however, destroys a life in being. That is a distinction with a difference, a difference that would have meant much to John Courtney Murray. For me, and I think for Murray, one death brought about by abortion is one too many, and that should be regulated by the law. Compound the matter fifty million times, and all the more reason exists to address this moral evil with a legal response.

 

RJA sj

The self-created life story

By Rob Vischer

This New York Times article is meant to capture the human cost of the economic downturn.  It also captures the human cost of a worldview in which a person is free to rewrite their own story line as a free-floating independent agent.  As the profiled subject puts it in explaining his decision to divorce his wife of 25 years, "Life is short -- you got to do what makes you happy."

By Michael Perry

Outrageous myths and heartfelt belief

Michael McGough

Support for Barack Obama’s health-care reforms from the US Catholic hierarchy has foundered over abortion. But more unites the bishops with the principle of ‘Obamacare’ than divides them from its possible practice Free

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