Thanks to Michael P. for alerting us to Professor Bernard Dickens recent essay appearing in Medicine and Law dealing with conscientious objection in the realm of “reproductive rights” and his assertion that there are occasions when the conscientious objector claim is “unethical.” I have read his interesting article, and it is clear that Dickens has a particular target in mind: the Catholic Church and Her teachings. He is a collaborator with his University of Toronto colleague, Professor Rebecca Cook, in advancing the notion that “reproductive health” claims are a human right. Indeed, they are in some circumstances, but “reproductive health” has another meaning for folks like Professors Dickens and Cook, i.e., abortion and its unrestricted access. Both of them are veteran scholar-advocates who zealously challenge those who disagree with their contention that abortion is a human right. Tragically for the unborn, they dismiss the right to their life. For them and their allies, it’s all about abortion and its uninhibited access: this is a right that cannot be compromised!
He devotes a full page of his eleven-page essay in excoriating the Church for Her position on abortion and the right to those who object to it to rely on conscience protection when the state or others demand their compliance in some fashion with the demand for its acceptance and accomplishment. Dickens’s conflation of Catholic teachings on bioethical and life issues with the Holy Office of the Inquisition is a neat trick and, at the same time, misinformed. He is, nonetheless, a passionate advocate for “abortion rights.” Because of this passion, he is familiar with the Holy See’s involvement at the International Conference on Population and Development (Cairo, 1994) and the UN Fourth International Conference on Women (Beijing, 1995) where efforts were unsuccessfully made by the pro-abortion lobby to advance the cause cherished by Professor Dickens. He further suggests that the Church is “commonly supportive of strident expressions of conscientious objection to many medical treatments that fall within the concepts of reproductive health and rights” yet this position, in his mind, “contradicts the pleas of Pope John Paul II... ‘that each individual’s conscience be respected by everyone else; people must not attempt to impose their own “truth” on others.’”
Professor Dickens labors intensively to mold the Church’s teachings to serve his objective—the promotion of abortion “rights” at the expense of legitimate rights. Once again, we see the will (Dickens) pitted against the intellect (the Church and Her teachings). Professor Dickens is inclined to conclude that the “truth” the Church advances is just one of those “truths” that cannot be imposed on others. But he is mistaken in his views on truth—for such a thing does exist. There is a truth that is absolute and universal about the human person and the human person’s nature. But he appears not to understand this first principle. Of course he offers a substitute for this truth—his view. And when his view attempts to incorporate what John Paul II said of conscience and truth, he appears to exclude—perhaps by oversight—all of what this pontiff said in the World Day of Peace Message (1991) that Dickens quotes in small part.
So, it would be prudent to consider all of what John Paul II said in that text [HERE] that is pertinent to the “rights” that Professor Dickens advances. What highlights might be offered of John Paul II’s take on this? Here are several pertinent ones that blunt Dickens’s argument:
In 1988 I proposed some reflections on religious freedom. It is essential that the right to express one’s own religious convictions publicly and in all domains of civil life be ensured if human beings are to live together in peace. I noted on that occasion that “peace... puts down its roots in the freedom and openness of consciences to truth”. The following year I continued this reflection by proposing some thoughts on the need to respect the rights of civil and religious minorities, “one of the most delicate questions affecting contemporary society... since it is related to the organization of social and civil life within each country, as well as to the life of the international community”...
[T]he individual person, despite human frailty, has the ability to seek and freely know the good, to recognize and reject evil, to choose truth and to oppose error. In creating the person, God wrote on the human heart a law which everyone can discover. Conscience for its part is the ability to judge and act according to that law: “To obey it is the very dignity of man”...
No human authority has the right to interfere with a person’s conscience. Conscience bears witness to the transcendence of the person, also in regard to society at large, and, as such, is inviolable. Conscience, however, is not an absolute placed above truth and error. Rather, by its very nature, it implies a relation to objective truth, a truth which is universal, the same for all, which all can and must seek. It is in this relation to objective truth that freedom of conscience finds its justification, inasmuch as it is a necessary condition for seeking the truth worthy of man, and for adhering to that truth once it is sufficiently known. This in turn necessarily requires that each individual’s conscience be respected by everyone else; people must not attempt to impose their own “truth” on others. The right to profess the truth must always be upheld, but not in a way which involves contempt for those who may think differently. Truth imposes itself solely by the force of its own truth. To deny an individual complete freedom of conscience — and in particular the freedom to seek the truth — or to attempt to impose a particular way of seeing the truth, constitutes a violation of that individual’s most personal rights...
The guarantee that objective truth exists is found in God, who is Absolute Truth; objectively speaking, the search for truth and the search for God are one and the same. This alone is enough to show the intimate relationship between freedom of conscience and religious freedom. It also explains why the systematic denial of God and the establishment of a regime which incorporates this denial in its very constitution are diametrically opposed to both freedom of conscience and freedom of religion...
Intolerance can creep into every aspect of social life. It becomes evident when individuals or minorities who seek to follow their conscience in regard to legitimate expressions of their own way of life are oppressed or relegated to the margins of society. In public life, intolerance leaves no room for a plurality of political or social options, and thus imposes a monolithic vision of civil and cultural life...
A few other points need to be made that reflect on Professor Dickens’s concern on “reproductive health” and abortion “rights.” Since the Professor had decided to rely on John Paul II, we need to take stock of something else John Paul II said about the Dickensonian enterprise in the Encyclical Evangelium Vitae:
Among all the crimes which can be committed against life, procured abortion has characteristics making it particularly serious and deplorable. The Second Vatican Council defines abortion, together with infanticide, as an “unspeakable crime”. But today, in many people’s consciences, the perception of its gravity has become progressively obscured. The acceptance of abortion in the popular mind, in behavior and even in law itself, is a telling sign of an extremely dangerous crisis of the moral sense, which is becoming more and more incapable of distinguishing between good and evil, even when the fundamental right to life is at stake. Given such a grave situation, we need now more than ever to have the courage to look the truth in the eye and to call things by their proper name, without yielding to convenient compromises or to the temptation of self-deception...
Life is indelibly marked by a truth of its own. By accepting God’s gift, man is obliged to maintain life in this truth which is essential to it. To detach oneself from this truth is to condemn oneself to meaninglessness and unhappiness, and possibly to become a threat to the existence of others, since the barriers guaranteeing respect for life and the defence of life, in every circumstance, have been broken down...
It is true that history has known cases where crimes have been committed in the name of “truth”. But equally grave crimes and radical denials of freedom have also been committed and are still being committed in the name of “ethical relativism”. When a parliamentary or social majority decrees that it is legal, at least under certain conditions, to kill unborn human life, is it not really making a “tyrannical” decision with regard to the weakest and most defenseless of human beings? Everyone’s conscience rightly rejects those crimes against humanity of which our century has had such sad experience. But would these crimes cease to be crimes if, instead of being committed by unscrupulous tyrants, they were legitimated by popular consensus?...
Everyone’s conscience rightly rejects those crimes against humanity of which our century has had such sad experience. But would these crimes cease to be crimes if, instead of being committed by unscrupulous tyrants, they were legitimated by popular consensus?...
And, it is precisely this public consensus that Professor Dickens is trying to alter so that the conscience that pursues the authentic truth of who the human person simply becomes one “truth” among many diverse “truths”—true only because someone, like Dickens, says so, but not true because they are in fact not. The Church teaches that to seek to preserve human life is not only a right but also a responsibility. To seek the opposite is no right at all but something that is opposed to the fundamental concept of the very thing that Dickens says he pursues.
I am the national religion correspondent at The New York Times, and sent this
letter to Archbishop Dolan yesterday. I would like to share it with the readers
of his blog.
Dear Archbishop Dolan,
I was very disturbed to read your blog post
about The New York Times, and about my work and that of my colleagues as
“anti-Catholic.” You write as though the Catholic Church is some sort of
special target, when in fact any institution that is accused of wrongdoing
receives critical coverage and commentary. As you know, the Catholic Church is
the largest religious institution in the world, and a quarter of Americans are
adherents. The Catholic Church is a hierarchical church with a clear chain of
accountability. It is only natural that it receives such scrutiny. As you
acknowledged in your blog, there are recent developments in the Church that are
“well-worth discussing and hardly exempt from legitimate questioning.” So when
a newspaper undertakes this kind of coverage, it should not be seen as
anti-Catholic. If so, we could equally be accused of being anti-Every religious
group that we have called to task, and there are many.
You cite Paul Vitello’s
front page story about sexual abuse in the Orthodox Jewish community as
evidence that the Times is anti-Catholic. Paul and I find it a hard argument to
understand. The Times has written about the sexual abuse of minors by clergy of
many faiths: Jews, Southern Baptists, mainline Protestants, Jehovah’s
Witnesses, Orthodox Christians, evangelicals. But the abuse story has been
bigger for the Catholic Church simply because of the quantitative facts: there
are more priests accused, more alleged victims, more countries involved, more
settlements, more years since the problem first became public, more legal and
financial consequences and simply more people affected.
In mentioning my piece
about a priest who had an affair with an adult woman, you imply that there was no
reason to run a story now that is 20 years old. You neglected to acknowledge
that this piece was written now because the priest’s son is dying of brain
cancer, he believes the church and the priest have failed him, and because the
priest was still serving in a parish where neither his parishioners nor his
bishop had knowledge of his philandering until I began reporting. One of the
women he was involved with was allegedly a minor, and at one point the priest
suggested that a pregnancy he was responsible for be terminated by an abortion.
I wrote the story because church officials have said privately to me over the
years that priests who violate their vows with adult women are far more common
than priests who sexually abuse minors. Also, I have also been contacted over
the years by adult women in similar situations. I wrote about this woman
because she was willing to go public with her experience and had the legal
documentation and photographs to prove that this was more than a case of he
said/she said.
You claim that the Times ran this story instead of covering
Afghanistan, health care and the Sudan, but as you know the Times is regularly
full of stories about all these issues.
And finally, you cite as
“anti-Catholic” the coverage of Pope Benedict XVI’s new structure for welcoming
traditionalist Anglicans into the Catholic Church. The Times’ story did state
clearly, as you pointed out, that the arrangement was a response to requests
from some Anglicans. Certainly, the Vatican is “welcoming” these Anglicans, but
many other Anglicans feel as if the church were making a bid for their
allegiances. Our story used language reflecting these various points of view.
Our coverage did not differ much from most of the media coverage, except that
we were far more tempered than some.
Archbishop Dolan, you and I have known one
another since we first met in Rome in 1998 when you were rector at the North
American College. We met again years later when I was doing a story about you
and several others whom I dubbed “Healer Bishops” who were trying to help the
church recover from the scandal over sexual abuse by priests. I am pained that
your blog selectively overlooked all the articles in the Times that you and
other bishops in the church have praised over the years because you found them
fair, and there are many (including some about your appointment to the
Archdiocese of New York). This is why I cannot accept your characterization of
the Times as “anti-Catholic.”
This weekend, I am going to the conference of the
American Academy of Religion, the largest society of religion scholars, to
receive their top journalism award for a three-part series I did last year on
the Catholic Church. The subject was international priests serving in the
church, and the series included stories about a Kenyan priest beloved by his
Kentucky parishioners, an American vicar who selects foreign priests to serve
in his diocese, and why so many young Indians choose vocations in the Catholic
Church. To do these pieces, I spent many weeks in American parishes and a week
living in a seminary in India. If the Times were “anti-Catholic,” why would it
devote the reporting time and three consecutive front page stories to a fair
and affectionate look at the contemporary Catholic Church?
Sincerely,
Laurie
Goodstein
National Religion Correspondent The New York Times
Martha Nussbaum gave an interesting talk here today on the subject of same-gender marriage, a subject which figures into her forthcoming book on 'the politics of disgust.' I took the opportunity of the talk to raise a question that often has struck me, and that I would like to raise here to see what you all think.
The question issues from a speculative thought that often presses upon me. The thought for its part runs thus: Much of the rancor that surrounds present-day argumentation and politicking about same-gender marriage seems to me as though it might be traceable to our tendency, when speaking informally about marriage, to run together two distinct categories.
So far as *state* functions are concerned, 'marriage' seems to have a very thin meaning. It seems to mean, so far as I can tell, little more than 'civil union.' Talk about civil marriage, or civil unions, always seems to treat the phenomenon in question as a matter of the benefits conferred upon society by the prevalence of committed relations and stable households, and, accordingly of the state's having reason to facilitate or at any rate not hinder the formation of such relations and households.
Within our nation's many *religious* traditions, on the other hand, 'marriage' of course has a much thicker, richer set of meanings -- meanings that often reach well beyond the here and now. The fact that marriage in fact is a *sacrament* within the Catholic tradition of course is illustrative of just how fraught with transcendent importance, and hence how 'rich' in meaning and 'thick' with significance, marriage as distinguished from mere civil union tends to be.
When I think about these differences, I often wonder why it is that the same word is so much as used for the civil and the ecclesial cases. And when I reflect upon how muddling the two categories together might also underlie much of the distasteful 'culture war' lather that always foams up around 'the debate over same sex marriage,' I find myself wondering whether it wouldn't be a salutary thing simply to purge the concept of marriage as such, as distinguished from civil union, from state functions altogether. Why not, in other words, assign the 'justice of the peace' the task of conferring official recognition upon civil unions alone -- when certain criteria that speak to matters of legitimate state concern are met, of course -- and reserve the function of recognizing people as 'married' to the church or temple, which latter of course have criteria of their own? Isn't there something even, dare I say it, 'intrusive' about the state talking about our sacrament?
I should perhaps emphasize that I am not here actually advocating any such measure, or this point of view that leads me to contemplate it. I am only wondering about it -- whether it would be feasible, and whether it would even be desireable if so.
One objection I can imagine would be that matters of political life on the one hand, and of culture on the other, are not as readily disentangled in our lives and self-conceptions as what I envisage here would require. A related objection might be that we -- on some relevant understanding of who the 'we' here are -- would not want to work such a separation even if we could, in that it would force a sort of multiple schizophrenia or 'compartmentalization' upon us that just wouldn't be good for our mental health or our persons.
Because so much of modern life -- particularly as a religious adherent in a non-theocratic, pluralistic polity -- involves such 'compartmentalization' already, however, it isn't altogether clear to me that simply dissagregating currently muddled 'marriage' into state civil union and ecclesial sacramental marriage components reserved to their respective spheres would appreciably increase the degree to which we already fall short of 'seamlessness' in our 'modern' lives.
Just a quick note to say there's a very nice exchange between our friend Steve on the one hand, and Steve's & my colleague Mike Dorf on the other, over at Dorf on Law today. I still plan to add some reactions of my own there and here, but will hold off for now since there's quite a bit to say and I've little time at the moment, which I'll be using to pose a more nicely contained question in a post immediately after this one.
After spending more than a month blissfully in first gear, I have shifted into second gear after returning home Tuesday night. In many ways, reaching Santiago marked - for me and my fellow pilgrms - the beginning of a new camino in life. How could it not? After all, I walked in gratitude for the many gifts I have been given in 49 and a half years of life and with a spirit of openness to whatever lessons the Camino held for me. And, the vast majority of pilgrims I talked with, even -and maybe especially- those who described their pilgrimage as "non-religious," were on the Camino searching for direction in life or seeking answers to some of life's ultimate questions.
Anticipation started to build in the few days before we reached Santiago (St. James) as we journeyed ever closer to our destination. And, a wonderful thing occurred - most of the people who were significant to me on the Camino reappeared sometime during the last few days and attended the pilgrims' Mass at the Cathedral on All Saints Day. Over the course of the Camino, I had met and had conversations with people from 30 countries and had gotten to know quite a few of them. On the Camino, when you part ways with a fellow pilgrim, you never know whether you will see that person again because they might get a day or two or three ahead of you or behind you over the course of a month. And, I lost contact with most of these fellow pilgrims at different points in the journey, but there they were, arriving in Santiago the same day I arrived.
We arrived on All Hallows Eve, and a group of young American, Aussie, and Canadian pilgims decided to walk that last day in Halloween costumes. One guy, an American snow board instructor, got pulled over by the police (no, not for speeding - he was travelling at no more than 3 miles an hour!) for dressing as a swimmer covered only by a speedo and his back pack. Mark, Bill, and I spent part of the last day's walk composing a song, which we entitled "Buen Camino" (Good journey). Our first two performances the song - at a celebratory dinner with 13 other pilgrim's Halloween night and in front of the Cathedral a day later - met with rave reviews. If I can figure out how to upload our Cathedral plaza performance onto Youtube, I will share it with you all.
As I mentioned in my last post, the Mass was incredible. And, just as incredible, the self-declared "non-religious" pilgrims were just as interested in attending the Mass as the religious pilgrims. After Mass, the scene was something like a graduation where people who had known each other for a few weeks were saying there goodbyes, getting pictures taken, making sure they had each others emails. On Sunday night, Mark, Bill, and I had another celebratory dinner. And, on Monday at the airport, I met a Swedish guy who had just finished the 500 miles of the Camino Frances on a unicycle.
The right to conscientious objection is founded on human rights to act
according to individuals' religious and other conscience. Domestic and
international human rights laws recognize such entitlements. Healthcare
providers cannot be discriminated against, for instance in employment, on the
basis of their beliefs. They are required, however, to be equally respectful of
rights to conscience of patients and potential patients. They cannot invoke
their human rights to violate the human rights of others.
There are legal
limits to conscientious objection. Laws in some jurisdictions unethically abuse
religious conscience by granting excessive rights to refuse care. In general,
healthcare providers owe duties of care to patients that may conflict with their
refusal of care on grounds of conscience. The reconciliation of patients' rights
to care and providers' rights of conscientious objection is in the duty of
objectors in good faith to refer their patients to reasonably accessible
providers who are known not to object.
Conscientious objection is
unethical when healthcare practioners treat patients only as a means to their
own spiritual ends. Practitioners who would place their own spiritual or other
interests above their patients' healthcare interests have a conflict of
interest, which is unethical if not appropriately declared.
Today is "Guy Fawkes Day" (or, more precisely, for our friends across the Pond, tonight is Bonfire Night),
When I was in first grade, my public school celebrated Guy Fawkes Day. It did not strike me as strange at the time, though it certainly does now. (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.) Should it? Would a public school's celebration of Guy Fawkes Day communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community? Certainly, that was long the celebration's purpose. General Washington raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their celebration:
As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.
In any event, instead of burning Fawkes, or waxing rhapsodic about how liberty, individualism, and all that is good were saved when the (alleged) Plot was thwarted, maybe we should read a little Eamon Duffy, and think about what England was.
[MOJ friend, Pasquale Annicchino, Fellow in the Law and Religion Programme at the University of Siena and Editor in Chief, University College
London Human Rights Review, sends this along:]
Lautsi v Italy: A European Everson?
Italian National Ms Soile Lautsi is mother of Dataico (11) and Sami Albertin
(13), two children living in Abano Terme (Italy). They both attend a State
public school. In the school all the classrooms had a crucifix on the wall.
According to Ms Lautsi this was a violation of the principle of “laicità” or
secularism. She asked the school to remove the crucifixes from the wall but the
school refused. Therefore she decided to go to court. After several judgements,
the Consiglio di Stato (administrative
tribunal)dismissed her appeal.
According to the tribunal the crucifix had become a secular symbol, representing
values of civil life.
What did the European Court of Human rights hold?
According
to the court the crucifix is not to be interpreted as a secular symbol but
as a religious one. Students would feel under psychological pressure in an
educational environment to privilege one religion over the others. According to
the court the state is obliged to observe confessional neutrality especially in
the context of public education where classes are compulsory and the aim of
this educational experience should be to foster critical thinking.
The court found a violation of art. 2 of Protocol 1 (right to
education) and art.9 (freedom of thought, conscience and religion), jointly
examined. This compulsory display of a symbol, according to the court, restricted
the right of parents to educate their children in conformity with their
convictions and the right of children to believe or not to believe.
We might adhere to a “Borkeian”
interpretation according to which international courts are a priori secularizing agents against
religious symbols in public spaces but, even within the constraints of a blog
post, a better analysis is probably needed.
First of all, it is worth pointing out that the court did not
consider in this case the traditional doctrine of the margin of appreciation
according to which under art. 9 of the Convention ”where questions concerning the relationship between State and religion
are at stake, on which opinion in a democratic society may reasonably differ
widely, the role of the national decision-making body must be given special
importance” (Sahin, ECtHR 2005).
The court dealt with it only under the perspective of art. 2 of the First
protocol. This would mean for
U.S. scholars a “pre-Everson” situation
where different States pursue different policies and no common standards exist
in the field. Under this perspective the case, if confirmed by the Grand
Chamber, would signify for European Human Rights Law what Everson
meant for the U.S.
There is also another thing worth pointing out. The court was
composed of rather “secular” judges. Among them, Andras Sajo, former Constitutional
Law Professor and a prolific scholar in Law and Religion. It is easily to
imagine he played a leading role in this decision. Sajo is a strong
separationist. In an article recently published by the Cardozo Law Review he claimed: “People are buried in cemeteries not
because it facilitates resurrection but for public health reasons”. Amen. The
other judge worth discussing is Vladimiro Zagrebelsky, the Italian member of
the court. Why? Not for his background, he is not a human rights or law and
religion lawyer, but for the process that led to his appointment to the court.
According to a report
published in December 2008 by the Parliamentary Assembly of the Council of
Europe his election was “ad hoc and without formal legal
basis” (footnote 43). As a matter of faith
in our judges, especially in such a delicate field, this is not a good start.
On the merit
of the decision, as a matter of principle I continue to adhere to the basic
rule outlined by Benjamin Franklin: “When a religion is good, I conceive it
will support itself, and when it does not support it so that its professors are
obliged to call for help of the civil policies this is a sign, I apprehend, of
its being a bad one”, or as Justice O’Connor wrote in Countyof Allegheny v ACLU
“government cannot endorse the religious practices and beliefs of some citizens
without sending a clear message to non adherents that they are outsiders or
less than full member of the political community”.
In any case, respect for precedents
and respect for procedures should not be an option. We deserve independent
judges, so does Europe..
p.s.
In the next weeks the 2009 issue of
University College London Human Rights Review will be launched. Justice
Rozakis, Vice President of the ECtHR deals exactly with the issue of the margin
of appreciation in the frame of the Convention, answering to the objections
that Lord Hoffman made in his lecture on “The
Universality of Human Rights”. The lecture provoked wide debate.
MOJ’s friends interested in the
debate can send an e-mail to me and they will receive a copy of the review.
