Both Susan and Eduardo have raised an interesting and important issue involving the questions surrounding the Guttmacher-WHO study and its bearing on the law and law-making. I am grateful to them for their calling attention to this subject. Before I get into the substance of this posting, I think it important to remember that the Guttmacher Institute was founded by Alan F. Guttmacher, a former president of the Planned Parenthood Federation of American and a leader in the International Planned Parenthood Federation. He subsequently founded the Institute named after him in 1968 to provide research, policy analysis and education in the areas of “reproductive health, reproductive rights and population.” The Institute, PPF and the IPPF all have horses in the legal races involving “reproductive health, reproductive rights and population.” It is conceivable, so to speak, that the Institute would have more than a passing interest in laws dealing with abortion and related matters in the US and abroad.
Now, let me come to Susan’s point, and I believe that made earlier by Eduardo, about law-making that would criminalize abortion “but not reduce the incidence of abortion, but only make abortions more dangerous”; for them, this raises the “connection between views on morality and views on legality.” Both Susan and Eduardo have properly put their queries in the context of Catholic legal theory.
Here is the approach of one Catholic legal theorist (if I may call myself such):
Let us first begin by considering the duties of the law-maker (for us in the US, this means state legislatures, Congress, judges, and administrative agencies) that relate to abortion. The law-maker can make a law that criminalizes abortion, legalizes abortion, or regulates abortion. The law-maker may say nothing about morality in positing the law (statute, judicial decision, or regulation) made on the subject.
Moreover, the law-maker may be urged to conclude by the lobbyist or the litigant that the law made must be divorced from moral considerations. This argument has run a thread throughout jurisprudential debate for some time. Two examples would be the Hart-Fuller debates and the disagreements between the Kelsen school and the Rommen/Voeglin schools. Yet, when all is said and done, there frequently are discussions about morality and its nexus with the law and law-making when debates about tax laws, labor laws, education laws, environmental laws, and criminal laws (just to mention a few) occur. The Guttmacher Institute mentions, by the way, on its website that it executes its mission, in part, by “testifying before federal and state legislative bodies and in court cases.” Well, this is participating in the law-making process, and we can readily see what their aspirations are for law-making outcomes regarding abortion and where moral considerations don’t fit into the process.
And what about Catholic legal theory? There is nothing wrong or unusual with introducing moral considerations into debates that occur when law is being made. But, for the Catholic legal theorist I think this would be not only expected but would be compulsory. Moreover, I am confident that Catholic legal theory would have much to offer the law-maker who is positing law addressing the legality or regulation of abortion. And what might this be?
The moral considerations underpinning Catholic legal theory would enable the law-maker to consider more or all rather than some of the issues that must inevitably intersect abortion laws. Today so much of the law in this country pertaining to abortion permits abortion—with few restrictions—and bases the justification on Constitutional requirement (which I submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the argument from equality. The focus of abortion law seems to be on the welfare of the mother only. This becomes patent when judges, state and Federal, scrutinize legislation and regulation looking for the “essential” health exception clause to protect the mother only.
Catholic legal theory, in contrast, begins to look at other welfares, too. The mother’s health and welfare are surely important; but so is the health and welfare of the child whose life will be snuffed out should the abortion proceed. But it is also vital to recognize that the mother has other issues that are often ignored or dismissed as long as she can be allowed to terminate her pregnancy. What might these issues be? Well, informed consent is a place to start. Does she really know what is about to happen? Does she really understand what is inside her womb? Would she want to have an abortion if she could see her child? (Ultrasound imaging would provide her with this critical information.) Has she been provided with education about effective parenting skills? Is pre and post-natal care available for her and her child to ensure good health for both? Catholic legal theory would also provide for the welfare of the father? Where is he? Should provision not also be made for encouraging his responsibility for the life he helped promote by developing among other things his parenting skills? It seems that the law-maker is not restrained from including these provisions relating to these matters as well. Cannot the law-maker provide for orphanages, foster care, and adoption services for children whose birth parents will not or cannot properly care for the raising of the child?
Indeed, the law-maker can provide for all these things and more.
But the critic may well argue that the additional elements will cost money. The Catholic legal theorist can respond by reminding the critic that laws addressing defense, environment safeguards, historical preservation, criminal justice, wildlife protection, etc. (all of which have moral considerations) also cost money. But in spite of their cost, laws are made to advance these interests and protections. Why can the law not do the same to preserve young human life and the lives of those responsible for its conception? This is the response of one Catholic legal theorist. RJA sj
Monday, October 29, 2007
I begin by sincerely thanking Susan for her responsive critique to my posting, “What Does It Mean?” that briefly replied to Rick’s post-AALS hiring conference reflection. Rick posed a vital question dealing with hiring faculty for law schools that claim to be Catholic.
My short response was intended to address a vital issue that is implicit in Rick’s question and deals with addressing questions raised by faculty candidates who are interested in the Catholic identity and mission of the school.
In my earlier post, I introduced the relevance of the Creed. Perhaps I am wrong about the underlying intent of her posting, but I think Susan concluded that I was proposing that the Creed is an important matter to be raised and discussed with to potential faculty recruits at screening interviews. That was not my intent.
Rather, it was and remains my intention about the Creed to elevate in our own consciousness a vital issue: whether the Catholic faculty who comprise an important, but not the only component of the faculty at a “Catholic law school” and who have a significant role in replenishing the faculty have a strong sense of their own identity so they can then address and answer the questions asked by candidates as identified by Rick.
If faculty recruiters do not have an understanding of who they are as Catholic academics, how can they explain the school’s Catholic identity and mission to recruits who ask about the Catholic soul of the institution that is interviewing and possibly recruiting them? If self-knowledge is weak, how can such questions be answered convincingly?
Susan surmises that “most Catholics (including a lot of Catholic academics) don’t spend a lot of time reflecting on what they are affirming when the recite the Creed at Mass every week.” I think they should, particularly when inquiring minds at recruitment conferences ask for an explanation about Catholic identity—when they call “us” on the “the ‘Catholic mission’ thing,” as Rick indicates. I think there are also some student applicants who also make similar inquiries but are greeted with generalizations that talk a lot about public service and corporal works of mercy (both of which are important) but very little about faith and reason and fidelity to Christ, God, and the Church (which are vital to identity).
I am further grateful to Susan for mentioning the book by Fr. Michael Himes, which she has found helpful in affirming faith. I take this occasion to recommend another book that examines the Apostles’ Creed (which offers insight into the Nicene Creed—the profession of faith recited at every Sunday Mass) authored by a young German theology professor back in 1968. The book is entitled “Introduction to Christianity.” The author has left the conventional university academic environment but still teaches on a frequent basis. RJA sj
Saturday, October 27, 2007
Rick has asked an excellent question regarding “what does it mean” to be a Catholic law school? Well, I think he has raised an honest and important question that several of us have addressed in the past along with friends of MOJ such as John Breen. As there are many rooms in our Father’s house, so there might be many ways of yet, once again, approaching this important question.
But, to date, I do not believe that any of us have addressed the issue of how do we take stock of the following profession of faith that needs to be considered when we discuss this vital issue amongst ourselves and with those who wish to teach at a “Catholic law school.” It seems that some candidates may wish to investigate this matter even though hiring representatives may consider it out of bounds insofar as they may conclude the AALS would not approve of an investigation of the profession. I wonder what would happen if it were discussed with those who currently teach at “Catholic law schools”? But I shall leave this second matter for another day. Here’s the text which, sooner or later, must have a bearing on the work of a Catholic law school:
We believe in one God, the Father, the Almighty, maker of heaven and earth, of all that is seen and unseen.
We believe in one Lord, Jesus Christ, the only Son of God, eternally begotten of the Father, God from God, Light from Light, true God from true God, begotten, not made, one in Being with the Father. Through him all things were made.
For us men and for our salvation he came down from heaven: by the power of the Holy Spirit he was born of the Virgin Mary, and became man.
For our sake he was crucified under Pontius Pilate; he suffered, died, and was buried.
On the third day he rose again in fulfillment of the Scriptures; he ascended into heaven and is seated at the right hand of the Father.
He will come again in glory to judge the living and the dead, and his kingdom will have no end.
We believe in the Holy Spirit, the Lord, the giver of life, who proceeds from the Father and the Son. With the Father and the Son he is worshipped and glorified.
He has spoken through the Prophets.
We believe in one holy Catholic and apostolic Church. We acknowledge one baptism for the forgiveness of sins. We look for the resurrection of the dead, and the life of the world to come. Amen.
Amen, indeed. RJA sj
Sunday, October 21, 2007
This morning’s The New York Times has an article on the controversial vote of the Portland, Maine School Board that will enable the independently operated health clinic at the King Middle School (grades six through eight) to provide girls with prescription contraceptives. [HERE] Previously the Portland school system had made condoms available to students. The newly approved program enables the health center physician and nurse practitioners to prescribe contraceptive pills, patches or injections, as well as the morning-after pill. The decision has been met with conflicting reactions—some supportive of, some condemning the decision. One mother in the first camp was quoted by the Times as saying: “I think it’s a great idea… Someone is finally advocating for these students to take care of themselves.” I have the impression that she is not claiming but abdicating the responsibility that properly belongs to her as a parent.
This decision of the Portland School Board is a testament to the most problematic dicta of Planned Parenthood v. Casey about liberty in a democracy: there is “a promise of the Constitution that there is a realm of personal liberty which the government may not enter… At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” I think the Casey dictum reinforces the abdication of parental authority that I just mentioned. Moreover, it reflects of failure of the duties of the public education system and of the family to teach and guide young citizens (children) in how to respond to and decide correctly and morally on the major issues of life; it denies children their childhood; it promotes promiscuity; it will increase, not decrease medical problems that these children will encounter as they mature in years but not in responsibility or nobility; it abandons children to their own devices and unregulated decision making; it promotes the fanatical, isolated autonomy that erodes good citizenship and the development of virtuous people; it will augment the growing separation of children, parents and other responsible adults; it will, in short, provide the groundwork for irresponsible behavior in the future of these children as they grow in years without providing the environment for advance in maturity. This decision is built on the fact that our laws veil with confidence counseling and treatment dealing with matters involving “reproductive health”, mental health, and substance abuse regardless of a patient’s age. The conjured government programs which Winston Smith encountered in 1984 that separated parent from child are, in reality, with us now.
Like many other situations of the present day, it is based on law. The good thing about a democratic society is that it can correct bad laws and make them good. But when it does not, a democratic society moves one step closer to the totalitarian-like structure whose mechanisms for the social order are fortified by a morally deficient positivism which leaves in its wake the destruction of ordered liberty. RJA sj
