On a long plane flight yesterday, I had the opportunity to read Gonzales v. Carhart in its entirety. Thinking that there might be a few law journal articles in the making on this important decision, I would like to offer some of my initial thoughts to those who will be studying the case in detail as they begin to draft article manuscripts.
In essence, the majority (with the helpful clarification by Justices Thomas and Scalia) is largely correct in its analysis and legal reasoning. The plaintiffs/respondents, supporters of abortion “rights,” and the dissenters are, to borrow an expression from Stanley Fish, still wrong after all these years of questionable “abortion jurisprudence.”
The majority properly begins with a careful analysis of the statute enacted by Congress that was challenged by Dr. Carhart and the Planned Parenthood Federation. Following sound principles of statutory interpretation within the template of Constitutional adjudication, the majority reaches logical conclusions about the legality of the statute as a proper exercise of Article I authority that is subject to judicial review. I wonder if the dissenters would have joined the majority if this decision about the constitutionality of a statute involved the enactment of a law designed to protect the eggs of some bird on the Endangered Species list rather than the protection of nascent human life?
In the context of nascent human life, the majority could have done a better job in choosing its terms. The drift from using “fetal life” to “unborn child” to “embryonic tissue” confuses rather than clarifies. But, when all is done, it should be clear to the reasonable person that the majority is talking about the same subject: a young human life that is threatened by the intact dilation and extraction method of abortion.
The strong differences of the opinions of the majority and the dissenters about the post-abortion psychological health of the mother who has had an abortion raises the important question about “informed consent” that is so much a part of medical practice in the United States. This divide made me wonder to what extent abortion doctors explain to their patients what happens to the child who is the target of the abortion, regardless of the procedure and the trimester involved? As he did in his Stenberg dissent, Justice Kennedy once again explains the “gruesome” details involved with a variety of abortion procedures, including the intact dilation and extraction process that is the subject of the statute attacked in this case. It would seem that this information should be relayed to the mother who is considering an abortion, but is it? If not, what is the justification?
As I read Justice Kennedy’s description of the more commonly used “dilation and evacuation” method of abortion in which child is dismembered—caused by the “friction [of the procedure that] causes the fetus to tear apart”—I recalled an account of Thomas More’s reaction to the execution of the Carthusian monks who were convicted of treason and put to death by drawing and quartering. In both cases, the limbs of human beings are ripped from their torsos. The dissenters offered no objection to the accuracy of the procedures explained by Justice Kennedy.
While still on the matter of abortion methodology, the majority described another means that employs a poison injected into the child who is killed prior to the surgical evacuation. I wonder if those who argue that execution by lethal injection constitutes a violation of the Eighth Amendment would also argue that administering poison to a child convicted of no offense is equally offensive to our Constitutional order? I hasten to point out that potassium chloride is one of the chemical agents often employed in both procedures: abortion and execution by lethal injection. If it is cruel and unusual in the latter context (and I have no argument against this assertion), why is it also not cruel and unusual in the first?
Justice Ginsburg complained of the disregard by the majority of medical evidence provided to and considered by the District Courts. Yet, the impact of the medical evidence offered by the nurse quoted by the majority about what actually happens to a child (page 8 of the majority opinion) subjected to the intact dilation and extraction method escapes her critical eye. It seems that the reaction of the child subjected to the abortion procedure at issue—fingers clasping, feet kicking, and arms jerking—are of little concern to the dissenters when medical evidence is being examined.
Justice Kennedy and Justice Ginsburg often employ the phrase “necessary to preserve a woman’s health” in the context of the legal justification of abortion. Yet, I remain unconvinced about what standard can possibly be used medically and legally to justify abortion necessary for preserving a woman’s health. To reinforce my concern, one of the reversed Circuit Courts of Appeal itself stated that there are substantial disagreements within the medical community about whether the intact dilation and extraction method is “ever necessary to preserve a woman’s health.” If there is dispute on this method (as I suspect there is on many other methods of abortion including intact dilation and extraction), how can it be deemed “necessary to preserve a woman’s health”? It would appear that this crucial foundation for justifying any abortion procedure is not of solid construction but is more like the unstable house of cards—maybe impressive to look at but unsound in fact.
Elsewhere I have commented on the use of the phrase “anatomical landmarks” used by various members of the plaintiffs/respondents in this case to explain how the killing of a child can be justified or not. I once again make a point I have made earlier (the first time at the March 2001 Symposium convened at Catholic University by Michael Scaperlanda and Teresa Collett on self-evident truths and Catholic perspectives on the law) that it is unjustifiable to claim that a hideous procedure that kills the life of a child can be justified or not depending on the “geographic location” of the baby. I thought the “geographic location” argument was put to rest once the justification of Dred Scot was abandoned. However, it seems that I am mistaken on this point insofar as the plaintiffs/respondents and the dissenters are concerned. For them, just about any abortion can be declared legal as long as the child is located in the right place. But regardless of the child’s physical location, its human ontology remains the same.
At page 29 of the majority opinion, Justice Kennedy states that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Justice Ginsburg scorns this statement of the majority at page 15 of the dissent where she identifies it as “an antiabortion shibboleth.” However, when she refers to the majority’s text, she leaves out the important modifier “some” which the majority used in a careful way to indicate that the “regret” about which they wrote was not universal in their view. Somehow this careful distinction escaped Justice Ginsburg in her harsh critique of those who are opponents of abortion.
Two important questions surface toward the end of the majority’s opinion. The first deals with the fact that the standard dilation and extraction method, which remains unaffected by this decision, is more brutal than the intact method which is the subject of the legislation under review. Could Congress or state legislatures, given this decision now be able to proceed to legislate against the standard method and draft legislation that could survive a legal challenge? The second and more apparent question is the statement proffered by the majority that the statute “is open to a proper as-applied challenge in a discrete case.” How long must we wait for such a “discrete” challenge? Probably not very long.
A few comments about particular points in Justice Ginsburg’s dissent remain in order. Throughout her opinion, she raises concerns about endangering the woman’s life or health. I don’t dispute the need to be concerned about a woman’s life or health. This is important. But surely the life and health of any human being must be of great concern to us all. I remain unsatisfied that the dissent or any proponent of abortion “rights” has demonstrated how the carrying to term of the child is the source of this endangerment to women. After reflecting on the procedures involved in most abortions, I must conclude that they, rather than the presence and development of the child, present the actual endangerment to the mother’s life or health. With so many “passes” through her delicate organ tissues and the possibility of laceration by medical instruments or the baby’s broken bones, it seems that most abortion procedures subject women to far greater risks than do the presence of her unborn child.
On a different front, the first footnote offered by the dissent attempts to correct the use of a term—“partial birth abortion”—when Justice Ginsburg asserts that the recognized term found in medical literature is either “dilation and extraction” or “intact dilation and evacuation.” Fair enough. But, to borrow from Will Shakespeare, a dubious act by any other name is still a dubious act.
While I am discussing the dissents distaste for certain terms, its members raise some objection to referring to doctors who perform abortions as “abortion doctors.” If this is truly a pejorative term, then it would be equally pejorative to refer to cardiac specialists as “heart doctors,” ophthalmologists as “eye doctors,” dermatologists as “skin doctors,” etc.
The dissenters brand the majority’s decision “alarming” because it “refuses to take Casey and Stenberg seriously.” I am mystified by the fact that the dissenters are not alarmed by the fact that this jurisprudence fails to take seriously the fact that abortions kill at least one human being most of the time. This fact must be taken seriously, but it seems to escape the legal reasoning of the dissenters not only in this decision but in past abortion cases, including Casey and Stenberg, as well.
On several occasions, Justice Ginsburg concentrates on the distinction between previable and postviable fetuses that are aborted. I question how much longer this distinction can be made in light of the advances in medical sciences where the lives of embryos, fetuses, and unborn children (should these distinctions be required) are being sustained by artificial means. These medical advances would indicate that the earliest human life is viable if it can be sustained and can grow outside of the mother’s womb.
The dissent also censures the majority for selecting certain medical evidence to support its position while ignoring other evidence. The same argument can surely be made about the “authorities” upon which the dissent relies. In this context, I am reminded of a statement attributed to the late Judge Harold Leventhal about the selective use of legislative history by judges when they decide cases involving statutory interpretation: making the choice of what history is to be used is like entering a crowded cocktail party and surveying the assembled humanity in search of your friends.
In my estimation, the dissenters are on juridically thin ice when they express a particularly harsh criticism of the majority who “dishonor our precedent” of Casey, et al. Yet these dissenters were members of the majority in Lawrence v. Texas. When they penned that opinion, they showed little concern of dishonoring other precedent. Perhaps dishonor exists only in certain cases when precedent of their liking is not followed with exacting detail.
Much more needs to be said about the majority, the concurring, and the dissenting. I am confident that this task will be pursued by many in the coming months. RJA sj
Sunday, April 22, 2007
My reading of the recent decision, along with the concurring and dissenting opinions, of Gonzales v. Carhart has been complemented by examining commentaries of the majority opinion by Members of Congress and the representatives of influential and formidable interest groups, especially those from the pro-abortion lobby. I have previously offered some thoughts on the media reaction by the New York Times [HERE].
One reaction that I have to the negative commentary of the majority opinion and the decision beyond that of the media is that the authors of these critiques generally share a different view of human nature and the res publicae from what our Founders had back in the latter part of the eighteenth century. Most of the Founders possessed and exercised a sensible understanding of the natural law, which inspires authentic human reasoning, a crucial element of the tradition that underpins Catholic Legal Theory. It was this sensible understanding of the natural law and the development of human, i.e., positive, law that led them to conclude that there exist truths which are self-evident.
However, it seems that many in our country—and, for that matter the world—have replaced the self-evident truth about human life, as corroborated by embryonic medical science, with the erroneous belief that the target of any abortion, including Partial Birth Abortion, is something other than a human being. But, this target is not merely a clump of cells, it is not just tissue that can be easily disposed of by the exercise of the “Constitutional liberty”— in reality an exaggerated autonomy—of some. The target or object of any abortion is, first and last, a human being—yes, a person—in his or her nascent stages. Human life, one of those self-evident truths, is comprised of many stages. But those stages, and how they are manifested in each human life—each person—are not materially altered by the differences found among human beings. I think the members of the majority in Gonzales v. Carhart are beginning to get this point and articulating it consistent with the underlying principles of the Republic and its Constitution, although some members of the Court, like Justices Scalia and Thomas, have been presenting this point for some time. However, the dissenters on the Court and the critics of the majority opinion appear to deny this self-evident truth about human nature and human life and have replaced it with an exaggerated understanding of human autonomy—which they call the exercise of liberty and a woman’s entitlement —that would permit, from their perspective, the “right” to destroy another human being by ignoring the reality of the latter.
The harsh criticisms of the majority opinion will like continue and fuel heated political debates in the coming election season. But, as Americans all, we must not forget the principles upon which our Republic was founded and which the majority have apparently rediscovered. In this context, Pope John Paul II offered some important counsel in Centesimus Annus when he stated that “a democracy without values easily turns into open or thinly disguised totalitarianism.” [N. 46] He reiterated this point a few years later in Evangelium Vitae wherein he warned that when democracy contradicts its own principles (such as self-evident truths), it “effectively moves toward a form of totalitarianism.” [N. 20] I think the majority in Gonzales v. Carhart have come to acknowledge not only the truth of which the Pope spoke, regardless of their religious affiliation, but also understand, accept, and protect the principles upon which our Republic was founded. RJA sj
Saturday, April 21, 2007
Mr. Auth, the cartoonist quoted by Rick has had previous company in offering a critical commentary about Catholics and public life in America. In the 19th century, Thomas Nast made a parallel commentary regarding his disdain for the presence of Catholics in public life. The more things change, the more they remain the same, I gather.
RJA sj
Friday, April 20, 2007
I would like to thank the various contributors to the discussion on Gonzales v. Carhart, the recent Partial Birth Abortion case decided this past Wednesday. I need to study the opinions in greater detail, but it appears that some members of the Court are beginning to consider in a public forum the nature of the object who always suffers from any abortion, namely a young human life. I am particularly grateful to Michael Scaperlanda for posting the link to his article co-authored with John Breen. Their essay raises this important question that the dissenters in Gonzales v. Carhart astutely avoid.
The decision in Gonzales v. Carhart will be discussed for some time to come, and I think it will be a major issue debated by those seeking public office in the Presidential and Congressional elections of next year. Major newspapers, like the New York Times [HERE] and the Boston Globe [HERE], through editorials, are already commenting on the decision probably with the desire of helping to direct and influence the inevitable future debate.
My purpose in writing today is to comment on some of the problems with the New York Times editorial. The first issue involves an acknowledgement on how the Times influences the nature of this important debate: it’s all about “a woman’s right to make decisions about her health.” If that were the issue that the decision in Gonzales v. Carhart was about, the Times might be justified in its conclusion that the decision is fundamentally dishonest. But the decision is not fundamentally dishonest because it demonstrates that the controversy involves much more than “a woman’s right to make decisions about her health.” It involves the lives of millions of children who have been killed by abortion. Since Roe was decided in 1973, it is estimated that at least forty million “legal” abortions have been performed in the United States. This means that forty million children have had their lives snuffed out by the legal fictions established and sustained by Roe.
The Times also expresses its alarm about the undermining of judicial precedent by “gutt[ing] a host of thoughtful lower federal court rulings, not to mention past Supreme Court rulings.” I am curious to know which ones the Times has in mind? It probably does not have in mind the failure to follow judicial precedent when Lawrence gutted Bowers.
The Times then argues that the majority opinion in Gonzales v. Carhart severely erodes the requirement of Roe that “all abortion regulations must have an exception to protect a woman’s health.” In offering this interesting interpretation of Roe, the Times also avoids the question the majority in Roe evaded, namely: what is the status of the fetus? If the fetus is a person, then there would be due process issues for protecting the life of the fetus as Justice Blackmun acknowledged in a footnote. But this crucial—yes, vital—question of the personhood of the fetus was sidestepped; consequently, it would be improper to criticize the Gonzales v. Carhart majority for severely eroding “rights” that are the fiction of the faulty judicial reasoning that underpins Roe. In this context, we should recall the dissent of Justice Byron White in the companion case to Roe, Doe v. Bolton, in which he warned that the majority’s decision was not really sound judicial reasoning but “an exercise of raw judicial power.” If the Times were in fact concerned about the severe erosion of legal reasoning and the rule of law, it might have considered the concerns expressed by Justice White. But, it did not.
In a tone suggesting that the majority decision is sexist (“these five male justices felt free to override the weight of medical evidence presented”), the Times continues its assertion that the decision was a judicial ratification of “the politically based and dangerously dubious Congressional claim that criminalizing the … [Partial Birth Abortion method] would never pose a significant health risk to a woman.” In presenting this claim that follows the script written by Justice Ginsburg, the editorial board relies on some unspecified “finding” attributed to the American College of Obstetricians and Gynecologists. Absent from the Times presentation and the dissent of Justice Ginsburg, however, are the pressing and important views of the American College of Pediatricians [HERE] which address the significant health risks to the fetus—or the child, if you prefer.
I search for evidence that the majority, moreover, considers women as “flighty creatures who must be protected by men.” But any kind of evidence supporting the take of the Times editorial eludes me.
A final point necessitating some discussion is the Times harsh criticism of the Bush administration and “other opponents of women’s reproductive rights” for the “big political victory they were hoping to get from the conservative judges Mr. Bush has added to the bench.” For the Times, this “political victory” erodes the court’s credibility, judicial integrity, and the rule of law. One could just as easily make the claim that Roe did precisely that, but then others, such as Justice White, have already pointed this out thirty-four years ago. But, following the Times’ logic, one could then argue that Stenberg and Lawrence were “political victories” which undermined the rule of law and judicial integrity. Perhaps the Times would counter by suggesting that those well reasoned opinions were necessitated by the dicta in Casey, which stated that 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…”?
I believe that the debates begun in Roe and continued in Gonzales v. Carhart will persist. If my prediction is correct, it would be most helpful if the powerful news organs that have a strong influence on how the members of the public understand what is at stake in these important political debates present their points of view with objective and evenhanded analyses that avoid the kind of inflammatory rhetoric and inferior reasoning contained in the Times editorial. RJA sj
Sunday, April 8, 2007
I would like to respond to Rick’s kind invitation to comment on Russell Shorto’s essay in today’s New York Times Magazine Keeping the Faith in which the author portrays the Pope as “the anti-secularist.” Mr. Shorto has undertaken an important project, but I think he could have done more in examining both the man he was reporting on (Joseph Ratzinger/Benedict XVI) and sources other than those who provided their own commentary and perceptions of the Pope. With regard to the man Mr. Shorter was reporting on, Papa Ratzinger has a long paper trail of articles and books from his scholarly pen and curial texts from his official pen that can be examined with detail and care. This kind of investigation does not seem to have been follow edin the preparation of Mr. Shorto’s essay. If such a study were done, there is no evidence to support that he did such a study. In his defense, I think Mr. Shorto read most or all of the Pope’s address that the latter gave in Regensburg last September, 2006. Unlike many commentators, Mr. Shorto’s remarks of the speech reflect his familiarization with what the Pope did say and did not.
With regard to his work as Prefect for the Congregation for the Doctrine of the Faith, Joseph Cardinal Ratzinger was responsible for a number of high-profile notifications and other disciplinary documents concerning the publications of several well-known authors. I am personally familiar with the Church’s concern about properly instructing readers, including the faithful, because the dozen or so articles and one book that I have worked on since I came to Rome to be a member of a Pontifical faculty have had to undergo review before permission was granted to proceed with publication. Each time I have set pen to paper (or fingers to computer keyboard), I have had to ask myself tough questions on how well and faithful was I exploring or commenting on ecclesial views on the issues that I was addressing. I frankly view this process no different than the one many American law professors use when they present in their first article footnote something along the lines: “I would like to thank the following for their helpful comments, criticisms, etc. on an earlier draft of this essay…” A major distinction between this procedure and the one that I have experienced is that I do not chose my reviewers. In any case, I would like to use these points as a segue to Mr. Shorto’s concluding paragraph in which he states:
Benedict may be right that the Catholic Church has a world-historic chance to transform Europe and bring about change. But the church’s own strictures could work against that. The paradox may be that for all his stylistic softening as pope, Joseph Ratzinger’s own labors through the decades, applying his life experience with such rigor to protecting and preserving the church, are precisely what prevent Europeans from reconnecting with their roots. “Think of the silencing of theologians in recent decades,” said Father Reese, the former editor of the Jesuit journal America. “The suppression of discussion and debate. How certain issues become litmus tests for orthodoxy and loyalty. All of these make it very difficult to do the very thing Benedict wants. I wish him well. I want him to succeed. But it seems everything he has done in the past makes it much more difficult to do it.”
I really wonder if honest debate and discussion have been silenced. The end result of notifications from the Pope’s former office, the CDF typically is a statement that the author’s views in a particular work or works do not conform to Catholic teachings. In some instances, the author may be instructed that he or she can no longer teach Catholic theology. The case of Fr. Charles Curran would be illustrative of this point. Under Cardinal Ratzinger’s tenure as Prefect of the CDF or as Pope, these are the sorts of conclusions reached in three recent disciplinary documents:
Theology arises from obedience to the impulse of truth which seeks to be communicated, and from the love that desires to know ever better the One who loves—God himself—whose goodness we have recognized in the act of faith. For this reason, theological reflection cannot have a foundation other than the faith of the Church. Only starting from ecclesial faith, in communion with the Magisterium, can the theologian acquire a deeper understanding of the Word of God contained in Scripture and transmitted by the living Tradition of the Church. Thus the truth revealed by God himself in Jesus Christ, and transmitted by the Church, constitutes the ultimate normative principle of theology. Nothing else may surpass it. In its constant reference to this perennial spring, theology is a font of authentic newness and light for people of good will. Theological investigation will bear ever more abundant fruit for the good of the whole People of God and all humanity, the more it draws from the living stream which—thanks to the action of the Holy Spirit—proceeds from the Apostles and has been enriched by the faithful reflection of past generations. It is the Holy Spirit who leads the Church into the fullness of truth, and it is only through docility to this “gift from above” that theology is truly ecclesial and in service to the truth. The purpose of this Notification is precisely to make known to all the faithful the fruitfulness of theological reflection that does not fear being developed from within the living stream of ecclesial Tradition.
The Congregation notes with satisfaction the steps already taken by the author and his willingness to follow the documents of the Magisterium, and trusts that his collaboration with the Doctrinal Commission of the Spanish Episcopal Conference will result in a text suitable for the formation of students in moral theology. With this Notification, the Congregation also wishes to encourage moral theologians to pursue the task of renewing moral theology, in particular through deeper study of fundamental moral theology and through precise use of the theological-moral methodology, in keeping with the teaching of the Encyclical Veritatis Splendor and with a true sense of their responsibility to the Church. In publishing this Notification, the Congregation for the Doctrine of the Faith is obliged to declare that the above-mentioned assertions contained in the book [which is named here along with its author identity] are judged to be serious doctrinal errors contrary to the divine and catholic faith of the Church. As a consequence, until such time as his positions are corrected to be in complete conformity with the doctrine of the Church, the Author may not teach Catholic theology.
Consistent with what has been presented, one can understand how, according to the author, any belief or profession of faith whether in God or in Christ cannot but impede one’s personal access to truth. The Church, making the word of God in Holy Scripture into an idol, has ended up banishing God from the temple. She has consequently lost the authority to teach in the name of Christ. With the present Notification, in order to protect the good of the Christian faithful, this Congregation declares that the above-mentioned positions are incompatible with the Catholic faith and can cause grave harm.
When I visited Mr. Shorto’s homepage moments ago, he has this brief passage on today’s essay in the New York Times Magazine which he entitles “Papal Pscyhe”:
On Easter Sunday I’ll have the cover story in the New York Times Magazine, about Pope Benedict XVI and his efforts to renew the Catholic Church in western Europe. In conversations with many people who know him (the Vatican declined interview requests with the Pope himself), I started to feel that I was getting a sense of the man. This is always a danger: how many of us really know our own family members, let alone someone we’ve never met? But in an odd way, it’s the very complexities and seeming contradictions of the man that led me to feel I was getting close. Here is one seeming contradiction that I was not able to put in the piece, because I couldn’t get enough sources on it. A respected church official—a Jesuit with close ties to the Curia—told me that on two separate occasions he has heard from Vatican insiders that the pope is open to the idea of ending the insistence on priestly celibacy. The reasoning is twofold: celibacy is not part of the origins of Christianity (it was instituted in the 12th century), and the church is suffering a dire shortage of priests, with officials in Latin America and Africa begging the Vatican to allow married men to serve. Of the several other church officials I queried on this point, none could confirm it, but on hearing it all said that it made some sense. Benedict cares deeply about the priest shortage, and as a theologian he knows the shaky ground on which the celibacy rule rests. When he called a gathering to revisit the issue last year, it was, according to my source, with this wish in mind. And yet the fact that the Vatican has in recent months only reaffirmed its policy of priestly celibacy also makes sense, according to the picture of Benedict’s personality that emerges from interviews. “He was a tireless enforcer when it was a matter of maintaining church policy, on abortion or homosexuality,” one source told me. “But he is also a fundamentally timid man, who won’t go out on a limb. If his colleagues aren’t willing to support such a bold move, he won’t make it.”
I’ll conclude by suggesting that these remarks from his home page may well reflect the perspectives of individuals that Mr. Shorto interviewed. However, they are the perspectives of those with whom he spoke and not those of the Pope. I doubt that Joseph Ratzinger, as priest, professor, bishop, prefect, or pope, was or is “a fundamentally timid man, who won’t go out on a limb.” Just look at what he has said and consider what he has done. RJA sj
Saturday, April 7, 2007
I thought that my posting of March 31 on Catholic Legal Theory and Final Things (end times) would be my last posting until after Easter. But I have changed my view on this. As always, I am grateful for the entries posted that have helped us concentrate on Holy Week. But other postings have prompted me to formulate at least an initial response to a variety of contributions dealing with communion, marital relationships, political candidates, and Georgetown University Law Center.
I’ll start with the communion issue since it brings into play the questions addressed by others on political candidates and same-sex couples. Any Catholic who wishes to receive the Eucharist needs to be in a state of grace, but any person aware of having committed a mortal sin must not receive Communion without first having received absolution through the sacrament of reconciliation and penance. As a priest I assume at every public Eucharist which I celebrate that each person who comes to receive communion complies with these criteria. There are a good number of Catholics who proceed to Communion but signal that they do not wish to receive the Eucharist because they probably do not meet the Church’s criteria for receiving the Eucharist, so they ask for a blessing. But for this external sign, I would normally not know the state of the person who is in the line before me. As a priest, I also serve as the minister in the sacrament of reconciliation. As a result of this, I have a pretty good idea of how other Catholics fall out of the state of grace. (If I am the sinner, I know how I can and do fall outside of the state of grace.) But I would not know this about other people if I were to meet these same folks outside of this second sacrament because they do not proclaim urbi et orbi that they are unprepared to receive the Eucharist. When they do participate in the sacrament of reconciliation, I strive to do what most priests do in this sacrament and help the penitent back to a life of holiness; I absolve their sins since I am usually convinced that their act of contrition is sincere; I wish them well and I offer the words of Jesus in Saint John’s Gospel: “nor do I condemn you; go, and do not sin again.”
But for most of us who do participate as penitents in the sacrament of reconciliation do come back again because we have exercised our free will in such a manner as to fall outside of the state of grace. So we must once again reconcile with God before receiving the Eucharist. Yet once again, the private nature of how we exercise our free will is known to no one but the penitent person and God (and then the minister of the sacrament).
This changes when the sinner freely decides by word or deed to make publicly known that he or she is not in a state of grace. For the person who holds public office, their words and deeds found in their public record of speeches, statements in support or against legislation, and votes would provide strong evidence about whether they are or are not in the necessary state of grace. With a couple (or other group of persons) not united in the sacrament of matrimony but who proclaim to the world their sexual practices and relational state, their deeds freely chosen and publicly self-proclaimed also place them outside of the necessary state of grace to receive the Eucharist. For the husband or wife united in the sacrament of holy matrimony who announce to the world their practices that are inconsistent with the teachings of the Church on marital life, they similarly jeopardize their ability to receive the Eucharist.
These points and principles need to be kept in mind when receipt of the Eucharist is discussed on the pages of MOJ. They apply to us all if we are Catholics. Moreover, they apply not because we are forced to be Catholics; they apply because we freely choose to be Catholics.
I briefly want to touch upon the matter of Catholic identity, Georgetown University Law Center, and the denial of the summer internship for the student who wanted school funding to work at Planned Parenthood. The school’s decision was proper and long overdue. Some years ago when I had the opportunity to be a visiting research fellow at another law school in the “Jesuit tradition,” I raised concerns with the then-dean that the weekly announcements publication circulated at the law school consistently had a notice advising students that they could apply for internships at the Center for Reproductive Rights. The dean and I agreed that this was problematic for a school which claimed a Catholic identity and a “Jesuit tradition,” and I believe that in good faith he discussed his concerns with members of the faculty. The notices continued for the remainder of the school year until the internship application season ended. It is my impression that any remote chance of my ever becoming a member of that faculty became even more remote when my stance on the issue of “reproductive rights” and this school’s view on them in the context of sponsored student internships became known. So, I am not surprised with the outspoken opposition to the Georgetown decision that has resulted. I followed the links provided in Rick’s posting of the Georgetown decision and came across a posting of William Sumner Scott, J.D., of the Judicial Equality Foundation, Inc. who asserts that, “The Georgetown Law abortion issue should prompt a broad discussion of the harm organized religion does to the World.” The italics are mine.
If I may permitted to paraphrase Justice Harry Blackmun in his concurring and dissenting opinion in Webster v. Reproductive Health Services, the signs are evident and very ominous that a chill wind blows against Catholic identity—meaning the support of Catholic teachings—in the academy these days. It also appears that another ominous and chill wind is beginning to develop when it comes to practicing Catholic teachings on public policy issues that emerge in the public square. But I shall not despair for I place hope and trust in the one who came to save us all from our sinfulness and whose sacrifice and resurrection we celebrate this weekend. RJA sj
Saturday, March 31, 2007
Since its inception, the Mirror of Justice has examined in varying degrees many legal issues through the lens of Catholic Legal Theory (CLT). If CLT were an ambiguous notion several years ago, MOJ postings have made strides in clarifying what it is, is not, and might be. Through the course of presentations and debates, nuanced examinations on questions involving corporate governance, law and economics, conscience, religious liberty, capital punishment, slavery, the common good, solidarity, subsidiarity, and justice (to mention but a few topics addressed on this site) have been examined through the perspectives of contributors who, in one form or another, claim participation in the CLT project.
Today, as we approach the beginning of Holy Week, I would like to raise something that may have previously escaped our corporate and individual studies: the relation between CLT and end things or end times—eschatology to use the ecclesiastical and theological term. In the context of our preparation for Easter and the powerful reminder that Christ lived, died, and was resurrected in God’s plan for human salvation, does the law, does CLT have a role in all this? Well, I suppose for many lawyers, judges, law students, law makers, law enforcers, and the citizenry at large, my question may have little or no meaning. But for those who participate in CLT, should it not?
It would seem that any academic project having a foundation in the Catholic faith would at some point be concerned about human destiny, individual and communal. As the Eighth Psalm reminds us, “what is man that you are mindful of him, and the son of man that you care for him?” From a Catholic theological perspective, this text from the Old Testament about human nature leads us to the view that each person’s destiny is tied to union with God forever as is emphasized by Saint John’s Gospel—“For God so loved the world that he gave his only-begotten Son, that whoever believes in him should not perish but have eternal life. For God sent the Son into the world, not to condemn the world, but that the world might be saved through him.” As I ponder the meaning of all this and the questions dealing with end things and times, I would like to suggest that human law and certainly human law as understood, studied, explained, and molded by CLT does have a role in God’s plan for human destiny.
I begin with a presupposition that CLT views the law not as an end in itself but as a means to promoting something else that deals with human nature and our relation to God and to one another. If this premise has merit, then should we not think that the telos of the law is more than just good governance by the authority of the rule of law that protects people and makes them more responsible to one another? I tentatively submit that the role of the law from a CLT perspective might have something to do with maximizing—in the context of human authority and contribution—God’s promise of salvation and union with Him insofar as human beings can make a contribution to God’s plan. Let me take by way of illustration the question of capital punishment. While we may agree that a convicted person has unquestionably committed such a grievous crime to which a death penalty may apply according to the civil law, does not or should not CLT argue that some other punishment (which still protects society from the further mischief of the convicted) not involving death is more appropriate so that the justly convicted may be given the maximum opportunity to offer contrition and seek God’s forgiveness before his or her end time is met? Would not legal regimes dealing with the “right to life” (abortion, health care, nutrition, etc.) as understood from a CLT perspective be inclined to ensure that everyone has the maximum opportunity to live and lead a productive life so that he or she again has the highest opportunity to meet God properly prepared when his or her end time approaches?
The degree to which consideration about the end times and end things enters the discussion of any legal issue will vary, I think. But Holy Week might just give us the opportunity to consider this matter that I have raised. In the meantime, may the contributors and readers of MOJ have a blessed Holy Week and celebrate a joyous Easter! RJA sj
