The Massachusetts Pharmacists Association (MPhA) has a list of policy statements for its members. One of them should apply to the litigation recently filed in Massachusetts against Wal-Mart about “emergency contraception.” In particular, the MPhA's position on conscientious objection states that individual pharmacist's have a "right to exercise conscientious refusal [but the MPhA] supports the establishment of systems to ensure patient access to legally prescribed therapy without compromising the pharmacist's right of conscientious refusal.” I am sure that this position of the MPhA will have a role in the unfolding developments of this lawsuit. RJA sj
Thursday, February 2, 2006
No Pharmacist Left Behind
Wednesday, February 1, 2006
Priest/Penitent Privilege
I am once again grateful to Rick, this time for his posting on the New Hampshire legislative development concerning penetration of the seal of the confessional. After reading Rick’s posting and other materials associated with this development, I discovered that the current bill before the State legislature is very limited in its scope and undermines only one privilege. While the legislators are at it, why not expand the coverage and add the doctor-patient privilege, the spousal privilege, the lawyer-client privilege? They, too, can insulate many items from public scrutiny including child abuse. So why just this privilege involving the seal of the confessional? I can imagine many scenarios in which doctors and lawyers would have information concerning these tragic kinds of cases but their privilege is not before the legislature. Consequently, it strikes me that there could be a due process issue involved. While we are at it, equal protection, at least among privilege claimants, seems to be at stake as well. And by the way, is it relevant that the legislative proposal was initially suggested by a member of a group whose motto is: “Keep the faith. Change the Church.tm” I question the soundness of dealing with Church matters through civil legislation. Once again, there are serious concerns about the First Amendment that come into play.
I would like to pose a question for consideration by anyone interested in this legislative development: should they not consider the possibility that a priest might actually try to do the right thing by helping justice in these cases and still respect the seal of the confessional? As a practical matter, I wonder how many child molesters will be going to confession to seek absolution. But I’ll let that one between the priest and the penitent. The priest might just encourage and exhort reconciliation with God and with the neighbor who has been wronged, but we’ll never know what takes place in the exercise of this sacrament nor should we. I also wonder about where the legislators would come down if they were asked to expand the list of sins/crimes and members of other professions who might have information about them? For example, let’s consider the lawyer whose client has discussed matters involving the same matter. We could also consider the physician whose patient has done the same.
I think Representative Bettencourt’s parish priest is on to something. Justice is at stake, and so is integrity, and the two are related. And for those of us who are genuinely concerned about the devastating cancer of child abuse (which is probably most of us), let’s not forget that there are a lot of good people who have the legal protection of different evidentiary privileges who are still trying to combat this curse while at the same time respecting their solemn oaths not to divulge information that should not be divulged because it was received in confidence. While having a superficial appeal, this legislative proposal, I think, would create more problems and solve few, if any. But in the meantime, an important evidentiary privilege risks being compromised. RJA sj
Wednesday, January 25, 2006
Massachusetts Disclosure Legislation
The House of Representatives of the General Court (legislature) of Massachusetts defeated yesterday [147-3] the proposed legislation requiring churches and other religious organizations to report annually financial matters to Commonwealth officials. The Boston Globe report is Here. A number of MOJ'ers have addressed this issue in the past, including yours truly in an August post.
At that time I made a comparison between Old England and New England. To reiterate the points I made on that occasion, I conclude this post with a portion of the screenplay from the film version of "A Man for All Seasons"-- the dialogue is between the Chancellor, Cardinal Wolsey and Sir/Saint Thomas More:
More
Then, clearly all we have to do is to approach His Holiness and ask him.
Wolsey
I think we might influence the decision of His Holiness.
More
By argument?
Wolsey
Argument certainly. And pressure.
More
Pressure, applied to the Church? The Church has its church property.
Wolsey
Pressure!
RJA sj
The Encyclical
As a quick follow-up to Amy's recent post, here is the Pope's encyclical. Here It is also available by going to the Vatican website, www.vatican.va . Although it was released today, it is dated Christmas day-- probably no coincidence. RJA sj
Sunday, January 22, 2006
Conscience, the Church, and the EU
On 14 December 2005, the EU Network of Independent Experts (Network) on Fundamental Rights issued their opinion No. 4-2005: “The Right to Conscientious Objection and the Conclusion by the EU Member States of the Concordats with the Holy See.” Download conscientious_objection.pdf The European Commission requested the opinion of the Network on the legal status of religious conscientious objection in existing and future concordats between EU Member States and the Holy See. The European Commission posed several questions, but the one I believe that is applicable to our MOJ discussion is this: do conscience clauses in concordats create incompatibilities with fundamental rights of individuals and the law of the EU? Several of us addressed the issue of conscience last couple of months in various domestic legal settings. The EU Network has now brought the matter into the world of international law.
The question of whether concordats containing provisions protecting the right to religious conscientious objection are compatible with the protection of “fundamental rights” and EU law raises serious consequences for the Church and the integrity of its concordats. But the integrity and sanctity of conscience is also compromised. The Network concludes that the concordat clauses it reviewed are incompatible with EU law and the “fundamental rights” guaranteed under its legal scheme. The Network does admit that conscience is an issue that receives limited protection under various human rights instruments and the law of the EU; however, it is only one of several rights that are protected, and the protections accorded to conscience, including claims to conscience based on religious beliefs, are not absolute. The Network asserts that the limited right to conscience based on religious belief must be balanced with other rights that address concerns for: same sex unions; “reproductive health rights”; abortion; euthanasia; artificial fertilization; and, artificial contraception.
In writing its opinion on the legal status of concordat conscience clauses, the Network has reached some tricky, unfortunate, dangerous, and, in my opinion, unsupportable conclusions. For example, in the area of abortion, the Network asserts that the right to religious conscientious objection cannot interfere with access to legal abortion; therefore, healthcare practitioners who exercise their right to religious conscientious objection must refer the woman to a qualified health care practitioner who will agree to perform the abortion. This means that the conscientious objector becomes an indirect rather than a direct accomplice in the matter to which he or she objects. One wonders about other the impact that other developing “rights” beginning to surface in some EU countries, e.g., euthanasia or assisted suicide, will have on the right to conscience. The Network offers a chilling preview of what to expect when it states that in those countries where euthanasia and assisted suicide are “partially decriminalized,” conscientious objectors should not be protected in a way that deprives “any person from the possibility of exercising effectively his or her rights as guaranteed by the applicable legislation.” The Network also appears inclined to be restrictive on the rights of pharmacists to claim exemption based on conscience from selling contraceptives including “morning after” pills. The Network is much clearer about matters involving sexual orientation. The Network appears close to endorsing a Netherlands position that “any form of discrimination on the basis of sexual orientation… should not be tolerated…” It is interesting that the Network relies on the law of this one EU member but not conflicting laws of other EU members.
Although the opinion of the Network, by itself, is not a legally binding text, it is a forecast of things that may develop in the future. At the least, the opinion reflects the views of influential voices within the EU today. And these voices do not offer comfort to those who have legal protection of their conscience and religious belief under international law. I doubt that the drafters of the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights would agree with interpretations offered by the Network. The current climatic chill in Moscow seems to be moving west at a quick pace but manifesting itself in legal interpretation. RJA sj
Tuesday, January 17, 2006
Culture, Totalitarianism and Religion
In 1934, the prolific author and Catholic convert, Christopher Dawson, published an essay entitled “Religion and the Totalitarian State.” In it, he reached a positive conclusion that the Church “exists to be the light to the world.” Of the secularist culture, he said, “it is a prison in which the human spirit confines itself when it is shut out of the wider world of reality.” He continued by stating: where the “light” exists, the elaborate mechanisms for living in the dark become useless. It was clear that he was largely addressing the totalitarian regimes of fascism, communism, and the emerging national socialism of Germany. But he also issued concerns about tendencies that can appear in secular, democratic institutions. In all of these cases, he realized that the media—especially the film industry—can have an extraordinary influence over people. Of Hollywood’s power, he stated: “Has not Hollywood got a distinct ethic of its own which influences the minds of its audiences? Is this ethic in any sense Christian?” The same questions could be asked today. Their relevance to Catholic legal theory includes the formation of attitudes which, in turn, can influence the evolution of social norms and law.
I have just finished reading about the Golden Globe awards presentation and found out who was successful and who was not. “The Chronicles of Narnia”—whose themes include the pitching of evil against good, self-sacrifice for others, and redemption—received no awards; however, it was nominated for two of the music categories. Other themes (love is a force of nature; life is more than the sum of its parts; a member of the jet set going to the heartland to write a story) were far more successful in winning the various film categories. I have also just read how the films which won can be a strong influence on the yet-to-be-announced Academy Awards nominations. It is fair to state that the winners of the Academy Awards, like the Golden Globe champions, can have another strong influence on the culture—a culture that extends beyond one country into the world. Ultimately, Dawson’s concern was how the totalitarian mind—be it situated in the mechanisms of the State or the media—can crush the presence of religion from modern life through the “sheer weight” of public opinion that is molded by the State and the thriving culture. I recall a few years ago how this was demonstrated during the Academy Awards presentation when “The Cider House Rules” received elaborate commentary, immense applause, and (I believe) a standing ovation for the political message it conveyed.
Indeed, the cinema can have an enormous impact on how our lives in common is regulated, but it may be some time before the cultural effect, if any, of last evening’s Golden Globe event can be determined. In the meantime, we might consider what Dawson said at the end of the essay to which I referred: totalitarianism (like a theatre) is a place of darkness, but the knowledge of God that is the gift of the Church is one of light. RJA sj
Friday, January 13, 2006
"No soul left behind"
I took advantage of Rick’s recommendation and read John Breen’s and Michael Scaperlanda’s new article. It made me do a lot of thinking and praying about those who enter public life, particularly those called to legislative, administrative, and judicial responsibilities. After reading John’s and Michael’s draft, I concentrated on a couple of phrases: “freedom of the autonomous self” as modified by a word the authors sometimes used (“exaggeration”) and the “disorder of liberty run amok.” I wondered if I had witnessed any of this during the past week watching segments of those asking questions during Judge Alito’s confirmation hearings. I have reached one conclusion regarding the role of pastors and bishops in my reflection: there is a great deal of work to be done teaching those members of the Catholic community, or who say they are a part of it, who turn to the exaggerated freedom of the autonomous self and promote a world where order and “liberty run amok” seem compatible. A great deal could be said here about legal reasoning and the rule of law, but I shall defer until my presentation at the St. John’s symposium in March. Here I shall focus on the pastoral duties of those with teaching responsibility in the Church. There is a lot of work to do if this past week’s broadcasting of the Alito hearings is a reliable gauge. I may be in a minority, but I saw some prominent Catholics conduct themselves in often questionable ways. I wonder about their souls. Will the human law insulate them from the divine law? I wonder some more. But, if there is any legitimate concern emerging from my reaction, it has a clear solution: the teaching of the Church and the duty to see that it is properly understood by its members, the People of God. I was struck with a peculiar coincidence as I watched a group of people, many professing to be Catholic, who legislated a law a few years ago commonly known as “No Child Left Behind.” From what I witnessed on the web video streaming of the Judiciary Committee proceedings, I saw several souls responsible for the promulgation of that law putting into question their own future… and I thought, no soul should be left behind, either. Pastors and bishops who are in charge of the care of these souls have a lot of work ahead of them if no soul is to be left behind. RJA sj
Thursday, January 12, 2006
It could cost the Church and Society a lot, and more than money...
Like Patrick, I am very interested in and have been reflecting on Bishop Gumbleton’s recent statement on his past abuse and his advocacy before state legislatures. These are two distinct subjects. I share Patrick’s concerns about what happened to the young Thomas Gumbleton and the approach the young Thomas Gumbleton pursued—getting on with his life. For members of a community of lawyers, educators, citizens, and faithful (MOJ contributors and readers included), there are some other important issues with significant implications for the future that come out of his political advocacy. There are three points (surely there are more) that I would like to raise at this stage. My first point renews concerns I made in an earlier posting about changing statutes of limitations for abuse cases. If statutes are suspended or changed to address a particular issue, a number of grave legal problems will surface. Just to mention a few, they could include: discrimination; equal protection denial; and ex post facto matters. Moreover, anyone interested in and mindful of the justification for statutes of limitations should be concerned with the implications of the bishop’s advocacy. A second point brings up the question about what are the other activities that the bishop is pursuing to help the Church—his flock—with the new cases that may be filed if his advocacy results in the suspension or repeal of statues of limitations. By itself, the bishop’s activity does little to help the larger Church, universal and local. A shepherd has a duty to protect his flock—all members of his flock who have done no wrong. A third point pertains to Church governance. The bishop is a member of the college of bishops, and I would like to know more about how and when he discussed his advocacy plans with his fellow bishops, including the archbishop he assists. This point brings up a related matter, and it deals with how he discussed his legislative activities with the faithful to whom he ministers. RJA sj
Friday, January 6, 2006
"Abortion Rights in Latin America"
Several weeks ago in mid-November, Rick asked an important question about the Human Rights Committee report on the status of abortion in Peru. At that time I offered a few observations. In my view, the Committee’s report was not a legal opinion; moreover, the authors who drafted it did not offer a solid understanding of international law and authentic human rights issues. At the time, I could not address one of Rick’s questions concerning the procedural issues. Since my earlier response, I was able to obtain a copy of the report and discovered that Peru is a party to the International Covenant on Civil and Political Rights additional protocol that enables individuals to bring their complaints to the Committee. This is not permitted under the Covenant itself. In any event, the complaint of the seventeen year old “author” came before the Committee through the procedures of the additional protocol. The Center for Reproductive Rights headquartered in New York served as counsel to the “author” of the complaint.
Today’s New York Times published an editorial on this report of the Human Rights Committee under the title “Abortion Rights in Latin America.”
Download abortion_rights_in_latin_america_nyt_1606.mht
I fear that the editorial authors present an inaccurate picture of the applicable law to their readers. With regard to liberalizing abortion “rights,” the Times editorial asserts that “international pressure” is helping to liberalize abortion legislation in Latin American countries. It cites the November Committee report that Rick and I discussed in support for its position. In spite of the rhetoric, the Times and the Center for Reproductive Health fail to acknowledge the reality of the situation. Their language refers to a “severely malformed fetus”—but they cannot escape the fact that this little girl was also born and lived for several days after she was living in her mother's womb. Sadly, neither the Times nor the Center for Reproductive Health nor the Human Rights Committee apply any of the provisions of the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child to the infant girl. To them, she remains a “severely malformed fetus”—a something but not a somebody; therefore, she is not a human being, a person, a child, who merits the protection of international law. Strikingly, when one reads the Covenant and the Convention on the Rights of the Child, this infant is a human who should also be the beneficiary of the protection of these two instruments, but the Times, the Center for Reproductive Health, and the Human Rights Committee will not admit this. Their interpretations of these two instruments are flawed.
But the story does not end here. Just before Christmas, a new ally from the European Union, namely the EU Network of Independent Experts on Fundamental Rights, has issued an “opinion” concerning the protection of conscience. In reality, the “opinion” is designed to eliminate the right of conscience that involves the Church and its members. The “Experts” focus on the EU Member States that have concordats with the Holy See regarding the protection of conscience of those who are exempt from certain activities including having a role in performing abortions (and other procedures that may include euthanasia) or same sex unions/marriages. The Experts suggest that there is a higher law, namely their interpretations, which trumps the right to conscience, which is interestingly enough is a protected subject of the International Covenant on Civil and Political Rights.
At this stage, I point out that Catholic Legal Theory has a lot to say about these sinister developments. In the meantime, the flawed understandings and interpretations that the Times heralds as "international pressure" grow stronger. RJA sj
Monday, January 2, 2006
Discipleship and 2006
First of all, belated Christmas greetings to MOJ contributors and readers. I apologize for not responding earlier but a combination of a month-long cold (probably a result of my flu shot) and assisting in a parish during the Christmas and New Year's Day season has kept me occupied these past several weeks.
However, during this time I have enjoyed reading many of the recent contributions to this site. After much reflection on how to respond and contribute in a fruitful manner, I concluded that one thing that might bring together a number of recent themes is how each of us as a member of the Church has been called to holiness and discipleship. We have just celebrated Christmas and have been reminded that God is with us. Regardless of our individual status as lay, religious, or clerical, each of us has a role to exercise in evangelizing a world that is desperate for holiness. The past year has again demonstrated that we human beings sometimes exercise our free will in a manner that is sinful and inconsistent with the call to holiness. At the same time, knowing that we are sinners, we turn to our merciful God seeking divine forgiveness which is there for the asking if the request is sincere. This is a powerful sign of hope in the future that God promises us.
With forgiveness and getting back on the straight path to God, we are rejuvenated to do his work in this world. And, there is much to do. Many of us are teachers, and we have been given the ongoing opportunity to renew not only ourselves but those whom we meet-- often colleagues and students--who are also beneficiaries of the call to holiness. In spite of the darkness generated by human sinfulness, God has given us all the chance once again to respond to the challenge made by John the Baptist in today's Gospel from St. John.
My hope-filled prayer for each of us in this new year is that our fidelity to discipleship will help guide not only ourselves but those whom we meet throughout the coming year.
RJA sj
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