Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, October 27, 2008

Debate . . . and doublespeak?

I read Lisa's recent post, on debate about abortion within the women's movement, just after I saw this, "Democrats play both sides of abortion politics in congressional races," from the Feminist Law Professors blog:

Two contrasting views of the Democratic Party’s use of the abortion issue in this year’s election have emerged in recent press reports.  When one reads them together, a fascinating picture emerges of how the Dems are deploying and funding anti-choice messages in the conservative House districts that they hope to pick up from Republicans while simultaneously playing up pro-choice messages in districts where that works for them. Pragmatic or just smarmy?

The strategy is pretty clear: say whatever works on the social issues in order to capitalize on the wave of anger and frustration bordering on desperation that is about to sweep Obama into office and possibly change the face of Congress. And hey, I’ve got no desire to stand in the way of that. . .

[quoting the New York Times:] …[T]his year, the party has not only gone to great lengths to recruit such candidates, it has also provided them significant financial backing, underscoring a new pragmatism within the party, said Kristen Day, the executive director of Democrats for Life, an anti-abortion group. “This is the year that pro-life Democrats have received the most support from the party in Washington,” said Mrs. Day…

[quoting The American Prospect:]… this year, Democratic political operatives have been surprised by the success they’ve had in deploying pro-choice messages. Congressional campaigns from New Jersey to Nevada have picked up on the trend, and outside groups spreading the word are not just usual suspects like NARAL and Planned Parenthood, but also the Democratic Congressional Campaign Committee (DCCC).

Sunday, October 26, 2008

More on punishing abortion

With respect to Eduardo's most recent post on the matter . . . He writes that "the question is whether deciding in advance not to pursue for criminal sanctions the person who has procured the intentional killing of the unborn (when the state vigorously pursues that person in every other category of homicide, at least when dealing with those who have been born) does not reproduce, within the legal prohibition, the same dignitary/equal-protection type harm that the legal prohibition was designed to remedy."  This is -- we agree -- an important question but, as I suggested earlier, I think the answer is "no, such a decision does not reproduce the same harm that the legal prohibition was designed to remedy."

Nor, in my view, does it attack the agency or dignity of women to suggest that women procuring abortions and those who perform them could be treated differently, for purposes of punishment and regulation.  Many women who procure abortions will not know all the relevant facts about abortion, fetal development, adoption-options, etc. -- and, I fear, this problem will be exacerbated by efforts in Congress to roll back informed-consent laws, etc.  The entire culture of legal abortion, and the messages that attend it, serve to obscure the truth about abortion.  Those who perform abortions, on the other hand, know exactly what they are doing and it is fair for the law to hold them to an obligation to know what they are doing.

Eduardo then concludes with the suggestion that "an obvious alternative [to an excuse regime] would be to say that, although human beings, the unborn are entitled to less than the born in terms of legal protection (which is not the same as saying no protection)."  I do not believe this alternative is attractive; one can construct a legal regime that responds to some homicides in different ways than it responds to others without endoring or communicating, in the law, the unsettling notion that some human persons are less entitled to be protected against lethal violence than are other human persons.  "Different" protection-strategies, it seems to me, are fine; but the basic entitlement to the right-to-life, and to effective protection from lethal violence, needs to be the same.

Questions about whom and how to punish are, no doubt, complicated.  Still, there is a basic human right to equal protection which, I believe, requires at least this much:  the law should acknowledge the dignity and worth of every human person by forbidding elective abortion and by taking those steps reasonably calculated to effective deter abortion.  Lots of legal steps (including steps that do not involve "murder" liability for women who undergo abortions) are consistent with this bedrock starting point; but, our currrent regime, like any regime in which it is not unlawful (and is, indeed, publicly subsidized) strikes me as extremely difficult to reconcile with what we believe, and the Church teaches, about the dignity of all human persons.

Saturday, October 25, 2008

Missing "priorities"

A few days ago, E.J. Dionne discussed with his (I admit) wider-than-MOJ readership what MOJ readers already know, i.e., Catholics are not "one issue" voters and are divided with respect to the upcoming election.  (To be clear -- no one thinks that Catholics are or should be "one issue" voters; some of us do think, though, that the abortion problem is more than just "one issue" among many.)  He concludes with the prediction that "this election could hang on the struggle of Catholic voters with their priorities and their consciences." 

I was sorry to see that no where in his piece -- or in the statements of Bishop Gabino Zavala, which Dionne discussed -- did the matter of education-reform / school-choice / religious freedom / Catholic schools come up.  It seems to me that this really has been the "missing issue" in the great "how should Catholics vote" debate.  And, as our own Greg Sisk has explained (here and here), this is unfortunate, both because the issue is foundationally important and because the Church's Social Teaching speaks quite clearly in this context.  (It is likely, for example -- and deeply regrettable -- that Washington, D.C.'s school-choice program will be terminated by the next Congress, with President Obama's acquiescence, once President Bush is no longer there to veto a repeal-attempt.)

Friday, October 24, 2008

A question for Jim Wallis

Having read, at Steve S.'s suggestion, Jim Wallis's presentation of his candidate-selection calculus, my first question would be, "Mr. Wallis, isn't a bishop in a very good 'position to tell [Roman Catholics in his diocese] what is ‘non-negotiable'"?  Putting aside the question of what, exactly, is non-negotiable, and also questions about form, tone, timing, etc.:  Isn't Mr. Wallis being a bit presumptuous here?  Shouldn't he have said (somethign like), "as a Protestant, I do not believe that anyone is in a 'position to tell anyone what is 'non-negotiable'"?

My next reaction is to be pleased that, apparently, Mr. Wallis is going to vote for Sen. McCain!  After all, he writes:

And on abortion, I will choose candidates who have the best chance to pursue the practical and proven policies which could dramatically reduce the number of abortions in America and therefore save precious unborn lives, rather than those who simply repeat the polarized legal debates and ‘pro-choice’ and ‘pro-life’ mantras from either side.

Quick, McCain-campaign types:  Jim Wallis wants a candidate whose policies will "save precious unborn lives", which would seem to rule out a candidate who supports increased public funding for abortion around the world, a roll-back of abortion regulations, subsidization of clone-and-kill embryo-destroying research, etc.  Get the word out about this endorsement!  (Heh.)

UPDATE:  Mr. Wallis might, when trying to bring others around to his new point of view, want to refer them to this essay, by Michael New, over at Public Discourse:

As Election Day approaches, the mainstream media is, as usual, showcasing self-identified 'pro-lifers' who are supporting the Democratic Party's pro-abortion presidential nominee. In 2004, a number of media outlets cited an analysis by ethicist Glen Harold Stassen which claimed--wrongly--that the number of abortions had increased slightly since President Bush's inauguration in 2001. The New York Times published an op-ed by Dean Mark Roche of Notre Dame encouraging pro-life Catholics to vote for John Kerry. This year the story is similar. Former Reagan administration Assistant Attorney General Doug Kmiec and Duquesne University Law Professor Nicholas Cafardi, both of whom claim to be opponents of abortion, have received plenty of media attention for their support of Barack Obama.

Their arguments are the same ones put forward in 2004. They have not improved with age. Most of these authors attempt to make one of two points: either a) that there is little that elected officials can do to curb abortion through legislation, or b) that the pro-life movement has not reaped any real benefits from supporting candidates who oppose abortion. Voters should, therefore, they argue, place greater emphasis on other issues. However, an examination of the history of the pro-life movement and a careful analysis of abortion trends demonstrate that these arguments are deeply flawed. In fact, the success of pro-life political candidates has resulted in substantial reductions in the abortion rate.

Some thoughts in response to Eduardo

There's a lot in Eduardo's post to think about, and I hope that others will weigh in.  For my own part -- recognizing that this is not a complete response -- I was struck by this:

. . .  A variant on this is the pragmatic position articulated in the essay to which Rick linked, that going after women is not an effective means of preventing abortion.  This sort of instrumental, prudential reasoning about the proper legal response to the problem of abortion seems perfectly appropriate to me, but it also seems to me to open the door to the notion that it might, under the right circumstances and on similarly prudential grounds, be appropriate not to attempt to prohibit abortion through the law at all.  That is, I do not see how one can draw a line that prohibits one sort of prudential compromise without prohibiting others.  At a minimum, this sort of reasoning about the penalties associated with abortion strikes me as in some significant tension with the arguments used to make the case that the failure of law to prohibit abortion is an intrinsic evil.

It strikes me, though, that we can "draw a line that prohibits one sort of prudential compromise without prohibiting others."  We might think (as I am inclined to think) that it is deeply unjust for the law to categorically exclude a particular group of human persons from protection against lethal violence, because this exclusion is entirely incompatible with respect for these persons' rights, but also be open to dealing with political and practical realities that counsel in favor of protecting these persons through some legal mechanisms (e.g., "unlawful homicide" prohibitions) but not others (e.g., "capital murder" statutes).  It is not inconsistent with the basic obligation to protect the human rights of human persons -- all human persons -- to decide that it makes sense to deal, legally, with intentional abortions (and those who procure them, and those who perform them) as a discrete category of homicide.  On the other hand, to go with a "in a pluralistic society, we have to permit abortions, while working hard to reduce their numbers" is, it seems to me, to compromise a fundamental obligation of a political community.

UPDATE:  Chris Green writes:

[In response to Eduardo's statement,] "[a]nother possibility would be that women (or, perhaps, pregnant women) are somehow not capable of full moral agency that would give rise to criminal liability for their actions.  I suspect that, historically speaking, this may have been part of the reason for the way abortion was treated (where illegal) prior to Roe.  But clearly that cannot be a reason to treat abortion differently from murder today":

Because I think there's certainly a lot of space between "not capable of full moral agency" and "having no excuse at all," I think this greatly understates the plausibility of the idea that women seeking abortions have a personal excuse (i.e., an excuse that an abortionist lacks) because of the inherent pressures of pregnancy, which haven't changed over the years.  I don't think it's improperly demeaning to women, or otherwise out of step with these modern times, to say that a woman wants an abortion the way an animal caught in a trap wants to chew its leg off.

I made some comments along these lines in a thread on Prawfs a few weeks ago.  [RG:  Do check out the post and comments at Prawfsblawg.]

Thursday, October 23, 2008

Prosecuting women for abortion?

The question is often raised -- it has been discussed more than a few times here at MOJ -- whether those who support the overruling of Roe and the increased regulation of abortion are actually prepared to treat women who undergo abortions as "murderers" and, if not, why not?  It is suggested that the reluctance of most pro-lifers to so regard women who have abortions indicates, perhaps, that these pro-lifers don't really believe their own pro-life rhetoric.  (In my view, there is nothing hypocritical or otherwise suspect about saying (a) our Constitution permits legislatures to regulate abortion more closely than Roe permits; (b) abortion involves the killing of an innocent human person; and (c) women who have abortions should not be prosecuted and punished like those who commit homicides against born persons.)  With respect to this question, this essay, by Clarke Forsythe, called "Why the States did not prosecute women for abortions before Roe v. Wade", is helpful.

What actually reduces abortions

One of the questions at the heart of the "how should pro-lifers vote?" debate is whether the package of policies endorsed or proposed by Candidate X is likely to reduce the number of abortions.  (As I've suggested before, I think the "abortion issue" is about moving away from an unjust legal regime, and not just reducing the number of abortions, but let's put that aside for now.)  For those who are basing their decision, entirely or in part, on this abortion-reduction question, this essay, at the USCCB's web site, by Richard Doerflinger, seems like a must-read.  A taste:

In 1980 the Supreme Court upheld the Hyde amendment, and federally funded abortions went from 300,000 a year to nearly zero. With its decisions in Webster (1989) and Casey (1992), the Court began to uphold other abortion laws previously invalidated under Roe. States passed hundreds of modest but effective laws: bans on use of public funds and facilities; informed consent laws; parental involvement when minors seek abortion; etc.  Dr. Michael New's rigorous research has shown that these laws significantly reduce abortions. In the 1990s, debate on partial-birth abortion - kept in the public eye, ironically, by President Clinton's repeated vetoes of a ban on this grisly late-term procedure - alerted many Americans to the violence of abortion and shifted public attitudes in a pro-life direction, just as growing concern over AIDS and other sexually transmitted diseases was giving new force to the abstinence message for teens. Now the Court has upheld a partial-birth abortion ban, and signaled that other laws to save unborn children and their mothers from the horrors of abortion may be valid. If Roe is reversed outright, that will allow more laws that can further reduce abortions.

By contrast, a pending federal "Freedom of Choice Act" (FOCA) would knock down current laws reducing abortions, and require public programs for pregnant women to fund abortion. No one supporting that bill can claim to favor reducing abortions.

Wednesday, October 22, 2008

"Virtual Reality: Its Distortion of Self and Others"

The Institute for the Psychological Sciences is "a Catholic graduate school of psychology" and has, for some years, sponsored the "John Henry Cardinal Newman Lectures" in Washington, D.C.  This year's theme, again, is "Virtual Reality", and the lecturers include Leon Kass, Fr. Kevin Flannery, and Roger Scruton.  More information is available here.

Sunday, October 19, 2008

"Conscience" is not the (only) issue

In their Newsweek response to George Weigel's recent article (which has been discussed here at MOJ), Nicholas Cafardi et al. make what they take to be the "Catholic case" for Obama.  [Insert here my standard skepticism about this "case".]  They conclude with this:

Weigel may also wish to engage in a theoretical debate about hypothetical public support for the funding of abortion, and whether that results in improper moral complicity with an evil act. That is a worthy seminar topic, but we recommend he start by asking the same question of himself in terms of coerced taxpayer support for an unjust and unjustifiable war in Iraq costing over $10 billion a month and thousands of Iraqi and American lives, which Weigel aided and abetted with his vocal support, contrary to the express prayers of the Holy Father he called "a witness to hope."

Now, to be fair, Weigel opened to door to this conclusion with his own conclusion (though not with the content of his main arguments).  He wrote:

And should an Obama administration reintroduce large-scale federal funding of abortion, the bishops will have to confront a grave moral question they have managed to avoid for decades, thanks to the Hyde amendment: does the payment of federal taxes that go to support abortion constitute a form of moral complicity in an "intrinsic evil"? And if so, what should the conscientious Catholic citizen do?

I'm not sure what the conscientious Catholic should do.  And, I'm happy to leave, for now, the "complicity" question to the "seminar" mentioned by Cafardi.  But, as has now been true -- frustratingly so -- of Doug Kmiec and others who share his (current) view for months, the Cafardi response fails utterly to engage the not-at-all seminar-ish argument that Weigel actually emphasized, namely, that it is hard to take seriously the "pro-lifers should vote for Obama because he supports social-welfare policies that -- we hope! -- will result in fewer abortions" argument when those making the argument refuse, again and again, to acknowledge the fact that -- taxpayers' consciences aside -- Sen. Obama supports (and will certainly be able to enact) policies that are *at least* as likely to dramatically increase the number of abortions as his social-welfare proposals (which, let's be clear, the present economic situation will make it difficult to enact) are to reduce them.  Indeed, even if the later proposals *are* successful, there is no reason for someone who actually takes the time to consider the consequences of FOCA, the repeal of the Hyde Amendment, the repeal of the Mexico City policy, etc. to think that they will dis-incentivize more abortions than these latter measures will encourage.

If Sen. Obama is elected, it will be a dramatic (and, I fear, permanent) setback for the anti-abortion cause, and not only in the Supreme Court (though it will, of course, be a set-back there, too.)  In saying this, I am not denying that there are plenty of ways to reduce the number of abortions.  (The problem is, there are ways to increase the number, too . . . and public funding of abortions in developing nations would seem to be one of them.)   I wish "Democrats for Life" all the best, and hope that -- someday -- Sen. Obama actually signs onto their agenda.  Perhaps it will bring about some progress in other areas of interest to faithful Catholics.  I hope so.  But, let's be clear-eyed and candid about the thing. 

I've always said here at MOJ that I understand full well that many faithful Catholics will conclude that, all things considered, it's better to vote for the pro-abortion-rights Democrat.  But, I think these faithful Catholics should not dodge the implications of Sen. Obama's election (the same is true, of course, of faithful Catholics who vote for pro-life Republicans whose views on some other serious matters might be flawed.)  If one is clear-eyed and candid, one will not rest one's arguments on statements like "focusing on courts and Justices has brought us nothing" (it has), "there's no hope for overturning Roe" (there is, some, though there would be more if faithful Catholics would stop voting for pro-abortion-rights Senators), "overturning Roe would not, in the end, actually reduce abortion" (it would reduce, even if it would not end, abortions), and "respect for religious freedom requires us to accept a pro-abortion-rights legal regime" (it doesn't).

In which Amy Sullivan says something really . . . incorrect

Amy Sullivan is the author of "The Party Faithful," in which she contends that the Democrats are shrinking the "God gap."  We'll see.  In any event, in this Time magazine piece -- yet another exploration of the "divisions" among Catholics on abortion -- she writes, "[i]n a hierarchical tradition like Catholicism, debates don't happen very often."  Good Lord.  What a silly thing to say.