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.

Wednesday, April 9, 2008

"Pro-Life Doctor": An Oxymoron?

Chris Kaczor has a disturbing post over at First Things:

In November 2007, the Committee on Ethics of the American College of Obstetricians and Gynecologists (ACOG) published Committee Opinion # 385 entitled, “The Limits of Conscientious Refusal in Reproductive Medicine.” The committee opinion sought to “maximize accommodation of an individual’s religious or moral beliefs while avoiding imposition of these beliefs on others or interfering with the safe, timely, and financially feasible access to reproductive health care that all women deserve.”

Unfortunately, the balance struck by the committee between the right of conscience of physicians and the reproductive health care of women so emphasizes patient autonomy that it turns physicians into medical automatons forced to act against their best ethical and medical judgment. As pointed out on March 14, 2008, by Health and Human Services secretary Mike Leavitt: “The ACOG ethics report would force physicians to violate their conscience by referring patients for abortions or taking other objectionable actions, or risk losing their board certification.” Put simply, committee Opinion 385 could be the end of the pro-life doctor.

There's more.  Rob?  What do you think?   Much of the post is a discussion of the appropriate understanding of "conscience."

The Tarek ibn Ziyad Public School

Perhaps because I'm currently working on a chapter on education for my book on conscience -- focusing on the potential for schools to function as venues for conscience -- this story in our local paper caught my eye.  A public charter school that appears to function as an Islamic school will undoubtedly provoke a strong reaffirmation of our "religion-free" public school paradigm, but I think that reaction is misplaced.  I'm not ready (or able) to articulate exactly how we should react to the Tarek ibn Ziyad Academy, but I do know that we should not close down the expanding (at least in Minnesota) educational marketplace just because we're uncomfortable with some of its results. 

If you're interested in a broader exploration of my ideas on public education and conscience, you can read this paper.

Casey on Obama and faith in politics

Senator Bob Casey Jr. gave an interview to Beliefnet about religion, the presidential race, and his support for Barack Obama.  On the role of faith in the campaign:

[E]very candidate has a right to talk as much or as little about their faith as they deem appropriate. Another guideline for me is that your faith can inspire and inform and sometimes enrich your public policy points of view and how you vote on a particular piece of legislation, but it should not dictate that [point of view] . . . there are some people who think that it should be dictated and I happen not to accept that way of making public policy.

I'm sympathetic with the line Casey is trying to navigate here, but I confess that I'm not exactly sure when my faith "dictates" my views on public policy and when it "inspires and informs" those views.  Does "dictate" simply mean an unwillingness to compromise on a view that has its roots in my faith?  If so, is it always bad to have a leader whose faith "dictates" their view on a particular policy matter?  Or does "dictate" mean that I have no non-religious sources for my public policy view, suggesting that I am unable to articulate the basis for my view in terms that are accessible to those outside my faith tradition? 

And on reconciling his support for Obama with his pro-life beliefs, particularly in light of Obama's opposition to the federal partial-birth abortion ban and the Illinois Born Alive Infant Protection Act, Casey explains:

I disagree with that in a very fundamental way, and I’m sure they’ll be other things I disagree with that are serious. I do think, though that he’s the kind of public official . . . who takes the time and puts forth the effort to understand people who disagree on the issue of abortion and other issues. . . .

There’s a common ground on the issue of abortion that doesn’t get much attention, but there’s growing consensus on both sides of the issue—even with extremes on either end—that we want to reduce the number of abortions. We can debate on how to get there, but there is consensus about that. I think he would try to enhance that consensus.

Q: Has Obama or Clinton signed onto your abortion reduction legislation?

A: They haven’t, but I’ve just begun to dialogue with individual senators. [Obama] will be among the senators I’m talking to.

It will be interesting to see if Obama supports this legislation; sad to say, it will probably occur after he secures his party's nomination.

Tuesday, April 8, 2008

Bill Stuntz on Prohibition and Abortion

Interesting, provocative post, here.

Call for Papers: "The Feminine Genius in the Pursuit of the Common Good"

Clear your calendars for next October!  It will be the 20th anniversary of the promulgation of Mulieris Dignitatem, Pope John Paul II's Apostolic Letter on the dignity and vocation of women.  As Rob pointed out recently, Ave Maria and Catholic Law School are co-sponsoring a fantastic "Celebration of the Twentieth Anniversary of Mulieris Dignitatem" in D.C. at the beginning of the month (Oct. 3--4). 

At the end of the month (Oct. 23-24) here in the Twin Cities of Minneapolis & St. Paul, a conglomerate of departments and institutes at the University of St. Thomas are sponsoring two consecutive, thematically-related one-day conferences exploring the contributions women are called to make in the pursuit of the common good.  The first conference is Mulieris Dignitatem and the Church's Social Vision:  The Feminine Genius in the Pursuit of the Common Good, co-sponsored by the Murphy Institute for Law and Public Policy, the St. Paul Seminary School of Divinity, the Center for Catholic Studies, the John A. Ryan Institute for Catholic Social Thought, the College of Arts and Sciences, and the Departments of Philosophy and Theology.  The second is Visions of Woman's Leadership, co-sponsored by the Holloran Center for Ethical Leadership and the UST School of Law.

The organizers are issuing a call for paper proposals for the first conference.  Here's the call:

The first conference is in honor of the 20th anniversary of the promulgation of the Apostolic Letter, Mulieris Dignitatem. Its aim is to engage scholars and practitioners in a consideration of several questions: What is the feminine genius and how can its existence be verified? Within which philosophical or theological categories can it be included? What is the role of the feminine genius in the world? What is its relationship to the complementarity of men and women? Should the feminine genius be more explicitly enlisted in the effort to make life more “human” for all, and if so, how? What are the indispensable contributions of women?

We invite papers that treat these questions in relation to both their philosophical and theological foundations and in light of five categories that, according to scholar Michael Schuck, emerge in a historical study of the Catholic Social Tradition: the religious, political, familial, economic, and cultural dimensions of community life, In addition, we are interested in papers that investigate the public policy implications that follow from these categories and that reflect on the ways that women can make a particular and concrete contribution to the pursuit of the common good.

Proposals should be sent by June 30, 2008 to Dr. Deborah Savage at: [email protected]

More details about both conferences, and the Call for Papers, are available below.

Continue reading

Prosecuting Crime, Seeking Justice, and Protecting the Innocent

From the perspective of a person of faith, and a citizen of this country, I have been deeply distressed by the decline in recent years of prosecutorial discretion as the wise exercise of power in the pursuit of justice. Too often, and especially at the federal level at least from Washington, D.C., the policy has sometimes appeared to be that every case referred by law enforcement should be prosecuted and every conviction should be emphasized by seeking the maximum sentence. Politicians, of both parties, have made the situation worse by enacting mandatory minimum sentences to prove to constituents that they are tough on crime, resulting in the incarceration of millions of Americans, some for relatively minor and first-time offenses. Seeking the just result in a particular case in terms of the human factors involved has become more difficult and less valued.

Under the traditional understanding of prosecutorial discretion, a prosecutor was encouraged to consider whether seeking a criminal conviction, even when the evidence supported it, was the best course of action or instead whether alternatives measures, including forgoing prosecution, were mandated by justice. And the prosecutor had the original burden of ensuring that innocence was protected, taking the affirmative steps to investigate whether a prosecution was supported by more than the bare minimum requirement of probable cause. The ABA Standards of Criminal Justice Relating to the Prosecution Function (Standard 3-3.9(b)) advise that a prosecutor is not obliged to pursue all charges that the evidence might support and may exercise discretion to decline to prosecute based on such factors, inter alia, as “the prosecutor’s reasonable doubt that the accused is in fact guilty,” “the extent of the harm caused by the offense,” and “the disproportion of the authorized punishment in relation to the particular offense or the offender.” How often do we hear about the exercise of such discretion today?

A contemporary practitioner of the traditional form of prosecutorial justice may be found in Craig Watson, the new district attorney in Dallas, Texas, whose election as a reformer demonstrates that the public is receptive to the idea.

In the on-line reason magazine, Rodney Balko writes:

In 2006, Craig Watkins became the first African-American elected district attorney of any county in Texas history. More interestingly, the 40-year-old Watkins was elected in Dallas County, where the DA’s office has long been known for its aggressive prosecution tactics. A former defense attorney, Watkins says the Dallas DA’s office has for too long adopted a damaging “convict at all costs” philosophy, an argument bolstered by a string of wrongful convictions uncovered by the Texas Innocence Project in the months before he was elected. Watkins ran on a reform platform, and pulled out a surprising victory against a more experienced Republican opponent.

You can read more here.

Hat-tip to David Bernstein of the Volokh Conspiracy (here), who concludes that "Watkins certainly seems like a fair-minded breath of fresh air, who takes the biblical injunction "tzedek, tzedek tirdof" (justice, justice thou shalt pursue) seriously." And here's one Catholic who can only say "Amen!"

Greg Sisk

Toward a More Just Law

Gerald Rusello, writing at insidecatholic.com, reviews "Recovering Self-Evident Truths:  Catholic Perspectives on American Law" here.

St. Lawrence was feeling the heat...

Down by nine with two minutes to go, all of Lawrence was feeling the heat, but ...

Rock Chalk Jayhawk!

Is the Vatican tinkering with sin?

In yesterday, April 7th’s The New York Times, Eduardo Porter, the paper’s Editorial Observer, published a brief opinion piece entitled “The Vatican and Globalization: Tinkering with Sin.” [HERE] Out of the starting gate, the author declares that it is “hard to erect rules to last forever.” Well, maybe for members of the human race and The New York Times, but is it “hard” for God? Mr. Porter relies on a remark attributed to an official of the Holy See that globalization and modernity have given rise to sins different from those dating from medieval times; therefore, in Mr. Porter’s view, the world is a changing place in which attention must be given to revamping norms “encoded hundreds of years ago” that guided human behavior in a small-scale agrarian society. Porter cites as evidence pollution of the environment, drug trafficking, genetic manipulation, and causations of social inequity.

I think most would agree that it has only been in recent years that scientists have been able to acknowledge that human genetic manipulation is possible, but we must recall that in the mid-19th century Abbot Gregor Mendel’s hybrid experimentation of plants was taking place. I am not suggesting that Abbot Mendel was engaged in sinful activity, but it is necessary to place Mr. Porter’s allegation in its proper context. But it is necessary to assess whether his assertions about environmental degradation, drug trafficking, and taking actions that promote social inequity are really all that new.

For example, the ancients were quite aware that salting the agricultural earth of an enemy was an effective means of environmental degradation that would have devastating consequences for many years. We are reminded of this when Abimelech razed a city and sowed it with salt, Judges 9:45. This occurrence was about a thousand years before Christ. The idea of environmental degradation is not new. Nor is the trafficking of drugs and other dangerous contraband. Nor is social inequity something since prophets like Amos (8:4-6), Jeremiah (7:5-6; 22:13), Ezekiel (18:7), and Isaiah (1:17; 3:14-15; 10:1-2) preached against it.

A major point of the Porter opinion article seems designed to address the Church’s teachings on sexual mores; hence, he attempts to argue that “new sinful behavior” is “more relevant to many contemporary Catholics than contraception.” He wants his readers to believe that the Church is struggling with the definition of sin in the world of today when he states,

Sin, however, doesn’t take well to tinkering. Many Catholic thinkers reacted strongly against the idea that new sins were needed to complement, or supplement, the classical canon. They accused the press of exaggerating Monsignor Girotti’s [the Holy See’s official quoted by Mr. Porter] words. Their reaction underscored how tough it is for the church to manage a moral code grounded in eternal verities at a time of furious change. The Vatican has long been riven by this tension between dogma and the outside world. Yet it could apply to any religion: it’s hard to rejigger the rules when truth is meant to be fixed forever.

But it is Mr. Porter who is “riven” to the idea that the Church is somehow mired in the past. But is it? I believe that the Church has recognized that throughout human history people have figured out ways of straying off the moral path to God and engineering methods of bringing harm to their neighbor and therefore offending God. He also misunderstands the requirements of the Great Commandment to love God and the neighbor as one’s self when he draws a parallel between discipleship and membership in a club or other social organization by stating that,

The core benefits of religions, unlike other, worldly institutions, often relate to the afterlife. Some social scientists argue, however, that many benefits of church membership are to be had this side of death. The gains are not unlike the advantages of a club of like-minded people. Religions provide rules to live by, solace in times of trouble and a sense of community. Some economic studies suggest that this can promote higher levels of education and income, more marriage and less divorce. Such a club needs strong, believable rules. Like marriage, membership will be more valuable the more committed the other participants are to the common cause. Demanding rules — say celibacy, or avoiding meat during Lent — help enhance the level of commitment.

But he is critical of “strict rules” when he asserts that religions “relax the rules at their own peril”; therefore they have an investment in the status quo. I think Mr. Porter misconstrues the concept of sin and why the Church teaches what it does and why it does when sinful activity is in issue. The Church acknowledges that the exercise of free will has led people throughout the millennia to lead lives that disrespect wise moral norms. While the methods used to commit sin may be new and reflect contemporary human capabilities, sin is not.

Mr. Porter finds it necessary to point out that Catholicism “has lost traction” on these matters because the number of those raised as Catholics in the western world does not correlate with those who now identify themselves as Catholics. Well, Mr. Porter has discovered something about the exercise of free will by humans, but he suggests that the problem is brought on by the tension between weakening versus maintaining “strictures.” But, in fact, it’s not really about “strictures” as it is about people choosing to follow or not the moral norms that have constituted the Church’s teachings for centuries. In this context we might recall the discussion between Abraham and the Angel of God (and God) on the Road to Sodom—God would spare the sinful if even a small fraction of the population were righteous. Mr. Porter is correct in one thing, his final point, that Pope Benedict teaches the truth, the truth of God that has been around for a long time. The need to update sins is not the point, as Mr. Porter would have us believe. Teaching about right and wrong, regardless of the temporal context is—and this is something at which Pope Benedict XVI is skilled. The Vatican is not tinkering with sin. Rather, we humans find new ways of doing old things that we never should do.      RJA sj

Monday, April 7, 2008

Literary viand

Reading again Newman's The Idea of a University, I recently stumbled upon this "editor's note" (in the 1927 Loyola edition edited by Daniel O'Connell): "It is notorious that Prefaces are seldom read.  And they yet they are the heart of a literary viand, the very thesis of the entire book.  This is well illustrated in the present preface." 

Here is an excerpt from the preface of the book thus introduced, words for all of us who care about Catholic legal education to chew on: "The view taken of a University in these Discourses is the following: -- That it is a place of teaching universal knowledge.  This implies that its object is , on the one hand, intellectual, not moral; and, on the other, that it is the diffusion and extension of knowledge rather than the advancement.  If its object were scientific and philosophical discovery, I do not see why a University should have students; if religious training, I do not see how it can be the seat of literature and science.

"Such is a University in its essence, and independently of its relation to the Church.  But, practically speaking, it cannot fulfil its object duly, such as I have described it, without the Church's assistance; or, to use the theological term, the Church is necessary for its integrity.  Not that its main characters are changed by this incorporation: it still has the office of intellectual education; but the Church steadies it in the performance of that office." 

There ensue affirmations that the Pope, in calling for the foundation of Catholic universities, does not fulfil a vow "to be a preacher of the theory of gravitation, or a martyr for electro-magnetism."  The Catholic goal in founding a University, according to Newman, is (at least) to realize the "exercise and growth in certain habits, moral or intellectual."  "[W]hen the Church founds a University, she is not cherising talent, genius, or knowledge, for their own sake, but for the sake of her children, with a view to their spiritual welfare and their religious influence and usefulness, with the object of training them to fill their respective posts in life better, and of making them more intelligent, capable, active members of society."

If Venerable Card. Newman is right about why Catholic universities are founded and sustained as "Catholic" by the Catholic Church (and I suspect that is he is indeed correct), what are the questions that follow about how Catholic law schools, in the United States today, are to be staffed and directed?  How do we make ourselves worthy of the appelation "Catholic" that we readily (and on signs aplenty) apply to our now well-heeled but sometimes meandering or even tradition-loathing institutions?  The defenders of the appelation "Champagne" have a point, albeit less worthy.