As I've written elsewhere, I'm skeptical about whether a pharmacist should be legally empowered to invoke a right of conscience against her employer. I fear that such a right might short-circuit the possibility of a moral marketplace and the potential for pharmacies to operate as a sort of mediating structure. The marketplace approach has plenty of critics, of course, and I welcome the challenges they present, though I'm given pause by the fact that the critics now apparently include Pope Benedict.
Both Susan and Eduardo have raised an interesting and important issue involving the questions surrounding the Guttmacher-WHO study and its bearing on the law and law-making. I am grateful to them for their calling attention to this subject. Before I get into the substance of this posting, I think it important to remember that the Guttmacher Institute was founded by Alan F. Guttmacher, a former president of the Planned Parenthood Federation of American and a leader in the International Planned Parenthood Federation. He subsequently founded the Institute named after him in 1968 to provide research, policy analysis and education in the areas of “reproductive health, reproductive rights and population.” The Institute, PPF and the IPPF all have horses in the legal races involving “reproductive health, reproductive rights and population.” It is conceivable, so to speak, that the Institute would have more than a passing interest in laws dealing with abortion and related matters in the US and abroad.
Now, let me come to Susan’s point, and I believe that made earlier by Eduardo, about law-making that would criminalize abortion “but not reduce the incidence of abortion, but only make abortions more dangerous”; for them, this raises the “connection between views on morality and views on legality.” Both Susan and Eduardo have properly put their queries in the context of Catholic legal theory.
Here is the approach of one Catholic legal theorist (if I may call myself such):
Let us first begin by considering the duties of the law-maker (for us in the US, this means state legislatures, Congress, judges, and administrative agencies) that relate to abortion. The law-maker can make a law that criminalizes abortion, legalizes abortion, or regulates abortion. The law-maker may say nothing about morality in positing the law (statute, judicial decision, or regulation) made on the subject.
Moreover, the law-maker may be urged to conclude by the lobbyist or the litigant that the law made must be divorced from moral considerations. This argument has run a thread throughout jurisprudential debate for some time. Two examples would be the Hart-Fuller debates and the disagreements between the Kelsen school and the Rommen/Voeglin schools. Yet, when all is said and done, there frequently are discussions about morality and its nexus with the law and law-making when debates about tax laws, labor laws, education laws, environmental laws, and criminal laws (just to mention a few) occur. The Guttmacher Institute mentions, by the way, on its website that it executes its mission, in part, by “testifying before federal and state legislative bodies and in court cases.” Well, this is participating in the law-making process, and we can readily see what their aspirations are for law-making outcomes regarding abortion and where moral considerations don’t fit into the process.
And what about Catholic legal theory? There is nothing wrong or unusual with introducing moral considerations into debates that occur when law is being made. But, for the Catholic legal theorist I think this would be not only expected but would be compulsory. Moreover, I am confident that Catholic legal theory would have much to offer the law-maker who is positing law addressing the legality or regulation of abortion. And what might this be?
The moral considerations underpinning Catholic legal theory would enable the law-maker to consider more or all rather than some of the issues that must inevitably intersect abortion laws. Today so much of the law in this country pertaining to abortion permits abortion—with few restrictions—and bases the justification on Constitutional requirement (which I submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the argument from equality. The focus of abortion law seems to be on the welfare of the mother only. This becomes patent when judges, state and Federal, scrutinize legislation and regulation looking for the “essential” health exception clause to protect the mother only.
Catholic legal theory, in contrast, begins to look at other welfares, too. The mother’s health and welfare are surely important; but so is the health and welfare of the child whose life will be snuffed out should the abortion proceed. But it is also vital to recognize that the mother has other issues that are often ignored or dismissed as long as she can be allowed to terminate her pregnancy. What might these issues be? Well, informed consent is a place to start. Does she really know what is about to happen? Does she really understand what is inside her womb? Would she want to have an abortion if she could see her child? (Ultrasound imaging would provide her with this critical information.) Has she been provided with education about effective parenting skills? Is pre and post-natal care available for her and her child to ensure good health for both? Catholic legal theory would also provide for the welfare of the father? Where is he? Should provision not also be made for encouraging his responsibility for the life he helped promote by developing among other things his parenting skills? It seems that the law-maker is not restrained from including these provisions relating to these matters as well. Cannot the law-maker provide for orphanages, foster care, and adoption services for children whose birth parents will not or cannot properly care for the raising of the child?
Indeed, the law-maker can provide for all these things and more.
But the critic may well argue that the additional elements will cost money. The Catholic legal theorist can respond by reminding the critic that laws addressing defense, environment safeguards, historical preservation, criminal justice, wildlife protection, etc. (all of which have moral considerations) also cost money. But in spite of their cost, laws are made to advance these interests and protections. Why can the law not do the same to preserve young human life and the lives of those responsible for its conception? This is the response of one Catholic legal theorist.RJA sj
MOJ reader, Josiah Neele, e-mailed me in response to my post about Eduardo's questions to express the view that Eduardo's hypotherical questions lack practical relevance because, "[c]ontrary to the Guttmacher-WHO study, legalizing abortion does increase the number of abortions performed." He writes:
"Granted, working through the implications of a hypothetical situation can be useful even if you konw the situation does not obtain. But not always. Justinian, apparently, thought that homosexuality caused earthquakes. No doubt if homosexuality did cause earthquakes, this would have some serious public policy implications. But is it really worth taking the time and effort to figure out what those implications might be? I think not. the same goes, I think, for Prof. Penalaver's questions."
Implicit in my prior post is the conviction that addressing Eduardo's "if" question is a worthwhile expenditure of time given the centrality of the question of the relationship between morality and law to our collective effort to articulate a Catholic legal theory. But Josiah's e-mail prompts me to wonder whether others view the question as a hypothetical not worth pursuing in the absence of more clarity regarding what the data shows.
The Council of Science Editors organized a "Global theme Issue on Poverty and Human Development" in order to encourage research on the subject and to disseminate that research to the widest possible audience. Science journals were invited to simultaneously publish articles on poverty and human development on October 22, 2007. The result was 750 articles published in 235 science journals from 37 countires on a broad range of topics relating to the impact of poverty on health, the challenges of porviding adequate medical care to the poor, and the ability of various health initiatives to reduce poverty. MOJ readers engaged in analyses of poverty and health will want to check out the Council's website (here), which describes the project and contains a partial list of the articles published. The Council has urged the journals to make the global theme published articles available to the public for free; some can be accessed online from the Council's website.
A couple of weeks ago, Eduardo raised some questions prompted by the Guttmacher-WHO study on abortion. He asked whether if making abortion illegal would not reduce the incidence of abortion, but only make abortions more dangerous, would that give cause to rethink, not the morality of abortion, but the connection between views on morality and views on legality. More broadly, he asked whether Catholic legal theory requires a particular legal conclusion regarding the morality of certain abortion practices, divorced from a consideration of the effects of whatever action it is concluded must be taken.
I don't know if Eduardo has received any private responses to his inquiries, but I have been disappointed not to see anyone publicly (at least here) take a stab at these questions, which I think are important and difficult ones. The question of the (im)morality of abortion is an easy one. But the question the law ought to do in the face of that immorality raises a host of prudential considerations. I think if we are going to advance the debate on abortion in a meaningful way, we need to give greater consideration to questions such as those raised by Eduardo.
The developing friendship and dialogue between Catholics and Protestants was everywhere present.The panel I chaired included a paper by Paul Martens (a philosopher and a Protestant) entitled “Friendship, Preference, and Protestant Paranoia:Or Why is Agape Insufficient.”This paper was placed on dialogue with a paper presented by Cynthia Nielsen entitled “A Glimpse at Christocentric Friendship in the Heartbeat of Hans Urs von Balthasar,” allowing for a working through of some of the differences between a Lutheran and Catholic view of love and friendship, universals and particulars.These differences were brought into bold relief by Shawn Floyd in a paper in which he explored the difference between God’s love for all and his preferential friendship for some who in a sense merit friendship by their response to His grace.It is a testament to the conference organizers that this panel (as well as so many others) worked so well together.
The “law” contribution came from a Scaperlanda but not me.Chris Scaperlanda, a 2L at the
Univ.
of
Texas
(yes, I am the proud papa), presented a paper entitled “Law and Friendship:Toward Virtue and the Common Good.”His friend, Yale Divinity Master’s student, Andrew Litschi, was on the same panel with his paper:“The Privatization of Friendship within Modern America.”Both did an excellent job, and if I get their paper abstracts, I’ll post them later.
There were many great papers, and I will just mention one more before turning my attention to the keynote speakers.Patricia Murphy, St. Augustine Seminary of
Toronto
gave a very thoughtful and thought provoking talk on Acedia or sloth.In today’s world, the vice of sloth is often thought of as laziness (a sort of resting).We value “doing” over resting.Murphy argues that things were very different for Aquinas.Resting in God’s friendship was highly valued and the vice of acedia was a sort of restlessness or flight from His friendship.
The two keynote speakers were Robert Putnam and Paul Griffiths.I arrived too late on Thursday to hear Putnam, author of “Bowling Alone” give his lecture on “Faith and Friendship:Initial Findings from a New National Survey.”Those who were in attendance, considered it excellent and thought provoking.
Paul Griffith’s well received lecture was entitled “Befriending the Religious Other:Why Love is Easier than Friendship.”Although often difficult in practice, Jesus’ command to love is universal, extending to all human beings.Friendship is different.We are not called to be friends with every human being on the planet.Time, language, and geography, to name just three obstacles, limit our capacity for friendship.And, while differences can enhance, sharpen, and give life to friendship, extreme differences between individuals can serve as obstacles to friendship.For the Christian, any person who does not share the view that Jesus is the pivotal figure in history and that Jesus’ birth, life, death, and resurrection was the pivotal moment in history is a religious “other.”From the Christian perspective, Griffiths suggested that the religious “other” could be subdivided into Jews, Muslims, what he calls pious pagans (Hindus, Buddhists and, others), and secular pagans (those who don’t ask and seem disinterested in ultimate questions).
Griffiths
described some of the obstacles to befriending the religious “other,” suggesting that the commonalities in the three monotheistic religions make it easier for the Christian to overcome the obstacles to friendship with our Jewish and Muslim brothers and sisters.The greatest obstacles, he suggests, are situated between the Christian (and other religious persons) and the non-religious person –the secular pagan- because the worldview of (and even the questions asked by) each are so fundamentally and at the core different.There was much more to this provocative paper, and if I get an abstract, I will post it so that Paul can put it in his own words.
This interesting article, which appeared in yesterday's New York Times Sunday Magazine, is getting a lot of play. Some MOJ-readers may be interested.
MAGAZINE
The Evangelical Crackup
By DAVID D. KIRKPATRICK
After the 2004 election, evangelical Christians
looked like one of the most powerful and cohesive voting blocs in
America. Three years later their leadership is split along generational
and theological lines. How did it all come apart?
"When Religion and Law Meet: The
Point of Convergence" was the topic of the twenty-fifth anniversary "look-ahead"
conference at the Center for the Study of Law and Religion at Emory University
in Atlanta this past weekend. I had participated in a three-year
project there, one of many undertaken and executed at the Center under the
direction of Professors John Witte and Frank Alexander. Rather
than detail the conference papers from which I learned while preparing the final
lecture, I will here focus on what the "convergence" has come to
mean.
Quite a few of those scholars who
had been "present at the creation" returned, to speak of the changes that had
occurred during these twenty-five years. The older-timers
remembered that when the Center was first launched under the inspiration of the
grand guru of the subject, the very senior Hal Berman, the idea of trying to get
professionals in "law" and "religion" to converse and work together was treated
mainly with neglect or suspicion. Long traditions of collaboration
between the two disciplines were forgotten.
Leaders in the spheres of "Law" and
"Religion," like "Medicine" and "Religion," had drifted apart, lost touch with
each other, or treated many of each others' concerns and projects with
indifference or disdain. Why? Such a distancing
seems absurd, given the long history of the common interests and
responsibilities of the "religion" and the "law" people. Leaders
of both act upon millions of people, and citizenries here and abroad are
constantly dealing with both spheres.
Many fault the Enlightenment—the
eighteenth century movement which few in law or religion should despise, given
its (mixed) blessings and gifts—as well as anti-intellectual versions of
nineteenth century religion. The separation paralleled those
which, for good or bad reasons, divorced religion from the academy, the clinic,
the market. The terrors of "law" and "religion" gone wrong led to
mutual mistrust, stereotyping and caricaturing.
But new generations of scholars,
represented by the speakers at Emory, now look ahead to better futures.
And the pioneering Center at Emory is finding ever more company at
other universities and law-and-religion centers, many of which have similarly
impressive records, though they are still too easily overlooked by those who
deal with law and religion without looking at the philosophical or theological
roots and goals of both.
Those gathered at Emory are not
united by ideology so much as by vocation and interest. It was
not a gathering of those who wanted to bash "Islamo-fascists" or to minimize
legal challenges of Muslims who live under shari'ah law, or who wanted to attack
Christian Legal Societies or to defend them. The participants were
constructive, modeling what they hope will be done elsewhere. The
Center's scholars and conferees have published scores of volumes whose contents
enhance and advance the conversations and convergences. As a
late-comer to these encounters, I have catching up to do, but the sightings of
these recent years encourage me to encourage Sightings readers to become
acquainted with these excitements and urgencies.
I begin by sincerely thanking Susan for her responsive critique to my posting, “What Does It Mean?” that briefly replied to Rick’s post-AALS hiring conference reflection. Rick posed a vital question dealing with hiring faculty for law schools that claim to be Catholic.
My short response was intended to address a vital issue that is implicit in Rick’s question and deals with addressing questions raised by faculty candidates who are interested in the Catholic identity and mission of the school.
In my earlier post, I introduced the relevance of the Creed. Perhaps I am wrong about the underlying intent of her posting, but I think Susan concluded that I was proposing that the Creed is an important matter to be raised and discussed with to potential faculty recruits at screening interviews. That was not my intent.
Rather, it was and remains my intention about the Creed to elevate in our own consciousness a vital issue: whether the Catholic faculty who comprise an important, but not the only component of the faculty at a “Catholic law school” and who have a significant role in replenishing the faculty have a strong sense of their own identity so they can then address and answer the questions asked by candidates as identified by Rick.
If faculty recruiters do not have an understanding of who they are as Catholic academics, how can they explain the school’s Catholic identity and mission to recruits who ask about the Catholic soul of the institution that is interviewing and possibly recruiting them? If self-knowledge is weak, how can such questions be answered convincingly?
Susan surmises that “most Catholics (including a lot of Catholic academics) don’t spend a lot of time reflecting on what they are affirming when the recite the Creed at Mass every week.” I think they should, particularly when inquiring minds at recruitment conferences ask for an explanation about Catholic identity—when they call “us” on the “the ‘Catholic mission’ thing,” as Rick indicates. I think there are also some student applicants who also make similar inquiries but are greeted with generalizations that talk a lot about public service and corporal works of mercy (both of which are important) but very little about faith and reason and fidelity to Christ, God, and the Church (which are vital to identity).
I am further grateful to Susan for mentioning the book by Fr. Michael Himes, which she has found helpful in affirming faith. I take this occasion to recommend another book that examines the Apostles’ Creed (which offers insight into the Nicene Creed—the profession of faith recited at every Sunday Mass) authored by a young German theology professor back in 1968. The book is entitled “Introduction to Christianity.” The author has left the conventional university academic environment but still teaches on a frequent basis.RJA sj
I have looked at Fr. Araujo's post several times, trying to determine how far it advances us in the inquiry of conveying what it means to be a Catholic law school. He suggests we need to take stock of the Creed, our profession of faith, when talking with faculty candidates who wish to teach at a Catholic school.
I'm going to guess that most Catholics (including a lot of Catholic academics) don't spend a lot of time reflecting on what they are affirming when they recite the Creed at Mass every week. How many people, for example, examine seriously what it means when they affirm a belief in God the Father, the maker of heaven and earth? (By the way, Michael Himes, in the chapter on Baptism in a slim volume called The Mystery of Faith does, I think, a beautiful job of discussing the implication of this affirmation.)
Second, even among Catholics who spend time reflecting on the meaning of the different elements of the Creed, I suspect there will be some variance in the understanding of what those elements mean, not only in terms of their own beliefs, but in term of the life of a law school.
If I am right about that, then what is the conversation that is to occur during the hiring process? How does the Creed help us to identify to others, in a more meaningful way than the ways Rick suggests don't quite satisfy, who we are as a Catholic law school?
