Mirror of Justice

Friday, October 12, 2007

Guttmacher Abortion Study in The Lancet

Here's a link to a new Guttmacher-WHO study on worldwide abortion rates in the most recent issue of the Lancet. (And here's the NY Times story on the same.) According to the study (via the NY Times):

abortion rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it. Moreover, the researchers found that abortion was safe in countries where it was legal, but dangerous in countries where it was outlawed and performed clandestinely. ... In Eastern Europe, where contraceptive choices have broadened since the fall of Communism, the study found that abortion rates have decreased by 50 percent, although they are still relatively high compared with those in Western Europe. . . .In Uganda, where abortion is illegal and sex education programs focus only on abstinence, the estimated abortion rate was 54 per 1,000 women in 2003, more than twice the rate in the United States, 21 per 1,000 in that year. The lowest rate, 12 per 1,000, was in Western Europe, with legal abortion and widely available contraception.

I know there are serious problems estimating abortion rates in places where it is illegal, but my interest in the validity of this study is secondary to my interest in how, if true, it would interact with the Church's teachings on abortion's legality.

As I noted in my discussion down at the CST conference at Villanova, the Church normally distinguishes between a practice's morality and its legality, as it does in the case of, say, the just wage. But in the case of abortion, it has by and large skipped over that distinction, asserting that there is no room for prudential disagreement, not only as to abortion's morality, but also as to its legality.

Here's my question. If this study were true, and if it were the case that making abortion illegal would most likely only drive it underground, without having much effect on its actual incidence but making it far more dangerous for women to have an abortion, would that be a reason to rethink the Church's teachings, not on the morality of abortion, but on the tight connection between abortion's (im)morality and its legality? I've tried to get this conversation off the ground a few times at MOJ, but I feel like we often get side-tracked onto the question of abortion's morality or into the empirical question whether studies like this one are actually correct. Those are obviously interesting and important questions as well, but I'm more interested in the conceptual question.

A related, but broader, question goes to whether, as a general matter, Catholic legal theory requires the illegality of certain practices, apart from the likely consequences of attempting to make the practice illegal, both for the actual incidence of the practice and for respect for the law generally. Susan's written about this, as have a few others on the site, so your insights would be very interesting to me.

The "Euthanization" of Pope John Paul II

By Elizabeth Schiltz

Here are some responses to the speculation reported in the recent Time Magazine article, Was John Paul II Euthanized?

Thursday, October 11, 2007

Dellapenna on Wills on abortion

By Patrick McKinley Brennan

I am posting the following on behalf of my Villanova Law colleague Joseph Dellapenna:

On October 3, Michael Perry posted on Mirror of Justice Martin Marty’s brief comment on the new book by Garry Wills entitled, Head and Heart: American Christianities. Marty raises a number of alleged inconsistencies in those who argue that an embryo or fetus is a person, raising arguments of a theological or philosophical nature. Marty also alludes to certain arguments that Wills derived from the historical treatment of abortion. I claim no special expertise regarding theology or philosophy, and I am not even a Catholic, so I will not attempt to address the theological or philosophical points that Marty found in Wills’ book. I have, however, written an exhaustive study of the history of abortion—Dispelling the Myths of Abortion History (Carolina Academic Press 2006)—and therefore feel qualified to raise certain points that derive from that history.

The central historical point in Marty’s comment is that “the subject of abortion is not scriptural, ‘it is not treated in the Ten Commandments, the Sermon on the Mount, or anywhere in the Jewish Scripture, the New Testament or the creeds and ecumenical councils.” He goes on to repeat that Thomas Aquinas followed Aristotle in concluding that a person arose (the soul was infused) when the fetus was fully formed at 40 days (for males) or 80 days (for females) after conception. This is hardly the entire story, to say the least.

It is true that the Bible says nothing about abortion, but then law generally said very little about abortion at the time the Bible was first written down. This was not because people thought abortion was unobjectionable, but because abortion was such a rare practice at the time that few people said much about it at all, in any source. Those who did write about abortion, discussed it in a very abstract way, and often only as an afterthought to a more extended, and more concrete, discussion of some related offense—usually homicide, but sometimes as a crime against the mother. Tertullian, one of the leading Church fathers, for example, insisted that a fetus was a person from the moment of conception. Others, including St. Clement, Origen, and St. Augustine, followed Aristotle and the theory of mediate animation (“animation” in Latin refers to the infusion of a soul). But even these Church fathers condemned abortion before animation as a grave sin, but simply not as homicide. I discuss these points, with full references, in chapter 3 of my book.

Why this neglect of abortion in the ancient sources? The answer, which is mostly forgotten today, is that abortion until fairly well along into the nineteenth century was tantamount to suicide. Women rarely, if ever, underwent a voluntary abortion. We in fact have a significant number of legal cases from as far back as 1200 in England and even earlier in Roman law, in all of which the abortion was forced upon an unwilling woman. This simple fact is reason enough why the Bible and most other legal and religious sources from that time treated as an abstract, a hypothetical idea. I have elaborately documented the evidence for the techniques of abortion in chapter 1 of my book. The real social problem, which was addressed in detail and repeatedly in legal and religious sources, was infanticide—a social problem that only receded in importance with the development of abortion techniques in the late nineteenth and early twentieth century that were safe enough for women wanting to be rid of an unwanted child to be able to choose abortion in preference to infanticide. I describe the evidence for the prevalence of infanticide in chapter 2 of my book.

Our “collective amnesia” about just how dangerous and rare abortion was underlies what I have termed the “new orthodoxy” of abortion history, linked to names like Angus McLaren, Cyril Means and James Mohr. The new orthodoxy holds that abortion was always a common practice and therefore must have been generally accepted before the enactment of the nineteenth century abortion statutes because it was so seldom condemned and was only prosecuted when the abortion was imposed upon a woman rather than sought by her. I discuss the enactment of the nineteenth century abortion statutes in chapters 5 to 9 of my book. Unfortunately, Marty and Wills seems to have bought into the new orthodoxy without seriously examining the relevant evidence. To conclude from the prevalent silence regarding abortion in the early texts that abortion was therefore not condemned when what little discussion there was unanimously condemned it, makes no more sense than would a conclusion that Christianity has nothing to say about negligently driving an automobile because the ancient texts say nothing about how one should drive a car. And, of course, there are innumerable other features of modern life that would be left open to similar arguments.

Robby George on Garry Wills

By Rick Garnett

Responding to the Garry Wills argument, about which several of us have posted, Prof. George sends in this:

Wills looks at sonographic images of the child in the womb and sees . . . something that is admittedly "human life," but clearly not a person[.] The human fetus is like a human hair, he suggests: "human" and "living" but not a person.

[What, however,] about the indisputable scientific fact that unlike a human hair a human fetus is a whole living member of the species homo sapiens? He or she (yes, sex is already determined) is both genetically and functionally distinct from his or her mother (and father); the fetus is not a mere part of a human being (like the hair on a person's head or his hand or liver). As a matter of biological fact, he or she is nothing less than a human being at a certain stage of development. Unless denied or deprived of adequate nutrition and a suitable environment (things that any of us need at any developmental stage) he or she will by directing his or her own integral organic functioning develop from the fetal into and through the infant, child, and adolescent stages of a human life and into adulthood (unless killed by violence, accident, or disease).

When Wills looks at those sonographic images, he sees movement but not agency. From this he rushes to draw the inference: "It's not a person!" But somebody else got to that inference first. That somebody is Peter Singer, who (unlike Wills) is prepared to mention its implications. If agency is what makes a human being or other creature a person, then human infants aren't persons any more than human fetuses are. They may legitimately be killed because they are unwanted, or because the parents would like to dismantle them to procure transplantable vital organs. And, of course, severely retarded individuals are not persons any more than fetuses or infants are; nor are people suffering from dementias. These "human non-persons" are all fair game for the euthanasiasts and those who are prepared to treat them as subpersonal collections of harvestable organs.

Sex in a Secular Age

By Rob Vischer

I haven't read Charles Taylor's new book yet, but the excerpt in Commonweal is certainly a lively read. Here is a passage that connects directly with our ongoing discussions about the content of (and, relatedly, the increasingly "invincible ignorance" of) the natural law:

The sexual revolution, then, was moved by a complex of moral ideas in which discovering one’s authentic identity and demanding that it be recognized was connected to the goal of equality, the rehabilitation of the body and sensuality, and the overcoming of the divisions between mind and body, reason and feeling. We cannot treat it simply as an outbreak of hedonism.

Of course, the fact that the sexual revolution was motivated by a single interconnected ideal did nothing to guarantee that the ideal would be realized. The hard discontinuities and dilemmas that beset human sexual life, and that most ethics tend to ignore or downplay, had to assert themselves: the impossibility of integrating the Dionysian into a continuing way of life, the difficulty of containing the sensual within a continuing intimate relation, the impossibility of escaping gender roles altogether, and the great obstacles to redefining them, at least in the short run. Not to mention that the celebration of sexual release could generate new ways in which men could objectify and exploit women. A lot of people discovered the hard way that there were dangers as well as liberation in throwing over the codes of their parents.

Still, we have to recognize that the moral landscape has changed. People who have been through the upheaval have to find forms that allow for long-term loving relations between equal partners who will in many cases also want to become parents and bring up their children in love and security. But these can’t be simply identical to the codes of the past, insofar as they were connected with the denigration of sexuality, horror at the Dionysian, fixed gender roles, or a refusal to discuss identity issues. It is a tragedy that the codes that churches want to urge on people still (at least seem to) suffer from one or more-and sometimes all-of these defects.

The inability is made the more irremediable by the unfortunate fusion of Christian sexual ethics with certain models of the “natural,” even in the medical sense. This not only makes them hard to redefine; it also hides from view how contingent and questionable this fusion is, how little it can be justified as intrinsically and essentially Christian. The power of this fused vision to put people off is at its greatest in our age of authenticity, with a widespread popular culture in which individual self-realization and sexual fulfillment are interwoven.

When a Catholic philosopher with the intellectual firepower of Charles Taylor sees natural law claims as masking contigencies, can we really expect philosophy to lead to a rationally compelling articulation of the natural law?

More on Wills on Abortion

By Rob Vischer

Rick already responded to some of the claims about pro-lifers made by Garry Wills; reader John Heitkamp also recommends this article from the Pro-Life Activist's Encyclopedia outlining the Church's history on abortion.

UPDATE: Jonathan Watson reminds me of the indispensable new book on the subject, Joseph Dellapenna's The Myth of Abortion HIstory.

The Future of Catholic Higher Education?

By Michael Perry

Can a Catholic College Exist Today?
Challenges to Religious Identity in the Midst of Pluralism

FRANCESCO C. CESAREO

To read this article, click here.

Wednesday, October 10, 2007

Perry to Slattery

By Michael Perry

Uhm ... I see. Thanks.

Slattery to Perry

By Susan Stabile

Ken Slattery sent the following reply to Michael Perry's reaction to his comments regarding natural law:

"Respectfully to M. Perry -- If you agree that the natural law is the rule for all human conduct, then contraceptive intercourse is wrong. Why? Sex is for love and the child, just as eating and drinking are for the preservation of life. If one acts in such a manner as to negate the biological purpose of these functions, he is acting contrary to his nature. Similarly, if sexual activity positively frustrates the biological purpose of the act, then such activity is wrong. Invincible ignorance erases culpability, but contraception is objectively contrary to the natural law and, consequently, a 'no, no.' By the way, I'm not so sure that I'm a 'good man,'....but I'm trying."

St. Thomas President Reverses and Invites Tutu

By Thomas Berg

From the University of St. Thomas Bulletin. It is a difficult thing to change one's mind publicly, and I commend Fr. Dease for his courage in doing so.

UST president says he made wrong decision, invites Tutu to campus

Father Dennis Dease, president of the University of St. Thomas, has asked that the letter below be sent to St. Thomas students, faculty and staff:

Dear members of the St. Thomas community,

One of the strengths of a university is the opportunity that it provides to speak freely and to be open to other points of view on a wide variety of issues. And, I might add, to change our minds.

Therefore, I feel both humbled and proud to extend an invitation to Archbishop Desmond Tutu to speak at the University of St. Thomas.

I have wrestled with what is the right thing to do in this situation, and I have concluded that I made the wrong decision earlier this year not to invite the archbishop. Although well-intentioned, I did not have all of the facts and points of view, but now I do.

PeaceJam International may well choose to keep the alternative arrangements that it has made for its April 2008 conference, but I want the organization and Archbishop Tutu to know that we would be honored to hold the conference at St. Thomas.

In any event, St. Thomas will extend an invitation to Archbishop Tutu to participate in a forum to foster constructive dialogue on the issues that have been raised. I hope he accepts my invitation. The Jewish Community Relations Council of Minnesota and the Dakotas has agreed to serve as a co-sponsor of the forum, and I expect other organizations also to join as co-sponsors.

Details about issues to be addressed will be determined later, but I would look forward to a candid discussion about how a civil and democratic society can pursue reasoned debate on the Israeli-Palestinian conflict and other emotionally charged issues.

I also want to encourage a thoughtful examination of St. Thomas’ policies regarding controversial speech and controversial speakers. In the past, we have been criticized externally and internally when we have invited controversial speakers to campus – as well as when we have not. Rather than just move from controversy to controversy, might there be a positive role that this university could play in fostering thoughtful conversation around difficult and highly charged issues? We also might explore how to more clearly express in our policies and practices our commitment to civility when discussing such issues.

I have asked Dr. Nancy Zingale, professor of political science and my former executive adviser, to oversee the planning for the forum. If you have suggestions regarding either the topic or other participants, please contact her at [email protected].

I sincerely hope Archbishop Tutu will accept our invitation. I continue to have nothing but the utmost respect for his witness of faith, for his humanitarian accomplishments and especially for his leadership in helping to end apartheid in South Africa.

Sincerely,

Father Dennis Dease

President