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.

Friday, November 17, 2006

Justifying Infanticide

CNN is promoting an upcoming Sanjay Gupta special on "Happiness and Your Health" with a teaser article that made me think of the Wesley Smith column about growing support for euthanizing disabled newborns that Rob brought to our attention recently.

Smith discussed, among other things, NYT columnist Jim Holt's suggestion that " the decision to kill ill or disabled babies should be governed by “a new moral duty,” namely, “the duty prevent suffering, especially futile suffering.”  Holt writes:  "To keep alive an infant whose short life expectancy will be dominated by pain — pain that it can neither bear nor comprehend — is, it might be argued, to do that infant a continuous injury."

I think that experience with abortion decisions based on prenatal diagnosese of disabilities clearly shows that Smith is right in observing that "The concept of suffering is not limited to pain, but must also take account of “quality of life,” as more liberal advocates of infanticide would surely point out."  Which brings me to the CNN article on happiness.  Although it's light and frothy, it references some serious research that's been done on how people actually living with disabilities are just about as happy as the general population.   Why are these kinds of findings persistently ignored by people trying to justify euthanasia or abortions based on disabilities?

Lisa

Christian Democracy

I'm a big fan of Touchstone magazine (although I wish they would put more of the magazine's content online!).  The latest issue -- see if you can find it, or just subscribe! -- has an essay that will be of interest to all those who all those intrigued by the "seamless garment party" idea that gets kicked around on this blog sometimes.  In "The Long Culture War:  The Christian Democratic Response to Modernity and Materialism," Allan Carlson presents and analyzes the rise and history of Christian Democratic parties in Europe.  (Nutshell -- Christian Democratic politics were a response to the French Revolution and the Kulturkampf, and aspired to be a distinctly Christian response to modernity.)  Christian Democracy, he describes, opposed "economic materialism", "stood for organic society", embraced "the spontaneous structures of human life" and sought to protect them from "the leveling tendencies of modernity", viewed the family "as the vehicle for the regeneration of all society", and so on.

Carlson notes "there has never been a serious Christian Democratic party in America," in part -- interestingly -- because of our "more complex, or perhaps more confused, relationship with the legacy of the French Revolution."

There's a lot more.  If you can find the article, check it out.

Porter on Due Process

Notre Dame's Jean Porter has a good essay, "Protecting Individual Rights:  A Deeply Catholic Tradition (really)", in Commonweal.  Although I would probably quibble with some of her claims about nature and scope of the "Executive Power" which our Constitution vests in the President, the piece offers some very timely theological reflections on "due process" and its Christian pedigree.

I'm reminded, by the way, of an excellent conference, just held at St. Thomas, "The Relevance of Faith Traditions to Jurisprudence."  One of the presentations was by Judge Diamuid O'Scannlain, "Must a Faithful Judge Be A Faithless Judge," who discussed the very important, and -- as the debates surrounding recent judicial nominations revealed -- misunderstood, question whether a judge who takes her faith seriously, and integrates it into her vocation, will for that reason be a judge who subordinates the commands of the positive law to her understanding of morality and Church teaching.  As the Judge explained, there are very good, Catholic reasons for insisting, not that "morality is not relevant to civil law" but that "it is moral for judges to uphold the rule of law by not judging willfully."

Thursday, November 16, 2006

Question about the Bishop's statement on communion

The Bishop's statement is at http://www.usccb.org/dpp/Eucharist.pdf. I am confused by it. If a person persistently refuses to accept the Bishop's position on birth control (even without engaging in birth control), are the Bishops saying that the person should not receive communion? The statement refers to "issues" that are not accepted. Is one issue enough? E.g., abortion. If not, would a failure to agree on birth control plus homosexuality mean that a person should abstain from communion? Suppose the person accepts the position on abortion, but believes in an exception for rape? The statement, to me, reads as setting quite high standards of belief and acceptance. Am I wrong? How significant is the footnote on Canon Law?

Life as the Basis for Damages

A German court has ordered a gynecologist to pay child support for up to 18 years as compensation for botching a contraceptive implant.

Rob

Teaching by Doing

I'm just starting through Noonan's book, A Church That Can and Cannot Change (2005).  So far, so good.  Early on, I came across a very interesting paragraph that I thought I'd throw out for discussion (and with a request for suggestions of further reading on this topic).  Noonan stakes out the position that we ought to be able to discern authoritative doctrine from the conduct of popes and "spiritual persons," and not just from the hierarchy's self-consciously authoritative teachings.  He says:

If we may distinguish these four large categories -- bad deeds, undefended; controversial deeds, sometimes criticized, sometimes vindicated; unchallenged practice, publicly engaged in by the popes; and conduct by spiritual persons that is unambiguously good -- we may conclude that at least the third and the fourth types of activity have a pedagogic function.  They need to be taken account of in the development of moral doctrine.

Any thoughts on this?  Any other discussions of the propriety (or impermissibility) of discerning authoritative teachings from the public (and uncontested) behavior of popes?

Disabled Child = Disabled Family?

Wesley Smith notes the increasing respectability of the voices calling for the legalization of euthanasia for ill and disabled newborns.

Rob

More on Catholic Identity

I would like to thank Rob for posting the link to the Boston Globe article on Catholic identity. While the linked article focuses on Boston College, the issues that it addresses apply to many other educational institutions, some mentioned in the linked report, that rely on the modifier “Catholic.” One would think that an institution which relies on this characteristic and distinctiveness would be able to attract students, faculty, administrators, and staff to replenish and fortify the soul of its self-characterization. But other forces compete with the Catholic institution’s identity. One of them is the compelling drive to “be like” some other institution that seems to have more fame, more success, or, simply, more money. As with other envies, this is not necessarily a good objective to pursue. In the present age, many others have lamented on the problems which face higher education and, for that matter, all education today. One of the problems is the fragmentation of education and the drive for specialized studies that make no effort to connect what is studied with the search for wisdom and, quite possibly, even the pursuit of truth. In this regard, the existence of truth is denied by many, and this is manifested in the relativism that faces the world of higher education of the present generation. Still another problem that often must be met is the environment of secularization in which higher education often finds itself. The destiny of each member of the human race becomes immaterial to the labor of student and scholar because there is no final objective of the human person, there is no concern about the afterlife because it has been declared by some that there is none. God has died or, at least, become irrelevant.

I have been reading Christopher Dawson’s book The Crisis of Western Education. Last evening I came across his reference to the nineteenth century efforts of Joseph Chamberlain whose liberal inclination enabled him, Chamberlain, to declare that the objective of his educational cause “in England, throughout the continent of Europe and in America has been to wrest the education of the young out of the hands of the priests, to whatever denomination they might belong.” It would seem that Boston College and other institutions that still rely on the moniker “Catholic” have come to realize that there is something to Chamberlain’s goal that poses not only a problem but a threat to the vitality of a school’s identification and soul. If the efforts of Chamberlain’s disciples have succeeded at Boston College and other institutions, will the endeavors of Catholic renewal mentioned in the Globe article be successful in their campaign?

As one priest who has been confronted by the followers of Chamberlain but who is still involved in the education of the young, and not-so-young, I watch from afar with great interest in this enterprise of renewal. The measure of its success will depend  not only on human effort but on hope and trust in God as well.   RJA sj

Wednesday, November 15, 2006

U.S. Bishops' Statement on Communion

As other posts have mentioned, the U.S. Catholic bishops have been meeting this week and issuing statements on a variety of issues. Among these is a statement, which comes after much debate and study over the past two years (and prior discussions on the Mirror of Justice as well), on receiving communion by those who reject fundamental Church teachings, such as on the sanctity of life.

The Catholic New Services reports that the bishops on Tuesday voted 201-24 with two abstentions to approve a document that says that a Catholic who "knowingly and obstinately" rejects "the defined doctrines of the church" or repudiates the church's "definitive teaching on moral issues" would not be in communion with the church and therefore should not receive the Eucharist. The document also criticizes those who "give selective assent to the teachings of the church." Moreover, the document states, if a person who "is publicly known to have committed serious sin or to have rejected definitive church teaching and is not yet reconciled with the church" were to take Communion, it "is likely to cause scandal for others," which provides a "further reason" for the person to refrain. However, in a footnote, the bishops said this document was not intended "to provide specific guidelines" to the provision in canon law that says that Catholics "obstinately persevering in manifest grave sin" should not be allowed to receive Communion.

For my own take on this question, as a matter of canon law and pastoral counseling, see Abortion, Bishops, Eucharist, and Politicians: A Question of Communion (with Charles J. Reid, Jr.), 43 Catholic Lawyer 255 (2004) (link here).

Most importantly, this document reminds all of the Catholic faithful about the sacred meaning, personally and communally, of approaching the altar. Each of us need once again to undertake, as we did at the time of our Confirmation, that rigorous examination of our own consciences toward the end of being drawn ever more deeply into full communion with the Church through Reconciliation as appropriate and then our due reception of the Body and Blood of Christ at the Lord’s Supper. God knows how poignant this reminder should be for me.

Greg Sisk

News from Ireland

MOJ-friend and Trinity College Dublin law prof Gerry Whyte sends this our way:

The Irish Times
November 15, 2006

Court says frozen embryos 'not unborn'

Luke Cassidy

A woman has lost a High Court battle to have frozen embyos implanted in her womb against the will of her estranged husband.

The woman claimed the embryos, created using in vitro fertilisation technology, should have been afforded the protection given to the unborn under the Constitution.

However, the High Court decided today that the three frozen embryos are not "unborn" as defined under the Constitution and it is a matter for the Oireachtas to decide on their legal status. Article 40.3.3 of the Constitution states acknowledges the right to life of the unborn "with due regard to the equal right to life of the mother".

But in a 26-page High Court ruling delivered this morning Mr Justice Brian McGovern said that three frozen embryos are "not 'unborn' with the meaning of Article 40.3.3 and it is a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro".

"Laws should, and generally do, reflect society's values and will be influenced by them. But, at the end of the day, it is the duty of the courts to implement and apply the law, not morality," the judge said.

"Until the law or the Constitution is changed, this issue remains within the sphere of ethics and morality."

The ruling comes as an estranged Dublin couple battle over the use of three frozen embryos stored in the Sims Fertility Clinic, Rathgar.

The High Court has already ruled the estranged husband did not give his consent for the eggs to be used in the event of their marriage breaking up.

Today's ruling is the second stage of the case, with the judge asked to consider public and constitutional law issues.

Archbishop of Dublin Diarmuid Martin has said he is seriously concerned by today's High Court ruling against a woman who tried to have frozen embyos implanted in her womb against the will of her estranged husband.

The Archbishop said the court's ruling that the three frozen embryos are not "unborn" as defined under the Constitution "cast doubt on what rules were in place to protect life".

The Pro-Life Campaign said it was "confident the Supreme Court will vindicate the rights of the human embryo if the judgement is appealed."

The Labour Party welcomed the clarity that the High Court decision on the frozen embryo case has brought, although it insists that the Government must now produce legislation for assisted reproduction clinics.