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, November 6, 2006

another comment on ectopic pregnancy

I very much appreciate the further comments of Karen Stohr and Rob and Julian Velasco. The problem I have with Grisez, Finnis, and Boyle's argument is that it seems too abstract. It seems a much too facile way of just "redescribing" the actions of the doctor. It doesn't focus adequately on the physical act that is being undertaken. So, they justify craniotomy as not involving intentional killing because the surgeon "intends" to save the mother's life and is just rearranging the skull of the fetus. That seems euphemistic. Under this approach to thinking about intention, in the ectopic pregnancy example (and maybe this would apply to justify an abortion too) the doctor doesn't intend to "kill" the embryo he is just "removing" the embryo. I think that is some cases (as Chris Kaczor has pointed out), this "removal" can result in the successful implantation of the embryo and if that is true then the death of the embryo is not essential to accomplish the doctor's goals. Bill May cites a doctor who says that this removal-with-possibility-of-implantation is not the way this procedure is usually employed. I'd agree that the physical description isn't alone decisive, and that it is not decisive that the doctor acts on the embryo. May does distinguish salpingectomy by stating that it is a procedure performed on the body of the mother and not the child and that a salpingostomy is performed on the child's body, securing its death in the very act of removing it. May seems to have in mind something that Kevin Flannery has discussed in trying to distinguish intention/foresight--that we ought to look at the norms of medical practice. As Flannery states in discussing the hysterectomy example, it is to benefit the mother's health that the gravid cancerous uterus is removed. The craniotomy does no good to the patient upon whom the doctor acts although the purpose is good (to save the mother's life).

I am not sure this adequately responds to Karen's arguments, and my colleague Ed Lyons tells me that my account presented here doesn't do the job. I thought I'd post these reflections in order to stimulate some further discussion. I think this excahnge has helped me to clarify my thinking, even if that might not be apparent to anyone else.

Thanks again.

Richard M.

"The Return of the Anti-Abortion Democrat"

Amy Sullivan has this piece, "The Return of the Anti-Abortion Democrat," in the Nov. 13 issue of The New Republic.  Much of the piece focuses on Bill Ritter, a Catholic, who is running for governor in Colorado.

For a different view, see this recent op-ed, which ran in a Colorado paper, called "Getting off the Ritter Bandwagon."  The author notes that his enthusiasm at the prospect of a pro-life Democrat was diminished once Ritter made it clear -- as he has -- that he does not support legislative restrictions on abortion.  Indeed, as Sullivan notes:

[Ritter] would have no agenda to change the current law regarding abortion as governor. He would overturn an executive order issued by Republican Governor Bill Owens disqualifying women's health clinics from getting state funding for teen pregnancy prevention programs if they also provided abortions.  And he would sign legislation allowing emergency contraception, a bill that Owens had vetoed.

I know we've discussed this matter many times here on MOJ, and I know that many of my colleagues disagree, but it simply is not clear to me why a candidate should be regarded as "pro-life" just because he / she is not only (a) "personally opposed" to abortion but also (b) supports social-welfare policies that, he or she hopes, will reduce the number of abortions, if (c) he or she is not willing to de-fund and regulate the practice, (d) he or she supports a constitutional regime which disables legislatures from debating and acting on the issue, and (e) he or she accepts money from abortion-rights interest groups.  This goes for the other candidates the article discusses, too (e.g., Casey, Tim Kaine, etc.).

The Holy See, Religious Freedom, and Human Rights

Some good stuff from Archbishop Celestino Migliore, the Holy See's permanent observer to the United Nations, courtesy of ZENIT.  (Here, also thanks to ZENIT, is a bit about the US Dep't of State's annual report on the state of religious freedom worldwide.)

Mr. Chairman,

I would like to take this opportunity to congratulate you on your election and leadership of this Committee and thank the Special Rapporteur on freedom of religion or belief for her report on the elimination of all forms of religious intolerance.

. . .  As we celebrate the 25th anniversary of the adoption of the 1981 Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief, my delegation is seriously concerned that freedom of religion or belief does not exist for individuals and communities, especially among religious minorities, in many parts of the world. We are also concerned that the high level of religious intolerance in some countries is leading to an alarming degree of polarization and discrimination. We share a grave duty to work together to reverse this trend.

While religious tolerance is sometimes characterized as accepting or permitting those religious beliefs and practices which disagree with one's own, the time has come to move beyond this type of religious tolerance, and to apply instead the principles of authentic religious freedom.

Religious freedom is the right to believe, worship, propose and witness to one's faith. It grants the opportunity and creates the occasions for people to profess freely the tenets of their faith. Furthermore, it includes the right to change one's religion and to associate freely with others in order to express one's religious convictions. Religious tolerance is simply a starting point, a basis for universal religious freedom and there cannot be full religious tolerance without an effective recognition of religious freedom.

We know well that, historically, tolerance has been a contentious issue among believers of different faiths. However, we have come to a turning point in history which demands more of us, including a commitment to interreligious dialogue. At the same time, my delegation is increasingly convinced of the indispensable importance of reciprocity, which, by its very nature, is apt to ensure the free exercise of religion in all societies.

The Holy See continues to be concerned by a number of situations where the existence of enacted or proposed legislative and administrative measures for placing limits on the practice, observance or propagation of religion are a reality. Likewise, the Holy See is concerned with those situations where religion or freedom of religion is used as a pretext or a justification for violating other human rights.

Furthermore, there appears to exist a recurring case of intolerance when group interests or power struggles seek to prevent religious communities from enlightening consciences and thus enabling them to act freely and responsibly, according to the true demands of justice. Likewise, it would be intolerant to denigrate religious communities and exclude them from public debate and cooperation just because they do not agree with options nor conform to practices that are contrary to human dignity.

National and global decision making, legal and political systems, and all people of good will must cooperate to ensure that diverse religious expressions are not restricted or silenced. Every individual and group must be free from coercion and no one should be forced to act in a manner contrary to his or her beliefs, whether in private or public, whether alone or in association with others. It is important here to pay particular attention to the needs of the weakest groups, including women, children, refugees, religious minorities and persons deprived of their liberty. The disturbing signs of religious intolerance, which have troubled some regions and nations, at times affecting even majority religious groups, are much to be regretted. . .

Religious Freedom and the Baltimore cathedral

After a two-and-a-half year, $32 million restoration, the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary in Baltimore is returning to its glory.  George Weigel has a really nice op-ed about the cathedral, its history and significance, and what it teaches us about religious freedom:

The recently completed restoration of the building offers more than a reminder of the genius of the past, however; Carroll's and Latrobe's work has a special resonance for the present and the future. For to enter the restored Baltimore Basilica — a great American shrine to the centrality of religious freedom in any serious scheme of “human rights” — is to be confronted with two of the most crucial items on the world agenda today: The first — how do things stand with religious freedom? — is a question of particular, although not exclusive, interest to people of faith. The second — how does the human race engage its deepest differences (which are religious differences) with civility, tolerance and respect? — is a question for everyone.

Although few of us recognize it, the 20th century was the greatest century of persecution of Christians in history, with tens of millions murdered “in hatred of the faith” by totalitarian ideologies. With the collapse of fascism, and then communism, a new springtime of religious freedom seemed on the historical horizon. Yet the dramatic exodus of Christians from the Holy Land, the genocide in the south of Sudan, and the entire arc of conflict between Christianity and jihadist Islam that spans the globe from the west coast of Senegal to the east coast of Timor reminds us that the 21st century could well be a century of martyrdom, too. To visit the restored basilica and reflect on the centuries of struggle for religious freedom that it has witnessed is to be reminded that freedom is never free. . . .

The basilica suggests a different lesson: that the most secure foundation for religious freedom is, as Father Richard John Neuhaus once put it, the conviction that “it is the will of God that we be tolerant of those who disagree with us about the will of God.” That conviction is at the root of America's success in maintaining the First Amendment commitments the Baltimore Basilica celebrates: Religious freedom in the USA is largely a religious accomplishment. . . .

Sunday, November 5, 2006

A Comment from Someone Who Happened upon MOJ after I Posted an NCR Editorial

[Thought that I would share with MOJ-readers this e-mail message that was waiting for me a few minutes ago.  The message was in response to this post.]

I've just perused your website, in particular the editorial "Sorting through imperfect choices"(Issue Date:  November 3, 2006). What an absolute disgrace, as well as shameful. You parade your site as an authentic Catholic voice on the world-wide-web, but in fact it's nothing but a fraud. And what sickens me most is your claim to be "Catholic." It's hard enough contending with the anti-Catholics heretics outside our Church, let alone you deceivers.
 
Jn 8:44-45 "...You belong to your father the devil and you willingly carry out your father's desires. He was a murderer from the beginning and does not stand in truth, because there is no truth in him. When he tells a lie, he speaks in character, because he is a liar and the father of lies. But because I speak the truth, you do not believe me...."
 
I promise you I intend do everything possible to alert folk here in the Omaha, Nebraska Archdiocese about your deception.
 
David Eastlack

Juxtapositions

This past week I had to opportunity to participate in two interesting events. The first was to be a member of the Holy See’s delegation to the Council of Europe. The topic for discussion on this occasion was religious liberty (and its contribution to moral values) in a multicultural society. While the issue was straightforward, the discussions in Strasbourg seemed disjointed. It was maintained by many speakers that there is a European culture and civilization. Those statements were fine. But then it became apparent that there was either no authentic understanding of the heart of this culture or a denial of it. Of course, the heart of the European culture is Christianity. Yet, this vital center is undergoing an effortless abnegation because many Europeans see their common heritage of Christianity as only one of the many voices of identity that must be treated “equally” with all others. In the meantime, the speakers from Turkey had very different things to say, and I do not believe that their message was being registered by the Western Europeans.

The other event was a visit of Pope Benedict to the Pontifical Gregorian University where I spend most of my time these days. The Pope’s insightful words delivered during his visit made up for the disappointments I experienced in Strasbourg. From my perspective, Benedict’s words of this Friday past contain a lot to reflect upon not just for Europe and its academic institutions but for the United States and its institutions of higher education, especially those that use the moniker “Catholic.” Indeed, the Pope’s address may well have something to offer to Catholic Legal Theory insofar as it has a bearing on higher education and religious liberty.

One of the striking points made by the Pope was his relating intelligence to faith, hope, and charity. He did this by presenting two standards: the secular-relativist culture so profoundly in existence in the West today and the religious culture founded on Christ and His Church. In his view, the former ultimately forces upon society and the civilization it claims with a confused sense of conscience and human destiny. The latter points the way to a truth, the Truth, about conscience and destiny that the former tends to deny.

Of course, those who labor to develop moral standards and values (and this was the purpose of the meeting at the Council of Europe) must consider who they are; thus, examining from where they came and to where they are going might be a good place to start. I trust that my inadequate translation of the Pope’s address delivered in Italian still offers some insight into what he said: “The hope of Christ is that the human person does not enclose himself in a paralyzing and sterile nihilism, but is open to engaging society in a generous fashion with the view of contributing to and improving it. It is the task that God has given man in creating him in His image and likeness—a task that everyone endowed with human dignity has, but to which God has attached immense responsibility.” In short, the Pope spoke of firmness of conviction and the unwavering response to the call to discipleship from the one who came to save us all—in spite of the threats, the pressures, the cajoling, or whatever else directs otherwise.

I also realize that many, but not all, of Pope Benedict’s remarks were directed to the members of my religious order, the Society of Jesus, and to the institutions with which it is affiliated. However, it was also clear that the Holy Father was addressing a much wider audience as well. This became evident when he said: “The [Catholic] academic institution is engaged to be in the Church and to be with the Church. For that is what love, the love of Christ, is about.” The Pope said many other things, but here I shall stop only to add some further insight garnered from my reading of some of the homilies of August Cardinal von Galen that treat similar issues about pressure on the Church, the culture that it founded and sustains, and its members. Von Galen served the Church in a place and time in which it experienced the pressure of a ferocious totalitarian regime—a regime which hammered the Church, its members, and their beliefs. But von Galen would not capitulate to the threats to the religious liberty of the Church and the denial of Christian culture. In one of his sermons delivered in 1941, he had this to say to the faithful:

Steel yourselves and hold fast! At this moment we are not the hammer, but the anvil. Others, chiefly intruders and apostates, hammer at us; they are striving violently to wrench us, our nation, and our youth from our belief in God. But, we are the anvil, I say, and not the hammer, but what happens in the forge? Go and ask the blacksmith and see what he has to say. Whatever is beaten out on the anvil receives its shape from the anvil as well as the hammer. The anvil cannot and need not strike back. It need only be hard and firm. If it is tough enough, it inevitably outlives the hammer. No matter how vehemently the hammer falls, the anvil remains standing in quiet strength and, for a long time, will play its part in helping to shape what is being molded.

Today the Church, its liberty, and its members are being hammered at by a variety of human forces. Some are from outside, but others closer to home but who have become fugitives from the traditions in which they were reared. While the future of the Church and its intellectual tradition may appear gloomy to some, the counsel of Benedict and the exhortation of von Galen come at an appropriate time to remind the faithful who they are, where they are going, what they face, and what they must exhibit—fidelity—in order to prevail against the hammers of our day.   RJA sj

Guy Fawkes Day

Today is Guy Fawkes Day.  For more on the Gunpowder Plot, this page has lots of resources.  All the English Recusant saints and martyrs, pray for us.

Catholics and the Election

Some have suggested that the only reasonable choice for one  who accepts the Catholic Church's position on abortion is to vote Republican.   MOJ-readers may be interested in this editorial, which presents a different view:

National Catholic Reporter
November 3, 2006

Sorting through imperfect choices

In the early 1970s, when antiwar activist and stalwart liberal Allard K. Lowenstein was running for Congress against a nondescript Republican incumbent from Long Island, N.Y., he received the endorsement of conservative pundit William F. Buckley. Buckley’s rationale: As long as the House of Representatives was going to be dominated by liberals (remember those days?) it might as well have a smart one in the bunch.

Another anecdote from that era: The second choice of the 41 percent of New Hampshire primary voters who supported Eugene McCarthy and forced LBJ’s withdrawal from the 1968 presidential race was none other than … segregationist pro-war Alabama Gov. George Corley Wallace. New Hampshirites, it seems, were more interested in “sending a message” than in the messenger.

Voting, it seems, is a complex act.

So what is a conscientious Catholic to do this year? There’s plenty of advice out there.

The U.S. bishops’ document, “Faithful Citizenship,” offers a sound approach. It is a voter’s responsibility, say the bishops, “to measure all candidates, policies, parties and platforms by how they protect or undermine the life, dignity and rights of the human person, whether they protect the poor and vulnerable and advance the common good.”

It can be found at           www.usccb.org/faithfulcitizenship.

More recently, a new kid on the block, Catholics in Alliance for the Common Good, issued its voter guide, “Voting for the Common Good.” It strikes the right chord, noting that “There is no Catholic voting formula, and there is rarely, if ever, a perfect candidate for Catholic voters.” That voter guide can be found at      thecatholicalliance.org.

Unfortunately, the guide that has drawn the most media attention in the past is from the conservative group Catholic Answers, which has reissued its “Voter’s Guide for Serious Catholics.” It is essentially the same pamphlet describing the “nonnegotiable issues” the group distributed, to much publicity, in 2004. To Catholic Answers, voting is an equation: If Candidate A is closer to Catholic teaching on the “nonnegotiable issues” than Candidate B, the “serious” Catholic should vote for A. The “nonnegotiable issues” are abortion, embryonic stem cell research, gay marriage, euthanasia and human cloning.

In fact, it’s hard to take the “Voter’s Guide for Serious Catholics” very seriously. For starters, it takes candidate’s assertions (“I oppose abortion”) as statements of purpose.

In Tempting Faith, his new book describing his experience in the Bush White House, David Kuo recalls a spat conservative icon William Bennett had with James Dobson, founder of the influential Focus on the Family. “If a pro-choice candidate of exemplary character used the bully pulpit to talk about, say, teen abstinence, adoption, crisis pregnancy centers, individual moral code -- and did this well -- he could have a profoundly positive impact on the nation’s cultural condition,” Bennett told Dobson in a letter. “And he could do more to lower the number of abortions than a presidential candidate who supports a constitutional ban but does nothing more than pay lip service to the pro-life constituency.”

Check and mate.

Next, the “Serious Catholics” voting guide leaves out some equally nonnegotiable issues like, say, torture, which, says the Catechism of the Catholic Church, is “contrary to respect for the person and for human dignity.” Clearly a “nonnegotiable” issue.

It’s perfectly reasonable -- an inescapable conclusion we think -- to conclude that a large number of candidates bidding for office this year actually support torture. Sure, they call it something else (“harsh interrogation techniques”) but it’s clear that some lawmakers and would-be lawmakers believe that “water-boarding,” for example, is a good way to get information from would-be terrorists.

Or maybe the war in Iraq is on a voter’s mind. One doesn’t have to accept the conclusions of the recent Johns Hopkins study, which estimated Iraqi war deaths as high as 655,000 (more than died in the U.S. Civil War), to conclude that both the initial decision to invade that country and the continuing military effort are counter to the church’s teaching on just war. Sure, it’s debatable, and, yes, Catholics can come to different conclusions, but a “serious Catholic” is surely free to determine that this is the overriding issue of this election and vote accordingly.

Or maybe there’s a gubernatorial election where one candidate supports the death penalty and another opposes it. According to the catechism, capital punishment is justified only and exclusively when society has no other means of protecting itself from a heinous criminal. That’s not the situation in the United States, where we employ the electric chair as a deterrent and, according to those who support the practice, as a tool of justice. Those are certainly debatable points, but they have nothing to do with Catholic teaching. To support the death penalty for reasons other than the protection of society makes one a dissenter from, here it comes, a nonnegotiable issue.

Pennsylvania’s Senate contest provides a concrete test for the conscientious Catholic. Republican Rick Santorum is the strongest and most effective antiabortion voice in Washington. No doubt about it. Further, Santorum has voiced reservations about the death penalty (though he’s voted for legislation that includes the ultimate punishment).

Democrat Bob Casey, son of a politician who bucked his party on abortion and paid the price for his dissent from the political orthodoxy, says he, too, is pro-life. Yet he supports the over-the-counter availability of the “morning-after pill” and is a strong proponent of the death penalty. Yes, Casey will vote to ban partial-birth abortion, but he won’t put a litmus test on judges who might stray from the antiabortion line.

Santorum supports the war in Iraq; Casey would likely side with Democrats working to end U.S. involvement in the quagmire. Casey supports civil unions, Santorum speaks harshly about gays and opposes same-sex marriage.

What’s a conscientious Pennsylvania Catholic to do?

Here’s a suggestion: If opposition to abortion or gay marriage is the issue that a Pennsylvania voter has determined is paramount, the most important in the current context, then he or she probably should vote for Santorum. He’s clearly someone who will continue to make these issues a priority.

If, however, a pro-life Keystone State voter thinks there is more at stake in this election than abortion and gay marriage -- the war, economic opportunity, social justice, tolerance for those who are different -- then that Keystone State voter should probably pull the lever for Casey.

An imperfect choice? Certainly. It always is.

Democracy ain’t easy. That’s why we’re fortunate God’s given us brains and a conscience. Use them well.

Voting, indeed, is a complicated act.

The Editorial

AP

An editorial scheduled to appear on Monday in Army Times, Air Force Times, Navy Times and Marine Corps Times, calls for the resignation of Secretary of Defense Donald Rumsfeld.

The papers are sold to American servicemen and women. They are published by the Military Times Media Group, which is a subsidiary of Gannett Co., Inc.

Here is the text of the editorial:

----------------

Time for Rumsfeld to go

"So long as our government requires the backing of an aroused and informed public opinion ... it is necessary to tell the hard bruising truth."

That statement was written by Pulitzer Prize-winning war correspondent Marguerite Higgins more than a half-century ago during the Korean War.

But until recently, the "hard bruising" truth about the Iraq war has been difficult to come by from leaders in Washington. One rosy reassurance after another has been handed down by President Bush, Vice President Cheney and Defense Secretary Donald Rumsfeld: "mission accomplished," the insurgency is "in its last throes," and "back off," we know what we're doing, are a few choice examples.

Military leaders generally toed the line, although a few retired generals eventually spoke out from the safety of the sidelines, inciting criticism equally from anti-war types, who thought they should have spoken out while still in uniform, and pro-war foes, who thought the generals should have kept their critiques behind closed doors.

Now, however, a new chorus of criticism is beginning to resonate. Active-duty military leaders are starting to voice misgivings about the war's planning, execution and dimming prospects for success.

Army Gen. John Abizaid, chief of U.S. Central Command, told a Senate Armed Services Committee in September: "I believe that the sectarian violence is probably as bad as I've seen it ... and that if not stopped, it is possible that Iraq could move towards civil war."

Last week, someone leaked to The New York Times a Central Command briefing slide showing an assessment that the civil conflict in Iraq now borders on "critical" and has been sliding toward "chaos" for most of the past year. The strategy in Iraq has been to train an Iraqi army and police force that could gradually take over for U.S. troops in providing for the security of their new government and their nation.

But despite the best efforts of American trainers, the problem of molding a viciously sectarian population into anything resembling a force for national unity has become a losing proposition.

For two years, American sergeants, captains and majors training the Iraqis have told their bosses that Iraqi troops have no sense of national identity, are only in it for the money, don't show up for duty and cannot sustain themselves.

Meanwhile, colonels and generals have asked their bosses for more troops. Service chiefs have asked for more money.

And all along, Rumsfeld has assured us that things are well in hand.

Now, the president says he'll stick with Rumsfeld for the balance of his term in the White House.

This is a mistake.

It is one thing for the majority of Americans to think Rumsfeld has failed. But when the nation's current military leaders start to break publicly with their defense secretary, then it is clear that he is losing control of the institution he ostensibly leads.

These officers have been loyal public promoters of a war policy many privately feared would fail. They have kept their counsel private, adhering to more than two centuries of American tradition of subordination of the military to civilian authority.

And although that tradition, and the officers' deep sense of honor, prevent them from saying this publicly, more and more of them believe it.

Rumsfeld has lost credibility with the uniformed leadership, with the troops, with Congress and with the public at large. His strategy has failed, and his ability to lead is compromised. And although the blame for our failures in Iraq rests with the secretary, it will be the troops who bear its brunt.

This is not about the midterm elections. Regardless of which party wins Nov. 7, the time has come, Mr. President, to face the hard bruising truth:

Donald Rumsfeld must go.

Friday, November 3, 2006

One More Time on Ectopic Pregnancy

In response to my continuing questions, Notre Dame law prof Julian Velasco argues for a meaningful moral distinction between removal of the embryo and removal of the tube in which the embryo is located:

There is a general rule -- thou shalt not kill.  There is no doubt that removing the baby is killing it.  The only question is whether removing thetube is the same as killing the baby.  My argument is that knowing the baby will die as a result of my actions is not the same thing as killing the baby; thus, removing the tube is not the same as killing the baby.  But if I am wrong, then the answer is not that killing the baby is fine, but rather that removing the tube is wrong (because it is killing the baby). Furthermore, even if I am wrong with respect to the last sentence, then there may be an exception for the extreme case of ectopic pregnancies, but that would not be proof that either the embryo is not a baby or that abortion is generally acceptable.

BTW, I understand that it is the embryo's growth within the tube that threatens the mother's life, and it is the embryo's growth within the tube that I am trying to stop.  But I insist that not all means of achieving that goal are acceptable.  Directly killing another (the baby) is not acceptable under any circumstances (IMHO).  But removal of a body part is.  That removal is neither directly killing nor intending to kill the baby; it is only done with knowledge that the baby will die as a result. Without more, is not enough to impute moral culpability.

For an entirely different perspective on these issues, check out Eugene Volokh's forthcoming article on a constitutional right to medical self-defense.

Rob