In Sunday's New York Times, Elisabeth Rosenthal warns, "Anti-abortion effort in Europe, with U.S. Money, Widens its Conservative Agenda." (The next installment in the series, "Abortion-funding effort around the developing world, with U.S. Money, Widens its Liberal Agenda", is -- no doubt -- coming soon). Consider this:
For most of July, pedestrians in Lodz found themselves face to face with 14 grisly billboards pairing images of aborted fetuses with photographs of blood-spattered bodies - victims of genocide in Srebrenica and Rwanda, or toddlers killed in the Oklahoma City bombing.
Placed by a Polish antiabortion group, the traveling exhibition, which moved on to Lublin, exemplifies an aggressive, well-financed and growing conservative movement across Europe that opposes not only abortion but often other things related to sex, like sex education, contraception and artificial insemination.
"[O]ther things related to sex." Of course, for most engaged pro-lifers, abortion is not really "related to sex." Abortion is wrong (if it is wrong) not for reasons having to do with sexual morality, but because it is, or at least can be, the intentional killing of an innocent human being. After repeatedly noting the hand of the Catholic Church in the emerging anti-abortion trend, the article continues:
Nowhere is the change more evident than here in Poland, where abortion was free - and freely accessible - under Communism. A relatively restrictive abortion law was passed in 1993 (it refers to the fetus as a "conceived child") and a strong social stigma has since emerged, along with an antiabortion stance among doctors' groups. The result: only 174 legal abortions were performed nationwide in 2004.
Recently the country's leading gynecology journal refused to publish the World Health Organization's guidelines on "Safe Practices in Abortion," calling them "reprehensible."
"Abortion is not safe, because a patient who undergoes such treatment always dies," wrote Andrzej Barcz, editor of the journal, Practical Medicine-Obstetrics and Gynecology.
In context, it is clear that the reader is supposed to regard this (unremarkable) observation by Barcz as something truly shocking. But why? Then there's this:
Women's groups in Europe [rg: presumably, "pro-abortion-rights women's groups] contend that antiabortion positions have been promoted by otherwise mainstream politicians with debts to pay. In Poland, the Solidarity movement, which overthrew decades of Communist rule in 1989, received financial and moral support from the Catholic Church when it was still illegal under Communism.
"Otherwise mainstream"? But, given what the author just told us about Poland, it is clear that the anti-abortion position is, in fact, "mainstream." Is the word supposed to be descriptive, and to relate to the facts on the ground, or does it instead have some kind of clear, fixed, political meaning (i.e., "in line with the views of those who write for and read the New York Times")?
This piece is striking, even for the Times.
A few years ago, at the annual meeting of the Law and Society Association in Pittsburgh, fellow MOJ-er Rob Vischer and I participated in a panel with Professor Frank Snyder, of the Texas Wesleyan School of Law (who is visiting this year at Notre Dame and who also blogs at ContractsProf Blog). The panel's topic was mediating associations and the law (or something close to that). Rob presented his excellent paper, "The Good, the Bad, and the Ugly," and Frank presented this paper, "Sharing Sovereignty: Non-State Associations and the Limits of State Power." Check it out.
Rick
Friday, August 12, 2005
It will be interesting to see why kind of blog-traffic the title of this post attracts. In any event, here is a link to the Tenth Circuit's opinion in O'Connor v. Washburn U. Here are (some of) the facts:
Since 1996, Washburn's Campus Beautification Committee has selected approximately five statues each year for display in a temporary outdoor sculpture exhibition. The exhibition supplements the university's collection of twenty-five outdoor statues permanently situated on campus. President Farley appoints the members of the committee from the local community and from Washburn's faculty and staff. For the 2003 exhibition, the committee chose a three-member volunteer jury made up of art professionals to select works for display. The jury chose five sculptures from among the ninety submissions received.
One of the chosen statues, entitled Holier Than Thou, depicts a Roman Catholic bishop with a contorted facial expression and a miter that some have interpreted as a stylized representation of a phallus. The bronze statue measures thirty-seven inches high by twenty-seven inches wide and is inscribed with the words, "The Cardinal." Its caption reads:
The artist says, "I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the thin screen that separated me and the one who had the power to condemn me for my evil ways. I was scared to death, for on the other side of that screen was the persona you see before you."
After some complaints, "the Campus Beautification Committee called a special meeting to discuss the issue. During the meeting, committee members stated that they had not construed the statue to be anti-Catholic or the bishop's miter to be phallic when they selected it for exhibition. Several days later, the Board of Regents met to decide whether Holier Than Thou should be removed from campus. The board heard from speakers in support and in opposition to the statue. By a 5-2 vote, the regents decided to leave Holier Than Thou in place."
The Tenth Circuit rejected two complainants' argument that "Washburn's placement of Holier Than Thou on campus had both the purpose and effect of conveying government disapproval of the Roman Catholic religion." The panel's analysis concludes with this:
[A]ppellants argue that a reasonable observer would see the content of the statue--a depiction of a bishop with a grotesque expression, a representation of a phallus on his head, and the title Holier Than Thou--as a state-sponsored anti-Catholic message. Washburn counters that the statue's message is not anti-Catholic, but merely a representation of the artist's humorous memories of his first confession. Ultimately, this court need not determine the proper interpretation of Holier Than Thou. Regardless of whether the statue sends an anti-Catholic message, any reasonable observer viewing it in context would understand the university had not endorsed that message. Washburn therefore did not violate the Establishment Clause by including the sculpture in its art exhibition.
This is probably the right result under the Establishment Clause, properly understood. Still, I cannot help thinking that the Washburn U. administrators -- and perhaps the panel, as well -- would have reacted quite differently if a prominent piece of art on campus mocked, in a similarly offensive way, any other religion or group. Oh well.
Rick
If you're up for some sacreligious Photoshop humor involving the Holy Father, check out this post on my personal blog.
Here (thanks to Larry Solum) is Joanna Shepherd's paper, "Deterrence vs. Brutalization: Capital Punishment's Differing Impacts Among States." (We've discussed this issue, and touched on this paper, before). Here is the abstract:
This paper is the first study to establish that capital punishment's impact is different among U.S. states, deterring murders in some states, but actually increasing murders in many others. Studies by economists, including myself, have typically used large data sets of all 50 states or all U.S. counties to show that executions, on average, deter murders. In contrast, studies by sociologists, criminologists, and law professors often examine only one or a few jurisdictions and usually find no evidence of deterrence. Using a well-known data set and well-tested empirical methods, I find that the impact of executions differs substantially among the states. Executions deter murders in six states and have no effect on murders in eight states. In thirteen states, executions increase murders - what I call the "brutalization effect." In general, the states that have executed more than nine people in the last twenty years experience deterrence. In states that have not reached this threshold, executions generally increase murders or have no significant impact. On average across the U.S., executions deter crime because the states with deterrence execute many more people than do the states without it. The results of this paper help to explain the contrasting conclusions of earlier papers: whether deterrence exists depends on which states are examined. My results have three important policy implications. First, if deterrence is the objective, then capital punishment generally succeeds in the few states with many executions. Second, the many states with numbers of executions below the threshold may be executing people needlessly. Indeed, instead of deterring crime, the executions may be inducing additional murders: a rough total estimate is that, in the many states where executions induce murders rather than deter them, executions cause an additional 250 murders per year. Third, to achieve deterrence, states must generally execute many people. If a state is unwilling to establish such a large execution program, it should consider abandoning capital punishment.
Thoughts?
Rick
Here's a curious piece by Cardozo law prof Marci Hamilton lambasting Senator Rick Santorum for "choosing a religious agenda over the public good." Among her examples, she cites his support for abstinence-only education, "which is nothing but education in religious values, utterly divorced from social reality." Whatever one thinks of its effectiveness, since when did a presumption that junior-highers and high-schoolers should not be having sex become "nothing but education in religious values?" Another example is his co-sponsorship of the Workplace Religious Freedom Act (his co-sponsor, she does not mention, is that pawn of the bishops, John Kerry) "which gives workers the right, in their jobs, to refuse to sell products regarding which they have moral objections." I don't think the Act is wise policy (for other reasons), but I hardly consider legislative respect for individual conscience to be an example of sacrificing "the public good" in service to a "religious agenda." More broadly, I'm puzzled by the seemingly clear distinction being drawn between the public good and religious values.
Rob
Thursday, August 11, 2005
Robert Araujo's misgivings about the legislative effort in Massachusetts to require financial disclosure by all nonprofit organizations, including churches, are underscored by the public hearing held yesterday on the issue. The Boston archdiocese was widely criticized for not participating in the hearing, which seemed to function (judging by the news report) as a pep rally for efforts to assert greater lay control over the Church. The sponsoring state senator explained that "[f]inancial transparency can better ensure moral transparency." Little comfort is offered by Governor Romney, who has suggested that such legislation can allow the public "to make sure the money is being properly spent."
Massachusetts legislators should try to remember that churches -- even the Catholic Church -- are at their most vital when they are given the space to carve out an identity distinct from the majority-driven norms reflected in the government. I'm not sure why the "moral transparency" of a church or the propriety of its spending are proper objects of legislative concern. If a church is going to function as a mediating structure, increased accountability to its members must come from within, not from the top-down imposition of norms by the very collective power against which the church is supposedly empowered to stand as a bulwark. If a church is unresponsive to reform efforts from within, I'd rather members withhold their financial contributions than invoke state power to ensure that they are spent "properly."
Rob
Here is a wonderful essay by Harvard law prof William Stuntz. An excerpt won't do it justice.
Rob
