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, August 3, 2015

Planned Parenthood, Women's Health Services, and Alternatives

By Thomas Berg

As the debate over defunding Planned Parenthood continues, the Democrats for Life of America (on whose board I serve) are among the leaders in presenting the evidence that such defunding does not have to mean withdrawing from women vital health services such as pap smears, mammograms, etc. We can (as the current bill provides) switch funding to community health centers, which provide such services on a far larger scale. The statistics are quite striking. (See here and here for further discussion.)

UPDATE: And here, DFLA's Kristen Day emphasizes how central the theme that "there are good alternatives" must be.

FACT CHECK: The Largest Women’s Health Care Provider In America Is NOT Planned Parenthood

The Dark “Culture of Death” Brought into the Light

By Greg Sisk

Twenty years ago, in Evangelium Vitae, St. John Paul II warned of the emergence of a “Culture of Death” in western society, which warred against the principles of human dignity upheld in a “Culture of Life.” At that time and ever since, critics have argued that St. John Paul II was imprudent in painting the distinction so starkly, was mistakenly leading the Church into the so-called in the “Culture Wars,” and had wrongly denigrated those who support access to abortion as participating in the “Culture of Death.”

The undercover videos of Planned Parenthood leaders released over the past couple of weeks have confirmed how perceptively and poignantly St. John Paul II understood the corrupting influence of the “Culture of Death.” Among other shocking statements, we hear high-ranking Planned Parenthood officials saying such things as:

“[W]e’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part, I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”

[Digging through fetal remains and laughing]: “It’s another boy!”

It is too easy to dismiss these statements as those of particular individuals who were insensitive or indecorous in expression on a single occasion. Even Planned Parenthood has apologized for the “tone” of the remarks. But more and more of Planned Parenthood’s prominent leaders have been uncovered in their habitual callousness about the unborn babies they dismember, cold dispassion about the instruments and methods of such slaughter, and even shocking amusement at the sight of the dissected remains of unborn babies.

This is not a single episode of indelicacy. Rather, this constitutes a pattern that arises from a deep-seated underlying attitude. This is the dark culture of the abortion industry, brought into the light. St. John Paul II well understood how this would happen:

Those who allow themselves to be influenced by this climate easily fall into a sad vicious circle: when the sense of God is lost, there is also a tendency to lose the sense of man, of his dignity and his life; in turn, the systematic violation of the moral law, especially in the serious matter of respect for human life and its dignity, produces a kind of progressive darkening of the capacity to discern God's living and saving presence. (Evangelium Vitae, Para. 21)

The abortion industry has always preferred to keep these behaviors and expressions hidden. They did not want the public to learn about the gruesome reality of abortion and the degrading attitudes that are inculcated as people become inured to the slaughter of unborn babies when the dealing of death to the unborn becomes routine.  The “Culture of Death” has taken a sad toll on our society as a whole, but no more so than on those who have been deeply immersed in the “pro-choice” campaign.

Moral indignation is justified, but it should not metastasize into rage. Being repulsed by these words of abortion providers is natural, but should not lead us into the temptation of despising those who speak such words. Being horrified by the callous destruction of life is right, but should never betray our commitment to life by being tempted by violence.

As the recent videos have shown, those enmeshed in that abortion system are also victims of the “Culture of Death.” And we in the legal profession bear our own heavy responsibility for this situation, as it was our work in the courts that set the stage for this horror.

Let us never cease praying for those who lives were too soon torn away by abortion. But let us also pray, with genuine love and unceasing hope, for those trapped in the machinery and industry of abortion, whether by their own misguided design or by difficult circumstances that led them into such employment. Let us pray for the restoration of informed conscience leading to the “Culture of Life.”

Friday, July 31, 2015

The (Big) Money behind the anti-religious-exemptions effort

By Rick Garnett

Story here.  In particular, toward the end of the piece, there's a discussion of the funding, and activities, of the "Public Rights, Private Conscience" project at Columbia's Law School, which is actively involved in coordinating scholarly efforts to criticize and, in some instances, delegitimize, religious accommodations and the ministerial exception.

Sugarman on religious charter schools

By Rick Garnett

Steve Sugarman has posted a new article, "Is It Unconstitutional To Prohibit Faith Based Schools from Becoming Charter Schools?", on SSRN:

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for charters, and b) in light of that, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools would be deemed unconstitutional by the current U.S. Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.

It does seem to me that what most people presume to be the rule that, in order to be a "charter school," a school must not be a religious (or even "pervasively sectarian") school, is anomalous.  After all, charter schools aren't really government schools; they are just a new kind of delivery mechanism of a particular good -- i.e., education -- that the public authority wants to fund and bring about.  If a Catholic school can deliver that good (and, of course, Catholic schools can and do), then why not allow Catholic schools to employ that mechanism?

Kathleen Brady on the "distinctiveness of religion" in American law

By Rick Garnett

Congrats to my good friend Kathleen Brady, whose work is familiar to many MOJ readers, I'm sure, on the publication of her book, "The Distinctiveness of Religion in American Law."   She's been carefully refining this argument and it couldn't be more timely.  Check it out:

In recent decades, religion's traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion's uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illumined by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. From this account, it develops a new framework for religion clause decision making and explains the implications of this framework for current controversies regarding protections for religious conscience.

Thursday, July 30, 2015

A World Without Planned Parenthood

By Erika Bachiochi

Some short reflections on NRO from myself and many others on a world without Planned Parenthood. Loved this from Frank Beckwith:  

For any culture that abandons the cold, calculating, and contractual premises of modern eugenics — that we are to measure our happiness by how unencumbered we are from the burden of our natural limitations and the dependence of those for whom we did not explicitly choose to care — means that it is a culture moving in the direction of faith, hope, and charity. 

 

Wednesday, July 29, 2015

Implementing Plea Bargaining in Uganda

By Michael Scaperlanda

Pepperdine's Jim Gash has been working closely with the Ugandan Judiciary to develop and implement a system of plea bargaining in Uganda with the hopes of improving their criminal justice system and reducing the number of prisoners sitting in prison awaiting trial (sometimes as long as five years). The idea grew out of a paper two Pepperdine Law students had written for a Ugandan judge while the students were clerking for him several years ago.

I recently had the privilege of accompanying Jim on his 17th trip to Uganda in the last five years. Other participants included current and former prosecutors, public defenders, other lawyers, a current state and a current federal judge, and Pepperdine students who were spending the summer in externships in Uganda and Rwanda. The first week of the trip, I felt like a first year associate as we put in 70 hours or so, including trips to four prisons and one juvenile remand home. At the prisons, we worked in teams of an American attorney, a Ugandan defense attorney (much of the time), Pepperdine students, and Ugandan Christian University students meeting with clients in an attempt to work plea deals. You can read more about the trip and Pepperdine's work in Uganda on Jim blog, Throwing Starfish.

I greatly appreciated Jim's invitation. It was just my third trip to Uganda, and his experience and contacts will greatly enhance the experience of University of Oklahoma law students and alums as we continue our work in northern Uganda with Sr. Rosemary Nyirumbe, St. Monica's Vocational School, and Gulu University.

Tuesday, July 28, 2015

Fr. Barron on the Planned Parenthood videos, human dignity, and God

By Rick Garnett

We've talked often, over the years, here at MOJ about the basis or ground for "human dignity."  (And, several of us -- including Michael Perry, Robby George, Tom Berg, and others -- have written important works about this question.)   In this reflection, Fr. Robert Barron (the new Auxiliary for the Archdiocese of Los Angeles!) takes on the "Death of God and the Loss of Human Dignity."  He captures really well, I think, the importance of "moral anthropology," which has been on the front burner for us at MOJ from the very first week.

Here's Fr. Barron:

. . .  In the classical Western perspective, the dignity of the human person is a consequence and function of his or her status as a creature of God. Precisely because the human being is made in the image and likeness of the Creator and destined, finally, for eternal life on high with God, he is a subject of inalienable rights. I use Jefferson’s language from the Declaration of Independence on purpose here, for the great founding father knew that the absolute nature of the rights he was describing follows from their derivation from God: “they are endowed by their Creator with certain unalienable rights…” When God is removed from the picture, human rights rather rapidly evanesce, which can be seen with clarity in both ancient times and modern. For Cicero, Aristotle, and Plato, a cultural elite enjoyed rights, privileges, and dignity, while the vast majority of people were legitimately relegated to inferior status, some even to the condition of slavery. In the totalitarianisms of the last century—marked in every case by an aggressive dismissal of God—untold millions of human beings were treated as little more than vermin.

I realize that many philosophers and social theorists have tried to ground a sense of human dignity in something other than God, but these attempts have all proven fruitless. . . . 

Kudos to Sen. Joe Donnelly (D-IN).

By Rick Garnett

Today, at a rally in downtown South Bend, the office of Sen. Joe Donnelly (a graduate of Notre Dame Law School) distributed a letter in which the Democratic Senator (like his Republican colleague, Sen. Coates) called for a full investigation into the recent (and ongoing) revelations regarding Planned Parenthood's practices and funding.  Thank you, Senator.   

Ryan Anderson on the challenges to religious freedom

By Rick Garnett

At First Things, Ryan Anderson has posted a short piece summarizing the argument he advances in his new book, Truth Overruled:  The Future of Marriage and Religious Freedom (available here).   Among other things, Anderson identifies succinctly three reasons why religious freedom (correctly understood) is vulnerable at present:  First, "government has changed"; second, "sexual values have changed"; and third, "religious liberty has changed."  

As Michael McConnell, Tom Berg, and John Garvey note in their excellent Law and Religion casebook, Religion and the Constitution, it is (paraphrasing) relatively easy to protect and respect religious liberty when everyone agrees about the big questions and when governments don't do very much.  But, as governments do more, and as disagreement with respect to non-trivial matters (including, as Anderson points out, sexual morality) deepen, the occasions for conflict between religious believers and government actions and aims increase.  Add to this mix a diminishing commitment to religious freedom as a fundamental human right -- or, an increasing view that "religious freedom" is a special-interest concern only to people whose views are increasingly out of sync with academic and other elites -- and, well, we've got trouble.  

Anderson's First Things piece concludes with this:

So the three steps that have undone core elements of the American Founding—progressive government and the administrative state, the sexual revolution’s elevation of desire, and the whittling of religious free exercise down to the freedom to worship—all need to be countered. Political organizations, religious and civic organizations, and legal organizations will have to play their roles in empowering the citizenry to reclaim their government and culture. I offer a roadmap for these groups to follow in Truth Overruled.

Without a return to the principles of the American Founding— ordered liberty based on faith and reason, natural rights and morality, limited government and civil society—Americans will continue to face serious and perplexing challenges. The dilemmas faced by bakers and florists and charities and schools are only the beginning.

I am less confident than, it appears, Anderson is that government and culture are likely to be "reclaimed" in a way that will undo the developments that he (correctly, I think) identifies as having made religious freedom vulnerable.  (That said, if everyone were as civil, even-keeled, and charitable in public argument about controversial matters as Anderson is, I might have more confidence.)  Like Anderson, however, I think that the work of organizations like the Becket Fund is and will continue to be crucial, in order to protect space for believers and institutions alike not only to worship and pray privately but also to teach, serve, bear witness, and inspire by example.  

Anderson writes (and I agree) that "[t]rue religious liberty entails the freedom to live consistently with one’s beliefs seven days a week—in the chapel, in the marketplace, and in the public square."  At the same time, I do not think it is likely that, "in the marketplace" (and in public employment) employers, employees, and business organizations whose owners hold traditional beliefs about sexual morality will be accommodated through exemptions from nondiscrimination laws.  As I see it, the live and pressing issue on which religious-freedom advocates should focus, now and going forward, is on the importance of making sure that the government's (and others') many carrots and sticks -- accreditation requirements, licensing standards, public-forum access, public-funds eligibility, television contracts, merchandising agreements, tax exemptions, student-loan-participation rules -- are not used to force religious educational, healthcare, and social-welfare institutions to assimilate, homogenize, or give up their distinct religious character and mission.

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