The reason for MOJ's high stickiness rating: Each time I visit MOJ, I remain for hours and hours, sometimes staring in disbelief, scratching my head at what I see, wondering what, if anything, to say in response. Often--if it's late at night--I fall asleep in front of the monitor. My wife will then have to come in, pick me up, carry me to our bedroom and gently lay me in our bed. All through the night, my computer is locked on MOJ, thereby increasing the stickiness rating of MOJ. Please, don't tell anyone!
To be clear: I have said many times that, given all the givens, I would and do accept the inevitability of some "compromise" on abortion. For example, while I suspect that many of the "abortion reduction" proposals that are floated in the conversation are really just re-branded calls for increased social-welfare-spending programs that might not actually do much to reduce abortion and might have significant policy downsides, I would be more enthusiastic about a compromise proposal that including increases in such spending *if* the the pro-abortion-rights side were actually compromising. But -- and I realize I've harped on this point before, so apologies -- that side is, generally speaking, not giving anything up. Indeed, they are asking pro-lifers to agree that it is "compromise" to accept the roll-back of the gains they have secured.
What is happening, instead, is that many of us who are pro-life are being asked to accept a legal -- indeed, a constitutional -- regime in which citizens are disabled from meaningfully regulating (as opposed to financially disincentivizing) abortion, a regime whose premises are that unborn children are not in fact morally entitled to the protection of the laws and that those who think otherwise are required by the norms of good citizenship to cease trying to persuade, and a policy landscape in which public funds are being used not only to subsidize pro-abortion-rights activity (no, Mr. Saletan, not just contraception, but abortion-rights-advocacy, here and abroad) but abortions themselves.
To have doubts about the attractiveness of this faux-compromise is not to be a "radical", or a misguided "prophet." A real compromise -- one that actually reflected the views of the broad center of the American public -- would involve acceptance of reasonable regulations (and, in some cases, prohibition) of abortion; it would include the various (and popular) laws that structure and slow down the choice for abortion (waiting-periods, etc.); it would include agreement that public funds should not be used for elective abortions; it would include free-speech protections for (peaceful) pro-life expression and protest. It would also involve -- I am happy to agree -- increased social-welfare spending aimed at helping low-income women avoid the temptation to abortion and at helping low-income families raise and care for their children. (It would probably also involve various reasonable programs aimed at discouraging so-called unwanted pregnancies.) If Mr. Saletan were to endorse such a compromise, his scolding of pro-lifers might be warranted. At present, though, I don't think it is.
Now, one might say, "but why should pro-lifers insist on real compromise if the proposed faux-compromise still reduces the number of abortions?" A few (restatements of earlier) responses: First, overall, all things considered, the policy agenda of the current Administration and congressional majority cannot plausibly be regarded as one that will reduce abortions. Dramatic increases in the subsidization of an activity, combined with calls for the removal of all restrictions on that activity, are not well designed for reducing that activity. Next, the concern of pro-lifers is, but is not only, with the number of deaths (if it were, then calls for a 25 mph speed limit would have to be regarded as "pro life" moves). It is with a distorted constitutional and jurisprudential framework that excludes entirely from the protection of the law an entire class of human beings and that disrespects democracy by removing from the political arena (i.e., the arena of "dialogue" and "compromise") a question about the role of the law in expressing and protecting human dignity.
I'm ready for a pragmatic compromise, Mr. Saletan. No radicalism here. Debate and dialogue welcome. What about you?
UPDATE: Douglas Johnson's response to Saletan's essay is devastating. It is a must-read.
According to uber-law-blogger Paul Caron, Mirror of Justice is the sixth (!) "stickiest" law blog; that is, our visitors spend, relatively speaking, much more time at our blog than do the visitors to most law blogs. I choose to chalk this up to our readers' well-developed attention spans and desire for intellectual engagement, rather than to the density or impenetrability of our bloggers' writing.
Here's a deftly written open letter to ESPN Magazine on the news that it is considering publishing an issue of "no clothes" pictures of athletes in an effort to one-up the Sports Illustrated swimsuits.
And here, by the same author, an open letter to possibly-returning quarterback Brett Favre: a letter of less relevance to Catholic social thought, although maybe of more interest to fans of the Vikings, Packers (Sisk!), or Bears (Berg).
Many of us very much want to be reasonable and realistic when it comes to difficult and divisive questions regarding the use of law to promote and protect moral goods. The perfect should not, this side of Heaven, be seen as the enemy of the good, compromise in politics and policy should not be regarded as unprincipled selling-out, etc. And, particularly for those of us in the academy, the appeal of "dialogue" and "debate" is undeniable.
In this (I think) clear-eyed and provocative essay at Public Discourse, Patrick Lee writes:
In his commencement address at the University of Notre Dame, President Obama suggested that he valued debate about the issue of abortion. He congratulated Notre Dame’s president, Father Jenkins, for his “courageous commitment to honest, thoughtful dialogue,” and spoke approvingly of “citizens of a vibrant and varied democracy” engaging in “vigorous debate.”
However, for "vigorous debate" to actually happen, Lee notes, "[the President's] own position must be clarified. The picture that emerges is not a flattering one."
Obama has chosen to fund abortion overseas, clearly favors funding abortions here, and has reversed the limitations on funding of embryo-destructive stem cell research Given these facts, it is fair to ask: what is his position on the beginning of human life and when human life has or acquires inherent dignity? What position on the beginning of human life could he possibly hold?
After considering six alternatives, Lee concludes:
So, which is it? Does Obama just not care whether what is killed in abortion and embryo-destructive research is a human person or not? If he does care, what does he think occurs in abortion or embryo-destructive research? Each of the positions that might justify his actions has insuperable logical and/or philosophical difficulties. It is time to have some of that vigorous debate Obama claims to favor.
Read the whole thing. And recall how often it has been charged, in recent years, that pro-lifers don't really believe what they say they believe about unborn children (because if they did, they would be engaging in armed revolution, killing abortionists, etc.). It seems fair to ask of the President, "given what he has actually done, and believes should be done, with respect to abortion, what must he actually believe about human dignity, equal justice, and so on?"
It has struck me as a shame that David Brooks's columns are not more often as good as yesterday's, "The Power of Posterity." Although Pope Benedict is not mentioned, the column reveals the author's (perhaps unconscious) appreciation for the fact that authentic human development and community are not easily separable from the embrace of children. (The Pope emphasized this connection in the recent encyclicals; many of those who regard encyclicals as occasions for cherry-picking snippets for use in public-policy debates missed it.) Here's a bit:
What would happen if a freak solar event sterilized the people on the half of the earth that happened to be facing the sun? . . .
Without posterity, there are no grand designs. There are no high ambitions. Politics becomes insignificant. Even words like justice lose meaning because everything gets reduced to the narrow qualities of the here and now.
If people knew that their nation, group and family were doomed to perish, they would build no lasting buildings. They would not strive to start new companies. They wouldn’t concern themselves with the preservation of the environment. They wouldn’t save or invest.
There would be a radical increase in individual autonomy. Not sacrificing for their own society’s children, people would themselves become children, basing their lives on pleasure and ease instead of meanings to be fulfilled. . . .
In previous postings, I have commented on the International Theological Commission's recent paper entitled "The Search for Universal Ethics: A New Look at the Natural Law." A while back I offered a synopsis of the text. While no official English translation exists yet, Joseph Bolin, a seminarian pursuing a doctorate in theology in Austria, has made available a fine English Translation which can be read here. I hope hat we'll be able to have some exchange of ideas on the ITC paper thanks to Joseph's great work! We are in his debt since his labor makes this important document available to a wider readership, and I wish to thank him personally for enabling the Mirror of Justice readership to have access to his translation.
For this, my contribution to the Feminist Legal Theory Projects's
Twenty-fifth Anniversary Volume Beyond the Boundaries of the Law, I take the
invitation to participants to be to speak very personally about how we came to
feminist legal theory and what we made of it. I take my title from the New
Testament, because I came to my own radical take on sameness feminism through
teenage engagement with the Catholic Church's radical past and repressive future
on matters of sex equality and through engagement in college and graduate school
with arguments for the equality of the sexes made from the Middle Ages through
the French revolution by otherwise conservative women defending their own right
to participate in male-dominated enterprises and otherwise radical men willing
to call all received ideas into question, even those concerning women's
place.
The essay will be in part a reminder that there are far more
generations than three who have sought to transcend the boundaries of the law
through feminist theory: feminists, male and female, have been making their case
for centuries. It will also be in part an elegy for potential alliances lost:
though many of the women who in prior centuries sought to bring their sex beyond
the boundaries of the law were self-described conservatives on other matters, in
my lifetime feminism and conservatism have come to be seen as antithetical,
something I dealt with on a daily basis as a faculty member in two of the
nation's most conservative law schools, Virginia and Chicago. Also in my
lifetime, the Church that brought me to sameness feminism at first repudiated
sex equality and then turned to an embrace of difference, as official guardian
of doctrinal purity Joseph Ratzinger, now Pope Benedict XVI, in official
pronouncements explicitly rejecting the sort of sex and gender theory to which I
am committed, came close to suggesting that even souls have a sex. [Download here.]
"Name Calling: Identifying Stigma and the 'Civil Union'/'Marriage'
Distinction"
The Connecticut marriage equality case, Kerrigan v. Comm’r of Public Health,
957 A.2d 407 (Conn. 2008), turns on a threshold determination that the state
legislature’s distinction between 'civil union' and 'marriage' creates a
cognizable injury of constitutional dimension. The court’s short explanation of
its conclusion hinges on two social facts. First, 'marriage' names a
long-standing, complex, and revered social institution, while 'civil union' is a
new name with virtually no history. Second, the 'civil union'/'marriage'
distinction is framed against a historical background of stereotyping,
discrimination, and prejudice against gays and lesbians. The court’s
explanation, while accurate, is all too brief. This Article elaborates some
aspects of everyday naming practices involving social identity and kinship, in
order to assist us in understanding the injury that comes from mandating two
distinct names for the core family relationship. It considers (1) the problem of
family identity underlying Juliet’s 'What’s in a name' soliloquy in William
Shakespeare’s play Romeo and Juliet; (2) Louis Althusser’s concept of
interpellation; (3) the feminist critique of language and names, focusing in
particular on the 'Miss'/'Mrs.'/'Ms.' controversy; and (4) the way in which
concrete, diffuse, everyday social practices of naming and recognition are
multiscalar, and interact with larger legal and social structures around
recognition, dominance, and subordination. With these considerations in mind, it
is easier to see that the 'civil union'/'marriage' distinction has a cultural
meaning that will create a stigmatic injury by reinforcing and activating
dormant, dispersed sites of stereotyping and prejudice against gays and
lesbians. Moreover, the distinction will reinforce a preexisting sense of
second-class status, which is arguably a violation of a broad version of a
guarantee of dignity under a principle of equal protection. The 'civil
union'/'marriage' distinction thus involves and facilitates name calling and
identifying stigma — just as the Connecticut Supreme Court concluded. [Download here.]
It's often been observed that one of the challenges facing our (and other developed countries') health-care systems is the increasing percentage of health-care spending that goes to those who are very near death. It has also been observed that one of the reasons to be alarmed by the movement -- misleadingly cast in terms of "dignity" -- for doctor-assisted suicide is the likelihood that the legalization of assisting-suicide will be followed by its normalization and, perhaps, its prioritization. That is, once we say it is alright to help Grandma kill herself, we might well find ourselves saying that she *ought* to let us help her kill herself.
I was thinking about these two observations as I read this piece, from Forbes, about the end-of-life-related provisions that have been (fairly) quietly inserted into the Bill That No One Dares Read In Its Entirety:
In a post entitled "The Democratic Culture of Death is Absolutely Terrifying." one blogger wrote "First they came for our light bulbs, then they came for our SUVs. Now, they are coming for our senior citizens," Other commentators have made a connection between the bill and the Terry Schiavo episode, in which a woman on life support in Florida starved to death after a feeding tube was removed when her husband prevailed in a prolonged legal battle.
In fact, the bill says nothing about death with dignity or any other code words for euthanasia. It also does not make these counseling sessions in any way mandatory--it just says that Medicare will start reimbursing for them.
Still, some activist groups that are not necessarily opposed to ObamaCare are concerned about the end-of-life proposals in the bill. Marilyn Golden, of the Disability Rights Education and Defense Fund in Berkeley, Calif., has been active in opposing physician-assisted suicide at the state level. Many disabled people worry legalizing suicide would lead to euthanasia.
Golden points out that many doctors, when counseling patients, push for do-not-resuscitate orders or have them sign boilerplate documents that can lead to the premature denial of lifesaving medical care. "I don't want to say we're opposed to the language in the bill," she says. "But there are legitimate concerns about how advanced directives are administered."
"There is reason to be concerned," says Diane Coleman, of Not Dead Yet, a group in Rochester, N.Y., that opposes physician-assisted suicide and what it calls medical killing. "The disability community," she says, "often experiences pressure to sign treatment-withholding orders."
[In his weekly column, Notre Dame theologian Fr. Richard McBrien writes:]
Terrence Tilley is chair of the Department of Theology at Fordham University
and immediate past president of the Catholic Theological Society of America.
In his presidential address at the recent Catholic Theological Society of
America convention in Halifax, Nova Scotia, Tilley spoke of the negative effects
of the "stalemate" or "impasses" that currently afflict the Catholic church (for
the full text, "Three Impasses in Christology," see Origins 6/25/09).
The three ecclesial impasses are "a shrinking and in some places demoralized
presbyterate that cannot be enlarged significantly under present rules, a laity
that loves the church but has stopped listening to the bishops and a
hard-working and loyal body of religious women who are disgusted and discouraged
by repeated investigations of religious life and attempted reversals of
self-governance."
Some of the bishops, Tilley observed, have tried "to work through these
difficult impasses," but others prefer to ignore them. Still others make these
even worse by following the example of "the vigilantes of the political and
religious right by making noisy attacks on Catholic institutions of higher
education."
Was Tilley perhaps thinking of the criticisms voiced by many bishops this
spring against the University of Notre Dame for inviting President Barack Obama
to deliver this year's Commencement address and to receive an honorary
degree?
Tilley also expressed concern about the large numbers of Catholics who have
simply drifted away from the church, according to last year's survey by the Pew
Forum on Religion and Public Life. He speculated that this "may be the response
to stalemate in church."
