The New Hampshore legislature has narrowly refused to accept the governor's demand for a meaningful (but still pretty modest) religious exemption in the state's same-sex-marriage bill. I'm waiting on further reports, but it sure looks like we have a case here of some same-sex-marriage advocates (I can't yet calculate just how many) being more willing to kill recognition of same-sex-marriage than to give any quarter to traditionalist objectors and their religious liberty.
Wednesday, May 20, 2009
NH Legislature Rejects Religious Exemptions, Likely Killing SSM Bill
The simple mistake at the root of our abortion disagreements
I disagree with Michael P. about the nature of the elephant in the room. I maintain that many or most of those who support abortion, and the destruction of embryos for science, in fact believe in the dignity and equality of every living being who is fully human. However, they fall into a very sensible and traditional (indeed Biblical) conceptual error, that of thinking that gestation is a matter of making or constructing, which error leads them not to recognize full humanity until late in pregnancy. What continues below is an abbreviation the first part of my exposition of this point; the complete version of my argument is linked to our website under the title "Construction, Development, and Revelopment."
Just think of something being constructed (fabricated, assembled, composed, sculpted – in short, made), such as a house, or a scholarly article – or take a car on an assembly line. When is a car first there? At what point in the assembly line would we first say, “There’s a car”? Some of us would no doubt go with appearance, saying that there is a car as soon as the body is fairly complete (in analogy to the fetus at 10 weeks or so). I suppose that most of us would look for something functional. We would say that there is a car only after a motor is in place (in analogy to quickening). Others might wait for the wheels (in analogy to viability) or even the windshield wipers (so that it’s viable even in the rain). And a few might say, “It’s not a car until it rolls out onto the street” (in analogy to birth). There would be many differing opinions.
However, one thing upon which we’ll probably all agree is this: Nobody is going to say that the car is there at the very beginning of the assembly line, when the first screw or rivet is put in or when two pieces of metal are first welded together. (You can see how little I know about car manufacturing.) Two pieces of metal fastened together don’t match up to anybody’s idea of a car.
I think that this is exactly the way that many people see the embryo, like the car-to-be at the very beginning of the construction process. In the first stages of construction you don’t have a house, you don’t have a car, you don’t have a human individual yet. You don’t ever have what you’re making when you’ve just started making it. This does not mean that our “constructionist” friends are anti-life. They may believe that a baby should have absolute protection once it has been fully fabricated. But until that point, for them, abortion just isn’t murder.
What happens when a constructionist hears a pro-lifer argue that a human embryo has the same right to life as any other human being? Journalist Michael Kinsley, writing in the Washington Post, expressed his utter bewilderment: “I cannot share, or even fathom, [the pro-life] conviction that a microscopic dot – as oblivious as a rock, more primitive than a worm – has the same rights as anyone reading this article.”
There’s a deep truth at the base of Kinsley's puzzlement. Nothing can be a certain kind of thing until it possesses the form of that kind of thing, and the form of a thing under construction just plain isn’t there at the beginning of the construction process. It isn’t there because that form is being gradually imposed from the outside and the persons or forces doing the construction have not yet been able to shape the raw material into what it will eventually be.
Despite the great explanatory power of the construction metaphor for an understanding of contemporary life-issue debates, it is radically misleading concerning the nature of gestation. It is in fact not true that the bodies of living creatures are constructed, by God or by anyone else. There is no outside builder or maker. Life is not made. Life develops.
In construction, the form defining the entity being built arrives only slowly, as it is added from the outside. In development, the form defining the growing life (that which a major Christian tradition calls its “soul”) is within it from the beginning. If Pontiac production is cancelled, the initial two pieces of metal stuck together can become the starting point for something else, perhaps another kind of car, or maybe a washing machine. But even if you take a human embryo out of the womb, you can never get it to develop into a puppy or a guppy.
Living organisms are not formed or defined from the outside. They define and form themselves. The form or nature of a living being is already there from the beginning, in its activated genes, and that form begins to manifest itself from the very first moment of its existence, in self-directed epigenetic interaction with its environment. Embryos don’t need to be molded into a type of being. They already are a definite kind of being.
This idea of development – as the continual presence but gradual appearance of a being – lies deep within us. Here is a non-biological example of development. Suppose that we are back in the pre-digital photo days and you have a Polaroid camera and you have taken a picture that you think is unique and valuable – let’s say a picture of a jaguar darting out from a Mexican jungle. The jaguar has now disappeared, and so you are never going to get that picture again in your life, and you really care about it. (I am trying to make this example parallel to a human being, for we say that every human being is uniquely valuable.) You pull the tab out and as you are waiting for it to develop, I grab it away from you and rip it open, thus destroying it. When you get really angry at me, I just say blithely, “You’re crazy. That was just a brown smudge. I cannot fathom why anyone would care about brown smudges.” Wouldn’t you think that I were the insane one? Your photo was already there. We just couldn’t see it yet.
Why do we sometimes find the constructionist view plausible, while at other times the more accurate developmental view seems to make more sense? The constructionist view is intuitively appealing, I think, whenever the future is shut out of our minds, even if we are using the scientifically correct term “development.” Whenever the embryo or fetus is described in terms simply of its current appearance, it is easy to fall into constructionism. For example, if a snapshot is taken in which an embryo looks like just a ball of cells, its dynamic self-direction is obscured. It seems inert. Since an entity that had merely embryonic characteristics as its natural end state would indeed not qualify as a human being, it is easy to imagine that the entity in the snapshot is not human. Scientific knowledge of its inner activity may not be enough to overcome this impression, for it is hard to recognize a form still hidden from view.
However, when we look backwards in time or otherwise have in mind a living entity’s final concrete form, development becomes intuitively compelling. Knowing that the developing Polaroid picture would have been of a jaguar helped us to see that calling it a “brown smudge” was inadequate. If we somehow had an old photo taken of our friend Jim just after he had been conceived, and was thus just a little ball, we'd have no trouble saying, "Look, Jim. That's you!" Thus the most arresting way to put the developmental case against embryo-destructive research would be something like this: “Each of your friends was once an embryo. Each embryo destroyed could one day have been your friend.”
"Sola Scriptura and the Constitution"
Great post, and discussion, at Vox Nova. Check it out. Then, discuss.
Is there really an elephant -- or, at least, THAT elephant -- in the room?
Michael P. suggests that there is an "elephant in the room", and that is is captured with this question:
The sixty-four-dollar question: Who is more unreasonable: (1) One who denies that Christians (and others) can in good faith reasonably reject the position (even though, of course, one can reasonably accept it too) that unborn human life has the same moral status from the very beginning of its existence as it has as every later stage; or (2) one who rejects the position that unborn human life has the same moral status from the very beginning of its existence as it has as every later stage?
I suppose this elephant makes many appearances in our conversations about abortion, but it is not clear to me that this elephant made an appearance in the posts preceding Michael's, regarding President Obama's visit to Notre Dame, his calls for "common ground", and my own doubts about those calls.
The fact that there is disagreement over the "sixty-four dollar question" -- and there is -- does not change the fact that, as Fr. Jenkins said in his introduction of President Obama, the Church -- and, he said, Notre Dame -- has a clear position with respect to this question. So, for purposes of discussing whether or not it was consistent with Notre Dame's professed character and aspirations to honor President Obama, I'm not sure it matters that there is, in the broader conversation, disagreement among reasonable people with respect to the question.
Also, the fact that there is disagreement about this question does not speak, it seems to me, to my suggestion that hopes for dialogue and "common ground" are undermined by the fact that the Roe / Casey regime distorts the usual functioning of politics, and effectively guarantees one side in the "dialogue" a complete victory.
The question I asked Michael -- it is one to which his latest book, Constitutional Rights, Moral Controversy, and the Supreme Court, might speak -- is what he thinks of what I wrote here:
Given the Roe / Casey regime, though (and given Pres. Obama's clear plans with respect to judicial selections), it seems that the common-ground calls are really not much more than calls that pro-life Americans agree to re-brand the pro-choice position as "common ground".
In fact, the more I think about it, Michael's "sixty-four dollar question" would seem to strengthen my point: If there is this disagreement among reasonable people, then the judicial overreach that is Roe / Casey seems all the more unjustified. If President Obama were to call for the overruling of Roe, and appoint Justices likely to overturn it, and then invite a conversation about what our compromise, common-ground legal regime should be, I would -- notwithstanding my awareness that the resulting regime would fall short of what I believe justice requires -- cheer loudly.
A Second Elephant in the Room (it’s getting crowded in here)
A Michael P. rightly points out, we are deeply divided (even among Catholics) on the moral status of the unborn human. I should hasten to add that there are still a number of individuals who remain confused over the biological status of the unborn human – I encounter them every year in my Constitutional Law class. These are the political realities as Michael P. has suggested. And, I assume that most people who deny either the biological or moral status of the unborn human act in good faith. It would be not only unreasonable but uncharitable for me to think otherwise.
But, there is another elephant crowding in the room – the Fall. We are selfish, sinful creatures who often want to do what we should not do. (I can testify to this from much personal experience). But, being reasoning creatures and being children of God, we feel compelled to justify our actions. Strangely, it is this fact that we must deceive ourselves (in good faith, mind you) in order to justify doing what we should not do that gives me hope. Buried deep in side of each of us is that prick of conscience that can be covered up but not eradicated.
With respect to the moral status of persons, we see these arguments repeated throughout history. What does the Bible or natural law say about the moral status of the indigenous population of the Americas? It's all very cloudy you see. If the answers were clear, we would have consensus but since we don't have consensus, the answers must not be clear. And, well, if Indians share a moral status equal to that of European's, then what right do we have in enslaving or abusing them. So we develop arguments to justify our actions. And, it is left to irritants like Bartolomé de Las Casas to speak truth to power. What does the Bible or natural law say about the moral status of Africans? It's all very cloudy you see. If the answers were clear, we would have consensus, but since we don't have consensus, the answers must not be clear. And, well, if Africans share a moral status equal to that of whites, then what right do we have in enslaving them. So we develop arguments to justify our actions. And, it is left to those irritating voices to remind us of the truth of the matter.
And, so it is we abortion and the moral status of the pre-born human! What does the Bible or natural law say about the moral status of the pre-born human being? It's all very cloudy you see. "If natural law teaching were clear on the matter, a consensus would have been formed by those with natural reason." And, well, if pre-born humans share a moral status equal to post-born humans, then what right do we have to intentionally kill them. So we develop arguments to justify our actions. And, it is left to irritants like Robert George and others to speak truth to the current prevailing powers.
I really love raw honesty in the discussion of these grave matters, and Jed Rubenfield, Daniel Callahan, and Dawn Johnsen provide us with an honest assessment that a pre-born human must be denied personhood status at least in part because granting moral status would adversely impact all who favor the abortion license. Jed Rubenfield, in a 1991 Stanford Law Review article, argued that "the consequences of deeming a fetus a person must be recognized as relevant to the decision of when (if ever) a fetus acquires this status." He also said: "[b]ecause it establishes the point at which a woman's constitutional right may be abridged, the determination of a fetus's personhood cannot be divorced from the constitutional interests protected by that right." A decade earlier, Daniel Callahan said: "One of my own motivations in trying to make a distinction between 'human being' and 'person' was perhaps my desire for an outcome that would allow women to have abortions. Hence I said to myself: 'My gosh, if this kind of distinction is not possible we can't have abortions. Therefore, let's see if I can make another move that will give me the kind of outcome I want.'" Panel Discussion, Legislating Morality: Should Life be Defined?, in DEFINING HUMAN LIFE: MEDICAL, LEGAL, AND ETHICAL IMPLICATIONS 335, 339 (M.W. Shaw & A.E. Daudera eds., 1983)(statement of Daniel Callahan). And, in a 1986 Yale Law Journal article, Dawn Johnsen said that "[t]he social determination of how the legal system should view the fetus should be informed by a careful consideration of all potential implications" and that "[t]he legal status that society chooses to confer upon the fetus is dependent upon the goals being pursued and the effect of such status on competing values."
Obama at Notre Dame: The View from the Vatican
Or, at least, the view in Italian.
An MOJ reader--Pasquale Annicchino, who is a Junior Fellow in the Law and Religion Programme, Siena, Italy, and also Editor in Chief of the Human Rights Review, University College, London--sent me a piece in Italian. Because I cannot read Italian, I asked Pasquale to translate the piece for me. For those of you who *can* read Italian, here is the link to the piece. For those of you who cannot read Italian, here is the translation Pasquale kindly provided to me:
Are the “Parallel-empires” back?
Several articles and op-eds have been recently devoted in the U.S. to the relationship between the Holy See and the new president after the Notre Dame speech.
If for Time Magazine the Pope was “sidestepping Notre Dame” , it may be worth to have a look at what Gian Maria Vian, editor in chief of the Osservatore Romano said today during an interview with Paolo Rodari for the daily “Il Riformista”. Here are some quotes:
“Obama has not upset the world (...) His speech at Notre Dame has been respectful toward every position. He tried to engage the debate stepping out from every ideological position and outside every “clash logic”. To this extent his speech is to be appreciated”. (...) “Let me be clear, the Osservatore stands where the American bishops are: we consider abortion a disaster. We must promote, always and at every level a “culture of life”. What I want to stress is that yesterday, on this precise and very delicate issue, the President said that the approval of the new law on abortion is not a priority of his administration. The fact that he said that is very reassuring to me. It also underlines a my own clear belief: Obama is not a pro-abortion president”.
Rodari stressed that judgement on the President’s record is not exactly the same that the USCCB has. Vian answered: “This is our policy, the way we inform. If a national bishops’ conference says something , we report it. But we believe that it is appropriate to give also other relevant elements to judge concerning international information”.
For Rodari this is the Vatican policy of the “Wait and see”, the policy of judging step by step , traditional for Vatican realpolitik. But this statements seems to suggest more than a simple cautious overture. Are the “Parallel-empires” back?
At Least We Know It’s An Elephant
Michael Perry is quite right to acknowledge and encourage everyone on MOJ to engage in the debate – hopefully, a rigorous, respectful, and honest dialogue – about the moral and legal status that should be accorded pre-born human beings. Michael is also to be thanked for advancing the conversation by acknowledging what was settled by biological science long before Roe v. Wade, namely, that the victim of abortion is a human being (understood simply as a descriptive as opposed to a normative category). Although this being may (at the time that he or she is dismembered inside his or her mother’s womb) lack certain characteristics found in human beings at later stages of development, this does not alter the essential kind of being that he or she is.
Unfortunately, acknowledging this fact is hardly commonplace, even among circles of so-called intellectuals, including, sadly, the President. While the motivation behind refusing to concede this point is understandable from a political and strategic point-of-view (that is, as a matter of rhetoric), it frustrates the cause of genuine dialogue. If those who have an interest in the practice of abortion (both supporters and opponents) were to follow Michael’s example, then the more challenging questions that Michael raises and that some authors have attempted to address could be examined in earnest.
Dan Philpott on ND graduation and ND Response event
My colleague, Dan Philpott (Pol. Sci.), has shared these typically thoughtful reflections on the graduation and protests, and also on the constructive, student-led event put on by ND Response:
Today the controversies here at Notre Dame came to a head with the visit of President Obama. Since the university announced that he was to be our commencement speaker, the airwaves have been humming, the blogs sizzling, the church buzzing, the bishop booming, Notre Dame's administration handling, the newspapers and magazines constantly volleying back and forth, airplanes flying overhead trailing signs with aborted fetuses, my kids pointing to the planes wondering what they are, trucks driving around town blaring that Notre Dame’s President, John Jenkins, has betrayed Jesus, RS feeds, tweeters, twitters, and other things of which I have not the slightest understanding.
I fear that the hubbub on campus is one that few people, including friends and family, will understand given the media coverage so far and even today after Obama’s speech. The protesters who have been getting most of the coverage are the ones who have stood at the university gates holding placards of aborted fetuses, bullhorns, and the like and have been getting arrested for trespassing onto Notre Dame property. This is because these protesters are not from Notre Dame but rather outsiders. Seeing them, I can see why people sometimes think that anti-abortion people are mean-spirited and uninterested in reason. They seem not to have much confidence in one of the pro-life movement's best tools: arguments. Virtually every pro-life person I know on campus thinks these protesters are setting back the cause; not one of them is sympathetic. But what I fear will not be understood is that there have in fact been two groups of protesters, these outside folks being one of them but another group being the students here at Notre Dame, who have organized very different kinds of events – like the extraordinary one that took place today. . . .
Tuesday, May 19, 2009
The elephant in the room ...
... namely, the disagreement, no less among Catholics than among others--the intractable disagreement--not about the *biological* status of unborn human--yes, HUMAN--life at the successiive stages of its development, but about its *moral* status.
In the United States (and elsewhere), there is a deep and widespread controversy about the moral status of unborn human life at the earliest stages of its development. Moreover, there is little if any reason to doubt that this controversy will endure. Referring to "philosophy, neurobiology, psychology, [and] medicine," Garry Wills has observed that "[t]he evidence from natural sources of knowledge has been interpreted in various ways, by people of good intentions and good information. If natural law teaching were clear on the matter, a consensus would have been formed by those with natural reason." Garry Wills, "The Bishops vs. the Bible," NYT, June 27, 2004.
Jesuit moral theologian Richard McCormick foresaw that because of this dissensus about the moral status of unborn human life--in particular, about its moral status during early pregnancy--"public policy [would] remain sharply contentious and the task of legislators correspondingly complex." Richard A, McCormick, SJ, "The Gospel of Life,"America, Apr. 29, 1995, at 12, 13. See also John Langan, SJ, "Observations on Abortion and Politics," America, Oct. 25, 2004: "[T]he fact of continuing and intense public disagreement [underlines] how far we are from having a broad public consensus against the practice [of abortion] and of how difficult it would be to . . . enact a legal prohibition against it." Cf. Clifford Longley, "'The Church Hasn't Yet Made a Mature Appraisal of What Democracy Demands'," The Tablet [London], May 7, 2005, at 11: "The criminal justice system . . . only works when there is at least a minimal degree of assent by the public to the moral framework in which it operates. . . . [W]hat you have to persuade the majority of is not just that your moral principle is correct but that it is right to insist that the minority which does not agree with it must nevertheless comply with it too."
For
the views of some Roman Catholics on the issue, see Joseph F. Donceel, SJ,
"Immediate Animation and Delayed Homonization," 31 Theological
Studies 76 (1970); Joseph F. Donceel, SJ, "A Liberal Catholic's
View," in Robert Hall, ed., Abortion in a Changing World 39 (1970); Thomas
A. Shannon, "Human Embryonic Stem Cell Therapy," 62 Theological
Studies 811, 814-21 (2001); Jean Porter, "Is the Embryo a Person? Arguing with the Catholic Traditions,"
Commonweal,Feb. 8, 2002, at 8; John Haldane & Patrick Lee, "Aquinas on Ensoulment,
Abortion and the Value of Life," 78 Philosophy 255 (2003); Robert Pasnau,
"Souls and the Beginning of Life (A Reply to Haldane & Lee)," 78
Philosophy 521 (2003); John Haldane & Patrick Lee, "Rational Souls and
the Beginning of Life," 78 Philosophy 532 (2003). Cf. Anthony Kenny, "The Soul Issue,"
Times Lit. Supp.,Mar. 7, 2003, at 12.
Consider
these passages from an essay that Peter Steinfels, the then-editor of Commonweal, published in Commonweal in 1981:
The sixty-four-dollar question: Who is more unreasonable: (1) One who denies that Christians (and others) can in good faith reasonably reject the position (even though, of course, one can reasonably accept it too) that unborn human life has the same moral status from the very beginning of its existence as it has as every later stage; or (2) one who rejects the position that unborn human life has the same moral status from the very beginning of its existence as it has as every later stage?
This disagreement--again, among Catholics no less than among others--is the elephant in the room. The Bible doesn't resolve the issue. The magisterium may say, clearly and emphatically, what it believes about the issue ... but, again, ""[t]he evidence from natural sources of knowledge has
been interpreted in various ways, by people of good intentions and good
information. If natural law teaching were clear on the matter, a consensus would have been formed by those with
natural reason."
Now, ponder the implications of this disagreement--this *reasonable* disagreement?--for our politics, for our law, and for our evaluation of those who, like Obama, disagree with the magisterium. I suggest you re-read what John Noonan had to say at Notre Dame, quoted below in Robertt Araujo's post.
What does Catholic legal theory have to say about this:
"The 12-year-old faces a capital murder charge. He is not eligible for the death penalty but could face up to 40 years in prison if convicted."
Here's the AP article, published today:
HOUSTON (AP) -- A 12-year-old Texas boy accused of killing an infant by throwing him to the floor has been released from juvenile detention and into the custody of a relative.
A judge on Tuesday ordered the boy released until his trial. The boy will live with an aunt and be supervised 24 hours a day, including when he is at school.
Officials say the 12-year-old was left alone March 12 at a Houston home with a group of younger children by his mother and the mom of the other kids when he threw 10-month-old Deandre Washington to the floor.
Deandre died two days later. His injuries included two skull fractures.
The 12-year-old faces a capital murder charge. He is not eligible for the death penalty but could face up to 40 years in prison if convicted.