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.

Friday, March 20, 2009

Obama's Special Olympics Remark

Let me begin by saying that I really do have a sense of humor about the truly funny aspects of my son's disabilities.  He has a wicked sense of humor himself, and some of his attempts to navigate the world on his own terms are unintentionally hilarious.  We often find ourselves doubled over with laughter at the things he does in situations that people outside of our family might find puzzling or even offensive.  I thought The Ringer was hilarious, and I thought there was so much brilliant comedy in Tropic Thunder that I was willing to overlook the fact that Ben Stiller's (to me) mildly offensive portrayal of cognitive disability simply wasn't funny.

But President Obama's comment that his less-than-stellar bowling skills are appropriate for Special Olympics really troubles me. I've commented before about the compelling lesson about true dignity with respect to body image that Special Olympics athletes could teach us all.  I think President Obama might be well-served to consider what he might learn from these athletes about true dignity with respect to athletic prowess.  President Obama is clearly a man who takes great pride in his athletic ability.   He must have been embarrassed during last year's campaign at being shown to be less than accomplished at bowling.  But to think it appropriate to attempt to address that personal humiliation with an insensitive "joke" like this, as President of the United States, on a late-night talk show, suggests a fundamental lack of respect for people with disabilities.

I realize that people with disabilities do not represent a large segment of the voting public.  Among all of the protected classes in our large panoply of civil rights laws, they are the most vulnerable, along dozens of fronts -- in the battle for resources, for the right to be born, and for the acceptance of their equal dignity as human beings.  Remarks like Obama's (and Al Gore's "extra-chromosome crowd" joke) would never be tolerated if they were made at the expense of women or racial minorities.  An apology and the inevitable photo-ops that I'm sure are going to follow of Obama bowling at the White House with a group of Special Olympians would not be enough to address the suspicions raised by the remark if it had been made about any other protected class.  The fact that these sorts of remarks are publicly voiced by presidents and presidential candidates demonstrates the shallowness of the commitment our liberal society really has to the equal dignity of people with disabilities.

Ironically, my son went on a field trip yesterday that he had been looking forward to for a long time.  He went bowling with his entire special education class.  He had a wonderful time.  Though I wasn't there, I'm certain he, his classmates, and all his teachers laughed almost the whole time.

(By the way, tomorrow is World Down Syndrome Day.  Celebrate!!!)

"Torture Intolerance"

Our Sunday Visitor's March 29th editorial ends with this:

While the debate about the definition and value of torture will continue, the Church's teachings in this area are clear and consistent: The ends do not justify the means. Torture is an affront to human dignity and has been labeled by the U.S. bishops as an "intrinsically evil action" in their 2007 document "Forming Consciences for Faithful Citizenship," along with abortion, the destruction of human embryos, genocide, racism and targeting noncombatants.

All of these actions deny the immutable dignity of human life, and all are condemned. Pope Benedict XVI himself said in 2007 that "means of punishment or correction that either undermine or debase the human dignity of prisoners" must be avoided. "The prohibition against torture cannot be contravened under any circumstances."

That the ends justify the means -- be it for abortion, euthanasia or embryonic stem cell research -- has become the rationalization of choice for a host of questionable actions that our society now approves. Torture certainly fits within those categories.

What we surrender when we make such accommodations with evil, however, goes much further than simply the moral diminishment of our country and its ideals. By using legal legerdemain to justify the unjustifiable, we give cover to more despotic nations and weaken the internal restraints that keep our own society from resorting to more debased actions.

As with abortion, by appearing to tolerate and even justify an evil such as torture, Americans hasten the erosion of the moral values upon which all civilized society must be based.

Thursday, March 19, 2009

Restricting Research on Embryos but not Restricting IVF – Inconsistency in the Pro-life Camp?

Over at Vox Nova, Mornings Minion comments on an exchange between Michael Kinsley and Ross Douthat on embryo destructive research. MM says (incorrectly I think) that Douthat doesn’t really answer Kinsley’s charge that opponents of embryo destructive research are being inconsistent when they are “content to leave the IVF clinic more or less alone, even if they might personally disagree with the act.” I believe, as MM suggests, that some of the reluctance to impose restrictions on IVF can be accounted for by middle class support for the procedure as a legitimate form of assisted reproduction. But this is only part of the story. The absence of efforts to restrict IVF also represents (1) a calculation that such measures would be politically unfeasible such that any attempt to enact them would harm efforts to restrict embryo destructive research and (2) any restrictions, if enacted, would likely be subject to a successful constitutional challenge under the legal regime created by Roe and its progeny. Thus, while this reluctance to legally limit IVF is not, as MM points out, wholly consistent, it may well reflect a sober recognition of the futility of such measures. In any case, it embodies a prudential judgment, and those who exercise prudence are always subject to the charge of inconsistency, especially when the wisdom of their judgment is still in doubt. Perhaps as a middle course to outright prohibition of IVF (which would surely face overwhelming opposition in the current context), those of us who oppose embryo destructive research should propose limits on the number of embryos that can be produced in the course of a couple's treatment for infertility and (more ambitiously) that a maximum of two or three embryos be produced during a given treatment and that all of them be implanted. In the wake of the outcry over the “Octomom,” there may well be widespread public support for such efforts – efforts that, nevertheless, would still be subject to constitutional challenge. Surely this would not constitute a complete response to the problems presented by the creation of nascent human life outside the womb, but it would be a first step in helping to build a culture of life.

Did Obama Allow Human Cloning? An exchange between Doug Kmiec and Robert George

U.S. News and World report has a fascinating five part email debate between Professors Doug Kmiec and Robert George on President Obama's position on human cloning.  Read it here.

Hope among the HIV infected in Uganda

In a powerful and beautiful 35 minute documentary from Uganda, Rose, Vicky, and other women infected with the AIDS virus have found hope and joy in their lives.  These women have much to teach us (at least me) about living, loving, and serving others both near and far. 

With respect to the question of AIDS and condoms, which Rob raises here, their hope and joy clearly don't come from increased condom distribution, which they view as a perpetuation of the common mentality that fostered the spread of the disease in the first place. 

Condom Use and AIDS

Rob writes:  "Did Pope Benedict mean that the distribution of condoms will send a message of support for sexual promiscuity, thereby decreasing current levels of abstinence and marital fidelity?  If so, does that match up with the facts on the ground in Africa?"  An NCR (no not that NCR!) blog post suggests a "yes" answer: 

Last year, the Register spoke with secular experts who said that, in many places, condom promotion actually increases AIDS.

We explained, in Grace Candiru’s recent story about Uganda:

Edward Green is director of the AIDS Prevention Research Project at the Harvard Center for Population and Development Studies. He wrote Rethinking AIDS Prevention: Learning From Successes in Developing Countries and reported that, between 1989 and 2001, the average number of condoms per male ages 15 to 49 in African countries skyrocketed. So did the number of those infected with HIV. South Africa, Botswana and Zimbabwe had the world’s highest levels of condom availability per man. They also had the world’s highest HIV rates.

Norman Hearst is a family physician and epidemiologist at the University of California, San Francisco.

UNAIDS, the Joint United Nations Program on HIV/AIDS, asked Hearst to do a scientific review to see if condom promotions had reversed HIV/AIDS epidemics. His review found the contrary was true. Countries with the most condoms per man tended to have the highest HIV rates. UNAIDS refused to publish Hearst’s findings.

“Condom promotion in Africa has been a disaster,” Hearst said.

Nearly every country on the continent has vigorously promoted condoms to stem the tide of the AIDS epidemic there. But the epidemic has only grown larger.

Uganda, on the other hand, has experienced the greatest decline in HIV prevalence of any country in the world, according to the Heritage Foundation. The Ugandan public education campaign against AIDS mentioned condoms, but emphasized abstinence.

Studies show that from 1991 to 2001 HIV infection rates in Uganda declined from about 15% to 5%.

“The Ugandan model has the most to teach the rest of the world,” said Green. “This policy should guide the development of programs in Africa and the Caribbean.”

Maybe, just maybe, the Pope is on to something.

"We Need More than Lip Service" . . .

. . . says evangelical leader and Pres. Obama-supporter David Gushee:

It's no secret that a group of self-identified centrist or moderate evangelicals built a friendly relationship with Barack Obama and rejected the Christian right's vilification of him. I am in this group, which has also included megachurch pastor Joel Hunter, evangelical lobbyist Rich Cizik, academic-activist Ron Sider and others. . . . 

. . . I knew from the beginning that if Obama took typical Democratic positions on abortion-related issues, this centrist evangelical friendliness toward him and his administration would be tested. I knew that during the campaign he had hewed closely to the standard Democratic pro-choice line. But his party's platform also promised a commitment to abortion-reduction efforts, and he has echoed that language. Some of us continue to dream that he will roll out a major abortion-reduction initiative.

Such an initiative has not been offered. But what has occurred are a series of disappointingly typical Democratic abortion-related moves . . .

Mexico City, conscience clause, Sebelius, embryonic stem cells. In each case, I have been asked by friends at Democratic or progressive-leaning think tanks not just to refrain from opposing these moves, but instead to support them in the name of a broader understanding of what it means to be pro-life. I mainly refused.

But I do confess that my desire to retain good relationships with the Obama team has tempted me to give what was asked in return for the big payoff of a serious abortion-reduction initiative that I could wholeheartedly support.

But this kind of calculation is precisely what has gotten Christian political activists in trouble in the past, not just for 40 years but for 1,600 years. We gain access to Caesar in order to affect policy; we hold onto access even if it involves compromising some of what we want in policy; in the end, we can easily forget what policies we were after in the first place. I think this definitely happened to the Christian right. It doesn't need to be repeated by the Christian center or left. . . .

The USCCB and conscience-protection

The USCCB is, apparently, gearing up to try to stop, or at least modify, the Obama Administration's planned recission of the Bush Administration's HHS regulations dealing with the conscience-rights of health-care workers.  We'll see . . .

What should retributive punishment look like in a just society?

From my (admittedly limited) understanding of Catholic teaching, the death penalty is never a morally justified punishment in today's American legal system.  There should accordingly be much rejoicing over New Mexico's repeal of the death penalty this week.  As Bishop Ramirez of Las Cruces said, Governor Richardson "has made New Mexico a leader in turning away from the death penalty with all its moral problems and issues of fairness and justice."  One of the governor's explanations struck me, though, as standing in some tension with the overarching commitment to human dignity that the death penalty's repeal represents.  After visiting the maximum-security cells where life-without-parole inmates would be housed, he explained, "my conclusion was those cells are something that may be worse than death."

I realize that the governor's statement probably had a lot to do with politics.  But it raises a deeper set of questions.  I do not dispute that a just society can incorporate a retributive element into its criminal punishments.  But does retribution, properly understood, mean that we should seek to house inmates in a way that "may be worse than death?"  Does retribution mean that we should inflict a certain degree of suffering on criminals?  Does retribution still need to be carried out consistently with living conditions that are recognizably human and support a certain level of physical, mental, and spiritual well-being for the inmate?  If so, is it fair to characterize a Catholic view of retribution in criminal punishment as limiting retribution to a deprivation of liberty while forbidding any deliberate infliction of suffering that is independent from the deprivation of liberty itself?

"For the Bible Tells Me So"

This document, "For the Bible Tells Me So:  A Study Guide and Advocacy Training Program", is posted on the State of Connecticut's official website (www.ct.gov).  It is put out by the "Religion and Faith Program" of the Human Rights Campaign.  According to the National Catholic Register, Connecticut's official promotion of this document (and a related film) -- the point of which is to instruct / convince people regarding a particular view of "the Bible and homosexuality" -- threatens the separation of church and state.  I'm inclined to agree, and to think that this promotion is in tension with the Court's "hands off approach to religious doctrine". 

For more on the "hands off" rule, see the articles collected in this Notre Dame Law Review symposium.  And, for more on the unconstitutionality of a similar government effort, in Georgia, see this post by Eugene Volokh.