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.

Wednesday, October 15, 2008

Weigel on "Pro Life Catholics for Obama"

Here's George Weigel, in Newsweek, discussing Prof. Kmiec, et al.:

. . . [Kmiec's and others'] argument, in sum: the constitutional and legal arguments that have raged since Roe vs. Wade are over, and Catholics have lost; there are many other "intrinsic evils" that Catholics are morally bound to oppose, and Republicans tend to ignore those evils; liberalized social-welfare policies will drive down the absolute numbers of abortions and Senator Obama is an unabashed liberal on these matters. Therefore, a vote for Obama is the "real" pro-life vote.

The argument is, some might contend, a bold one. Yet it is also counterintuitive, running up against the fact that, by most measures and despite his rhetoric about reducing the incidence of abortion, Barack Obama has an unalloyed record of support for abortion on demand. Moreover, he seems to understand Roe vs. Wade and subsequent Supreme Court decisions as having defined abortion as a fundamental liberty right essential for women's equality, meaning that government must guarantee access to abortion in law and by financial assistance—a moral judgment and a policy prescription the pro-life Catholic Obama boosters say they reject. . . .

There's a lot more.

In my view, there are (at least) two different positions that a pro-life Obama supporter might take:  The first is to say, "yes, abortion is the defining moral issue of our time, and not just one issue among many, but Sen. Obama is -- all things considered -- the better candidate on abortion, and not just with respect to "life issues" generally, and so that's why I'm for him."  This position, in my view, does not stand up to scrutiny.  Nutshell version of my view, which regular MOJ readers have probably encountered more than they'd like:  All things considered, the policies of an Obama administration are not likely to reduce the number of abortions; an Obama-selected judiciary would be unlikely to move constitutional law in a direction friendly to reasonable abortion regulation; and, numbers aside, the question for pro-life Catholics should not be simply "how many abortions are taking place?" but "are we excluding unborn children from the protection of the law, to which they are entitled in justice as a matter of human rights."

Another position would be to say, "Sen. Obama is dead-wrong on abortion; his views are odious, and his plans and policies with respect to abortion are repugnant.  And yet, he is right on many other things that I care about -- some of which are, I judge, also very serious moral issues.  Indeed, Sen. McCain has odious and dead-wrong views on some very serious moral issues, too.  So, all things considered, I will vote for Sen. Obama as the lesser of two evils, even though I know -- I wish it weren't so, but I know it is -- his election will set things back on the abortion front."  This second position is easier for me to understand (although I do not endorse the premise that there are lots of morally serious issues on which Sen. Obama's likely-to-be-enacted-into-policy views are clearly better than Sen. McCain's) and, until this election cycle, it seemed to be the more common one among my pro-life Democratic friends.  Any thoughts about what (if anything) has changed?

UPDATE:  A reader writes:

I think what changed is that in the 2004 election cycle, many pro-life Republicans argued for the primacy of abortion over other issues, in particular the war in Iraq, because of the scale of abortion -- 1 million abortions per year was orders of magnitude greater than the detahs caused by war, or the number of those who had been tortured.

So in this election cycle, pro-life Democrats are under the impression that efforts to reduce the number of abortions are sufficient.  If the problem with abortion is its scale, then a valid response should be to reduce that scale, right?

There are several problems with this way of thinking, but I think the arguments from 2004 paved the way for it.

UPDATE:  My friend and colleague, Mark McKenna, writes: 

I think I sort of agree with your characterization of the two pro-life Obama
> positions.  But I think I would characterize my own position as something of
> a combination of the two:>
>
> I disagree with Obama on abortion.  I think at least some of his positions
> are odious.  But I also think that some of the other things he will do are
> likely to have a substantially positive impact on the number of abortions.
> I don't know for sure the full net effect of all those policies.  So I'm
> left with disagreement on a serious issue, somewhat (at least) offset by the
> impact of other policies on the problem.  If that was it, and it was
> otherwise a close call, that might not be enough for me to tip in favor of
> Obama.  But I do believe that "Sen. McCain has odious and dead-wrong views
> on some very serious moral issues, too."  So I guess I think that's an "all
> things considered" view, but probably not as strongly as you imply.
>
> I think that's something of a combination of the two, though probably more
> (b) than (a).

Recent Scholarship on Preimplantation Genetic Diagnosis

I've discussed some of the issues underlying preimplantation genetic interventions on MOJ before.  Coincidentally, my SSRN e-mails this morning contained two new postings discussing different aspects of this kind of technology with some interesting perspectives.

"Making Mommies:   Law, Pre-Implantation Genetic Diagnosis, and the Complications of Pre-Motherhood" by Kimberly Mutcherson of Rutgers School of Law-Camden, is unfortunately only an abstract -- the whole article isn't posted yet.   Although I can't tell from the abstract exactly where her reasoning is leading her, this description of part of her article is intriguing:

The article begins by describing the medical landscape relevant to modern pregnancies in the United States. I then discuss the myriad ways in which existing law impacts procreative and parental decision-making and the ways in which the public nature of procreation and pregnancy make it a time ripe for regulation that is deeper and more intimate than is often the case when the law regulates non-pregnant bodies. The article describes motherhood, unlike fatherhood, as deeply contested territory in which many women struggle to conform to their own definitions of good motherhood and avoid the dreaded label of bad mother. It also describes how the law participates in a process of naming some women as bad mothers and questioning and at times denying their right to parent.

The second article, "Insult to Injury:  A Disability-Sensitive Response to Professor Smolensky's Call for Parental Tort Liability for Preimplantation Genetic Interventions", by Alicia R. Ouillette at Alabany Law School, is a response to another article discussed in her abstract: 

In her article Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, Professor Kirsten Rabe Smolensky argues that children who were subject to preimplantation genetic manipulation should have the ability to sue their parents for damages when the parents "directly intervene in the child's DNA and consequently cause that child to suffer a disability which limits the child's right to an open future." This paper addresses the implications for people with disabilities of that argument. Specifically, it argues that limiting damages to cases in which a child is born with a disability unnecessarily and inaccurately devalues life with disability and leaves unprotected children whose DNA is shaped for traits other than disability at the request of their parents. It then suggests a disability-sensitive approach for delineating cognizable injury under which genetic modifications for disability are treated like other genetic modifications that shape a future child for cultural, aesthetic, or social reasons.

I don't see explicit references to Catholic teachings in either article, nor am I sure either author's ultimate conclusions concur with Catholic teachings.  But it is encouraging to see little glimpses of arguments that must, surely, be written on all our hearts poking through in secular scholarship on some of these areas on the frontiers of bioethics.

"fundamental right"

Michael Scaperlanda is right that Professor George's exposition of Sen. Obama's position on abortion is a must-read.  Here's a sample:

But this barely scratches the surface of Obama's extremism. He has promised that ''the first thing I'd do as President is sign the Freedom of Choice Act'' (known as FOCA). This proposed legislation would create a federally guaranteed ''fundamental right'' to abortion through all nine months of pregnancy, including, as Cardinal Justin Rigali of Philadelphia has noted in a statement condemning the proposed Act, ''a right to abort a fully developed child in the final weeks for undefined 'health' reasons.'' In essence, FOCA would abolish virtually every existing state and federal limitation on abortion, including parental consent and notification laws for minors, state and federal funding restrictions on abortion, and conscience protections for pro-life citizens working in the health-care industry-protections against being forced to participate in the practice of abortion or else lose their jobs. The pro-abortion National Organization for Women has proclaimed with approval that FOCA would ''sweep away hundreds of anti-abortion laws [and] policies.''

Robert George on "Obama's Abortion Extremism"

Robert George's Obama's Abortion Extremism is a must read for every voter who is conscientiously and faithfully attempting to assess the presidential candidates.

Tuesday, October 14, 2008

An Interesting Event

Stephen Braunlich, a law student at Catholic U., rightly thought that many MOJers would be interested in this:

The Catholic Vote 2008:
A Life Cycle Colloquium

You are cordially invited to join the fellows and friends of the Life Cycle Institute at
The Catholic University of America for a special colloquium on The Catholic Vote
2008. Please join this gathering of Life Cycle and outside experts as they consider
the Catholic vote in the context of the current national election.

Moderator: Professor Sandra Hanson, Department of Sociology & Life
Cycle Institute, CUA

Speaker: Professor Mark Rozell, School of Public Policy, George Mason
University

Speaker: Dr. Gregory Smith, Pew Forum on Religion & Public Life

Speaker: Professor John White, Department of Politics & Life Cycle
Institute, CUA

Respondent: Dr. William DʼAntonio, Life Cycle Institute

Respondent: Michael Sean Winters, Author of Left at the Altar

McGiveny (formerly Keane) Auditorium
Wednesday, October 22nd, 4:00-6:00pm
Reception to Follow

Often labeled a “swing group,” Catholics comprise one-quarter of the electorate. In
six of the last seven presidential elections, Catholics have voted for the winner. At
the same time, Catholics are sharply divided along party lines—with 43% of selfidentified
Catholics Democratic, 34% Republican, and 19% independent. All of
which makes the question of the Catholic Vote 2008 a fascinating one to consider in
the final week-and-a-half before election day. How will they vote in 2008? What
issues and policies matter most to Catholics? How will their votes impact the
election?

Life Cycle Institute
The Catholic University of America
Washington, DC 20064
Phone: (202) 319-5999
Fax: (202) 319-6267
Email: [email protected]

Politics of Identification?

My former colleague, John Stinneford, had these thoughtful comments about my post on identity politics.  He suggests that there is a "connection between identity (or perhaps “identification”) and the genuinely social and political nature of the human person."

When we talk about “identity politics,” what we’re really often talking about is a kind of  “group selfishness.”  My group wants to get something at the expense of your group, and so my group defines your group as evil, worthless, inhuman.  The process is inherently polarizing, and it leads to much of what is sickening about politics – the McCain camp saying that Obama hates his country, for example; or Obama describing McCain as deranged and unstable. 

Your insight concerns an entirely different kind of “identity politics” from the one given to us by the political parties.  Maybe it could be better described as a “politics of identification.”  By identifying profoundly with the humanness of Sarah Palin, you also identify with the humanness of Barack Obama and of those who see their hopes and dreams and aspirations bound up with him.  Reading your essay made me feel hopeful in a way I haven’t felt hopeful in quite a long time.  If we can see the humanness in each other – even in our political enemies – then there’s some chance we may actually be able to live in community.

President Obama's "first act"

He desribes it here.

Those who care about reducing the number of abortions, including of the partial-birth sort, can be grateful for the candidate's occasional transparency.

[This post, surely of interest to many MOJ readers, appeared this morning at dotCommonweal.]

Can you deny a bishop communion?

Posted by David Gibson

It would be interesting to see Supreme Knight Carl Anderson (see Paul Moses’ post below) face off with Archbishop John Onaiyekan of Abuja, Nigeria, who told NCR’s John Allen that he would “obviously” vote for Barack Obama if he could. That seems consistent with what I’ve heard from and about prelates outside the American ecclesial echo chamber. But Onaiyekan is particularly thoughtful in his remarks:

Known as a strong advocate for social justice, Onaiyekan said Obama’s pro-choice record wouldn’t stop him from voting for the Democrat.

“The fact that you oppose abortion doesn’t necessarily mean that you are pro-life,” Onaiyekan said in an interview with NCR. “You can be anti-abortion and still be killing people by the millions through war, through poverty, and so on.”

A past president of the African bishops’ conference, Onaiyekan is widely seen as a spokesperson for Catholicism in Africa. During the synod, he was tapped to deliver a continental report on behalf of the African bishops.

Onaiyekan said the election of an African-American president would have positive repercussions for America’s image in the developing world.

“It would mean that for the first time, we would begin to think that the Americans are really serious in the things they say, about freedom, equality, and all that,” he said. “For a long time, we’ve been feeling that you don’t really mean it, that they’re just words.”

Onaiyekan said he’s aware that many American Catholics have reservations about Obama because of his stand on abortion, but he looks at it differently.

“Of course I believe that abortion is wrong, that it’s killing innocent life,” he said. “I also believe, however, that those who are against abortion should be consistent.

“If my choice is between a person who makes room for abortion, but who is really pro-life in terms of justice in the world, peace in the world, I will prefer him to somebody who doesn’t support abortion but who is driving millions of people in the world to death,” Onaiyekan said.

“It’s a whole package, and you never get a politician who will please you in everything,” he said. “You always have to pick and choose.”

John (who is in Rome covering the Synod on the Bible, along with Onaiyekan and a cast of hundreds) also posts the full transcript of the interview here.

UPDATE! Via CNS, this story about a 106-year-old nun who is going to vote for the first time since 1952…and she’s going to vote for Obama! Maybe she and the Archbishop can talk shop while waiting in the non-communion line. It’s a very nice piece, actually.

ROME (CNS) — U.S. Sister Cecilia Gaudette, a 106-year-old member of the Religious Sisters of Jesus and Mary, will vote for the first time in 56 years and will cast her ballot for president for Sen. Barack Obama, D-Ill. The nun, a retired music and art teacher, has lived in Rome for 50 years and only recently found out that she could register for an absentee ballot without returning to the United States.

…Sister Cecilia said she was sure Obama would win, just like the last U.S. presidential candidate she voted for — Republican Dwight D. Eisenhower in 1952. “I always said, ‘I voted once and I won the election,’” she told CBS News.

The Vocation of the Child

Those of us looking to get an early jump on our Christmas shopping should be ecstatic that Patrick Brennan's indispensable new book, The Vocation of the Child, is now available.  Here's the description:

Rather than discussing their possible vocation, discussions of children tend to center on their rights or duties. Does God have intentions for their young lives — before they grow up and become “real” people?  Distinguished jurist Patrick McKinley Brennan has gathered sixteen authors to approach this idea in various ways, from historical to psychological to theological. The authors explore throughout whether it is possible for adults to either squander their children’s vocations or instead to help discover and embrace them.

My contribution to the book analyzes the teachings on childhood and salvation set forth in the Christian sacramental, covenantal, and conversional traditions, and analyzes how the lenses provided by those traditions shape our critique of modern law's conception of "the best interests of the child."  The book features contributions from a variety of interdisciplinary scholars, including some familiar to the MoJ crowd such as John Witte, John Coons, Charles Glenn, and Chuck Reid.  Kudos to Patrick for putting this all together.

Monday, October 13, 2008

The Tenacity of Unbelief

Last month, the Templeton Foundation sponsored a debate between renowned atheist Christopher Hitchens and Msgr. Lorenzo Albacete (a trained physicist) on the question of “Does Science make belief in God Obsolete.”  During the discussion Hitchens said: "If I saw a miracle, I would be inclined to doubt the evidence of my own eyes."

This brought to mind a passage in J. Budziszewski’s fine book, “What We Can’t Not Know.”  Budziszewski posits that knowledge of God is part of natural knowledge (not just revealed knowledge) and is therefore one of the facts we can’t not know. On page 62, he says:  “[t]he reason it is so difficult to argue with an atheist – as I know, having been one – is that he is not being honest with himself.  He knows there is a God; he only tells himself that he doesn’t.”

Hitchens, it seems, wants to cling to his belief system no matter what the facts.