Following up on Rob's link to the excerpt -- dealing with Sen. Obama's opposition in Illinois to that state's born-alive-infant-protection law -- from Doug Kmiec's new pro-Obama book: A useful supplement to Kmiec's account is this short report -- which confirms that Sen. Obama misrepresented his record -- from (the non-partisan) Factcheck.org. Also worth reading is this detailed account and analysis of the controversy by the National Right to Life Committee. This account is not consistent with the one set out in the full excerpt from Kmiec's book, which is available at Steve Waldman's BeliefNet site.
Wednesday, September 17, 2008
More on Obama's Illinois abortion votes
Response to Kmiec on Obama
A reader responds to my earlier post:
A couple of important points in response to Kmiec's excerpt on Obama & the Born Alive bill. Obama's justification at the time for voting against the bill (before the neutrality clause was added) was twofold. One, he thought that the principle established by the law that previable unborn children are persons would undermine the rationale of Roe, namely, that viability is a meaningful marker regarding a woman's right to abortion. Put aside for the moment, that even post-viability, the "health exception" (as interpreted in Doe v. Bolton) creates an essentially unlimited right to choose abortion at any gestational stage. Two, Obama thought that imposing on doctors the obligation to deliver care to a previable child was an unconstitutional burden. You can read Obama's statements here: http://www.ilga.gov/senate/transcripts/strans92/ST033001.pdf (at 86-87).
His remarks in no way mirror those of Kmiec's (which seem to be grounded in some kind of "futility" analysis -- that is, no medical care would be beneficial to these kids, and is thus not obligatory). Obama instead was worried about preserving the principle that previability, unborn children should be regarded by the law as subhuman. The Illinois law, by contrast, symbolically and actually reflected the norm that moral respect and protection of the law should not be inversely proportional to one's vulnerability or dependence on others. To hold otherwise, as Obama does, is to turn our best moral traditions on their head. As Hans Jonas said, "absolute vulnerability invites absolute protection."
A final thought -- "viability" is not, as a medical matter, a bright line. It depends on many things unique to the particular baby in question. Different babies are "viable" at different times. I think that even if you take Obama's monstrous view (or Kmiec's wrongheaded view), it strikes me that there would be an obligation to determine viability. But Obama's other positions on abortion clearly imply that he would oppose requiring doctors to determine viability in cases like this. Finally, the legislative record showed that these babies were being placed in soiled utility closets, and in some instances took many hours to die. Obama's position would even preclude palliative care for these children. Kmiec's argument would similarly preclude palliative care -- which I think is deeply misguided. I think that there is an ethical obligation to provide palliative care.
And, incidentally, contrary to Kmiec's observation, there are many examples in the law (Torts, Criminal Law, etc.) where a previable baby "born alive" can be the victim of a homicide, negligence, intentional torts, etc.
Kmiec on Obama on Infants Born Alive Act
Doug Kmiec has published a new book, Can a Catholic Support Him?, addressing his widely discussed endorsement of Barack Obama. Steve Waldman has posted, with Doug's permission, the section of the book addressing Obama's opposition to the Infants Born Alive Protection Act. Here's an excerpt:
Let me say right at top, that if I were in the Illinois legislature I would have given this law my vote. That said, this legislation, in my opinion and, I believe, in Senator Obama's as well, was not aimed at saving lives so much as shaming them. Now, the history of this measure, which is quite convoluted, is being used to suggest that Senator Obama is a proponent of infanticide. This is an outrageous smear as the detailed accounting of this episode by a Chicago Tribune reporter reveals if anyone cares to look before indulging the accusation. As a man who views his own daughters as the miraculous gift of the Creator that they are, the Senator is justifiably angered by what would very likely be libelous blogs were he not a public figure.
So what does the "Born Alive" Act do? Largely, it redefines what it means to be "born alive." From the time of ancient common law, "born alive" has meant live birth at or near the end of a full term pregnancy with a reasonable prospect of survival. If a woman sadly miscarries earlier and expels a non-viable, but temporarily alive, but unborn child with a transient heartbeat, there isn't a county recorder in the country who would record a live birth. The miscarriage is sad enough; we don't worsen it with the grief of death before life has meaningfully taken hold. But that's what the "Born Alive" Act does. For the most part, it redefines live birth to include non-viable unborn who lack any meaningful chance of survival. In essence, the act imposes on the birth process the over-extension of life support to a dying patient without any reasoned chance of survival. Medical ethics does not require so called "heroic" care at either end of life, and neither does Catholic teaching.
You can read the whole section here.
Religious Faith and the Debate about Evolution
This is something, I think, that will be of interest to many MOJ readers:
The Chronicle of Higher Education
September 16, 2008
Vatican Sets Conference on Evolution
The Roman Catholic Church has long held that the theory of evolution is compatible with the Bible, a Vatican official said today in announcing a church conference on the topic for next March, the news agency Reuters reported.
The official, Archbishop Gianfranco Ravasi, who is the Vatican’s culture minister, cited papal statements in 1950 and 1996 acknowledging evolution as a valid scientific approach to the development of human beings, and said that the Catholic Church owed no apology to Darwin. Earlier this week, a leading Anglican churchman, the Rev. Malcolm Brown, said the Church of England did owe Darwin an apology for the way his ideas were received by Anglicans in Britain.
Next year’s gathering of scientists, theologians, and philosophers in Rome is timed to coincide with the 150th anniversary of the publication of Darwin’s On the Origin of Species. Phillip R. Sloan, a professor of philosophy and the history of science at the University of Notre Dame, which is holding the conference with Rome’s Pontifical Gregorian University, said the meeting would be an important contribution to explaining the Catholic stand on evolution.
“In the United States, and now elsewhere, we have an ongoing public debate over evolution that has social, political, and religious dimensions,” he told Reuters. “Most of this debate has been taking place without a strong Catholic theological presence, and the discussion has suffered accordingly.” —Charles Huckabee
Tuesday, September 16, 2008
Virtue, Autonomy, and Empirical Research
Ekow Yankah has posted his paper, Virtue's Domain. From the abstract:
Virtue ethics is . . . importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism.
This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.
Larry Solum comments on the paper, noting that:
it could be that some form of autonomy is constituitive of human flourishing. Certainly, an Aristotelian virtue ethics could (and in my view should) adopt this view of the relationship between autonomy and flourishing. If an appropriately conceptualized view of human autonomy is accepted as a constituent part of human flourishing and if the proper end of law is to promote human flourishing, then the law should aim to create the conditions for the development, maintenance, and excerize of autonomy by humans. But as Yankah sees, this aim would be integrated with the promotion of other aspects of human flourishing.
And, getting back to Greg's post about the dearth of Catholic legal empiricists, Solum observes that the law's ability to articulate and facilitate human flourishing, including the prudent role of autonomy within that concept of flourishing, "is likely to turn on a variety of empirical facts."
Repronormativity
Rick Hills takes on the only-in-the-academy concept of "repronormativity," which "denotes the belief that raising children is normatively desirable." As Rick observes, "[d]iscovering that I have repronormative beliefs was like Monsieur Jourdain’s discovery that he had been speaking prose all of his life without knowing it."
Monday, September 15, 2008
Empirical Legal Studies and Religious Topics
I’ve just returned from an intellectually enriching and research inspiring weekend at the third annual Conference on Empirical Legal Studies. The conference is a joint project of the Cornell, New York University, and Texas law schools and was hosted this year at Cornell University in Ithaca, New York.
The Conference on Empirical Legal Studies at Cornell attracted more than 300 people with the presentation of more than 120 original works of empirical scholarship by a diverse and interdisciplinary array of scholars at dozens of sessions, as well 25 more papers presented in a poster session. Sessions were held on law and psychology, courts and judges, securities regulation, medical malpractice, tax, law and society, CEO salaries, bankruptcy, criminal law and procedure, litigation, corporate governance, international and comparative law, law and finance, property and contracts, employment law, intellectual property, the legal profession, employment discrimination, gender, and race (and this is not an exhaustive list).
As I participated in the conference and attended sessions from dawn to dark, at which empirical work of the highest quality was presented and critically discussed by both an assigned discussant and a well-informed audience, it slowly dawned on me that not a single session was devoted to matters of religion either directly or indirectly (such as religious liberty, religious influences on culture or legal institutions, the role of religious institutions in society, etc.) Looking more closely, I discovered that not a single paper presented at these sessions appears to be have been devoted to that subject.
Now given the wide-ranging diversity of topics that were explored, the welcoming character of the empirical legal studies community, and the inquisitive environment of the Conference on Empirical Legal Studies (as well as my personal familiarity with our excellent hosts), the dearth of empirical presentations on religious topics certainly cannot be attributed to the sponsors of the conference or the participating scholars. Rather it served to bring home to me the stark fact that very few of us interested in law and religion or in the relationship of faith to legal subjects are doing empirical work. (Admittedly patting my own back, some of my past (here, here, and here) and ongoing empirical research is about religious liberty decisions in the lower federal courts.) Why is this?
Catholic teaching has always had a solid grounding in the material world, rejecting the Gnostic error that separates the spiritual world from the created physical world. While not neglecting the spiritual element or forgetting that we are in the World but not of the World, we Catholics are openly and joyfully a material bunch. The Incarnation of Christ, the physicality of the Body and Blood of Christ, the Resurrection of the Body –- all are central to our beliefs and rites. We readily find the presence of God in the world that He created. As G.K. Chesterton once said, Catholicism is “a thick steak, a glass of stout, and a good cigar!” Thus, should not we as Catholic scholars be among the first people of faith attracted to the study of what is, that is, to empirical research? And how can we encourage Catholic scholars to become more involved in the empirical legal studies movement?
Greg Sisk
Bellah on Taylor and Authentic Christianity in a Secular Age
The newest issue of Commonweal, in addition to our own Mark Sargent's insightful review of The Trillion Dollar Meltdown (which takes on even greater relevance given the most recent bank and insurance failures), contains a provocative article by Robert Bellah in which he engages key ideas from Charles Taylor's A Secular Age. Instead of emphasizing the historical fact of secularism, he focuses on Taylor's vision of authentic religion that engages those formed in a culture of secularism. According to Taylor, this authenticity is found in communion rooted in love.
At the heart of orthodox Christianity, seen in terms of communion, is the coming of God through Christ into a personal relation with disciples, and beyond them others, eventually ramifying through the church to humanity as a whole. God establishes the new relation with us by loving us, in a way we cannot unaided love one another. [We love because he first loved us, 1 John 4:19.] The lifeblood of this new relation is agape [the biblical Greek word for love], which can’t ever be understood simply in terms of a set of rules, but rather as the extension of a certain kind of relation, spreading outward in a network. The church is in this sense a quintessentially network society, even though of an utterly unparalleled kind, in that the relations are not mediated by any historical forms of relatedness: kinship, fealty to a chief, or whatever. It transcends all these, but [is rather] a network of ever different relations of agape.
"Marian Cool"
John Allen has some interesting things to say about Pope Benedict's visit to Lourdes. In a very interesting piece describing the evolution of the Pope's thinking about Marian devotion, Allen concludes:
To sum all this up in a sound-bite: In contrast to both cold skepticism and hot devotion, Benedict XVI embodies what one might call “Marian cool.” Neither cynical nor credulous, he harbors deep feeling for Mary and a keen sense of her theological importance, combined with reserve about the signs and wonders that surround eruptions of new Marian enthusiasm.
Whether “Marian cool” will sweep the Catholic world remains to be seen, but it may well be the most original feature of Benedict’s two and a half days in Lourdes.
Villanova Conference on Catholic Social Thought and Citizenship
In anticipation of the upcoming election, this year Villanova Law's annual conference on Catholic social thought will focus on "Catholic Social Thought and Citizenship." We hope to see many old friends and to make many new ones on Saturday, October 11. Details about attending are here and here. Speakers include: Michael Baxter, John Breen, John Coleman SJ, Bruce Frohnen, Ed Gaffney, Greg Kalscheur SJ, Christine Kelleher, John Leown, Kevin Lee, Eugene McCarraher, Michael Moreland, Aidan O'Neil, Tisha Rajendra, Mark Sargent, Jeanne Heffernan Schindler, Amy Uelmen, and Michael J. White.
Please plan to join us for what promises to be a spirited exchange of views on topics that are on everyone's mind.
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