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, August 29, 2008

Abortion, Economic and Social Policy Issues

I begin by thanking Michael P. for bringing to our attention the recent report prepared by Catholics in Alliance for the Common Good entitled “Reducing Abortion in America: The Effect of Economic and Social Supports.” As I recall, last October, one of my favorite authors and contributors to the Mirror of Justice [HERE] had this to say about law making regarding economic and social support that could address and minimize and eliminate the need for abortion:

The moral considerations underpinning Catholic legal theory would enable the law-maker to consider more or all rather than some of the issues that must inevitably intersect abortion laws. Today so much of the law in this country pertaining to abortion permits abortion—with few restrictions—and bases the justification on Constitutional requirement (which I submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the argument from equality. The focus of abortion law seems to be on the welfare of the mother only. This becomes patent when judges, state and Federal, scrutinize legislation and regulation looking for the “essential” health exception clause to protect the mother only.

Catholic legal theory, in contrast, begins to look at other welfares, too. The mother’s health and welfare are surely important; but so is the health and welfare of the child whose life will be snuffed out should the abortion proceed. But it is also vital to recognize that the mother has other issues that are often ignored or dismissed as long as she can be allowed to terminate her pregnancy. What might these issues be? Well, informed consent is a place to start. Does she really know what is about to happen? Does she really understand what is inside her womb? Would she want to have an abortion if she could see her child? (Ultrasound imaging would provide her with this critical information.) Has she been provided with education about effective parenting skills? Is pre and post-natal care available for her and her child to ensure good health for both? Catholic legal theory would also provide for the welfare of the father? Where is he? Should provision not also be made for encouraging his responsibility for the life he helped promote by developing among other things his parenting skills? It seems that the law-maker is not restrained from including these provisions relating to these matters as well. Cannot the law-maker provide for orphanages, foster care, and adoption services for children whose birth parents will not or cannot properly care for the raising of the child?

Indeed, the law-maker can provide for all these things and more.

But the critic may well argue that the additional elements will cost money. The Catholic legal theorist can respond by reminding the critic that laws addressing defense, environment safeguards, historical preservation, criminal justice, wildlife protection, etc. (all of which have moral considerations) also cost money. But in spite of their cost, laws are made to advance these interests and protections. Why can the law not do the same to preserve young human life and the lives of those responsible for its conception? This is the response of one Catholic legal theorist.

I am grateful that others are beginning to think along these same lines. In the meantime, the grim reaper who uses the pseudonym “Abortion Rights” continues to take its tragic and avoidable toll.

RJA sj

Thursday, August 28, 2008

Still more on human dignity

I appreciate Rob's and Fr. Araujo's recent posts on my teacher David Luban's recent book and human dignity.  Rob quoted this particular passage from Luban's Legal Ethics and Human Dignity:

"I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans -- between, so to speak, the dignifier and the dignified.  To put it another way, 'human dignity' designates a way of being human, not a property of being human."

Interesting.  I'd want to be able to say that even a human being whose relationships are all lousy and dysfunctional still has, as a human person, "dignity" and worth.  That said, there's something to this "relationships" idea, it seems.  I was reminded by David's claim of Nicholas Wolterstorff's new book, "Justice:  Rights and Wrongs" (my review is forthcoming in First Things).  Wolterstorff contends that only a theistic account -- and not a secular account -- of "human dignity adequate for grounding human rights" is possible.  In his view, the key is "bestowed worth" (think of "The Velveteen Rabbit"):  "What we need, for a theistic grounding of human rights", he writes," is some worth-imparting relation of human beings to God that does not in any way involve a reference to human capacities.  I will argue that being loved by God is such a relation; being loved by God gives a human being great worth."

Reflections on Forming Conscience

The new issue of the Journal of Catholic Legal Studies contains a Symposium that will be of great interest to MOJ readers.  The Symposium, titled Catholic Teaching, Catholic Values and Catholic Voters: Reflections on Forming Conscience for Faithful Citizens, contain six essays offering a range of perspectives on the USCCB's document on policital responsibility and faithful citizenship, and generally on the question of conscience and voting.  Among the six are essays by MOJ'ers Robert Araujo, Amy Uelmen and me.  All six essays (along with an introducion by Prof. Michael Simons of St. John's University School of Law, who is the faculty adviser to the journal) are available on the journal's website here.  The Symposium makes a valuable contribution to the public debate on faithful citizenship.

Abortion and money

With respect to the study to which Michael linked yesterday, a few thoughts:

First, on the issue of "mov[ing] beyond the stalemate over Roe v. Wade".  As I wrote here, yesterday, while it would be a good thing, certainly, if legislators in both parties could unite behind sensible social-welfare programs that result in fewer abortions -- a good start, perhaps, would be for Sen. Obama to endorse the Pregnant Women Support Act; and while it is certainly true that overturning Roe would not end abortion; it is, in my view, a mistake to think that the wrong that is Roe can be shrugged off as a stalemate or that the issue here is only the number of abortions:

Yes, overruling Roe would not end abortion (though it would certainly make a difference).  This side of Heaven, I'm afraid, nothing will.  The problem with Roe, though, is not just that because it facilitates wrong choices by private persons; it is also, and fundamentally, at odds with our constitutional structure and with democratic self-government.  As long as Roe is the law, We the People are not allowed to write into law the conviction — assuming that it is or becomes our conviction — that the unborn child ought to be protected from lethal private violence.  The debate is cut off; the conversation is silenced; the "dialogue" that is so often celebrated by the same people who are enthusiastic about Sen. Obama is distorted.

What is at stake in the abortion debate — and, as someone who has known and admired Doug Kmiec for years, I am sorry that he seems to be forgetting this — is not only reducing the number of abortions and helping women considering abortion to find their way to a different choice (though, of course, such reductions and help are important, and one wishes that Democrats for Life had more influence); it as about repairing the damage done to our political community, and to our constitutional order, by a decision that declared that the Constitution itself disables citizens from protecting in law the most vulnerable among us.

Even if we focus specifically on the number of abortions (and not on Roe), it seems worth noting that if, on the one hand, we have evidence that social-welfare programs can reduce the number of abortions, it seems, on the other, quite likely (to put it mildly) that public funding of abortion, and the other provisions of the Freedom of Choice Act (which will certainly become law if Sen. Obama is elected) will increase the number of abortions.  In the press release, issued by Catholics in Alliance for the Common Good, a spokesperson is quoted:

“This new research suggests that the Pregnant Women’s Support Act is exactly the kind of sound public policy that can lead to lowering the abortion rate in America,” said Kristen Day, Executive Director of Democrats for Life, referring to legislation in Congress aimed at reducing the abortion rate. “This discussion will prove that hope and change are possible in Washington if we focus on creating solutions based on shared values,” she said.

Again, "solutions based on shared values" sound great.  The Freedom of Choice Act -- a dramatic roll-back of anti-abortion legislation, a mandate for public funding of abortion, a threat to conscience and religious freedom -- is not such a solution.  But, it's coming.

Wednesday, August 27, 2008

The Scarlet Letter

Many years ago in his novel, The Scarlet Letter, Nathaniel Hawthorne wove deftly into his morality tale the letter “A” sewn to Hester Prynne’s clothing. Of course, the emblem enabled Hawthorne to develop a story that probed a number of important norms about our human existence. I would like to borrow his use of the letter “A” in its reddish fashion—perhaps recalling the color of blood—to probe another question which has once again surfaced frequently in the news regarding the position of various influential people who hold high public office. But here the red letter “A” does not refer to concupiscence but to abortion. Since the question of what does the Church teach has recently surfaced once again by prominent public officials who claim allegiance to the Catholic Church and her teachings.

But, what are those teachings? Perhaps this brief anthology may help all of us who ask questions about the views expressed by prominent persons about the Church’s teachings:

We might begin with that extraordinary fragment of the Didache from the first century that is pregnant, if you will, with several important teachings: Do not murder; do not commit adultery; do not corrupt boys; do not fornicate; do not steal; do not practice magic; do not go in for sorcery; do not murder a child by abortion or kill a newborn infant… Do not be double-minded or double-tongued, for a double tongue is a deadly snare

Tertullian affirmed the essential principle in the early second century: To prevent birth is anticipated murder; it makes little difference whether one destroys a life already born or does away with it in its nascent stage. The one who will be a man is already one.

The first Council of Mainz in 847 reconsidered the penalties against abortion which had been established by preceding Councils. It decided that the most rigorous penance would be imposed on women who procure the elimination of the fruit conceived in their womb.

The Decree of Gratian reported the following words of Pope Stephen V: That person is a murderer who causes to perish by abortion what has been conceived.

Moving forward in time, we might consider the 1679 Decree of the Holy Office (the predecessor of the Congregation for the Doctrine of the Faith) condemning a number of positions including the following: it is permitted to bring about an abortion before the animation of the foetus, lest the girl found pregnant be killed or defamed; it seems probable that every foetus (as long as it is in the womb) lacks a rational soul and begins to have the same at the time that it is born; and consequently it will have to be said that no homicide is committed in any abortion.

In 1974, the Congregation for the Doctrine of the Faith had this to say: The gravity of the problem comes from the fact that in certain cases, perhaps in quite a considerable number of cases, by denying abortion one endangers important values to which it is normal to attach great value, and which may sometimes even seem to have priority. We do not deny these very great difficulties. It may be a serious question of health, sometimes of life or death, for the mother; it may be the burden represented by an additional child, especially if there are good reasons to fear that the child will be abnormal or retarded; it may be the importance attributed in different classes of society to considerations of honor or dishonor, of loss of social standing, and so forth. We proclaim only that none of these reasons can ever objectively confer the right to dispose of another’s life, even when that life is only beginning. With regard to the future unhappiness of the child, no one, not even the father or mother, can act as its substitute—even if it is still in the embryonic stage—to choose in the child’s name, life or death.

For those who are attracted to both the spirit and the texts of the Second Vatican Council, we have in the Pastoral Constitution on the Church in the Modern World this: Furthermore, whatever is opposed to life itself, such as any type of murder, genocide, abortion, euthanasia or wilful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are supreme dishonor to the Creator… For God, the Lord of life, has conferred on men the surpassing ministry of safeguarding life in a manner which is worthy of man. Therefore from the moment of its conception life must be guarded with the greatest care while abortion and infanticide are unspeakable crimes.

And this from Pope John Paul II in Evangelium Vitae in 1995: It is frequently asserted that contraception, if made safe and available to all, is the most effective remedy against abortion. The Catholic Church is then accused of actually promoting abortion, because she obstinately continues to teach the moral unlawfulness of contraception. When looked at carefully, this objection is clearly unfounded. It may be that many people use contraception with a view to excluding the subsequent temptation of abortion. But the negative values inherent in the “contraceptive mentality”—which is very different from responsible parenthood, lived in respect for the full truth of the conjugal act-are such that they in fact strengthen this temptation when an unwanted life is conceived. Indeed, the pro- abortion culture is especially strong precisely where the Church’s teaching on contraception is rejected. Certainly, from the moral point of view contraception and abortion are specifically different evils: the former contradicts the full truth of the sexual act as the proper expression of conjugal love, while the latter destroys the life of a human being; the former is opposed to the virtue of chastity in marriage, the latter is opposed to the virtue of justice and directly violates the divine commandment “You shall not kill”. But despite their differences of nature and moral gravity, contraception and abortion are often closely connected, as fruits of the same tree. It is true that in many cases contraception and even abortion are practised under the pressure of real- life difficulties, which nonetheless can never exonerate from striving to observe God’s law fully. Still, in very many other instances such practices are rooted in a hedonistic mentality unwilling to accept responsibility in matters of sexuality, and they imply a self-centered concept of freedom, which regards procreation as an obstacle to personal fulfilment. The life which could result from a sexual encounter thus becomes an enemy to be avoided at all costs, and abortion becomes the only possible decisive response to failed contraception.

These are but a few points made over the millennia of the Church’s teachings on the question of abortion. Those who claim to know this tradition may wish to consult these sources and the many others that exist and are readily accessible. But regardless of the source or the period in which it was promulgated, the teachings remains the same in spite of what some influential voices may suggest to the contrary.

RJA sj

On Abortion ... from dotCommonweal

“New study finds finds social and economic supports for women significantly reduce abortions”

Posted by David Gibson

That’s the promise of the new study released today by Catholics in Alliance for the Common Good. According to the group’s news release, the study is the first of its kind and looks at the “long- and short-term effects of public policy on the abortion rate over a twenty-year period. The findings reveal that social and economic supports for women and families dramatically reduce the number of abortions. As Democrats gather in Denver for their national convention, and as Republicans prepare to gather next week, the study offers compelling findings that pro-life and pro-choice leaders from both political parties can unite behind to reduce abortions.”

Indeed, if this holds true, the findings would (I would think) provide ammunition for those looking to move beyond the stalemate over Roe v. Wade. Apparently the findings were presented at a “town hall” meeting in Denver with Sen. Bob Casey, Rep. Heath Shuler and others, and sponsored by Democrats for Life of America. I haven’t seen a write-up, so don’t know what they may have added.

Catholics in Alliance commissioned the study, which was conducted by Joseph Wright, a political science professor at Penn State University and a visiting fellow at the University of Notre Dame, and Michael Bailey, a professor of American government at Georgetown University. You can read it here (in a 19-page PDF file). Tom Roberts at NCR also has coverage.

More on human dignity

I am grateful to Rob for bringing attention to the work of Professor Luban regarding human dignity. The subject of human dignity and what it is has a rich consideration in the Compendium of the Social Doctrine of the Church. An examination of the many treatments in the Compendium reveals that there are specific contextual considerations as well as more general understandings. In spite of the fact that this forum is the Mirror of Justice, I cannot do justice to the vast treatment the Compendium offers in this posting. However, one of the appealing explanations of human dignity is that offered by Pope John Paul II in this encyclical letter Centesimus Annus where he said there exists something "which is due to man because he is man." Human dignity is not a property that can be bargained for or given away or forcibly removed. It is innate in the existence of each human who bears the divine image of God. I think Rob has come across an important topic vital to our common enterprise that can engaged us for a long time to come.

RJA sj

What is the nature of human dignity?

I'm becoming more intrigued by the possibility of articulating some widely accessible and legally relevant content within the concept of human dignity.  In that vein, I was struck by this passage from David Luban's new book, Legal Ethics and Human Dignity:

"I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans -- between, so to speak, the dignifier and the dignified.  To put it another way, 'human dignity' designates a way of being human, not a property of being human."

This reminded me of the following passage from Gaudium et spes:

"God did not create man as a solitary, for from the beginning 'male and female he created them.'  Their companionship produces the primary form of interpersonal communion.  For by his innermost nature man is a social being, and unless he relates himself to others he can neither live nor develop his potential."

Still, does (or should) Catholic legal theory be open to approaching human dignity as a "way of being human," rather than as a "property of being human?"

Tuesday, August 26, 2008

Challenging the "ordinary religion of the law school classroom"

Responding to a lot of blawgosphere debate about the law school classroom's potential to function as a collaborative community, my colleague Jerry Organ criticizes the mixed signals we send to students about competition versus collaboration, and he suggests that a better way is possible.

Olympics done, China back to arresting bishops

Story here:

China's most prominent "underground" Catholic bishop was arrested on Sunday, August 24: the day that also saw the closing ceremonies of the Olympic Games in Beijing.

Bishop Julius Jia Zhiguo of Zhengding was taken into custody by several police officers at Wuqiu cathedral. No immediate reason was given for his arrest, and authorities have not disclosed where the aging bishop is being held.

The 73-year-old Bishop Jia, who heads an active diocese of over 100,000 Catholics in the Hebei diocese, spent 15 years in prison, from 1963 to 1978. Since his release he has been re-arrested at least 12 times; ordinarily he has been detained for a few days of interrogation each time. He has been living under house arrest since 1989.

During the Olympic Games, Chinese Christians had been warned not to organize public worship. About 1,000 Catholics in Zhengding defied those orders to join Bishop Jia for a Mass celebrating the feast of the Assumption at Wuqiu cathedral on August 15. . . .

I'm as happy as anyone about Michael Phelps, Coach K. and the "Redeem Team", etc.  But . . . the Olympics-related whitewash given to China by the press, the IOC, by too many governments, and by corporate sponsors is, well, disgusting.