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, November 8, 2006

Evangelicals and Politics: A Rethinking

If you were unable to attend the Journal of Law and Religion/Hamline Law School Symposium on Law and Religion on October 6, you may be interested to know that Dr. David P. Gushee's presentation, Evangelicals and Politics: a Rethinking, is available by podcast on the Hamline LawSchool website,

http://www.hamline.edu/law/conversations/podcast.xml.

Other speakers' presentations from that conference will be available at this podcast address at later times.  Dr. Gushee's presentation will also be published in an upcoming issue of the Journal of Law and Religion.

Tuesday, November 7, 2006

More from Karen Stohr on Ectopic Pregnancies and Double Effect

[Karen (Georgetown, Philosophy) sent this e-mail message to Richard, Rob, and me.  The conversation continues ...]

Richard, I appreciate your thoughful reply [here], but as you might guess, I am not satisfied. I think we actually largely agree about this:  "It seems a much too facile way of just "redescribing" the actions of the doctor." 

It *is* facile (or at least, arbitrary) unless it is accompanied by an action theory that justifies sorting the descriptions that way. The same, however, applies to the way you want to to sort out action descriptions. You and others suggest sorting them this way:

"It doesn't focus adequately on the physical act that is being undertaken."

But I don't see how this helps. Indeed, I think it obscures the very issues that need to be settled within action theory. For what exactly is the physical act in question? What grounds are you using for saying that the craniotonomy/salpingostomy constitutes the physical act of killing the baby, whereas a hysterectomy/salpingectomy does not? Both, of course, are physical acts of some sort, and obviously they have the same result. In order to argue that the one constitutes killing whereas the other does not, you need to have a theory of action individuation that allows us to identify all and only cases of killing.

But let us suppose that we have such a theory and agree that craniotomies and salpingostomies constitute killings, whereas hysterectomies and salpingectomies do not. In order to argue that the former are grave moral wrongs, you would *also* need to argue that they are intentional killings, that death is the aim. And this is what I do not think that the physical description alone can get you. (After all, the cardiac surgeon and the knife-wielding murderer may be doing exactly the same physical act, but the one is attempting heart surgery and the other is attempting murder.)

In sum, there are two steps in the argument that still need justification in order for the salpingectomy/salpingostomy distinction to succeed. First, it needs to be argued that the salpingostomy is properly described as killing at all, and then it also needs to be argued that it is intentional killing. Pointing to the physical act gets you only to the first of those, if even that. But you need something more to get to the second part of the claim, and that something more will have to involve a theory of intention.

Those defending the Grisez-Boyle-Finnis line have an equal burden of argumentation. I do think that position has better philosophical grounding than the one you defend, but this could certainly be disputed. And this again is why the application of double effect troubles me so much, as it can amount to holding real people hostage to shaky philosophical distinctions.

Best,
Karen

Sunday, November 5, 2006

A Comment from Someone Who Happened upon MOJ after I Posted an NCR Editorial

[Thought that I would share with MOJ-readers this e-mail message that was waiting for me a few minutes ago.  The message was in response to this post.]

I've just perused your website, in particular the editorial "Sorting through imperfect choices"(Issue Date:  November 3, 2006). What an absolute disgrace, as well as shameful. You parade your site as an authentic Catholic voice on the world-wide-web, but in fact it's nothing but a fraud. And what sickens me most is your claim to be "Catholic." It's hard enough contending with the anti-Catholics heretics outside our Church, let alone you deceivers.
 
Jn 8:44-45 "...You belong to your father the devil and you willingly carry out your father's desires. He was a murderer from the beginning and does not stand in truth, because there is no truth in him. When he tells a lie, he speaks in character, because he is a liar and the father of lies. But because I speak the truth, you do not believe me...."
 
I promise you I intend do everything possible to alert folk here in the Omaha, Nebraska Archdiocese about your deception.
 
David Eastlack

Catholics and the Election

Some have suggested that the only reasonable choice for one  who accepts the Catholic Church's position on abortion is to vote Republican.   MOJ-readers may be interested in this editorial, which presents a different view:

National Catholic Reporter
November 3, 2006

Sorting through imperfect choices

In the early 1970s, when antiwar activist and stalwart liberal Allard K. Lowenstein was running for Congress against a nondescript Republican incumbent from Long Island, N.Y., he received the endorsement of conservative pundit William F. Buckley. Buckley’s rationale: As long as the House of Representatives was going to be dominated by liberals (remember those days?) it might as well have a smart one in the bunch.

Another anecdote from that era: The second choice of the 41 percent of New Hampshire primary voters who supported Eugene McCarthy and forced LBJ’s withdrawal from the 1968 presidential race was none other than … segregationist pro-war Alabama Gov. George Corley Wallace. New Hampshirites, it seems, were more interested in “sending a message” than in the messenger.

Voting, it seems, is a complex act.

So what is a conscientious Catholic to do this year? There’s plenty of advice out there.

The U.S. bishops’ document, “Faithful Citizenship,” offers a sound approach. It is a voter’s responsibility, say the bishops, “to measure all candidates, policies, parties and platforms by how they protect or undermine the life, dignity and rights of the human person, whether they protect the poor and vulnerable and advance the common good.”

It can be found at           www.usccb.org/faithfulcitizenship.

More recently, a new kid on the block, Catholics in Alliance for the Common Good, issued its voter guide, “Voting for the Common Good.” It strikes the right chord, noting that “There is no Catholic voting formula, and there is rarely, if ever, a perfect candidate for Catholic voters.” That voter guide can be found at      thecatholicalliance.org.

Unfortunately, the guide that has drawn the most media attention in the past is from the conservative group Catholic Answers, which has reissued its “Voter’s Guide for Serious Catholics.” It is essentially the same pamphlet describing the “nonnegotiable issues” the group distributed, to much publicity, in 2004. To Catholic Answers, voting is an equation: If Candidate A is closer to Catholic teaching on the “nonnegotiable issues” than Candidate B, the “serious” Catholic should vote for A. The “nonnegotiable issues” are abortion, embryonic stem cell research, gay marriage, euthanasia and human cloning.

In fact, it’s hard to take the “Voter’s Guide for Serious Catholics” very seriously. For starters, it takes candidate’s assertions (“I oppose abortion”) as statements of purpose.

In Tempting Faith, his new book describing his experience in the Bush White House, David Kuo recalls a spat conservative icon William Bennett had with James Dobson, founder of the influential Focus on the Family. “If a pro-choice candidate of exemplary character used the bully pulpit to talk about, say, teen abstinence, adoption, crisis pregnancy centers, individual moral code -- and did this well -- he could have a profoundly positive impact on the nation’s cultural condition,” Bennett told Dobson in a letter. “And he could do more to lower the number of abortions than a presidential candidate who supports a constitutional ban but does nothing more than pay lip service to the pro-life constituency.”

Check and mate.

Next, the “Serious Catholics” voting guide leaves out some equally nonnegotiable issues like, say, torture, which, says the Catechism of the Catholic Church, is “contrary to respect for the person and for human dignity.” Clearly a “nonnegotiable” issue.

It’s perfectly reasonable -- an inescapable conclusion we think -- to conclude that a large number of candidates bidding for office this year actually support torture. Sure, they call it something else (“harsh interrogation techniques”) but it’s clear that some lawmakers and would-be lawmakers believe that “water-boarding,” for example, is a good way to get information from would-be terrorists.

Or maybe the war in Iraq is on a voter’s mind. One doesn’t have to accept the conclusions of the recent Johns Hopkins study, which estimated Iraqi war deaths as high as 655,000 (more than died in the U.S. Civil War), to conclude that both the initial decision to invade that country and the continuing military effort are counter to the church’s teaching on just war. Sure, it’s debatable, and, yes, Catholics can come to different conclusions, but a “serious Catholic” is surely free to determine that this is the overriding issue of this election and vote accordingly.

Or maybe there’s a gubernatorial election where one candidate supports the death penalty and another opposes it. According to the catechism, capital punishment is justified only and exclusively when society has no other means of protecting itself from a heinous criminal. That’s not the situation in the United States, where we employ the electric chair as a deterrent and, according to those who support the practice, as a tool of justice. Those are certainly debatable points, but they have nothing to do with Catholic teaching. To support the death penalty for reasons other than the protection of society makes one a dissenter from, here it comes, a nonnegotiable issue.

Pennsylvania’s Senate contest provides a concrete test for the conscientious Catholic. Republican Rick Santorum is the strongest and most effective antiabortion voice in Washington. No doubt about it. Further, Santorum has voiced reservations about the death penalty (though he’s voted for legislation that includes the ultimate punishment).

Democrat Bob Casey, son of a politician who bucked his party on abortion and paid the price for his dissent from the political orthodoxy, says he, too, is pro-life. Yet he supports the over-the-counter availability of the “morning-after pill” and is a strong proponent of the death penalty. Yes, Casey will vote to ban partial-birth abortion, but he won’t put a litmus test on judges who might stray from the antiabortion line.

Santorum supports the war in Iraq; Casey would likely side with Democrats working to end U.S. involvement in the quagmire. Casey supports civil unions, Santorum speaks harshly about gays and opposes same-sex marriage.

What’s a conscientious Pennsylvania Catholic to do?

Here’s a suggestion: If opposition to abortion or gay marriage is the issue that a Pennsylvania voter has determined is paramount, the most important in the current context, then he or she probably should vote for Santorum. He’s clearly someone who will continue to make these issues a priority.

If, however, a pro-life Keystone State voter thinks there is more at stake in this election than abortion and gay marriage -- the war, economic opportunity, social justice, tolerance for those who are different -- then that Keystone State voter should probably pull the lever for Casey.

An imperfect choice? Certainly. It always is.

Democracy ain’t easy. That’s why we’re fortunate God’s given us brains and a conscience. Use them well.

Voting, indeed, is a complicated act.

Wednesday, November 1, 2006

More from Karen Stohr

Thanks again to Karen Stohr for her contributions (here and here).  Here is another:

I must say, I have always found the terms of this particular debate [ecgtopic pregnancy] quite troubling.  As a Catholic philosopher (and mother) who subscribes to the basic tenets of double effect, I am very skeptical of attempts to apply it definitively in such situations.  If anyone is going to insist that a woman suffering from an ectopic pregnancy must undergo the removal of her fallopian tube, on the grounds that nothing else is a morally licit option, one had better have a *very* good justification for that view.  After all, her health, hopes, and dreams may rest on it (what if it is her only remaining fallopian tube?).   And the justification for the view depends on philosophical concepts that are undeniably murky.

In order to use double effect in a philosophically responsible way, one must have reasonably defensible views about intention and related issues in action theory.   The distinction between 'direct' and 'indirect' killing  requires, among other things, an account of what it is to intend something (including whether actions can be intentional only under descriptions and if so, which descriptions of one's actions one must accept) and an theory of action individuation (including how we can distinguish actions from their consequences).   Many discussions of double effect just slide past these issues.  I have not seen a comprehensive and persuasive action theory that supports May's contention that while salpingectomy does not count as intentional killing, salpingostomy and methotrexate do.  It's not that there couldn't be such a theory, but I do not see it in the articles Professor Myers cites, nor have I seen it elsewhere.

On the other hand, the line on intention taken by Grisez, Finnis, and Boyle in the article I mention[ed] in the email to Rob [here] undermines the distinction as May draws it.   And in her seminal book, /Intention, /the great Catholic philosopher Elizabeth Anscombe argues for a theory of intention that also cannot support the salpingectomy/salpingostomy distinction.   The accounts of these four thinkers are far from decisive, but their combined philosophical skill and sophistication ought to carry considerable weight, and hence, give pause to anyone who wants to insist that women suffering from ectopic pregnancy choose evil if they choose salpingostomy or methotrextate.

Response from a Reader

Thanks to Professor Karen Stohr (Georgetown, Philosophy), who sent this e-mail:

In response to Professor Myers, one might also argue (as I would) that while intentional killing is always wrong, salpingostomy and methotrexate do not count as instances of intentional killing. I think this is easier to defend from a philosophical standpoint than the position you take below:

"Given that no matter which of the two paths I take Z is going to die, and given that it is morally permissible for me to take action A, why should we accept that it is morally impermissible for me to kill Z intentionally, thereby achieving something that is morally worthy at no cost to Z, who is going to die no matter which choice I make?"

This position leaves open the possibility that if Z, very soon to die from some incurable disease, is a perfect organ match for Y, it would be permissible to kill Z so as to take his organ to save Y. I would rather avoid this implication!

Tuesday, October 31, 2006

Margaret Farley at Notre Dame, No Less!

Sister Margaret is giving a lecture at Notre Dame tomorrow (Wednesday).  Click here for details.

Then, on Thursday, she will discuss her new book--the one Rob referenced in his post--with an interdisciplinary group of Notre Dame faculty.  If you would like informatioon about the Thursday gathering, please e-mail Cathy Kaveny (who studied under Margaret at Yale):

[email protected]

Michael P.

Margaret Farley

In his post below, Rob refers to Margaret Farley's new book.  MOJ-readers may be interested to know that Margaret Farley , who holds an endowed position at Yale Divinity School, is Sister Margaret Farley:  She is a member of the Sisters of Mercy--and a past president of the Society of Christian Ethics.

Reply to Richard Myers

Dear Richard,

Your invocation of Dr. Kevorkian suggests to me that you may not grasp Rob Vischer's point.

Assume (1) that objective O is a morally worthy objective (e.g., saving the life of a pregnant woman with an ectopic pregnancy).

Assume (2) that under the doctrine of double effect it is it is morally permissible for me to take action A (e.g., surgically remove the fallopian tube) in order to achieve O even though A will result in the death of Z (e.g., the fetus).

Assume (3) that I can achieve O by killing Z intentionally--and that the advantage of this latter course of action over action A is that I can achieve something else that is morally worthy (e.g., preserving the woman's capacity to bear children).

Given that no matter which of the two paths I take Z is going to die, and given that it is morally permissible for me to take action A, why should we accept that it is morally impermissible for me to kill Z intentionally, thereby achieving something that is morally worthy at no cost to Z, who is going to die no matter which choice I make?

Michael

Friday, October 27, 2006

Same-Sex Marriage

Linda McClain's work is always worth taking seriously, whether or not, in the end, one agrees. See her new book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard, 2006).  If you are interested in the controversy over same-sex marriage, read on ...

"The Evolution - or End - of Marriage?: Reflections on the
Impasse over Same-Sex Marriage"
Hofstra Univ. Legal Studies Research Paper No. 06-28
Family Court Review, Vol. 44, p. 200, 2006

Contact: LINDA C. MCCLAIN
Hofstra University - School of Law
Email: [email protected]
Auth-Page: http://ssrn.com/author=233178

Abstract: http://ssrn.com/abstract=930989

ABSTRACT: The debate over legalization of same-sex marriage
implicates the question of whether doing so would signal the end
- or destruction - of the institution of marriage, or instead
would be an appropriate evolution of marriage laws that is in
keeping with the ends of marriage and with relevant public
values. This essay comments on an earlier published debate on
that question: Special Issue: The Evolution of Marriage, 44
Family Court Review 33-105 (2006). The essay contends that the
appeal to preserving a millennia-old tradition of marriage
against destruction fails to reckon with the evolution of the
institution of civil marriage that has already occurred.
Invocations of gender complementarity between parents as
essential to child well-being also conflict with the growing
recognition in family law that children's best interests can be
served by gay and lesbian parents. Canada's path toward same-sex
marriage suggests that impasse need not be inevitable. In the
United States, the impasse stems in part from the problem that
same-sex marriage serves as an emblem of everything that
threatens marriage.