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, December 23, 2005

Two items of interest ...

By Michael Perry

MOJ-readers may be interested in these two items from the December 16th issue of COMMONWEAL. The first is by Cathleen Kaveny, Professor of Law and Professor of Theology at Notre Dame.  The second is an editorial.

Letter vs. Spirit
Why the Constitution Needs Interpreting
Cathleen Kaveny

When discussing Supreme Court nominees, President George W. Bush has long repeated the mantra: he wants judges who “will strictly apply the Constitution and laws, not legislate from the bench.” Yet Bush’s mantra sets up a false dichotomy. Good judges do far more than apply the law; they also interpret it, that is, they give a specific meaning to a general legal term or phrase in the context of deciding a case. In so doing, they’re not “legislating from the bench”-they’re simply doing their job as judges. The real question isn’t whether a Supreme Court justice will interpret the Constitution; it is impossible to avoid doing so. The real question is how a justice will approach the task of constitutional interpretation.

For many people, the right approach is defined solely in terms of the outcome. If the main focus is getting rid of Roe v. Wade, one might argue as follows: In interpreting the Constitution, a justice should be bound by the text of the document and the intentions of the text’s framers. The Constitution does not mention, or explicitly protect, a right to privacy, let alone a right to abortion. Furthermore, the framers of the Constitution, and of the relevant constitutional amendments, certainly did not mean to legalize abortion. In fact, in nineteenth-century America, the practice of abortion violated the statutory or the common law of most states. Consequently, in articulating a constitutional right to privacy which includes a right to abortion, the Roe majority was engaged in an act of “raw judicial power.”

If you only care about prolife issues, then this approach to constitutional interpretation works just fine. If you think other issues are important too, you immediately run into difficulties. Consider racial segregation in public schools. Is it unconstitutional? The key text is the Fourteenth Amendment to the Constitution, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Bush’s mantra notwithstanding, we can’t simply “apply” the law. Interpretation is required. What counts as “equal protection”?

In 1896, in Plessy v. Ferguson, the Supreme Court held that “separate but equal” facilities, especially in the school system, do not run afoul of the Constitution. The argument, like the anti-Roe argument above, was based on the text of the document and the intent of the framers. According to the Plessy majority: “The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are likely to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.” Plessy was the law of the land for nearly fifty years. But in Brown v. Board of Education (1954), Chief Justice Earl Warren wrote that “in the field of public education the doctrine of ‘separate but equal’ has no place.”

What was the basis of this holding? Not the text of the Constitution, which says nothing about segregation. Not the intent of those who adopted the Fourteenth Amendment, whose views Warren maintains were at best “inconclusive.” Some wanted only to end slavery, others wanted to abolish every difference based on race. In any case, Warren contends, their intentions are not decisive: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the nation.” Key factors considered by the Brown Court were the increasing role that education plays in a successful life, and the demonstrated inferiority of racially segregated schools. But the most important factor was the moral insight that racial segregation in public schools could not be distinguished from a poisonous racism that cannot but infect the hearts and minds of schoolchildren, particularly black schoolchildren. “Separate educational facilities,” wrote Warren, “are inherently unequal.”

It is a mistake to build a theory of constitutional interpretation around just one case, especially a case as controversial as Roe. We have to ask how we should make sense of the “basic law” of our country today, which faces responsibilities and challenges the Founding Fathers could never have imagined. An approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate. The general approach of the Court in Brown, which assesses basic constitutional values in light of current political and social realities, seems better able to deal with the challenges of the twenty-first century, which may well include questions such as whether a highly intelligent human/animal hybrid counts as a “person” under the Constitution. Does adopting this general approach mean you can’t criticize Roe? Absolutely not. But it means that you criticize Roe not because it cast its interpretive net too widely, but because it did not cast its net widely enough. Roe rightly took into account new social insights about the full equality of women and the special burdens women face in carrying unwanted pregnancies to term. But in holding that the unborn are not legal “persons,” the Court failed to consider the dangers to democracy of separating “personhood” from humanity-a lesson that the holocausts of the twentieth century drove home to us again and again.
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EDITORIAL
Instruction from Rome

Writing about the Vatican takeover of the International Commission on English in the Liturgy (ICEL) from bishops’ conferences (“Lost in Translation,” December 2), John Wilkins offered the rule of thumb he used when editor of the Tablet of London. “If the curial congregations became concerned about an issue, it should always be assumed that they had good reason,” Wilkins wrote. “But the methods they used and their answers could be wrong.”

That is a rule worth keeping in mind in the wake of the Congregation for Catholic Education’s November 29 “Instruction” banning men with “deep-seated homosexual tendencies” from seminaries and ordination. Much ink has been spilled over what the phrase “deep-seated homosexual tendencies” means. Some Catholics, welcoming the document as a clarification of what “has always been taught,” argue that the meaning is plain: homosexuals, even if celibate, cannot be ordained. And even some defenders of ordaining gay men concede that the Vatican’s language is all too unambiguous. Several bishops and bishops’ conferences have interpreted the Instruction differently: “deep-seated tendencies” to act on same-sex attraction would bar a candidate from ordination, not a seminarian’s underlying sexual orientation. It is further noted by others that the Instruction is directed to seminary rectors and bishops, and that individual bishops will continue to determine who is to be ordained. Moreover, the document was issued by a Vatican congregation, not by the pope, thus diminishing its authority. Like most edicts from Rome, everything depends on how it is interpreted and implemented.

Closing the priesthood to gay men, an orientation the church recognizes as involuntary and blameless, would be an extreme and unjust step to take. Whatever the complications surrounding the presence of a significant number of gay men in the priesthood, solving the “problem” in this way makes little sense. If nothing else, it is sure to drive gay priests deeper into a clerical closet, with all the potential that entails for moral and psychological damage and eventual scandal.

Timothy Radcliffe, OP, the former head of the Dominicans, responded to the Instruction with great tact (Tablet, November 26). He argued that it “cannot be correct” that Rome is barring homosexuals from the priesthood, for the self-evident reason that “there are many excellent priests who are gay and who clearly have a vocation from God.” Radcliffe, like many others, was equally perplexed by the Vatican’s vague language regarding characteristics such as “spiritual fatherhood” and “affective maturity,” capacities the document suggests homosexual men cannot possess.

Radcliffe does his best to read the Instruction in a positive light, but his analysis may be too artful. The Vatican’s subsequent release of a letter calling for the removal of rectors and seminary faculty who are homosexual has provoked fears of a purge. If the logic of the initial document suggests that homosexuality is an absolute impediment to “affective maturity” and a “true sense of spiritual fatherhood,” then homosexuals who are already ordained, even bishops, must be similarly incapacitated. If that is the Vatican’s position, the implications are dire.

It is commonplace to note that the celibate priesthood has historically drawn a disproportionate number of homosexuals to its ranks. The reasons are complicated. Certainly, the priesthood is a refuge or closet for many. Doubtless, the all-male society and sense of solidarity exert an appeal. In addition, the life of a priest can provide a gay person with a purposeful sense of vocation and a kind of surrogate family, which might otherwise be denied him. None of these reasons represents ignoble desires, nor need they create insurmountable problems, as long as the rule of celibacy is observed.

This is not to say that having a large number of gay priests in a church that considers homosexuality “intrinsically disordered” and condemns every aspect of the modern homosexual self-understanding doesn’t present profound challenges (see Paul Stanosz, "Gay Seminarians"). At least in this regard, Rome’s concerns are not entirely misplaced. It is no secret that something went terribly wrong in U.S. seminaries in the late 1960s, the ’70s, and even into the ’80s. Both gay and straight priests as well as former seminarians acknowledge that, as many priests left to marry, the proportion of priests who were gay increased dramatically, and in some places, gay subcultures flourished. What role this breakdown in discipline and morality played in the sexual abuse of minors is not clear, but the idea that it played no role in a pattern of abuse in which 80 percent of the victims were male is untenable.

By the ’90s reform of the seminaries was underway. Celibacy is now clearly understood to be obligatory. In that light, celibate gay priests are speaking out, defending the integrity of their vocations. These priests see a ban on homosexuals as a way of scapegoating them for the sexual-abuse crisis, while ignoring the malfeasance of bishops and obscuring the fact that only a small number of priests, whether homosexual or not, were responsible for those crimes.

For better and worse, the profound contemporary shift in the moral assessment of homosexuality mirrors a much broader acceptance of the positive value of sexuality, one the church itself embraces in celebrating the “unitive,” not merely the procreative value of the “conjugal act.” Admittedly, recognizing the good of sex does not mean all sexual relationships are good. At the very least, however, most Catholics no longer consider homosexual love to be inherently “evil.” Moreover, the church’s credibility with respect to sexual morality has greatly eroded in the aftermath of the sexual-abuse crisis. In this context, barring homosexuals from the priesthood appears to be another pastoral failure at the highest levels of the hierarchy. Whether it is birth control, homosexuality, or the range of sexual contact permitted between spouses, church teaching offers little that speaks to the experience of the vast majority of faithful Catholics, who now insist that they know something about sexual morality that the church’s leadership needs to learn. No one expects the Vatican simply to amend the Catechism. Nor should it be assumed that popular contemporary understandings of sexuality are beyond question. Far from it. Still, some measure of humility and generosity from Rome when pronouncing on the intimate lives of others would help. To be heard, one needs to listen.

There is hardly a Catholic alive who doesn’t have a colleague, a neighbor, a friend, a relative, or a child who is gay. Like Humanae vitae, barring homosexuals from the priesthood would force many Catholics, both straight and gay, into internal or outright exile from the church. Much, indeed, depends on how this Instruction is interpreted in the years ahead.
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Thursday, December 15, 2005

Steve Bainbridge, Take Note!

By Michael Perry

The New York Times
December 15, 2005

The Holy Capitalists
By DAVID BROOKS   

What explains success? What forces drive some nations and individuals to move forward and grow rich while others stagnate? These happen to be the most important questions in the social sciences today.

In the scholarly arena, you see an array of academic gladiators wielding big books and offering theories.

Over here are the material determinists. Jared Diamond, with his million-selling "Guns, Germs, and Steel," says the West grew rich not because of any innate superiority, but because Europeans happened to have the right kinds of plants. Felipe Fernández-Armesto, with his tome, "Civilizations," argues that success is determined by climate and geography.

Over there are the cultural determinists. Thomas Sowell argues that ethnic groups develop their own skills and values and thrive or suffer as they compete, conquer and migrate. In his great opus, "The Wealth and Poverty of Nations," David Landes shows how cultural mores shaped European empires and the Industrial Revolution.

Now another academic heavyweight has entered the arena. In his new book, "The Victory of Reason," the Baylor sociologist Rodney Stark argues that the West grew rich because it invented capitalism. That's not new. What's unusual is his description of how capitalism developed.

The conventional view, embraced by most of his fellow cultural determinists, is that during the Renaissance and Reformation, Europeans shook off the authority of the Catholic Church. When a secular world was created alongside the sacred one, when intellectual freedom replaced obedience to authority, capitalism and scientific advances were the result.

That theory, Stark says, doesn't fit the facts. In reality, capitalism developed in the Middle Ages, and the important innovations were made by people in the belly of the faith. Religion didn't stifle economic and scientific ideas - it nurtured them.

Stark is building upon the recent research that has reversed earlier prejudices about the so-called Dark Ages. As late as 1983, the esteemed historian Daniel Boorstin could write a chapter on the Middle Ages entitled "The Prison of Christian Dogma."

But the more we learn, the more we realize that most of the progress we link to the Renaissance or later years actually happened during the Middle Ages. Roughly a hundred years before Copernicus, Jean Buridan (circa 1300-1358) wrote that the Earth is an orb rotating on an axis. Buridan, a rector of the University of Paris, was succeeded by Nicole d'Oresme (1323-1382), who explained why the rotation of the Earth doesn't produce wind.

Other medieval Scholastics made the same sort of discoveries in economics and technology. Five hundred years before Adam Smith, St. Albertus Magnus explained the price mechanism as what "goods are worth according to the estimate of the market at the time of sale."

Catholic monasteries emerged as capitalist enterprises, serving not only as manufacturing and trading centers, but also as investment houses. And engineers invented or commercialized a vast array of technologies: the compass, the clock, the round-bottom boat, wagons with brakes and front axles, water wheels, eyeglasses, and so on.

These innovations and discoveries, Stark argues, were not made by the newly secular, but by people who had a distinctly Christian sense of the sacred. Catholic theology had taught them that God had created the universe according to universal laws that reason could discover. It taught that knowledge and history moves forward progressively, so people should look to the future, not the past.

The church recognized the dignity of free labor at a time when most other cultures did not. It valued private property and emphasized the essential equality of human beings despite their unequal incomes and stations.

This history is important today. (And not only because Albertus Magnus knew more about reconciling faith and reason 700 years ago than the bogus culture warriors do now.) It's important because whether we are dealing with poverty around the world or at home, it is not enough to simply liberate people and assume they will automatically pursue economic prosperity. People need to be instilled with certain beliefs, like the belief that the future can be better than the present and that individuals have the power to shape their own destiny.

Ideas and culture drive civilizations. The Catholic Church nurtured one of the most impressive economic takeoffs in human history. Today, as Catholicism spreads in Africa and China, it's important to understand the beliefs that encourage people to work hard and grow rich.
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Tuesday, December 13, 2005

WAR AND HUMAN RIGHTS

By Michael Perry

New York Times
December 13, 2005

Pope Says War No Excuse for Human Rights Abuses

By REUTERS

VATICAN CITY (Reuters) - Pope Benedict said in an annual peace message on Tuesday that countries have a duty to respect international humanitarian law even if they are at war.

In the first peace message of his pontificate, he also appealed for worldwide nuclear disarmament and said countries considering acquiring such weapons should ``change their course.''

In the message for the Church's World Day of Peace, celebrated on January 1, he also strongly condemned terrorism but said the world community should look deeper into its political, social, cultural, religious and ideological motivations.

In one part of the message, which is sent to heads of state and international organizations, the Pope said war could not be an excuse for disregarding international humanitarian law.

``The truth of peace must also let its beneficial light shine even amid the tragedy of war,'' he said, re-enforcing his stand by quoting from another Vatican document that said ``not everything automatically becomes permissible between hostile parties once war has regrettably commenced.''

In the 12-page message, called ``In Truth, Peace,'' he said the Holy See was convinced international humanitarian law had to be respected ``even in the midst of war.''

The Pope did not name any countries or wars but his words followed controversy over reports of abuse of prisoners by the United States in Iraq and at Guantanamo Bay.

The reports have incensed U.S. adversaries and alienated some allies. Earlier this month, U.S. Secretary of State Condoleezza Rice came under pressure in Europe over reports of secret CIA prisons on the continent.

Cardinal Renato Martino, head of the Vatican's Justice and Peace department, told reporters at the presentation of the message that the Pope's words applied to all wars. Asked if Iraq was included, he said: ``That's correct.''

TRUTH IN LAW

In his message, the Pope called international humanitarian law one of the finest expressions of truth.

``Precisely for this reason, respect for that law must be considered binding on all peoples,'' he said.

International humanitarian law ``must be brought up to date by precise norms applicable to the changing scenarios of today's armed conflicts and the use of ever newer and more sophisticated weapons,'' he added.

Washington says the Geneva Convention does not apply to foreign captives in its war on terrorism, but human rights activists say it is still bound by the 1984 U.N. Convention against Torture to which it is a signatory.

Asked if the Pope was singling out the United States for condemnation, Martino said: ``The Holy Father states this and is not condemning anybody but is inviting them to observe the Geneva Convention.''

President George W. Bush has said the United States does not practice torture, or send suspects to countries that do.

Asked if the Church could condone torture as a means to stop terrorist attacks, Martino said: ``Torture is a humiliation of the human person, whoever he is. The Church does not admit it ... there are other means to make people talk.''

Last week a group of American Roman Catholic peace activists held a march to the U.S. Naval Base in Guantanamo, Cuba, protesting conditions for terrorism suspects.

In another part of the message, the Pope said the possession of nuclear weapons by any country for security was ''not only baneful but also completely fallacious'' because there would be no winners in a nuclear war.
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Monday, December 12, 2005

Intelligent Design in the Eyes of the Jesuit Director of the Vatican Observatory

By Michael Perry

"Creationist notions of intelligent design diminish God. Instead we should see his love for the infinitely evolving universe as like that of a parent allowing a growing child to make its own choices and go its own way in life"

Check out this piece in the current issue of The Tablet [London]:  click here.
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Saturday, December 10, 2005

Capital Punishment Revisited (Again)

By Michael Perry

[Anyone interested in continuing this discussion?  I posted these comments just before Thanksgiving.]

Thanks to Rick, Tom, and Patrick for their comments.

This is what I have learned from E. Christian Brugger, who wrote his book—Capital Punishment and Roman Catholic Moral Tradition (Notre Dame, 2003)--under the watchful eye of no less a master than John Finnis.

1. The traditional position of the Roman Catholic Church has been that one may never intentionally kill an *innocent* human being.

2.  John Paul II’s position was more radical: One may never intentionally kill a human being. The “innocent” has dropped out.

3. Why may one never intentionally kill any human being (according to John Paul)? Because to do so is to act contrary to the charity we are called to have for every human being.

4. To execute a criminal under a system of capital punishment is intentionally to kill a human being—something that John Paul’s position does not allow. (Intentionally to kill a human being--and, so, to execute a criminal--if it is not necessary to do so for reasons of self-defense is not to treat the human being lovingly.)

5.  The Church’s (i.e., the magisterium’s) position on capital punishment is in a state of transition—and, as it now stands, is incoherent. The      Catechism tells us that the state may use capital punishment only if      necessary to do so for reasons of self-defense. Why incoherent? Because to engage in a legitimate act of self-defense is never intentionally to kill a human being, but to execute a criminal is always intentionally to kill a human being.

As I said, this is what I learned from Brugger’s book. I wish that Rick, Patrick, Tom, and I—and anyone else interested—could read the book together in a discussion group. What a fruitful discussion that would be!

As Rick knows, my own views on capital punishment do not presuppose that John Paul was right in his belief that one may never intentionally kill a human being. But that’s a story for another day.

Finally, about the retributive theory of punishment. I stand by what I said in my earlier posting. Having read Patrick’s posting, it seems that I stand with Michael Moore on this.

But let’s move past that point to the following inquiry: I assume that Rick and Patrick do not believe that the retributive theory of punishment could justify torturing a criminal (i.e., torturing him as punishment, not as a method of interrogation). Why, then, should we think that the retributive theory could justify executing a criminal? Is it because torturing him necessarily violates his inherent dignity but executing him does not? (If so, it would seem that the inherent dignity of every human being is a limit on what would otherwise be justifiable according to the retributive theory, yes?) But why does executing him not violate his inherent dignity?

Rick’s suggestion (in an e-mail to me) is this: “[An adequate] justification [for capital punishment is] supplied by the need to communicate adequately the magnitude of [the convict’s] wrong and to redress the disorder caused by his offense.” But I suspect that few of us would agree that of the available punishments for even the most depraved crimes, only capital punishment can “communicate adequately the magnitude of the wrong and redress the disorder caused by the offense.” Have all the jurisdictions that have forsaken capital punishment—Michigan, for example, or England—thereby forsaken their only means of communicating adequately the magnitude of the wrong and of redressing the disorder caused by the offense? Is that a plausioble position? Is it plausible to believe that the only way to restore the disorder caused by some heinous murders is by killing—executing—the murderers? Isn’t it at least as plausible to believe that killing the murderers obscures the magnitude of the wrong they did rather than communicates it, by obscuring the value of human life—of every human life? That is the position of the United States Conference of Catholic Bishops in their recent statement of opposition to the death penalty.

So, I agree with Michael Moore and disagree with Rick and Patrick on the retributive theory of punishment. But even if I were to agree with Rick and Patrick on that issue, I would still disagree with their claim that the retributive theory of punishment can justify capital punishment.  I agree with the bishops' (implicit) claim, in their recent statement, that it cannot.
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Friday, December 2, 2005

The Tablet Speaks

By Michael Perry

[An editorial from the December 3d issue of The Tablet [London]:]

Vagary of the Vatican's instruction

IT IS NOT EASY to understand how the Vatican could issue an Instruction on homosexuality and the priesthood, long in preparation and much discussed and revised, that is still open to widely differing interpretations. The key passage declares that “the Church, while profoundly respecting the persons in question, cannot admit to the seminary or to Holy Orders those who practise homosexuality, present deep-seated homosexual tendencies, or support the so-called ‘gay culture’”. Most people would read the key phrase “deep-seated homosexual tendencies” – which also appears in the Catholic Catechism – as another way of saying “homosexual orientation”. This seems to be borne out by such semi-official commentaries as have emerged from Rome. Yet Cardinal Cormac Murphy-O’Connor of Westminster promptly issued a statement that insisted: “The Instruction is not saying that men of homosexual orientation are not welcome in the priesthood.”

There is little room for disagreement with the Vatican document’s assertion that those who engage in homosexual acts are disqualified from the priesthood, though it might have been better to make it clear that for a celibate priesthood this applies to heterosexual acts as well. Equally uncontentious is its opposition to what Cardinal Murphy-O’Connor describes as “an eroticised gay culture” inside seminaries. But what of candidates for the priesthood who are proving successful in their embrace of celibacy, but who know themselves to be gay? Indeed, what of priests perhaps years into a productive and holy ministry, who also know that about themselves? It is hard to escape the conclusion that the Vatican document must have been profoundly wounding to them – nor that the cardinal has done his best to mitigate that deep hurt.

The fundamental judgement of the document is the familiar one that “deep-seated homosexual tendencies ... are objectively disordered”. It is on this a priori basis that the authors conclude that men with such tendencies are incapable of the degree of maturity necessary for ordination, a maturity that “allows him to relate correctly to both men and women”. While the ability to relate in a mature way to men and women is obviously a requirement of priesthood, the conclusion is flawed. It ignores all the evidence to the contrary.

Indeed, it is appropriate to ask, in view of the confusion it has led to, whether the language of “objective disorder” applied to homosexuality has anything useful left to say. As Cardinal Murphy-O’Connor recalls, last year’s document from the Catholic bishops of England and Wales, Cherishing Life, declared that “a homosexual orientation must never be considered sinful nor evil in itself”. The distinction between “objective disorder” and “evil in itself” will be lost on most people, who will think the bishops were distancing themselves from traditional formulations because they are no longer helpful.

Chastity, celibacy and the maturity necessary for the priesthood are difficult to achieve, but not, with the grace of God, more difficult for those of a homosexual orientation. Therefore that orientation should, of itself, be no bar to ordination. Priests with that orientation have no reason to question their vocation. If that is what the Vatican meant to say, then it raises no new problems.

Wednesday, November 30, 2005

Christianity and the Legal Enforcement of Morality

By Michael Perry

[Another item of interest to MOJ-readers:]

Christianity and the (Modest) Rule of Law

DAVID A. SKEEL Jr.
University of Pennsylvania Law School
WILLIAM J. STUNTZ
Harvard Law School
       
University of Pennsylvania Journal of Constitutional Law, Forthcoming                  
Harvard Public Law Working Paper No. 124          


Abstract:    
Conservative Christians are often accused, justifiably, of trying to impose their moral views on the rest of the population: of trying to equate God's law with man's law. In this essay, we try to answer the question whether that equation is consistent with Christianity.

It isn't. Christian doctrines of creation and the fall imply the basic protections associated with the rule of law. But the moral law as defined in the Sermon on the Mount is flatly inconsistent with those protections. The most plausible inference to draw from those two conclusions is that the moral law - God's law - is meant to play a different role than the law of code books and case reports. Good morals inspire and teach; good law governs. When the roles are confused, law ceases to rule and discretion rules in its place. That is a lesson that many of our fellow religious believers would do well to learn: Christians on the right and on the left are too quick to seek to use law to advance their particular moral visions, without taking proper account of the limits of law's capacity to shape the culture it governs. But the lesson is not only for religious believers. America's legal system purports to honor the rule of law, but in practice it is honored mostly in the breach. One reason why is the gap between law's capacity and the ambitions lawmakers and legal theorists have for it. Properly defining the bounds of law's empire is the key to ensuring that law, not discretion, rules.

[To download/print, click here.]

"We are not Protestants, After All."

By Michael Perry

Steve Bainbridge asks, in his posting below:  "To what extent is it proper for a Catholic to dissent from non-infallible but presumably magisterial teaching?  We are not Protestants, after all."

No, but neither are we mindless.  As John Noonan said,  "the record is replete with mistakes--the faithful can't just accept everything that comes from Rome as though God had authorized it."   What mistakes, you ask?  Well, you may want to begin here:  Robert McClory, Faithful Dissenters:  Stories of Men and Women Who Loved and Changed the Church (2000).

For those who, like Steve, want to think about this issue, Father Bernard Hoose's writings are a good place to begin:  Bernard Hoose, "Authority in the Church," 63 Theological Studies 1207 (2002); Bernard Hoose, Authority in Roman Catholicism (2002).  See also this collection, edited by Father Hoose:  Authority in the Roman Catholic Church (2002).
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My two cents worth ...

By Michael Perry

I may be as dumb as I look--or dumber--but it seems to me that Eduardo's comments are compelling  ... and that Patrick's response doesn't touch it. Discrimination--that is, unjust discrimination, unloving discrimination, ignorant discrimination--is precisely what is at issue.  (Would Patrick say, if the magisterium ruled that persons of African ancestry could not be ordained, that "[d]iscrimination is the wrong issue/question, as concerns the life of the Church as we're discussing it here; the sources of officia and munera are the heart of the matter, as I see it.")
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Tuesday, November 29, 2005

ABORTION BY THE NUMBERS

By Michael Perry

[From The American Prospect online edition, Nov. 28, 2005.  Thanks to Chris Eberle for calling this to my attention.]

ABORTION BY THE NUMBERS. Over at The New Republic I have a story up about the rising numbers of repeat abortions in America (link requires free registration):

Amy's experience with multiple abortions was life-changing enough that she decided to volunteer at Exhale, a telephone hotline where women who have had abortions can speak openly about their experiences. Exhale, which calls itself "pro-voice," is part of a new approach to abortion that eschews dogmas, left and right. Through the organization, which went national in June, Amy counsels women like herself, some of whom have been through multiple abortions. Their numbers are growing. According to the Guttmacher Institute, an abortion-rights organization respected for its data collection, close to half of the 1.3 million abortions performed in the United States each year are repeat abortions, up from just 12 percent in 1973. Most repeat abortions are, like Amy's, a woman's second, yet the number of third abortions is not insubstantial. In 2000, the Centers for Disease Control (CDC) reported that 18 percent of abortions were performed on women seeking at least their third pregnancy termination. In contrast, studies have shown that rape and incest victims, the most politically sympathetic and high-profile group of abortion-seekers, account for about 1 percent of abortions.

Despite its prevalence, repeat abortion is the least discussed or researched aspect of abortion in the United States. In the past year, liberals and Democrats have increasingly focused on preventing unwanted pregnancies as a means of preventing abortion. But they have yet to address the specific needs of women who have already had abortions, partly out of fear of affirming conservative stereotypes about why women abort or how they react to an abortion....

The sad fact is that, three decades after legalization, abortion is no longer mainly a tool women use to shape their own destinies, but rather a symptom of larger social problems that ought to be addressed by policymakers.

"Talkback to TNR" writers, in the main, agreed with my policy proposals, but disliked my criticism of liberals for not talking about the still-taboo subject of repeat abortions. And yet, I think it's noteworthy that in recent months, I have hardly been the only younger, liberally-situated woman to raise questions about the way pro-choice professionals talk and think about abortion, or to suggest that pro-choice liberals could benefit from some fresh thinking. The younger set, it seems, is increasingly disturbed by our rhetorical and conceptual inheritence on this issue, even as abortion rights face greater challenges than at any time since the 1970s.

Last December, Prospect deputy editor Sarah Blustain wrote about her dislike of pro-choice rhetoric in our pages:

Ok, I’ve unlisted my phone number, changed my name, and moved to a different (red) state. Now I can safely say it: The Democratic defense of abortion makes me cringe.

It’s the stridency, the insistence, the repetition of a “woman’s right to choose.” It rubs me the wrong way -- and I’m one of those classic 30-something, northeastern, educated, pro-choice women who believes the message. I’m tormented by the idea that even as I support Democratic candidates -- and, yes, on this issue -- I’m turned off by their abortion rhetoric.

I’m not alone. Poll after poll shows that a majority, albeit a slim one, of Americans favor access to abortion. An ABC News/Washington Post poll from May of this year found that 54 percent of those asked said they thought that abortion should be legal in all or most cases. Similarly, 55 percent told a Time/CNN poll in January 2003 that they favored the Supreme Court ruling “that women have the right to have an abortion during the first three months of pregnancy.” And yet, as our most recent election made clear, some percentage of those poll respondents obviously support anti-abortion candidates. Put more precisely, fully one-third of pro-choice Americans voted for George W. Bush, according to NARAL Pro-Choice America. So the question is, how can Democrats soften their rhetoric while maintaining their support for safe, accessible abortion?

As long as I can remember, the tone of the liberal message on abortion has been defiant, sometimes even celebratory. It’s an attitude that reflects the victory of legal abortion over back-alley dangers three decades ago -- a success that many who remember it still experience with deep emotion...

Still, for those of us who came after Roe v. Wade, there is a significantly different reality. The context has changed. Back alleys and coat hangers are not part of our visceral memory. To this generation, the “choice” of a legal abortion is no longer something to celebrate. It is a decision made in crisis, and it is never one made happily.

More recently, the literate smut website Nerve.com, of all places, ran a couple of very provocative articles about abortion, including one on repeat abortions by Third Wave feminist Jennifer Baumgardner that describes an abortion clinic director who "thinks multiple abortions points to something larger than an individual snafu."

The delightful Ada Calhoun (a Nerve editor who, I might add, is also a friend of TAP Online editor Tara McKelvey's and the daughter of New Yorker art critic Peter Schjeldal, as well as one of the few people I've met in adult life who also had Mr. Tobin as her fourth grade teacher at P.S. 41) bravely laid out her very un-P.C. qualms about second-term abortions, thinking back to the time when she was in high school and her family hosted a young woman seeking a second-term abortion who was in town from upstate:

...looking at Andrea, I felt revulsion. Politically, I still felt I had to defend her right to do what she was doing, but personally and morally I felt it was wrong. Even though I was a godless, liberal native New Yorker, I saw second-term abortion as a sin. If there had been a Bible in our home, I would have thumped it.

I've never said this out loud before, that I have such reluctance about abortion past a certain point — which in my case is definitely before Andrea's five months, when the fetus kicks, has a heartbeat, and sucks its thumb. Being pro-choice with reservations is taboo. It is to wrestle with guilt and doubt and feel that you must be silent. And I understand why. Last year, my colleague Lynn Harris wrote a great essay about how she and her husband help women get access to second-term abortions. I hear and agree with everything she says. I see how it's a class issue, and I appreciate the many totally legitimate reasons why many women can't or don't get them before they're so far along. I applaud Lynn. But privately, I still can't get over this deep moral anxiety about it. And I think that's something we should talk about. At the same time, I fear that by saying such a thing I'm stoking the fire of the fundamentalists, giving comfort to a political enemy that would also restrict access to safe and effective birth control if they could.

...I do wonder if maybe we pro-choice advocates aren't more conflicted than we let on, and therefore if maybe pro-life advocates aren't as well. Maybe the deal is that pro-choicers have to say, "Allow abortion up until the ninth month! Free and on every corner!" And pro-lifers have to say, "We can never, ever allow it, even in cases of rape and incest, even if the mother might die!" That way, we meet in an awkward demilitarized zone, the first trimester, with restrictions and obstacles that hurt the poor and the young. And so we fight back and forth and make it easier this month and harder the next, so everyone's almost okay with the way things are, but no one really is.

I think Ada is quite right that it has been nearly impossible for people in public life to talk honestly about abortion, and that it can be especially difficult to do so in pro-choice circles. Indeed, there are two conversations we have about abortion in this country. There is, as Ada describes, the public confrontation between rigid ideological camps, and then there is the nuanced private conversation we have among ourselves. I am more interested in the latter, because I think that a politics that is not based on the truth of life as it is really lived is worthless. And sometimes even worse than that.

I don't expect professional political actors or activists to necessarily agree, but if the gap between the private conversation and the public one grows too wide, they may find abortion rights themselves falling into the breach.

--Garance Franke-Ruta

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