An essay in today's Globe & Mail by Margaret Somerville, the founding director of the Centre for Medicine, Ethics and Law at McGill University, ('Deselecting' our Children) begins:
Here’s a recent Danish headline: “Plans to make Denmark a Down syndrome-free perfect society.” The Danes want to promote aborting fetuses with Down syndrome, so their society will be free of such people around 2030. One bioethicist describes it as a “fantastic achievement.”
Godwin's Law be damned -- didn't humanity learn anything from Nazi Germany?
I join Richard in recommending Carter Snead's opening essay in Public Discourse's series "Liberty, Justice, and the Common Good: Political Principles for 2012 and Beyond." The whole series looks excellent -- check out the program.
Carter's piece includes a paragraph that I think goes to the heart of why the "life" issues continue to be so central to so much of political debate. It explains, I think, why pro-lifers sometimes get tagged with being obsessively single-issued -- this one issue does, in fact, drive our perspectives on so much else. Carter writes:
At bottom, the “life issues”—including especially the conflicts over abortion and embryo-destructive research—involve the deepest and most fundamental public questions for a nation committed to liberty, equality, and justice. That is, the basic question in this context is who counts as a member of the human community entitled to moral concern and the basic protection of the law? Who counts as “one of us”? Equally important is the related question of who decides, and according to what sort of criteria? These are not narrow concerns commanding only the attention of a small number of highly motivated activists at the fringes of our society. Indeed, it is hard to imagine a public matter that is more important than this “question of membership.”
I just now saw a new paper on SSRN that puts this question into the context of the UN's Convention on the Rights of Persons with Disabilities. It's by Michael Neil, a graduate student at the School of International Studies at the University of Denver: "Reasonably Confused: Human Rights and Intellectual Disability". I haven't read the paper yet, but the chilling final sentence in support of Carter's point seems like a very real question, not just rhetorical hyperbole: "Can we include all of our family members and neighbors without fear of our system imploding?"
Here's the abstract:
In a conversation I recently had with Laura Hershey, friend, disability rights advocate, and participant in the Convention on the Rights of Persons with Disabilities, I brought up the problem of rights, personhood, and rationality. I wanted to know why, when the working group, of which she was a member, designed the CRPD, they did not implicitly address the redefinition of the notion of personhood to describe the status of all human beings, without consideration for reasoning ability. She was surprised that I would suggest any implicit exclusion existed or that people without the ability to reason currently hang in limbo within important primary human rights documents. Her understanding was that the Universal Declaration of Human Rights, true to its name, was universal in its scope and that the CRPD followed in its sentiment.
Unfortunately, for her view, the UDHR, in Article 1, states, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience (italics the author’s) …” Political theory, from Socrates to Rawls, has conflated reason with recognition and inclusion in the political system. The UDHR is irreconciled on the status of people with severe intellectual impairment. Even as Article 1 defines human beings in terms of rationality, the Preamble states, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world…” Similarly, Article 2 states, “Everyone is entitled to all of the rights and freedoms set forth in this Declaration, without distinction of any kind…” The unaddressed questions are, “What does the term “human family” mean?” “Does “everyone” really mean everyone?” and “Is there a difference between human being and person?”
This work will address the various historical meanings of personhood, including person as Homo sapiens, rational chooser, or contributor, and investigate what recognition of the eight-hundred pound gorilla might mean. Are the universality of human rights and the primacy of reason incompatible? Can a third position emerge that acknowledges reason as a “light of the world” and a “chief glory of man” while also acknowledging relational abilities, demonstrated by people with severe cognitive impairment as equally essential aspects of what it is to be human? Can we include all of our family members and neighbors without fear of our system imploding?
Another excellent piece by the consistently-impressive Erika Bachiochi on Public Discourse today, 40 Years Later: How to Undo the Automony Argument for Abortion Rights. She notes that it's the 40th anniversary of Judith Jarvis Thompon's "violinist" argument for abortion rights, tracing the knots abortion rights advocates have gotten themselves in over the years clinging to that analogy.
Erika's piece also links to one by the equally consistently-impressive Helen Alvare, which I somehow missed when it appeared in January: The Lazy Slander of the Pro-Life Cause.
If any of you are sending kids off to college in the next few weeks, do them a favor and make them read these columns -- it'll arm them with some powerful arguments for those late-night b.s. sessions.
While so many of my friends were enjoying the congenial company of like-minded scholars last weeks at the Law and Religion Roundtable, I spent two days last week with mostly other-minded scholars at the AALS's Workshop on Women Rethinking Equality, presenting some thoughts on the gender theory of complementarity on a panel entitled "Theorizing Gender." (A glance at the program for this workshop will give you some sense of how well-receive was my suggestion that many women's religious faith will be an important influence on their views on gender theory.)
That experience caused me to appreciate even more getting the announcement yesterday of the posting of a truly extraordinary article on SSRN: Erika Bachiochi's just-published Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights, 34 Harvard Journal of Law & Public Policy 889 (2011). It's a tour de force of pro-life feminism -- a creative and powerful piece of scholarship. This article is truly an invaluable resource for anyone teaching Con Law or feminist legal theory who wants to do justice to all sides of these arguments.
I'm posting the abstract below, but one thing you'll notice if you pull up the article (which you should definitely do) is that Erika lists no "institutional affiliation." Anyone reading MOJ who doesn't know Erika already should get to know her. Erika graduated from Boston University Law School in 2002. (She also has an M.A. in theology from B.C.). Since graduating, even though she hasn't been the member of any law school faculty, she's managed to edit two fantastic books of "new feminist" writings: The Cost of Choice: Women Evaluate the Impact of Abortion (2004) and Women, Sex and the Church: A Case for Catholic Teaching, (2011) and publish a number of articles, including this latest in the Harv. J. of L & Pub. Pol. She lectures & speaks all over the country on these sorts of topics -- see her website. The Murphy Institute has commissioned her to draft a Teacher's Manual for anyone wanting to supplement a course on feminist legal theory with a Catholic perspective, using chapters from Women, Sex and the Church. I just read a draft of this Teacher's Manual, and it is going to an extremely important contribution to Catholic feminism in its own right. We'll publish it on-line and let you know when it's ready.
Oh, and the deadline on her work for the Murphy Institute has been governed this summer by the impending birth of Erika's sixth child......
Here's the article abstract:
Within legal academic circles and the general pro-choice feminist population, it is axiomatic that women’s equality requires abortion. Indeed, pro-choice legal scholars, foremost among them Justice Ruth Bader Ginsburg, have argued that the Equal Protection Clause provides a far more appealing constitutional justification for the abortion right than the roundly criticized right to privacy offered in Roe.
This article seeks to systematically engage, on feminist grounds, the leading pro-choice feminist legal literature, detailing why sexual equality need not—indeed, should not—include a right to abortion. I critique popular scholarly equality arguments from both a constitutional perspective (i.e., why abortion ought not be protected by the Equal Protection Clause) and a philosophical perspective (i.e., how autonomy arguments fail to understand the actual biological dependency relationship that exists between mother and unborn child, and the affirmative duties of care that follow).
I thus challenge the assumptions underlying the idea that pregnancy and motherhood necessarily undermine equality for women. I argue instead that abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood. In a legitimate attempt to get beyond the essentialist idea that women’s reproductive capacities should be determinative of women’s lives, pro-choice feminist legal scholars have jettisoned the significance of the body. In rightfully arguing that pregnancy is more than just a biological reality, they discount the fact that pregnancy is a fundamental biological reality. I will show that acknowledging this biological reality—that the human species gestates in the wombs of women—need not necessitate the current social reality that women are the primary (and, too often, sole) caretakers of their children or the social arrangements in which professional and public occupations are so hostile to parenting duties.
Easy access to abortion serves to further discharge men of the consequences that sometimes result from sexual intercourse and so places responsibility for unintentional pregnancies solely on pregnant women. Rather than making significant demands on men who sire children, current law encourages women to mimic male abandonment. Concomitant with the proclivity to view male sexual autonomy as the standard for human reproduction is an embrace of a male-centered sexuality that ignores the procreative potentialities inherent in the sexual act. I will conclude by outlining the contours of a pro-woman sexuality and an embodied equality that takes the male and the female body seriously and affirms their shared capacities for full human development.
I had the extraordinary privilege of spending a few days with the Holy See's Delegation to the High Level Meeting on HIV/AIDS at the United Nations last week. (In the category of examples of the truth of the adage, "Men plan, God laughs": When I entered Columbia Law School decades ago, I had dreams of a career in international diplomacy, leading to some sort of work at the U.N. I certainly could never have imagined the convoluted career trajectory that started me off as a corporate lawyer lobbying for banks in D.C., to an academic career teaching Contracts and Sales in Minneapolis, and only then actually took me to the U.N. -- as an Advisor to the Holy See.)
Despite my official title, I was doing more observing than advising. One thing that I observed was the tremendous courage of H.E. Archbishop Francis Chullikatt, the Apostolic Nuncio, Permanent Observer Mission of the Holy See to the U.N., and his talented staff, and advisors like Jane Adolphe from Ave Maria School of Law. The constant criticism of the Catholic Church for its position on the use of condoms tends to obscure the fact that the Church provides 25% of the world's care of people living with HIV/AIDS. When you compare the breadth and scope of the Church's position on the needs of people living with HIV/AIDS with the more narrowly-focused, intensely political statements of most of the participants in the conference, the wisdom gained from that hands-on experience is clearly evident. But, still, statements like Archbishop Chullikatt's here, and other similar statements by Professor Adolphe, are often greeted with derision (and even boo's) in this "most civilized" forum for debate.
Here's a taste of some of the battles that the Holy See's delegation has to fight. The earliest drafts of the Political Declaration on HIV/AIDS that was being negotiated at this Meeting referred consistently to "evidence informed" approaches to addressing the HIV/AIDS crisis. The Holy See negotiators consistently recommended changing this to "evidence-based." What's the difference? Take a look at this explanation from UNAIDS' "Terminology Guidelines" (Jan. 2011):
"In the context of research, treatment, and prevention, evidence usually refers to qualitative and/or quantitative results that have been published in a peer-reviewed journal. The term ‘evidence-informed’ is preferred to ‘evidence-based’ in recognition of the fact that several elements may play a role in decision-making, only one of which may be scientific evidence. Other elements may include cultural appropriateness, concerns about equity and human rights, feasibility, opportunity costs, etc."
What's at stake? Perhaps the fact that scientific evidence seems to be providing more and more validation of the effectiveness in HIV/AIDS prevention of programs stressing behaviorial changes such as abstinence and fidelity, and the ineffectiveness of prgrams stressing use of condoms? (See, e.g., the work of Edward C. Green, former director of the Harvard AIDS Prevention Project, here and here.)
As I flew home after a couple of days of observing this sort of debate, I felt I really ought to reread Nineteen Eighty-Four.
My friend Mary Leary of Catholic Law School passes along these interesting observations about the mainstream media's uneven coverage of issues in the Church, prompted by her attendance at a conference last week in Rome on Ending Modern Day Slavery:
"Whether the media coverage, or its absence, is a product of actual hostility or ignorance is surely a matter of debate. Whichever the case, my own observation is that the problem is twofold. First, it does appear that more often than not our scandal hungry 24/7 news cycle clamors more for stories of tragedy that triumph. A scandal, poor conduct, or misstep by a clergy member or some sort of “official” in the church hierarchy is what is largely covered by the media. However, the positive examples of faith in action occurring daily throughout the globe are ignored. Secondly, the media use of language is misleading and fails to do justice to the faithful. There is confusion in the media as to who “the Church” truly is. Often it seems that when the media references “the Church,” it intends to include only the church hierarchy and its structures. This misnomer creates the same response in me as when the media lets a commentator speak as to what “the women’s” view is on any given political issue, as if the “women’s view” is something that actually exists. So often forgotten is the rich diversity of the congregation and the triumphs of its individual members, as well as the eternal truths pronounced by the hierarchy.
Last week I had the pleasure of witnessing such a triumph. In Rome, the United States Embassy to the Holy See and St. Thomas University in Florida co-hosted an excellent conference entitled Building Bridges of Freedom: Public-Private Partnerships to End Modern Day Slavery. This conference displayed much of what is good about both the institutional Church and congregations: its diversity, openness, commitment to serving our vulnerable brothers and sisters, and support for the suffering members of the Body of Christ. Collectively, the conference provided a reminder that as an institution, the Catholic Church has been an important voice in the modern anti-slavery movement. Institutionally, the publications from the Holy See and the work of its organizations such as the Office of Migration, Talitha Kum of the International Union of Superiors General, and St. Thomas University’s Program in Intercultural Human Rights have long provided a voice for those destroyed by the scourge of human trafficking . Similarly, the conference reflected the long practice of an ecumenical approach embraced by the institution. The conference featured speakers from all faiths brought together for a productive dialog about conquering the problem. The speakers were not invited due to their status or fame, but due to their subject matter expertise.
However, the more compelling story was not the institutional one. Rather it was the individual one. This conference reflected the individual efforts of so many who combat human trafficking on the front lines in the name of their faith. Sister Estrella Castalone reminded us of the thousands of sisters throughout the world providing protection and care to these victims. Dr. Eleanor Gaetan pointed to the parallels between the feminist work in this area and the direct work of religious orders throughout the world with victims, both drawing from a deep recognition of the inherent dignity of women not to be sold. The meeting also reflected numerous individuals who are leading voices against Trafficking in Persons who openly discuss their motivation is influence by their Roman Catholic faith, such as United States Ambassador to the Holy See Miguel Diaz, Representative Chris Smith (R-NJ), United States Ambassador to Combat Trafficking in Persons, Luis CdeBaca, Baroness Mary Goudie from The House of Lords, to name just a few.
Unfortunately, this significant event which focused on important discussions of combating modern day slavery did not get the coverage it deserved. To their credit, the wire services (which were indeed picked up by a handful of national media outlets), as well as Italian, French, and Catholic news services gave it coverage. However, compared to the scandal of the day, the mainstream American media gave it inadequate recognition. This conference provided a candid assessment of one of the most significant affronts to human decency of our time and necessary steps forward. It was ecumenical and located within one of the few organizations with global reach to many regions of the world affected by this trade. It featured all that is good about the institutional Church as well as its individual members and members of other faiths. Unfortunately, it, like so many other efforts of the faithful, went somewhat unnoticed. Today, more people are estimated to be enslaved than at any other time in our history. Yet, somehow, that tragedy is not worthy of massive American press coverage. Perhaps, the true scandal is in that."
Kudos to Michael Scaperlanda and Brian McCall at the University of Oklahoma's College of Law for hosting a superb three days of scholarship and fellowship. The 6th Annual Conference of Catholic Legal Scholars, as Rick noted, began with an afternoon of thinking about Augustine with Duke theologian Paul Griffiths, and ended with a morning of thinking about the rhetorical smuggling of modern discourse with USD's Steve Smith, discussing his The Disenchantment of Secular Discourse. Purely as models of elegance -- in their writing, the clarity of their thought, and the manner of their engagement -- it's hard to top those two.
As usual, these meetings are marked by the communion and engagement of the audience, as well as the quality of the 'formal' presentations. Perhaps it has something to do with the opportunities for spiritual reflection (this year including a mass celebrated by UST's Reggie Whitt and Ignatian spiritual reflections led by Boston College's Greg Kalscheur), but the conversations after and between the panel presentations, both in the question and answer sessions and during the social times, are exceptionally rich and wide-ranging.
I was particularly intrigued by the conversation surrrounding the panel on "Forgiveness and Conversion: What should be the law's attitude toward and treatment of post-conviction criminals." Building naturally on Paul Griffith's remarks on Augustine's reflections about the role of mercy in intercessions of bishops on behalf of convicted persons in the Roman empire of the 400's, UST's Mark Osler talked about the shrinking sphere of mercy in our criminal system, including the decreasing invocation of pardon power by executives. UST's Susan Stabile added a fascinating reflection about the extent to which the expanding tort of 'negligent hiring' hinders the application of 'mercy' for convicted felons trying to reenter the workforce. And a relative newcomer to the legal academy, SMU's Meghan Ryan, offered some intriguing observations about developments in scientific 'management' of criminal behavior, and what those developments might mean for our concepts of culpability and rehabilitation.
Two other relative newcomers to the legal academy also offered excellent commentary on Steve Smith's book -- John Inazu (currently visiting at Duke, starting at Wash U this fall) suggested, among other things, that Steve should incorporate more Hauerwas, and Notre Dame's Jeff Pojanowski suggested Steve should incorporate more Scandinavian legal realists..... It was quite a conference!
I find myself reeling a bit today from the extraordinary confluence of huge, global scale events events over the past weekend, from the ridiculous (the Royal Wedding hoopla seeming to focus mostly on people's necklines and headgear); to the sublime (Blessed John Paul II's Beatification Mass on a stunningly beautiful day in front of St. Peter's); to the supremely courageous (the execution and planning of the mission locating and killing Osama bin Laden).
In the middle of all of this, I also spent four hours at the Regional Special Olympics tournament, watching my 15 year old son and his fellow teammates of all sizes, shapes, and physical and mental abilities compete on the bars, hurdles, rings, floor exercises. The same sorts of drama being played out in all those world stages was replicated on such a smaller scale in that little, local gymnastics studio: the ridiculous sight of everyone, team members, coaches, judges, doing the chicken dance on the floor while the scores were being calculated; the sublime sight of the dignity radiating from the faces and grace of the flowing hands of young women whose shapes conform to no conventional standards of beauty during their rhythmic floor exercises; and the courage of the young autistic man daring himself to hurl himself over the hurdle in front of a crowd of people.
I kept thinking about how busy God must have been this weekend. He was equally present to give courage to the guys on the mission in Pakistan and the boy on the hurdle at the gymnastics meet; he was equally present to share the joy of the and pride of the Polish pilgrims at St. Peter's square and the athletes being given their ribbons on the podium in the little gym in Minneapolis; he was equally present to console the parents of the woman reportedly used as a human shield and killed during the mission in Pakistan and the parents still mourning their children killed on 9/11.
It's a humbling thing, sometimes, to remember that God is equally present in our pride at the 100s of SSRN downloads that tell us we might be having some effect on the global scale, and in our waking at 3 am to calm one of our kids' nightmares.
This looks like an interesting paper by two Dutch philosophers from Tilberg University, Johan J. Graafland and Bert W. van de Ven:
Starting from MacIntyre's virtue ethics, we investigate several codes of conduct of banks to identify the type of virtues that are needed to realize their mission. Based on this analysis, we define three core virtues: honesty, due care and accuracy. We compare and contrast these codes of conduct with the actual behavior of banks that led to the credit crisis and find that in some cases banks did not behave according to the moral standards they set themselves. However, notwithstanding these moral deficiencies, banks and the professionals working in them cannot be fully blamed for what they did, because the institutional context of the free market economy in which they operated left little room for them to live up to the core values lying at the basis of the codes of conduct. Given the neo-liberal free market system, innovative and risky strategies to enhance profits are considered desirable for the sake of shareholder's interests. A return to the core virtues in the financial sector will therefore only succeed if a renewed sense of responsibility in the sector is supported by institutional changes that allow banks to put their mission into practice.
Taking up the topic of the morality of lying (discussed at length on MOJ back in late Feburary), UST's Center for Catholic Studies Graduate Students and the Murphy Institute are hosting a disputation ("a probing, public examination of a controversial question about which faithful minds may be earnestly divided and which hold the promise of spiritual fruit if seriously addressed") on the question: "Can it be morally permissible to assert a falsehood in service of a good cause?" Our disputants will be Christopher Kaczor of Loyola Marymount and Christopher Tollefsen of the University of South Carolina & the Witherspoon Institute, whose on-line debate on this topic in Public Discourse was discussed in this post by Robby George. May 5th, 7:30 -9:00, in the John Roach Center for Liberal Arts Auditorium on UST's St. Paul Campus. Details here.
