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.

Monday, December 3, 2007

Lethal Injections from Both Sides Now

My brother sent me this, from James Taranto, WSJ OpinionJournal.  I liked the irony.

Death With Dignity
The New York Times reports on an effort in Washington state to legalize physician-assisted suicide via ballot measure:

The [proposed] law would let doctors prescribe lethal doses of narcotics to terminally ill patients who ask to end their own lives. It would be modeled closely on a statute in Oregon, the only state where the movement has been successful.

This may be a solution to another problem, on which the Times reported in October:

Moments before a Mississippi prisoner was scheduled to die by lethal injection, the Supreme Court granted him a stay of execution on Tuesday evening and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring. . . .

While there is no schedule for that review, it will almost surely not take place until the court decides the Kentucky case, Baze v. Rees, which will be argued in January. The issue in that case is not the constitutionality of lethal injection as such, but rather a more procedural question: how judges should evaluate claims that the particular combination of drugs used to bring about death causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

Why not just execute murderers using the Oregon assisted-suicide drug combo, which has been established to be compassionate?

Tuesday, November 27, 2007

Sacrifice as a Virtue

I'm reading a fascinating book, Joyce Little's The Church and the Culture War (Ignatius Press, 1993) for a class I'm taking, and came across this passage last night:

The fact that self-sacrifice is regarded by less than half of all adults in this country as a positive moral virtue tells us far more about the current state of American religious belief than do all the polls indicating that more than 90 percent of the American public still believes in God.  It tells us that the Trinitarian Godhead which is within itself a communion of self-giving love is no longer the God in whom the American public believes.  It tells us that Christ, the source of the sacred or sacramental ordering of our lives, who becomes Head of the Church and source of that order by virtue of his sacrifice for the sake of the Church, no longer informs American religous sensibilities.

The characterization, the worth, the value, even the social role of acts of sacrifice is clearly one of the sharpest divisions between religiously-oriented and secularly-oriented feminist theorists.  Little's quote made me wonder about a couple of things.  One is whether these differing perspectives on self-sacrifice -- as a "moral virtue" versus a surrender of one's right to "define one's own concept of existence" -- might help explain some of the subtext of the arguments in many of our other great ongoing social debates.  Another is what kind of a God people believe in if they reject the notion of self-giving love or sacrifice as a virtue.

Wednesday, November 7, 2007

A Market Valuation of the Genius of Women?

From a Reuters report on how "Female U.S. Corporate Directors Outearn Men":

They may be a small minority in corporate boardrooms, but women directors typically earn more than men, a new U.S. study has found.

Female directors in corporate America earned median compensation of $120,000, based on the most recently available pay data, compared with $104,375 for male board members, research group The Corporate Library said in its annual director pay report on Wednesday.

At the same time, the study said, women in corporate boardrooms are outnumbered eight to one.

Mary Ann Glendon's Nomination

I share your assessment, Tom, of the acclamation that ought to accompany Mary Ann Glendon's nomination as U.S. ambassador to the Vatican.  But just to show that it's simply impossible to underestimate people's ability to be "pissy" (sorry, Rob's grandmother!), take a look at the Boston Globe's coverage of this news.

I find particularly offensive (and, frankly, idiotic) Notre Dame's Father McBrien's comments: 

"She has also been an outspoken critic of feminism, tending to write it off as a relic of the 1970s," said the Rev. Richard P. McBrien, a University of Notre Dame theologian, "all of which endears her to conservative Catholics and makes her an ideal choice for President Bush."

From that comment, it strikes me that his understanding of the term "feminism" must be a relic of the 1970s, if not the 1950s.

Friday, October 12, 2007

The "Euthanization" of Pope John Paul II

Here are some  responses to the speculation reported in the recent Time Magazine article,  Was John Paul II Euthanized?

Wednesday, October 10, 2007

Wojda on Advance Directives in PVS

My colleague Paul Wojda offers this response to the comment on his question on advance directives dealing with the possibility of a PVS:

With respect to interpreting official Church teaching on this issue I think it’s important to recognize a number of trajectories, some of which may be in tension with others. The first and most obvious trajectory is the continued resistance to modern trends that diminish human life. In this light, those who don’t “get” John Paul II’s allocution on nutrition/hydration would do well to look at his (and the U.S. Bishops’) many statements on war and peace, economic justice, capital punishment, and (of course) abortion. In each of these areas Church teaching has been at pains to narrow, if not close entirely, the permissible exceptions to the prohibition against taking life. The increasing emphasis on the public duties of Catholic officials is part of this trajectory too (i.e., not just to always “tolerate” evil but to work to ameliorate threats to human life). All of this has been accentuated by the dyad “culture of life/death” made popular in The Gospel of Life (1995).

The trajectory regarding permissible cessation or foregoing of life-prolonging care is of much older stock, however, and while it operates with an eye to social/political/cultural circumstances, it is far more casuistic and thus person-centered than this first trajectory. Medical decisions must, necessarily, be made in good conscience by the patient herself. And in this tradition it has always been understood that even food and water (or other non-medical forms of care) may be legitimately refused by a person if they are judged—by the patient—to be either excessively burdensome and/or offer little or no hope of benefit. This tradition has proven remarkably supple as our capacity to prolong life has increased, especially so over the last half-century, but its crucial moral feature—that we never directly aim at the death of ourselves or another—is still very much alive, as even Vacco (1997) demonstrates. More importantly, Pius XII in his famous 1957 address to Anaesthesiologists explicitly affirms this “patient-centered” approach: 

“The rights and duties of the doctor are correlative to those of the patient. The doctor, in fact, has no separate or independent right where the patient is concerned. In general he can take action only if the patient explicitly or implicitly, directly or indirectly, gives him permission. The technique of resuscitation which concerns us here does not contain anything immoral in itself. Therefore the patient, if he were capable of making a personal decision, could lawfully use it and, consequently, give the doctor permission to use it. On the other hand, since these forms of treatment go beyond the ordinary means to which one is bound, it cannot be held that there is an obligation to use them nor, consequently, that one is bound to give the doctor permission to use them.”

There are obviously other factors involved besides the patient’s right to make health care decisions, but the principle is clear.

Thus my original question (now rephrased in light of your comments): can I know in advance (with moral, not mathematical certainty), and stipulate with the necessary clarity, that certain forms of care (medical and otherwise) would be excessively burdensome and/or offer no reasonable hope of benefit, and that therefore I would wish them to be discontinued? 

I think the answer is plainly yes, on both counts, and I think that a reliable medical diagnosis of PVS after one year of artificially administered food and water (in the medically verified instance of an inability to swallow) is such a situation. How rare or exceptional these situations might be is a matter for further debate. (Anecdotal evidence suggests that many if not most Catholics would deem MANH to offer no reasonable benefit in this scenario. Indeed, most people I talk to at parishes etc. are rather frightened—not to mention monumentally confused—at what they hear the Church telling them: that they are obliged under pain of mortal sin to maintain MANH if in a PVS, no matter how long.)

My concern is that this trajectory of principled casuistry is being lost amidst the trajectory of (necessary) public witness to the dignity of human life in the mode of cultural critique. In our necessary opposition to euthanasia and physician-assisted suicide we must also preserve and develop the practice of a charitable reason that is grounded, in these matters, in the awareness that while life is an obligation it is because it is first a gift.

Tuesday, October 9, 2007

More Response to Rick

To supplement Tom and Rob's comments on Rick's excellent questions, I think the Archbishop Tutu situation raises some extremely complicated, and very important, additional questions about how we engage in dialogue with people of faith traditions other than our own.  His disagreement with the Church on issues such as abortion and contraception demands a different sort of engagement and response by a Catholic university than, for example, a Catholic politician speaking on peace and reconciliation.  I'm not saying the Catholic institution should NOT respond and engage on those issues, just that we have to acknowledge the additional delicacy of interfaith dialogue in this situation.

I also think we need to spend more time thinking about, figuring out, and practicing constructive dialogue about deeply divisive issues in general, especially as academics.  For example, on a purely emotional level, I absolutely loved Bollinger's courageous audacity in his introduction to Ahmadinejad.  But was that really the most constructive way to engage him intellectually in the way we are trying to assert a University is uniquely required (and positioned) to do?  In a recent conversation I had with a member of the Columbia faculty, he suggested a more intellectually responsible way to challenge someone like Ahmadinejad might have been to provide in his introduction a list of difficult questions that Bollinger hoped Ahmadinejad would be addressing in his remarks.  If those questions are NOT, in fact, addressed in the talk, Bollinger might then have an even stronger platform for criticism afterwards.   I'm not sure that would work in that particular context, but I do think we need to think about how we, as universities, can constructively foster dialogue and debate, rather than simply providing platforms for assertions of positions on divisive issues.   

Monday, October 8, 2007

Advance Directives on Withdrawing Food & Water

A reader had the following comment on Paul Wojda's question about advance directives about withdrawing food & water in PVS:

Under what circumstances would the burdens of ANH (artificial nutrition & hydration) justify its discontinuation for patients in PVS? [Obviously, if such an intervention were futile, it would not be morally obligatory to pursue (or morally blameworthy to discontinue).]  Given the nature of PVS, it wouldn't be right to say that the burdens come in the form of physical or emotional suffering.  The Explanatory document issued by the Vatican seemed to suggest that the expense of ANH is not usually prohibitively burdensome.  Indeed, the general "exceptions" to the norm of continued ANH sketched out by the document seem quite narrow:
“When stating that the administration of food and water is morally obligatory in principle, the Congregation for the Doctrine of the Faith does not exclude the possibility that, in very remote places or in situations of extreme poverty, the artificial provision of food and water may be physically impossible,”
“Nor is the possibility excluded that, due to emerging complications, a patient may be unable to assimilate food and liquids, so that their provision becomes altogether useless. Finally, the possibility is not absolutely excluded that, in some rare cases, artificial nourishment and hydration may be excessively burdensome for the patient or may cause significant physical discomfort, for example resulting from complications in the use of the means employed.”
“These exceptional cases, however, take nothing away from the general ethical criterion, according to which the provision of water and food, even by artificial means, always represents a natural means for preserving life, and is not a therapeutic treatment. Its use should therefore be considered ordinary and proportionate, even when the “vegetative state” is prolonged.”

So it is difficult (though not impossible) to imagine a case in which discontinuation of ANH would be morally sound.  It is doubly difficult to imagine how one could anticipate with certainty (and describe with legal clarity) these cases such that he or she could accordingly formulate his or her advance directive.

While the CDF document and explanatory text do not squarely address the question raised by Paul, they do strongly indicate that the circumstances in which a PVS patient would be burdened by ANH are exceedingly rare.

Thursday, October 4, 2007

Choosing to Forego Food & Water in Advance Directives

My colleague in UST's Catholic Studies Department, Paul Wojda, had the following question about the recent CDF Responses to the USCCB on withdrawing food & hydration from persons in a persistant vegetative state.

I have yet to see any official consideration of whether an individual may legitimately decide (through an advance directive) whether to withdraw or forego tube feeding in these circumstances. As I read the CDF clarification it really doesn’t say anything new. The commentary is at pains to point out the continuity between Pius XII and JPII on this issue, but that too never addresses the issue from the “agent’s” perspective.

May a Catholic, in good conscience, and through an advance directive, elect that tube-feeding be withdrawn upon diagnosis of PVS?

The CDF statement simply doesn’t address this question, as far as I can tell.

My own answer would be that, yes, a Catholic may do so, based on longstanding principles informing end-of-life decision-making, i.e., determination of excessive burden and hope of success. I believe that Pius XII’s famous statement reinforces this position quite clearly.

I think it's a particularly interesting question to consider in light of the recent press coverage of Pope John Paul II's medical treatment during his last days.  Of course JP2 was not in a PVS, but it raises the possibility that he might have been exercising his own judgement about tube feeding toward the end of his life, and prompts me, too, to wonder whether he might legitimately have made such a decision for himself in an advance directive.

Saturday, September 29, 2007

Can Catholics Sing?

OK, Rob and Mark, and other critics of Catholic congregational music, here's your chance.  The National Association of Pastoral Musicians is taking an on-line survey in which you can rate congregational singing in your parish, your community, and the Church in general.