I appreciate my colleague Elizabeth Brown’s thoughtful, informative, and well-researched contribution to the ongoing thread about the estate tax. I’ve enjoyed and learned much from the give-and-take on this issue, as well as the messages and interesting stories I’ve received from Mirror of Justice readers.
As I’ve stressed before in this thread, we as Catholic thinkers can only be enriched by broadening the discussion and being willing to consider other perspectives, other dimensions of social issues in a complex world, and other members of our larger community, even if we ultimately reject a particular argument based upon our appraisal of the evidence. Catholic Social Thought provides a means of evaluating the evidence but should not constrain what evidence is to be considered. This expansion of the dialogue, together with a resistance of the sometimes too-narrow class-warfare style and government-centric approach that may be uncritically adopted in such discussions, is of greater importance to me than any particular policy outcome.
Elizabeth questions what she calls my “assumption” “that all family businesses and family farms are small and thus, easily put at risk by the estate tax.” As a counter-example, she then describes one family enterprise that is anything but small. While I’ve never said that all family businesses are small, I stand firmly by my declaration that “small” indeed is the apt description for the overwhelming majority of family businesses in this country. According to the Small Business Administration (SBA), in 2003, 65 percent of all firms (small, large, family-owned, publicly-held) in this country brought in under $500,000 in receipts each year (not profits but gross revenues), and 79 percent of all firms employed fewer than ten employees. As these SBA figures encompassed all businesses, including major industries, but excluded those without employees, the percentage of family-owned businesses in this country that are small is even larger than revealed by these SBA statistics. Indeed, the Census Bureau reports that non-employer firms, which by definition are family-owned as the owner is also the only worker, account for three-quarters of all businesses. In sum, without question, the vast, vast majority of family-owned businesses in this country are neither large in size nor rich in profits.
As I’ve acknowledged in past posts, a handful of family-owned businesses have grown over time to a more considerable size, thus making the original owner modestly wealthy (although typically not among the fabulously rich). (Elizabeth indicates that this is even more true of family farms – which were not included in the SBA statistics I cited above – although the extensive real estate holdings and equipment purchases, etc., involving in farming together with the unusual seasonal and other vagaries make comparison more difficult and easy judgments suspect.) At least when it comes to these more substantial family-owned businesses, Elizabeth, joined by Tom Berg and Rob Vischer, appear sanguine about imposing the estate tax, whatever may come. I confess to being more concerned about the collateral consequences of the estate tax on the much more numerous and more typical small family enterprises than about shielding these larger family firms from the estate tax. At the same time, I have yet to hear a good argument why we as a society would want to place those larger family enterprises, which of course are among the most successful as evidenced by their very growth, at greater risk of being dissolved and sold off to large corporate entities upon the death of the original owners. My friends argue that few even of these substantial enterprises will actually be so liquidated, but they don’t deny that some have been and more will be if the estate tax is retained.
Should it be our public policy that family-owned businesses face a government-imposed ceiling on size (through the exemption rate for the estate tax), beyond which they grow at their peril? Is there a good policy reason for framing the tax system so that there is a greater risk of tax-death for family-owned businesses based entirely on size, thus focusing more punitively on the most successful in providing services and contributing to economic progress and creation of jobs? Is it fair and equitable for a family-owned business to be taxed once on the profits earned each year and then be taxed a second time on the same profits that were invested back into the business upon the death of the owner, while corporations are taxed only once on corporate profits? Is not tax equity a legitimate question for Catholic Social Thought?
Should we use tax policy to effectively create a preference in favor of large corporations as the favored entities in many sectors of the economy? Is the common good promoted when a family-owned business, of whatever size, is placed at a distinct tax disadvantage compared to publicly-held corporations? Is such a policy healthy for society, for enhanced competition in the economy, for fair pricing of goods and services? Is a policy that favors corporate giants over family-owned businesses consistent with Catholic Social Teaching as it pertains to the family and community?
Even assuming that the moral and socially-responsible approach to wealth accumulated through entrepreneurial activity and dedicated to ongoing production is to transfer that wealth out of the private economy and into the federal treasury, might it not be more equitable to construct a means of taxing wealth incrementally as it is created rather than dropping the tax boom upon a person’s death? As long as death is fixed as the taxable event, the estate tax will be foreboding, be seen as intruding upon families at a particularly difficult time, and be uniquely disruptive to any ongoing enterprise. Are not these factors, which implicate human dignity and the relationship between people and their government, also vital to Catholic Social Thought? To be sure, I imagine any alternative tax scheme would be just as complicated, as unsettling in other ways, and as likely to create collateral damage, suggesting any tax on the mere presence of wealth (regardless of how it is being applied) rather than on income earned is simply a misguided approach to revenue-generation.
More importantly, and returning to the central subject of smaller family businesses (which as outlined above are far more typical), the pre-death consequences of the estate tax remain deeply troubling to me and others who (unlike me) face the problem. This is where the unfairness of the tax becomes most poignant. Elizabeth suggests that the additional planning required by the federal estate tax should not onerous because business owners still would need to retain accountants and lawyers for estate planning purposes anyway and perhaps even to address the identical problem in the similar context of (typically much lower) state death taxes. But the fact that a person has to go to the doctor because of one ailment hardly means that he or she welcomes yet another illness that requires a second and longer visit. Moreover, as I’ve emphasized, the problem here is not only the drain on time and money in visiting lawyers and accountants, but that business owners are forced to consider and adopt artificial structures and make decisions at awkward times or for reasons other than business and personal judgment by reason of the looming presence of the estate tax.
Before speculating that the burden is light, that the effects are "marginal," and that the concerns are the misguided fears of over-excited people, we ought to listen to the voices of those who own family businesses and farms. In response to my posts, I’ve received private messages in which people describe the businesses their families or friends have built and their resentment of the perverse effects of the estate tax. I speak also based upon the experiences of those in my own family and among my personal acquaintances who have maintained farming operations and established family businesses, and who confirm that the prospect of the estate tax can weigh heavily.
But don’t take my word for it. Spend some time talking with people who own family businesses and farms. Although no group is monolithic in thought and supporters of the estate tax will be found even here, I’d be surprised if you don’t come across quite a few more who are troubled by the estate tax than those who are not. Perhaps then you’ll better understand their genuine bewilderment when they find the government, rather than thanking them for what they’ve contributed to the prosperity and health of their communities, instead appearing as a jackal greedily lying in wait for their deaths.
Finally, I can’t help but observe the schizophrenic nature of the arguments made in favor of retention of the estate tax. On the one hand, we’re assured that the estate tax will have, in Elizabeth’s words, a “minimal impact” on family businesses and no “significant impact on the U.S. economy or even the economies of rural areas.” On the other hand, Elizabeth and Rob tell us that repeal of the estate tax would have catastrophic effects on the federal budget, costing as much as a trillion dollars in tax revenues. You can’t have it both ways. If this tax is big enough to produce a flood of revenues for the government treasury, then it necessarily will tear a correspondingly large bite out of the economy. And some portion of that bite inevitably will be taken out of the hide of family-owned businesses and farms.
Greg Sisk
Thursday, July 27, 2006
Breaking my vow that I would post no more on the estate tax (and thus having now far exceeded my annual quota of comments on tax-related issues), I simply have to respond to Tom Berg’s suggestion that the owners of family businesses and family farms have been “worked up” about the effects of the estate tax by listening to misleading political advertisements.
Before I respond, however, I want to pause to emphasize how much I appreciate this expansion of this discussion beyond the narrow paradigm that often constrains Catholic Social Thought discussions. Too frequently, Catholic Social Thought appears to function in a two-dimensional world of (1) the deserving and oppressed poor and working class making claims against (2) the greedy and callous rich (and their compatriots in large unfeeling corporations). Especially when we are offered proposals for more governmental intervention to rearrange society in a preferred and assertedly more just direction, the multi-dimensional nature of these issues must be acknowledged, the law of unintended consequences must be seriously considered, and additional voices (such as those of the middle class, here in the form of owners of family enterprises) should be welcomed to the debate.
I’m also obliged to acknowledge again that I speak here only as a reasonably well-informed citizen. I claim no expertise in economic policy, small business finances, agricultural economics, or taxation. But then neither, I suspect, do my most of my interlocutors, and yet none of us are holding back from offering opinions (isn't the blogosphere grand!). Moreover, as a naturally risk-averse person, I confess that I opted for the comfortable (but not luxurious, as no one becomes a professor to get rich) life of the academic, isolated from commercial realities, sheltered from the ebbs and flows of the economy, immune (by freedom of speech and academic freedom) from most regulation of my activities, and never having to worry about making the payroll this week. In sum, I don’t have any personal stake in the estate tax question. Again, I think it fair to say that my interlocutors are in much the same position.
But those who have contributed their time, talents, life savings, and sweat-equity to build family businesses and maintain family farms do have such a stake. And, in my experience, they are not the kind of nervous, financially ignorant, and gullible folks who could be easily-excited by the feverish imagations of a political advertisement. The Small Business Administration reports that half of new small businesses fail in the first year and 95 percent fail within five years. Not surprisingly, then, those who do succeed invariably are steady, clear-eyed, practical, and canny folks who respond calmly and confidently to challenges and who plan wisely for the future.
Spend some time talking with the owners of family businesses and family farms. Their concerns about the estate tax are grounded in their personal experiences and the practical (and negative) impact that it has on their lives (not to mention their deaths). They worry about being unable to transfer the family business to the next generation, not because they’ve been taken in by political hucksters, but because they’ve spent valuable time and money sitting down with their accountants and their estate-planning lawyers. Having examined their financial records, thoughtfully projected the likely trends for the future, and been advised by the experts about the tax consequences, they come to their keen unhappiness with the estate tax quite honestly and realistically.
To be sure, as I said previously, only a handful of family-owned businesses and farms will face the estate tax collector as a financial Grim Reaper. While Tom quibbles about the actual numbers of family enterprises that may have to be dissolved to satisfy the estate tax bill, he acknowledges there will be some and seems content to dismiss them as a “small tail wagging a very big dog of repeal.” He could be right, both about the small numbers and the worthiness of the sacrifice to fill the government tax coffers. I'm just not ready to follow him to that conclusion just yet.
Those few family businesses that would be destroyed to benefit the common ground would, of course, be the most successful of these enterprises, having grown through the efforts of the owners to a size that by their deaths exceeds the estate tax exemptions. Thus, the estate tax effectively punishes those family businesses that are most creative and effective in providing goods and services. And when those fairly sizeable family businesses are sold off to pay the tax bill, they undoubtedly will be submerged into large corporate entities, probably those already operating in the same economic sector, thus decreasing competition and removing one more locally-centered enterprise. But, hey, I guess we’re supposed to say (perhaps with a little tear of regret), that’s just the cost of keeping money flowing into the federal treasury.
The vast majority of family businesses and family farms will not come under the axe of the estate tax. Tom Berg and Rob Vischer, and the studies they cite, continue to place the greatest emphasis upon this fact, that most of these businesses will survive. And with that conclusion they dismiss any further concern about the tax and its effects. But, as I said earlier, that most businesses will survive hardly makes the continued presence of the estate tax inconsequential.
Again, spend some time talking with the owners of family businesses and family farms. Hear them explain how they have to employ lawyers and accountants, reframe transactions, create artificial structures, distribute ownership shares at earlier stages, etc., in order to avoid the estate tax and thereby allow transfer of the business to the next generation. For many such businesses, the estate tax hovers over every decision made, such as whether to rent facilities or buy real estate (as the latter adds to the capital, non-liquid assets of the business); whether to divert scarce resources to purchase insurance so as to create liquid assets to pay any estate tax burdens; whether to contract an element of the business out or instead add new employees (which again may affect the size of the business and the estate tax consequences upon the death of the owner), etc. And throughout they must compete with the large corporate entities for which the estate tax has no implications.
Most owners of even substantial family businesses and farms will tell you that they are fairly confident they can arrange things so as to avoid the estate tax. But they are resentful about this governmental intrusion. They’ll tell you that they have sacrificed their time and talents, invested their life savings, worked very long hours, built a business that serves needs in the community, created jobs and thereby supported families, participated in community improvements, etc. Then the federal government through the estate tax (and in other ways) imposes itself as an adversary, threatening to take away what they have built from their children.
Even the person who is able to evade the noose at the last minute is still unlikely to walk away with warm feelings for the hang-man.
Greg Sisk
Wednesday, July 26, 2006
My colleague Rob Vischer accepts my challenge to ground the discussion about the elimination of the estate tax on the facts, agreeing that economic analysis is a crucial dimension to an informed debate about the implications of Catholic Social Thought on this issue. Rob points to a study suggesting that under a certain exemption level retroactively applied to a single tax year in the past (2000), very few family farms would have owed the estate tax in that particular year and even fewer farm estates would have lacked liquid assets by which to pay such taxes. Based upon this hypothetical scenario translated from a single past tax year, Rob offers his “impression is that the case for elimination is grounded more in rhetoric than in fact-based concern for the common good.”
I am not nearly so sanguine about the supposed negligible effects of this tax on family-owned businesses in the modern economy. Nor am I ready to dismiss the strongly-stated and widely-held concerns of those who actually face this question as other than an academic exercise or a political campaign issue. If the case for elimination of the estate tax truly is grounded in little more than exaggerated rhetoric, the multitude of associations, federations, and other organizations representing small businesses and family farmers—a surprising consensus among a diverse group of merchants and agricultural enterprises—presumably would not be so committed to that legislative goal. Because these groups are hearing directly from the grass-roots, that is, from family business and family farm owners who have put two-and-two together as they plan for the future and consider the eventual effect of such a tax, they just may know something of what they speak.
To begin with, the question before us apparently is not whether family enterprises would be destroyed, but how many. No firm conclusions could be reached without a longitudinal study of a series of tax years and even that study would be misleading without adjusting for future anticipated trends in real estate prices, etc. But, for the sake of argument, let’s assume that the narrow slice of statistics cited by Rob can be extrapolated over time. Even under that assumption, while the number of family farms that would be destroyed by the estate tax apparently would be few in number, there indeed would be such losses. Apparently at least 15 family farms each year would immediately have to be sold to come up with assets to pay the taxes. And even under those cited statistics, the eventual mortality rate would be higher. Even if a family farm estate had some liquid assets, the diversion of those funds to taxes means that the next generation assumes the business capital assets on a tighter margin and without operating funds. When forced to compete with large corporate entities not subject to the death tax, the competitive atmosphere is darker for the ongoing family enterprise. The advocates of preserving the estate tax have not yet told us how many family farms may acceptably be sacrificed, in keeping with Catholic Social Thought, for the supposed greater good of enhancing accumulation of revenue by the federal government.
Likewise, as borne out by both the statistics cited and confirmed by stories shared with me by some of those responding to my earlier posting, it is clear that some non-agricultural family businesses already have been broken up or sold to larger corporate entities in order to finance the estate tax. Even if these numbers are but a handful in any single year, we again would have to decide what is the cumulative level of fatalities to family enterprises that we deem morally acceptable.
Moreover, the cited study fails to give the full flavor of the collateral effects of the death tax, in terms the requisite tax and estate-planning arrangements (setting up trusts, distributing assets prior to death, creating shares of ownership in children or others, etc.) and legal expenses that are incurred by the owners of family businesses and farms as they struggle to find a way to transfer the family enterprise to the next generation. Given that these costs are not borne by large corporate commercial entities, which of course pay no estate tax, the competitive disadvantage to family-owned businesses, which often are operating on the margins of profitability, remains unaddressed. Nor can the estate tax issue be considered in isolation, for it is just one of the many ways in which tax policies, employment rules, business regulations, etc. fall more heavily upon small businesses than upon the large corporate entities that can more easily adjust and accommodate to government intervention.
Most importantly, looking at hypothetical statistics about what a particular estate tax exemption rate would have meant in a past tax year is peculiarly uninformative when talking about the death tax. By the very nature of the animal, the crucial question facing any family business is what the estate tax will mean in the future when the contingency upon which it is based, the death of the business owner, is realized. Because the future is always uncertain, because trends in real estate prices, retail sales, etc. are hard to predict, the very existence of an estate tax requires the present expenditure of valuable time and money, not to mention some anxiety, by family business owners to be ready for all possible future permutations. Because planning for such future contingencies has to begin immediately, family business owners find themselves having to consider artificial structures or transfers and distributions that otherwise would be premature or unadvisable, all because of the estate tax cloud looming over and potentially threatening the survival of the family enterprise into the next generation.
Let me close, however, with this significant qualification on everything that I’ve said here and before about the estate tax: the analysis presented above is that of a reasonably well-informed citizen, not of an expert in small business and farm economies or the economic effects of taxation. I'm not even a tax-law expert. In teaching about litigation with the federal government, I carefully avoid tax matters and tax jurisdiction. Which leads me to this final point, that we who think about Catholic Social Teaching and its implications for public policy also must have the humility to recognize our own limitations and to appreciate what is to be gained from the expertise and wisdom found in other disciplines. Prudence requires not only that we appreciate limits on use of law and government as a tool of social justice, as well as the secondary effects of policies, but that we also recognize and appropriately defer to the greater expertise of those who are trained in the disciplines that shed greater light on the question of the moment. (And for that reason, and undoubtedly to the relief of those who dread any discussion of taxes and tax law, I'll not post further on the subject.)
Greg Sisk
On the question of the elimination of the federal estate tax, as with most issues of economic and government welfare policy, the implications of Catholic Social Thought depend on how one sees and judges the underlying practical realities. Once pat-answers and bumper-sticker slogans are left behind, the exploration of such matters necessarily—and quite appropriately—turns on how things look on the ground, where the rubber meets the road. Catholic teaching helps us formulate the questions and rules some motivations in and out of bounds. But we are not spared the hard work of grappling with complex sociological factors, understanding statistics, evaluating economic models, trying to anticipate secondary effects, in other words, all the messiness of real life. As a consequence, prudence often leaves us in a position where reasonable people with full fidelity to the precepts of Catholic Social Thought come to different conclusions.
For many people, proposals for elimination of the federal estate tax evoke images of fabulously wealthy trust fund babies living the playboy life off the income generated from inherited assets of a prior generation. If this is all that were at stake in the estate tax issue, then the only question for Catholic thinkers would be whether a proposal to tax this transfer of wealth were motivated by a legitimate sense of equity and securing revenues to advance the common good or instead by envy and, as Rick Garnett puts it, a “soak the rich” attitude.
Instead, it is significant that the most vocal supporters of the proposal to eliminate the estate tax are the various associations and federations of small business people and family farmers. When the owner of a small business or farm dies, the estate tax requires that the entity be valued according to its going value were it to be sold, that is, were the business to be transferred by sale to a new owner and were the farm-land to be sold. If an estate tax is then pressed against that value, the effect then could be to force the sale of the business or farm land to pay the tax, thus preventing transfer of the family business or family farm to the next generation.
When thinking about the estate tax and the implications for Catholic Social Thought, consider these words of the David McClure, president of Montana Farm Bureau Association:
“When the average person sees the figure of $2 million as the current exemption, or even $3.2 million, which is the exemption in 2009, it sounds like a lot of money. However, when you look at how land prices in Montana are currently skyrocketing, it doesn’t take a whole lot of land to exceed that value. Farm operations are capital-intensive businesses whose assets are not easily converted to cash. Add your farm equipment—a combine can be worth well into six figures—barns and sheds, and you’re usually well over that amount.”
As bad as would be the loss of the family farm itself, the implications for Catholic Social Thought do not end there. As Mr. McClure notes, if the family farm is subject to forcible sale to cover the estate tax, there could be a cascade effect on the rest of the rural community, with respect to agriculturally-related small business that support the family farm, social structures behind family farms, etc. In addition, urban sprawl and loss of agricultural land is advanced by the state tax. To again quote Mr. McClure: “The irony is that many who are opposed to death taxes elimination are the ones who are vocal about expanding high-density subdivision development, urban sprawl and loss of aesthetically attractive ag land open space; yet the underlying driver of these very problems is often an estate tax bill that the heirs can’t pay."
Consider further the case of family-owned businesses, including those that began small but have grown beyond the size of the classic Main Street merchant. A family that has built a business over time and now have a number of stores or locations could easily have built something now valued at several million dollars, although that value is mostly sunk into the capital assets of the business. The imposition of the estate tax upon such a family businesses could well force the enterprise to be put up for sale or converted into a publicly-held corporation. The estate tax thus contributes to the decline of family-owned businesses, with the loss of the social benefits that we all obtain from having our local retailers and service-providers owned and operated by individuals who are personally invested to the community.
It is striking that those who bewail the rise of Walmart and other mega-corporate retailers are also likely to support a robust imposition of estate taxes that undermine the family-owned businesses that compete against the Walmarts of the world. Moreover, the estate tax essentially discriminates against the family-owned businesses and in favor of the Walmarts and other publicly-held corporations. While the large corporate entities pay taxes on profits only once, the family-owned business may be taxed on the same profits twice, once when initially earned and then again, upon the death of the original family owner, when the estate tax is imposed against the business assets which were acquired by investing those profits back into the family business.
Might an alternative estate tax regime be created that avoided these effects, that is, allowed for a transfer of family businesses and family farms, thus being imposed only in the context of the stereotypical extremely wealth trust fund babies? Perhaps. But it would be a different system than is presently in place and if calibrated to avoid destroying family-owned businesses that have a paper value of fairly large size would generate a very small revenue for the federal government. Nor would secondary economic impacts thereby be avoided, as we still would experience the effect of removing those investments from the private economy; effectively encouraging resort to various means by which to avoid estate tax implications, whether those are economically productive and socially desirable or not; and the continued expenses of tax-planning paid to lawyers, especially by those family-owned businesses and farms that we want to exempt if they are able to structure arrangements appropriately. Is it really worth the candle? And, by this point, is really a matter with deep implications for Catholic Social Thought and worthy of attention among the other pressing issues in this society?
Greg Sisk
Tuesday, May 23, 2006
Now that the college graduation season is waning, and some time has passed since our earlier disputations about commencement speakers at Catholic colleges and universities, I thought it would be a fitting closing to tell a story that I hope will prove both amusing (as it was to me at the time) and instructive (as I’ve come more to appreciate in the years since).
The story is about my own law school graduation ceremony, in 1984, from the University of Washington School of Law in Seattle. Seattle, of course, has a long history as a progressive city, frequently the site of liberal activism, anti-war protests, etc. The University of Washington often has been a gathering place for these political movements. During the early 1980’s, the nuclear freeze campaign was the cause celebre of the peace movement, and one of its heroes was Archbishop Raymond Hunthausen of the Seattle Archdiocese, who had gained national attention for withholding a portion of his income taxes as a public protest against nuclear weapons. The mostly liberal, and very secular, student leaders at the UW law school were quite eager to attract such a prominent anti-war activist and practitioner of civil disobedience to give the commencement address at the law school graduation.
And so, on June 9, 1984, Archbishop Hunthausen appeared before the University of Washington law school graduating class as the designated commencement speaker. As those who had sought his appearance had anticipated and welcomed, he did indeed make a passing reference to the dangers of nuclear weapons and the uncertainty of international tensions. But he devoted much of his brief comments to emphasizing the important role of lawyers to speak for those who cannot speak for themselves, with particular attention to the unborn who are silent victims of abortion. Well, as you might imagine, the student leaders who had petitioned for the invitation to Archbishop Hunthausen were not at all pleased by this turning of the table. Indeed, the very folks who had invited him angrily stood and walked out when Archbishop Hunthausen affirmed the right to life of the unborn and called upon lawyers to protect the vulnerable.
This twenty-two-year-old event sends an important message for all us at the Mirror of Justice and our friends. The Catholic Church and Church teaching cannot be labeled by secular political terms nor can it be appropriated by the left or the right as their rhetorical weapons to be wielded as they choose. The Catholic Church and Catholic teaching ought to be a contradiction to all of us who tend to perceive the world through political or ideological lenses, although we will be differently provoked depending upon where we stand. Our mission within Catholic Legal Studies must be to heighten that contradiction of secular perspectives and draw from it the tools to bridge our differences as faithful Catholics toward the common goal of a just society.
Greg Sisk
Monday, May 15, 2006
I continue to think there is more in common than not among all of us on the Mirror of Justice regarding the sanctity of life in general and the evil of abortion in particular, from both a moral perspective and in terms of appropriate legal responses, even as I read the ongoing exchanges between Michael Perry and Rick Garnett. I wonder whether the apparent distance can be further lessened and the remaining points of difference be more sharply illuminated by a few clarifications or points of emphasis.
First, I agree with Rick Garnett that any political response to the problem of abortion that is truly faithful to Catholic teaching must march forthrightly to the front-line, which is located where early abortions are being performed. Most of the unborn lives stolen each year are snatched away in the early stages of pregnancy. Accordingly, any political or legal response that fails to directly address early abortions would leave the daily violence against the unborn in this society largely unabated. A premeditated determination to neglect the center of gravity for the abortion travesty indeed would be difficult to reconcile with Church teaching emphasizing the intrinsic evil of destroying innocent unborn life.
However, to insist, as Rick rightly does, that we must “prohibit direct abortion, without regard to the gestational age of the fetus, fetal deformity, or any other factor,” does not lead ineluctably to forceful employment of the heavy hand of the criminal law as the primary means to that end. As Rick has explained previously, for example, few if any in the pro-life movement advocate imposing severe criminal penalties upon vulnerable women in difficult situations who procure abortions. And even if society instead and appropriately directs its ire toward those medical practitioners who pervert the healing arts to the destruction of unborn life, regulation and licensing of the medical profession or provisions for civil liability should be explored rather than resorting too readily to the penal law. Thus, prudential judgment not only is permissible but is desperately needed to craft creative and sensitive means of curtailing early abortions, even if prudential judgment may not be invoked to justify neglecting or tolerating this killing field.
Second, when I consider the element of prudential judgment in Catholic social teaching, I tend to think of the need to balance the limits of law, the realities of human weakness, and the complexities of societal structures in deciding how best in a particular culture to advance an ideal for a just society, such as the preferential option for the poor or the need for human development through education. By contrast, many (by no means all) of the justifications I have read for focusing efforts upon more limited constraints on abortion, including leaving early-stage abortions largely unregulated, emphasize simple political feasibility. While I acknowledge that political calculation is necessary, I think that factor lies at the outer edge of prudential judgment, if it can be characterized as part of prudential judgment at all. Political calculations sometimes force us to make necessary compromises, based simply on what can be achieved at the moment. Such compromises are not based on principle nor grounded upon the inherent limitations of law or concerns for externalities. Thus, a political compromise on a matter of fundamental principle can never be justified as anything other than an inadequate and interim measure that only precedes continued and concerted efforts to achieve complete justice.
When Abraham Lincoln issued the Emancipation Proclamation in 1863, the political realities of ongoing war, divided public opinion, and persisting legal precedent may have justified the partial abolition of slavery only in those regions that remained under the control of those in rebellion against the Union. But the achievement of that interim advance in social justice was no reason not to press forward toward more complete justice through the Thirteenth Amendment and the Civil Rights Act following the Civil War.
Furthermore, when we consider the wisdom of compromise measures or partial remedies, we must weigh as well the danger that we will be perceived as abandoning a fundamental principle and settling too readily and too comfortably for something much less. Rather than being intended by ourselves and seen by others as but a preliminary step, the compromise could become the end game. If the Catholic witness for life in this culture is to be heard loud and clear, we all are responsible for making sure that our conversations about practical obstacles and prudential judgments are not misunderstood by the public.
As Catholic thinkers, we thoughtfully and appropriately raise questions and ponder responses to the evil of abortion, including evaluating the faithfulness and wisdom of compromises and alternative measures. However, the nuances and the qualifications—and especially the unwavering commitment to an ethic of life—that are contained in such academic dissertations often become lost in translation to the news media and the political arena. Thus, when such compromise proposals emerge into general discourse, I frequently hear from my stalwart pro-life friends on the political left that they feel cut off at the knees. In an environment on the political left that has been most inhospitable to their message, they have stood heroically as witnesses for the culture of life. Then they are pressed by others on the left who crudely invoke these compromise proposals as supposed evidence that one can be adequately pro-life or safely within Catholic teaching without supporting political measures that would seriously threaten the abortion license. (“See,” the argument they hear goes, “faithful Catholics don’t have to be opposed to abortion in the first trimester.”) And thus pro-life progressives are left feeling even more marginalized, with insult being added to injury in that they perceive this marginalization as coming from those who should be their allies in the pro-life cause. However unfair or misguided may be these reactions, they nonetheless are part of the practical realities that should form the background to our exercise of prudential judgment. And knowing as much, we are responsible to take aggressive steps to ensure that such misunderstandings do not persist.
Finally, while accepting that prudential judgment has its place in nearly every area of public policy, surely we all would agree that the parameters of such discretion are greatly narrowed when the subject at hand is one of arresting an intrinsic evil. To take for example the subject of torture as recently discussed on this blog, consider if someone were to propose compromise measures to reduce the incidence of torture while accommodating to the practical reality of divided opinion on the subject. Suppose legislation were introduced to mandate the executive to obtain a “torture warrant” from a court which required a high showing of necessity to use the infliction of pain to obtain information vital to prevent great loss of life (as Alan Dershowitz has proposed) or a regulation were proposed to limit the forms of torture that may be used against terrorists, such as allowing suffocation short of death or serious bodily harm but prohibiting electrical shock or use of cutting tools. Would we accept such compromise measures as reflecting the legitimate exercise of “prudential judgment”? Or would we insist that accepting any such compromise on such a matter of principle would itself be unprincipled? And, if we reluctantly did support such a compromise as necessitated by political calculation, would we not remain diligently and energetically committed to continuing the effort for more complete justice in the future? And shouldn’t our answers to these hypothetical questions about torture policy directed toward terrorists inform our answers to similar questions about public policy addressing the killing of innocent unborn children?
Greg Sisk
Saturday, May 13, 2006
It is most heartening to read an ongoing dialogue here on the Mirror of Justice among diverse members of our common Catholic faith who all are genuinely committed to an ethic of life. We may not fully agree on how best to advance that sacred principle in a fallen world, but we should celebrate the progress that our community of Catholic academics and legal thinkers has made toward common-ground about at least some politically viable and plausible measures to reduce the loss of human life through abortion.
Further, we likewise stand in agreement that there is ample room within our Catholic communion for all persons of good faith who express and manifest a heartfelt dedication to the protection of unborn human life, despite differences on the political responses appropriate to the moment and political and legal context. We ever must maintain our counter-cultural role, never giving in to the temptation to distort Catholic teaching in a misguided attempt to make Catholic moral principles safe and unthreatening to those who follow the latest secular or academic trends. But neither are we to withdraw from the world or fail to exercise wise and practical judgment when engaging with it.
At the same time, our theological, legal, and political deliberations about the sanctity of human life should not remove us from honest confrontation with what is occurring all around us. We must not avert our eyes from the reality of the culture of the death. We must never forget the heartbreaking fact that the most dangerous place for a child in America is in his or her own mother’s womb.
Some time in the year 2008, the 50-millionth unborn child in this country will be legally aborted, measuring from the time the abortion license was mandated by the Supreme Court in Roe v. Wade in 1973. Fifty million lives lost. No other calamity in our nation’s history resulted in casualties even approaching that number. We should be stunned and humiliated and ashamed that we have allowed this to occur in the nation we call our own.
More than a million unborn children are deliberately killed in this country every year. By contrast, 60 convicted murderers were executed in the United States last year. According to the Department of Justice’s Bureau of Justice Statistics, not once in any single year during the past half century has the number of executions exceeded double-digits (the high mark was 98 in 1999, which was unusually high).
If two new diseases were identified in the United States this year, one that took more than a million lives each year and another that was rare malady affecting fewer than 100 each year, surely we all would agree that society should leave no stone unturned in saving the million, while being more deliberate but hopefully not neglectful toward the rare disease. For the rare disease that affected so few, we might regard it as tragic but understandable if society was unable to marshal considerable resources to eradicate that disease as a high priority, among the many other social justice needs competing for finite resources. Moreover, for the disease that stole away a million lives each year, we would demand diligent and expeditious attention and would reject as plainly inadequate any partial measures that might reduce the death rate by only 15-25 percent, saying that we should not rest until the disease were eradicated altogether or at least until its lethal force was reduced to a tiny fraction.
Turning from the analogy and back to the realities of lives lost each year in this country by deliberate but legal action (particularly abortion and capital punishment), we also must look beyond the rate of occurrence to the magnitude of evil. Any deliberate taking of human life, without necessity, diminishes our society, and in my view (which I believe consistent with and increasingly compelled by Catholic teaching) the execution of convicted murderers who are securely imprisoned for life cannot be justified in this society. Yet it is difficult to generate the feeling that the execution of someone like a Timothy McVeigh was a tragedy. By contrast, abortion steals the entire lives of innocent unborn children, depriving both those persons and the rest of us of all their potential, their communal relationships, and their communion as living people of God. In sum, as Mark Sargent posted earlier yesterday, “the evil is very grave—the deliberate destruction of an innocent human life.”
For these reasons, as much as I welcome any progress, and as willing as I am to accept a political arrangement that achieves some results over an absolutist approach that accomplishes nothing, I still worry that half-measures directed toward intrinsic evils—such as genocide, slavery, torture, and abortion—could easily turn into a road-map toward incomplete justice. By all means, let us create a true culture of life, that abolishes the death penalty as well. But let us never lose sight of the greater priority of protecting innocent unborn human life. Prudential judgment, which is such a valuable faculty for determining how to translate abstract principles of social justice and the good society into practical reality in a complicated world, should not become an excuse for tolerating the most egregious of evils. I may not agree with all that Cathy Kaveny writes in the "Thomist Perspective on Abortion" piece that Michael Perry well highlights here on the Mirror of Justice and in his book "Under God," but one of her concluding points should be emphasized: “A lenient attitude toward abortion [should] be viewed as a prismatic and poignant example of a callousness toward life in general, a callousness that must be eradicated in all its forms” (emphasis added). While we should do what we can today, we must not rest until all—most poignantly including the not-yet-born—are able to thrive in a culture of life.
Greg Sisk
