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, July 31, 2006

Pious and Pro-choice

By Rob Vischer

The Boston Globe reports on the increasing visibility of faith-based abortion rights advocacy groups.  (HT: Open Book)  An excerpt:

The religious abortion-rights movement, like the antiabortion movement, grounds its understanding of abortion in the Bible. Abortion-rights religious groups point to what they see as a telling silence in Scripture. ``Jesus never mentioned abortion," notes Paul Simmons, a Baptist minister and author of the forthcoming ``Faith and Health: Religion, Science and Public Policy." ``The apostle Paul wrote all these lengthy letters to the Greco-Roman world, where abortion was widely practiced, with lists of virtues and vices. If anyone was a common-sense moralist, Paul was." But the subject doesn't come up in his counsel, or anywhere else in the Old or New Testament.

In the antiabortion view, life begins at conception. Abortion opponents cite passages such as Jeremiah 1:5: ``Before you came forth out of the womb, I sanctified you." Yet the other side contends that the Bible distinguishes between a person and a fetus. Exodus 21:22-25, for instance, stipulates the punishment for accidental harm done to a pregnant woman. If she miscarries as a result, a fine is owed to her husband. If she herself suffers injury or death, however, ``the penalty shall be life for life, eye for eye, tooth for tooth."

The religious abortion-rights movement stresses that it presents these biblical readings not to promote abortion, but to endorse it as an option. The movement works toward what it calls true ``reproductive choice," envisioning a society in which education and contraception prevent unintended pregnancies, and widely available healthcare and child care foster conditions supportive of childbearing. The religious right, they charge, has largely neglected these goals in favor of pressing the fight against abortion.

Rob

Friday, July 28, 2006

We're number (3 in) 1!

By Rob Vischer

I will probably remain content to be baffled by the concept of the Trinity, but for those who are more intellectually adventurous, you'll want to check out this new blog.  It's all Trinity, all the time.

Rob

Tuning out

By Rob Vischer

The Christian Century reminds us of the post-Katrina conversation on race and poverty that never happened.  Admittedly, I find myself noticing the stories of rampant fraud (e.g., dog booties) in the government relief programs more than the ongoing suffering that I eventually begin to tune out as a sort of background dissonance.  (It's an even more pronounced phenomenon with my attention to Iraq.)

Rob

Thursday, July 27, 2006

Speaking for Dwyer . . .

By Rob Vischer

I hesitate to speak for someone else, but let me take up Michael S.'s question to James Dwyer regarding the anthropology underlying Prof. Dwyer's embrace (and aggressive enforcement) of liberal education norms, even as applied to religious schools.  My guess is that Prof. Dwyer's first aim would be to educate the child in a way that facilitates her choosing of her own anthropological premises later in life; in this regard, his project does not necessarily ignore the nature of the human person, but recognizes the multitude of divergent anthropological premises to which Americans cling.  In a broad sense, he does embrace a type of anthropology, albeit one that is arrived at via the "head count" method employed by Prof. Leiter.  Prof. Dwyer writes in the current Journal of Catholic Legal Studies (vol. 44 at 225):

I would suggest that state conclusions about moral rights and duties emerge from perceiving an overlapping consensus among people holding diverse conceptions of the good, a consensus around principles that can be explained in terms of shared values like happiness, autonomy, and respect for personhood that are generally viewed today as not requiring reference to religious texts or divine authority for their legitimacy and force. . . . The more general principle that no person should be made the object of another's rights, a principle that we today apply even to non-autonomous persons who are adults, I have argued, should also be applied to children.  At the most basic level, the state and private parties should treat every person as an end in himself or herself, and not as an instrument for the expression or gratification of others, no matter how well intentioned those others are.

Now I may disagree with some of the particular educational practices that Prof. Dwyer would find objectionable under this "thin" anthropology (and the degree of enforcement contemplated), but I must also acknowledge a sense of hesitation and discomfort if the state were to adopt anthropological premises much more specific and contested than the ones Prof. Dwyer lays out.  That's why I find his work to be so insightful and challenging.

Rob   

Leiter on Garnett on Stone on Bush

By Rob Vischer

Brian Leiter has weighed in on Geoffrey Stone's claim that President Bush's stem cell veto exhibited reckless disregard for the separation of church and state.  In addressing Rick's contribution to the debate, Prof. Leiter offers his perspective on "public reasons":

"Public reasons" are, by hypothesis here, reasons that may properly ground legislation and exercises of state power.  The argument that religious reasons are not "public reasons" isn't that they lack a certain kind of foundation that genuine "public reasons" have (perhaps this is what Professor Volokh was after with the talk about "provability"); the argument is that they aren't public, i.e., that they aren't the kinds of reasons acceptable to all reasonable people in a pluralistic society.  Many "public reasons" in this sense may lack foundations of one kind or another, but that has no bearing on their public status.  To put it (a bit too) crudely, reasons are "public" largely in virtue of a head count, not in virtue of their having more robust epistemic foundations.  So, contra Professor Garnett, it is not apparent that the the foundations of the beliefs or reasons in question are at issue here.

I have always thought that the distinction between public and non-public reasons centered precisely on epistemic foundations -- i.e. their epistemic accessibility -- partly because of the difficulty in reaching any semblance of consensus in identifying the sort of reasons that would be "acceptable to all reasonable people in a pluralistic society."  For those who have thought more deeply about this than I ever will (hello Michael P.?), are public reasons commonly defined via the head count method?  And can identifying the reasons acceptable to all reasonable people occur without addressing, at some point, the epistemic foundations of those reasons?

Rob

Wednesday, July 26, 2006

Facts and the Estate Tax

By Rob Vischer

Just a couple of quick points on the estate tax, the elimination of which I still believe faces opposition from the principles of CST.  I agree with Greg that policy judgments require wading into the facts, but my impression is that the case for elimination is grounded more in rhetoric than in fact-based concern for the common good.  From a report by the group Public Citizen:

A 2005 report by the Congressional Budget Office found that at the current exemption level of $2 million, very few family farms would owe an estate tax. If the $2 million threshold existed in 2000, as many reform proposals would have allowed, only 123 farms in the entire country would have owed estate taxes that year. The CBO study also found that among the very few that would owe taxes, the vast majority would have sufficient liquid assets (savings, investments and insurance) to pay the taxes without having to sell off any farm assets. For example, at the $2 million threshold, only 15 of the farms would have had insufficient liquid assets to pay.

Like the allegations about family farms, the notion that the estate tax forces family-owned enterprises out of business is equally fallacious.  Of the 2.5 million people who died in 2004, only 440 left a taxable estate with farm or business assets equal to at least half the total estate, according to the Tax Policy Center, a joint project of the Urban Institute and the Brookings Institution, and 210 of these owed less than $100,000.

I'll also note that this is not an inconsequential debate: the same report estimates that a full repeal of the estate tax would cost the government $1 trillion over ten years.

Rob

Prudence and the Estate Tax

By Rob Vischer

Sometimes I have the sinking feeling that just about all policy issues (other than abortion and same-sex marriage, perhaps) can be too easily shoe-horned into the realm of "prudence" despite the wealth of wisdom offered by Catholic social teaching.  In an attempt to bolster my flagging confidence, can we agree that the existence of the estate tax -- putting aside questions of rate, when it kicks in, etc. -- is supported by CST, and perhaps more strongly, that its elimination would be condemned by CST? 

Let's assume, for the sake of argument, that the estate tax were to apply only to estates of $100 million or more, and that its rate was 5%.  At these numbers, it is difficult to discern significant incentive-based consequences in terms of wealth creation and productive behavior.  There would still be calls for its elimination, of course, but they would run along the lines of "It's mine -- hands off!"  Such bright-line principles, lacking a functional justification relating to the common good (or the option for the poor, solidarity, etc.) appear to me to be directly opposed by CST.  And unless we have in mind a fixed maximum amount of revenue that the government should be empowered to collect, it doesn't make sense to speak of balancing the estate tax's elimination through an increase in income taxes, for example (which could bring incentive-based consequences).  Eliminating the estate tax would simply reduce society's collective capacity to pursue the common good with no clear functional benefit.

Any dissenters from this view?  And is the dissent itself grounded in the norms of CST?

Rob

Monday, July 24, 2006

Confessions of a Genetic Outlaw

By Rob Vischer

My colleague (and new MoJ-er) Lisa Schiltz has an essay in Business Week on the new technology for screening embryos.  Here is the opening:

From time to time, we are all confronted with the disconnect between how we see ourselves and how others see us. I've always seen myself as a responsible, law-abiding citizen. I recycle, I vote, I don't drive a Hummer. But I've come to realize that many in the scientific and medical community view me as grossly irresponsible. Indeed, in the words of Bob Edwards, the scientist who facilitated the birth of England's first test-tube baby, I am a "sinner." A recent book even branded me a "genetic outlaw." My transgression? I am one of the dwindling number of women who receive a prenatal diagnosis of Down syndrome and choose not to terminate our pregnancies.

Rob

Thursday, July 20, 2006

Spotlight on Catholic Dems

By Rob Vischer

We've discussed the Catholic Statement of Principles signed by 55 House Democrats.  A transcript has now been posted of a Pew Forum event held last month in which Rep. Rosa DeLauro, one of the Statement's organizers, talked extensively about the perspective, purpose, and direction of the group.  I won't provide an excerpt because the whole thing is a good read, with insightful (and occasionally skeptical) questions and comments from E.J. Dionne, Michael Cromartie, Jim Wallis, and lots of reporters.

Rob

Cohabitation vs. Marriage

By Rob Vischer

A new study by researchers at Cornell finds that "one-half of all cohabiting unions end within a year and 90 percent within five years," and concludes that the "common view of cohabitation as a steppingstone to marriage needs to be seriously questioned."

Rob

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