Monday, September 24, 2012
Morr-Fitz, Inc. v. Quinn
The Illinois Court of Appeals has affirmed the lower court's invalidation of the state's administrative rule requiring pharmacies to dispense emergency contraception. The basis of the ruling is the Illinois Health Care Right of Conscience Act, not RFRA or the First Amendment. Two issues on which the ruling turned: first, the Conscience Act applies to pharmacists; and second, the provision of emergency contraceptives does not qualify as "emergency medical care" under the Conscience Act because "unprotected sex does not place a woman in imminent danger requiring an urgent response."
Friday, September 21, 2012
Gerson for President!
I think he gets it:
[A] Republican ideology pitting the “makers” against the “takers” offers nothing. No sympathy for our fellow citizens. No insight into our social challenge. No hope of change. This approach involves a relentless reductionism. Human worth is reduced to economic production. Social problems are reduced to personal vices. Politics is reduced to class warfare on behalf of the upper class.
A few libertarians have wanted this fight ever since they read “Atlas Shrugged” as pimply adolescents. Given Romney’s background, record and faith, I don’t believe that he holds this view. I do believe that Republicans often parrot it, because they lack familiarity with other forms of conservatism that include a conception of the common good.
Live-blogging from Georgetown
I'm participating in a symposium today at Georgetown Law regarding the HHS contraception mandate. The current panel is an all-star interdisciplinary lineup: John Langan, S.J., Cathy Kaveny, Lisa Sowle Cahill, Bob Tuttle, and Patrick Deneen. A very quick (and undoubtedly imperfect) synopsis of their remarks:
Cathy Kaveny – After providing a basic overview of formal versus material cooperation with evil, she observed that the primary concern of Catholic institutions is not focused narrowly on who has to pay for what, but on the compulsion of their broader participation in the normalization of contraception. She is also concerned, though, about how Catholics have been approaching the debate in terms of modeling ethical discussion. She thinks we have lost an opportunity to discuss the issue as rights arising in the context of responsibilities and the common good, rather than following along with the frequent invocation of rights as trumps. In the debate over the mandate, there has been a tendency among some Catholics to use rights as trumps. There should be more attention paid to questions about an employer's obligations to their employees to provide certain types of health care, what constitutes health care, etc.
Patrick Deneen – He believes that the real debate is over what constitutes a religious organization. The government, through its exemption for some religious employers, acknowledges that the mandate constitutes a burden, just has a narrow understanding of religious organizations that should be exempt from the burden. He does lament that the debate has proceeding in largely individualist terms, and he looks forward to the opportunity to have more substantive moral conversations after the lawsuits are resolved.
Lisa Sowle Cahill – for Catholics, the relevant question is not just whether opposition to the mandate arises from a sincerely held religious conviction, but what does prudence warrant regarding the common good and the nature of health care. Simply to claim religious freedom without giving substantive arguments about requirements of the common good itself leads to scandal because it creates impression that Catholic moral convictions are simply products of religious dogma. Resorting to religious liberty as the primary focus of the conversation short-circuits the moral tradition by making the debate focus on religious beliefs, rather than on the conditions necessary for human flourishing.
Bob Tuttle – He points out that government defines religion in many different ways in different contexts -- e.g., for purposes of broadcasting, paying taxes, and individual religious liberty exemptions –- as a matter of political prudence, not as a theological judgment. He is not a fan of RFRA, and he is not a fan of a "church autonomy" approach to religious liberty. Given the sexual misconduct cases, he can’t say words “church autonomy” without a deep sense of embarrassment because that was used so often as a defense in those cases. We don’t operate in a world of separate sovereigns; it's just that the government recognizes its own limitations and lack of competence in certain areas.
John Langan, S.J. – He outlined the Catholic understanding of religious liberty as freedom of the church, which was neglected in the HHS regulations. The importance of the freedom of the church is not simply about the self-protection of church, but about contributing to the development of the Western understanding of liberty. A more Protestant understanding of religious liberty is focused more on individual conscience, which lends itself to an easier harmonization with the mandate.
Monday, September 17, 2012
Responsibility without Blame?
Nicola Lacey and Hannah Pickard have posted a new paper that should be of interest to Catholic legal theory fans. The authors ask whether criminal punishment can be more effective if we focus on responsibility without as much focus on affective blame. This is not a new question, but the authors appear to frame the inquiry in a way that may avoid the trap identified by John Paul II, who affirmed those who have "drawn attention to the many kinds of psychological and social conditioning which influence the exercise of freedom," but cautioned against the temptation to go "beyond the conclusion which can legitimately be drawn from these observations . . . to question or even deny the very reality of human freedom." (Veritatis Spendor para. 33) Here's the abstract of the Lacey/Pickard paper:
Within contemporary penal philosophy, the view that punishment can only be justified if the offender is a moral agent who is responsible and hence blameworthy for their offence is one of the few areas on which a consensus prevails. In recent literature, this precept is associated with the retributive tradition, in the modern form of ‘just deserts’. Turning its back on the rehabilitative ideal, this tradition forges a strong association between the justification of punishment, the attribution of responsible agency in relation to the offence, and the appropriateness of blame. By contrast, effective clinical treatment of disorders of agency employs a conceptual framework in which ideas of responsibility and blameworthiness are clearly separated from what we call ‘affective blame’: the range of hostile, negative attitudes and emotions that are typical human responses to criminal or immoral conduct. We argue that taking this clinical model of ‘responsibility without blame’ into the legal realm offers new possibilities. Theoretically, it allows for the reconciliation of the idea of ‘just deserts’ with a rehabilitative ideal in penal philosophy. Punishment can be reconceived as consequences – typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context – imposed in response to, by reason of, and in proportion to responsibility and blameworthiness, but without the hard treatment and stigma typical of affective blame. Practically, it suggests how sentencing and punishment can better avoid affective blame and instead further rehabilitative and related ends, while yet serving the demands of justice.
Developments in China
Is China relaxing its policy on forced abortions?
Friday, September 7, 2012
Science Debate 2012
A friend of mine, Shawn Otto, directs "Science Debate," an effort to engage the presidential candidates on important scientific issues that affect our future well-being. This year's installment can be read here. Though the candidates differ on some of the issues, reading their responses shows that the the caricature of the Dems as "pro-science" and the GOP as "anti-science" fails to do justice to the debate.
Thursday, August 30, 2012
The Rawlsian Case against SSM?
Matthew O'Brien has posted a new paper, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family. If you (like me) have never considered Rawls to be a potential linchpin in the case against SSM, you should probably check out the paper. Here's the abstract:
John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same-sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review in terms of liberal neutrality akin to Rawls’s ideal of “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown). But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family and defend it against objections, discussing its implications for political theory and constitutional law.
Wednesday, August 15, 2012
Reid on Ryan on Rand
My colleague Chuck Reid has a short essay on the Huffington Post raising questions about the tensions between Catholic social teaching and Paul Ryan's embrace of Ayn Rand. An excerpt:
Ayn Rand, to her great credit, rejected racism emphatically. But she celebrated much of the rest of the social darwinist creed. There is no room in her work for cooperation, for community, for concern for the less advantaged. The maximization of individual productive capacity, freed of the impediments of state control, is the byword of her philosophy, so-called "Objectivism." The noble entrepreneur, the far-sighted man of wealth and power, the bold individualist who casts off the shackles of the "takers" and the "hangers-on," is the hero of her fiction. Without him, society itself would crumble to dust.
These philosophical premises, of course, stand in contradiction to the social thought of the Catholic Church, as developed over two millenia of experience. Paul Ryan surely knows this. His tepid protest that he reads the Bible and so cannot be a follower of Ayn Rand rings hollow. The record of his public life is that of a man in thrall to a curdled, warped individualism. I, for one, would like to know what he thinks about the magisterium of the Church regarding the positive value of the state.
Monday, August 13, 2012
The Ryan nomination
I'm guessing that we're going to be having this conversation repeatedly over the next few months, but I thought I'd kick things off by asking: Why does Paul Ryan propose tax cuts for the wealthiest Americans that go beyond even the Bush tax cuts? (If the factual premise of the my question is wrong, then please point me toward information that can clarify things for me.) I don't mean this question rhetorically or in any sort of snarky way. Really, why would he embrace such massive tax cuts at this stage of American history, especially as someone committed to Catholic social teaching?
I really want to like Paul Ryan -- not just because he went to college with my wife (a quick weekend search uncovered no incriminating party pics), or because he's pro-life, but because he is willing to have an honest conversation about the pressing need for entitlement reform. He shows that our country's fiscal path is untenable, and that painful decisions need to be made. But why embrace deeper tax cuts for the wealthy if that makes those decisions even more painful?
If Ryan and I were replaying a scene from Jerry Maguire (perhaps a disconcerting image in its own right), my line would be "You had me at entitlement reform." Unfortunately, he may have lost me when he couldn't stop talking and insisted on "massive tax cuts." Is this the sort of ideological pandering that is increasingly necessary to rise to the top in American politics? (That is, while many Democrats race each other to the extreme edges on abortion-related issues, Republicans now do so on taxes?) Or is there a good-faith, CST-inspired case for these particular tax cuts?
Stop being pro-marriage. You're just hurting children.
I understand the modern reluctance to permit family law to get too far afield from the facts on the ground -- e.g., as cultural norms surrounding divorce changed, fault-based divorce laws gave way, in part, in order to prevent faithful but unhappy spouses from having to perjure themselves by fabricating tales of adultery. I have a harder time understanding the emerging reluctance to permit extralegal normative standards from getting too far afield from the facts on the ground. In family matters, does falling short of a standard require abandoning the standard? In yesterday's New York Times, for example, Katie Roiphe implores us to "abandon the fundamentally frothy question of who is wearing a ring" in discussions of marriage and child-rearing:
If there is anything that currently oppresses the children, it is the idea of the way families are “supposed to be,” an idea pushed — in picture books and classrooms and in adults’ casual conversation — on American children at a very early age and with surprising aggressiveness.
Is statistical evidence of what contributes to positive outcomes for children still fair game? Not really. Though Roiphe cites one researcher whom she likes, in general, she is "not a huge believer in studies because they tend to collapse the complexities and nuance of actual lived experience and because people lie to themselves and others."
So moralizing has no place in talking about marriage and parenting. Statistics don't really belong either, it seems. (Talk about setting up a debate that you can't lose!) What are we left with? A free-for-all of personal revelation dressed up as moral absolutes, such as this gem: "What the studies don't show is that longing for a married father at the breakfast table injures children."
As a society, should we support the children of single parents? Of course. Should we refrain from saying that having married parents is good for kids? The relevant statistics urge caution, but if we've moved beyond statistics in our efforts to capture "actual lived experience," then all bets are off.
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