I receive email updates from some pro-life advocacy groups, and their reactions to the nomination of Elena Kagan to the Supreme Court are predictable, understandable, and, in my view, not at all helpful. They could all be captured in the meta-headline, "Pro-abortion zealot set to radicalize American law!" I recognize that interest groups across the ideological spectrum only remain viable if they can convince a sufficient number of citizens that "this is the big battle we've been gearing up for, and we really mean it this time!" Pro-life groups don't draw much attention (or financial support) to the cause by pointing out that elections have consequences, that other potential nominees have records suggesting a more aggressive interpretation of reproductive rights, and that her nomination hardly represents a fundamental change in the Court's abortion jurisprudence (given that she is replacing Justice Stevens). On other issues, Justice Kagan might actually move things in a positive direction (though her views on presidential power concern me). So how should her nomination be greeted by those who are supportive of Catholic legal theory?
Tuesday, May 11, 2010
The Kagan nomination
Thursday, May 6, 2010
The case of Dr. Phil Boyle
Dr. Phil Boyle is a physician in Ireland who specializes in fertility treatments. His clinic adheres to Church teaching, and thus Dr. Boyle limits his treatments to married couples. Because of his refusal to provide treatment to an unmarried person, he was brought before the Medical Council for a "fitness to practice" inquiry. Several weeks ago, Dr. Boyle called me, looking for some expert support to counter the charges that his conduct was unethical. I'm not (even remotely) qualified to serve as an expert on medical ethics, but I was able to put him in touch with a friend of mine, Carr Furlin, a medical ethicist at the University of Chicago. Dr. Furlin, along with medical ethics luminaries Daniel Sulmasy and Mark Siegler, provided a last-minute expert opinion that conclusively refuted the notion that Dr. Boyle's conscientious decision to limit his practice to married couples would somehow be construed as unethical. Their opinion even seems to have had an impact on the opposing expert, judging from the opposing counsel's inability to elicit favorable testimony from the expert at the hearing. Here is an excerpt from their expert opinion:
Conscientious refusals are as old as the Hippocratic Oath, in which physicians swear to refuse to provide drugs that would be used to hasten a patient’s death,"no matter how much implored.” Yet conscientious refusals are much more central to the practice of medicine than questions about sexuality and end of life care. Indeed, the very concepts of physician discernment, of independent clinical judgement, and of medicine as a moral profession, require that the profession allow physicians to refuse to provide interventions that they believe are immoral or inconsistent with their medical commitments. These range from refusing patients’ requests for antibiotics when in the physician’s judgment antibiotics are unwarranted, to refusing to provide abortion or physician-assisted suicide. This right and obligation of conscientious refusal has been reiterated again and again in medical codes of ethics over the past centuries and up to our day. Indeed it is implied directly by paragraph 1.3 of the Guides to Ethical Conduct and Behaviour which states, “Medical care must not be used as a tool of the State, to be granted or withheld or altered in character under political pressure. Doctors require independence from such pressures in order to carry out their duties.” As such, those who would allege that Dr. Boyle has acted unprofessionally are going against, not with, both historic and contemporary standards of medical ethics and practice.
Happily, the case was dropped, and Dr. Boyle remains free to practice medicine consistently with his conscience (and Church teaching). The fact that the opinions of three prominent medical ethicists were required in order to establish Dr. Boyle's fitness to practice is astounding on its own, but at least some common sense prevailed in this case.
Wednesday, May 5, 2010
What is (and is not) the central argument for school choice?
I guess I'm the opposite of many politicians: I favor school choice, yet I send my own kids to the public schools of an urban school district. I like the idea of attending and supporting a neighborhood school, and it helps that our neighborhood school is a good one. But not all parents have the same experience with neighborhood schools, and not all neighborhood schools approach education in a way that reflects the values and priorities of all parents. School choice should be contingent on our commitment to family empowerment, not contingent on charter or private schools having higher test scores than neighborhood schools.
Charles Murray makes the point well in today’s New York Times, discussing the results of a new study showing that students participating in Milwaukee’s school choice program had similar levels of achievement as the rest of the public school students. He explains:
As an advocate of school choice, all I can say is thank heavens for the Milwaukee results. Here’s why: If my fellow supporters of charter schools and vouchers can finally be pushed off their obsession with test scores, maybe we can focus on the real reason that school choice is a good idea. Schools differ in what they teach and how they teach it, and parents care deeply about both, regardless of whether test scores rise.
I am not confident that we will be able to move the focus beyond test scores in the foreseeable future. It seems as though we cannot agree on much in terms of the prudent objectives of education, and so test scores, as the lowest common denominator, are now threatening to become the whole equation. (I have no idea if that analogy even makes sense — I have always been horrible in math, perhaps because of my own public school’s failings.) Just as we’re going to be seeing an increased emphasis on outcome assessment in legal education, it seems to me that our obsession with outcomes — particularly easily assessed outcomes, like test scores – is going to be driving the train for quite some time in all levels of education. If that’s true, it may not bode well for school choice. (Even here in Minneapolis, where school choice has long found fertile ground, we’re showing signs of “charter school fatigue.”)
Tuesday, May 4, 2010
Counting the costs of early marriage
Jonathan Rauch has an interesting op-ed derived in part from the Cahn/Carbone book, Red Families v. Blue Families, which has prompted previous conversations on MoJ about policies toward contraception. I'm more interested in the economic dimension of the red state / blue state divide on family life: forming families at a young age was much easier in the past, when the father could support the family with a high school education and a stable factory job. In the postindustrial age, more education is needed, and so early procreation has a much more disruptive economic effect on the participants' lives. (A related reality is that sexual abstinence until marriage looks different if marriage happens at 19 versus marriage happening at 26 or 27.) This does not negate the truth of any particular moral or religious teaching on sexuality, marriage, and family life, of course, but it does change the set of background considerations, doesn't it? If parenthood at a young age brings a different set of economic complications today than it did in past generations, should that change the way Catholics (and Christians more broadly) speak about these issues? To be clear, I'm not proposing that the Church begin teaching that sex outside marriage is morally permissible -- I'm asking whether the conversation about the accompanying hardships needs to change in light of the changing economic reality. Maybe it's changed already, and I'm just out of the loop. Thoughts?
Thursday, April 29, 2010
Ominous judicial reasoning in the U.K.
Conscience battles show no signs of diminishing, particularly in the U.K. From today's London Times:
Christianity deserves no protection in law above other faiths and to do so would be “irrational” , “divisive, capricious and arbitrary”, a senior judge said today, as he rejected a marriage guidance counsellor’s attempt to challenge his sacking for refusing to give sex therapy to gay couples.
The father of two, who had worked for the national counselling service since 2003, had alleged unfair dismissal on the grounds of religious discrimination. But rejecting Mr McFarlane’s application to appeal, Lord Justice Laws said that legislation for the protection of views held purely on religious grounds could not be justified.
I cannot tell from the article why, if the worker's liberty of conscience were to be protected, it would amount to favoring Christianity above other faiths. Suffice to say that the judge is not a fan of conscience rights. Linking the worker's claim to theocracy, the judge explained: “The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.”
The danger (to chaplains) of "normalizing homosexuality" in the military
A group of retired military chaplains has written a letter to President Obama objecting to the repeal of the "Don't Ask Don't Tell" policy. (HT: Friedman) I support the repeal, but I can see how reasonable people can disagree about this issue on the merits. I have a harder time seeing the persuasive power of the chaplains' argument, which is that the repeal will effectively force chaplains to alter their ministries. It seems a bit of a stretch to argue that we should keep kicking out openly gay members of the military in order to avoid making chaplains feel bad about preaching that homosexuality is immoral. If there is a legitimate concern that chaplains will be disciplined or suffer other negative employment consequences for preaching about homosexuality, or for refusing to minister to same-sex couples, then let's argue about the need for a conscience clause. Rarely does the "let's continue mandating government discrimination in order to avoid making my ministry more awkward and difficult" argument prove effective. Am I being too harsh in my evaluation?
UPDATE: As a friend points out, not a single Roman Catholic chaplain signed the letter. Significant?
Tuesday, April 27, 2010
Cardinal Mahony on the Arizona immigration law
I believe that the new Arizona immigration law is a bad idea on several levels. Cardinal Roger Mahony obviously agrees that it's a bad law, and I wonder about what others think about how he expressed his opposition to the law. Start with this: Could a Catholic legislator vote in good conscience for the new Arizona immigration law? If so, did Cardinal Mahony go too far in the language he used to condemn the law? I'm interested in how we understand a bishop's responsibility to speak out on issues of concern to the Church, particularly on matters of prudential judgment. If Catholics can disagree in good conscience about the extent to which the new law respects human dignity and the social order, and about whether it is a prudent exercise of state power, should a bishop's comments reflect that capacity for disagreement? Or should a bishop feel empowered to speak just as forcefully and unequivocally on matters of prudential judgment as on matters of non-negotiable Church teaching?
Newdow on Scalia on the Establishment Clause
Michael Newdow has posted his paper, Question for Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics? Here's (an excerpt of) the abstract:
In June 2005, Justice Antonin Scalia contended that 'the Establishment Clause...permits the disregard of devout atheists.' This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. . . . Finally, in Part III, Justice Scalia’s brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.
Monday, April 26, 2010
The past month of media coverage . . .
If you haven't read this weekend's assessment by the New York Times' public editor of the newspaper's coverage of Pope Benedict and the sex abuse crisis, you should. (The conclusion -- Surprise! -- is that the paper has behaved responsibly.) I still think Ross Douthat has had the best and most concise advice:
I think the last month’s worth of press coverage would have played out very differently if Rome had greeted the [original Munich] story, not with circle-the-wagon defensiveness, but with a clear, “bucks stop here” statement from the pope that 1) took responsibility, as the head of the Munich archdiocese at the time, for mistakes made by his subordinates, 2) acknowledged that the Vatican bureaucracy had been too slow, in the past, to reckon with the crisis, and 3) summarized in detail the labor that’s been done during this pontificate to come to grips with the scandals. . . .
Individual Rights vs. Institutional Identity in Health Care
I just posted the paper that was my contribution to BYU's symposium on rights of conscience in health care. Titled Individual Rights vs. Institutional Identity: The Relational Dimension of Conscience in Health Care, it is taken in significant part from my book on the subject. The papers from the symposium will be published in a forthcoming issue of the Ave Maria Law Review. Feedback on the paper (or book) is always welcome.
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