MoJ readers may be interested in a new blog that has just launched, titled Law, Religion, Ethics: A multi-faith dialogue. There is a wonderful assortment of scholars from a variety of faith traditions (including no faith tradition) who have signed on, and a few of us MoJers will be chiming in from time to time.
Monday, March 1, 2010
New blog of interest
Saturday, February 27, 2010
More on conscience at BYU
A few other highlights from today's conscience conference at BYU (earlier posts here and here):
Wash U law/med prof Rebecca Dresser explained an "institutional" approach to conscience, asking institutions to take steps to minimize cases in which individual objections jeopardize health care. As a self-identified "pro-choice liberal," she welcomes the conversation about conscience in health care because the concerns raised by objectors can help encourage society to think about and reflect on what we want to do (and do not want to do) in health care. Right now it's a laissez faire approach in terms of new techology -- we aren't having serious moral conversations about where we're headed in areas like cognitive enhancement, and the type of concerns raised in the conscience debate can help create space for those conversations.
BYU law prof Cole Durham argued for an "integrationist view" of law under which conscientious objection is not a tolerated exception to the general rule, but part of the rule structure itself in light of the Constitution's protection of religious liberty. Ave Maria law prof Richard Myers countered that the First Amendment does not supply much of a basis for conscience protection, and didn't supply one even before Employment Division v. Smith. He also cautioned against a constitutional law approach to conscience (rather than a statutory approach), for fear that it could contribute to a trend toward privatized religion and a loss of public morality.
BYU law prof Lynn Wardle argued that Roe v. Wade and Doe v. Bolton provide a foundation for a right to conscientious objection to participating in abortion, both because of the statutes at issue and because of the Court's focus on the privacy right that attaches to the doctor-patient reationship.
USF philosophy prof Tom Cavanaugh attempted to distinguish between "professional conscientious objection" (understood as accessible claims) and "religious conscientious objection" (understood as inaccessible claims), and between conscientious objection to a type of intervention (worthy of recognition) and conscientious objection to the patient requesting the intervention (not worthy of recognition). I'm not sure he persuaded me of the workability of either distinction, but he had some thought-provoking suggestions for how to navigate the conflicts.
Other papers focused on practical resolutions to real-world conscience clashes. My own contribution focused, not surprisingly, on the implications of conscience's relational dimension for health care. I'll try to post the paper within a week or so.
Friday, February 26, 2010
Greenawalt on conscience at BYU
Kent Greenawalt, not surprisingly, offered a treasure trove of thoughtful comments and questions about rights of conscience. He does not believe that individual religious claims of conscience should be privileged over non-religious claims, but he does believe that institutional claims of conscience should be limited to religious organizations because they are fundamentally separate from the state. At the individual level, he would look to four factors for determining whether a health care professional should have her claim of conscience recognized: 1) the portion of the job duties affected by the claim; 2) her expectations (e.g., was she training at time when abortion was illegal?); 3) "calling" and 4) public expectations. I found the third factor -- calling -- to be the most interesting and unexpected. Kent explained that some jobs seem to entail a greater sense of calling than other jobs, which means that there is a greater cost entailed by having to give it up. He tentatively offered his view that folks who decide to become nurses or doctors do so out of a sense of calling more frequently than a lawyer or druggist. This is obviously open to debate, but it struck me as a creative way to avoid the contention that our recognition of conscience claims is a function of professional elitism (lawyers and doctors are entitled, pharmacists usually aren't, cashiers definitely aren't). In terms of the limits on a provider who is otherwise entitled to claim conscience, Kent would look to "substantial inconvenience" to the customer as the guide, and what constitutes substantial inconvenience may change depending on the service in question. Having to drive 30 miles for an abortion would not qualify as substantial inconvenience, but having to drive 30 miles for the morning-after pill might.
Wilson on conscience at BYU
Today BYU is hosting a conference on rights of conscience in health care, and I'll try to post a bit as the presentations occur. (I won't go so far as to call it "live blogging," but it might be "somewhat sporadic but pretty quick blogging.") Washington & Lee law prof Robin Wilson just presented a fascinating overview of the history of conscience rights in health care, noting that civil rights litigation, rather than legislation, does a poor job providing guidance as to how a new right affects third parties. (Another problem of the Roe regime.) She talked about the 2009 case of Catherina Cenzon-DeCarlo, a New York nurse who sued Mount Sinai Hospital for forcing her to assist in a second-term aborton. She sued under the Church Amendment, which prohibits federally funded organizations from discriminating against health care professionals who refuse to participate in abortion because of their religious beliefs. Her suit was dismissed because the Amendment does not provide a private right of action. The problem, though, is that it is unclear how vigilant HHS is being about violations of the Amendment. Is HHS required to sanction a hospital for this sort of discrimination? If so, it's not entirely clear how a person in Cenzon-DeCarlo's position can force the agency to meet its obligation. If HHS is reluctant to use the funding sanctions availabe, it might be time for Congress to consider creating a private right of action.
Thursday, February 25, 2010
Christian realism and the terrorist threat
Lately I've been having an interesting, but ultimately depressing, convergence of knowledge inputs: I'm reading Dexter Filkins' The Forever War (if you're only going to read one book about the Iraq conflict, this should be the one), I'm plowing through a bunch of books about social trust as part of my research for a new project, and I've been listening to conservative talk radio on my drive in to work (it's maddening but strangely addictive). In combination, these information streams have been kicking any confidence I have in humanity right out of me, which might not be altogether inappropriate for Lent. In terms of specifics, though, I have become even more concerned about our society's apparent expectations that our government eliminate any risk of terrorism at any cost. Our policy discussions seem to be premised on the notion that we must do everything humanly possible to prevent an act of terrorism on American soil. President Bush made it plain when he explained that he wouldn't risk a single American life on trusting Saddam Hussein. Well, he didn't, and you can read Filkins to see how that turned out. I wouldn't trust Hussein either -- Filkins details the horrors of his regime with horrific accounts -- my point is really about American lives. We see a similar reaction to the Christmas Day "underwear bomber." In order to prevent any possibility of such an act, we must move heaven and earth, even if it means full-body scans, billions of dollars in resources, and diverted attention from other pressing social problems. If a successful terrorist attack occurs on American soil, the most tragic consequences will of course be the lost lives. I also fear, though, that a corresponding tragedy will be the fact that whoever is President will be categorically deemed a failure, especially if he or she has had the gall to extend a semblance of rights to any suspected "terrorists" in the past.
To be clear, I'm all in favor of being aggressive and creative in battling terrorism. But when we set the bar so high, as though the death of any Americans at the hands of a terrorist is automatically considered an epic failure of the federal government, it warps our national priorities and commitments. I should note that I've also been reading plenty of Niebuhr recently: the world is messed up, evil is out there (and in us), and more Americans will probably die at the hands of terrorists. We should not passively accept that sad reality, but we also shouldn't defy that reality to the point that it defines us.
Thursday, February 18, 2010
Koppelman on SSM
MoJers might be interested in Andy Koppelman's new paper, Careful With That Gun: Lee, George, Wax, and Geach on Gay Rights and Same-Sex Marriage. Here is the abstract:
Many Americans think that homosexual sex is morally wrong and oppose same-sex marriage. Philosophers trying to defend these views have relied on two strategies. One is to claim that such sex is wrong irrespective of consequences: there is something intrinsic to sex that makes it only licit when it takes place within a heterosexual marriage (in which there is no contraception or possibility of divorce). Patrick Lee and Robert P. George have developed and clarified this claim. The second strategy focuses on consequences: the baleful effects on heterosexual families of societal tolerance for homosexuality. Amy Wax (who is not a clear opponent of same-sex marriage, but who is worried by it) has tried to array evidence to support the second. Mary Geach has developed a novel hybrid, relying on the second argument to support the first one. Both strategies fail. The first cannot show that the intrinsic goodness of sex is at once (a) derived from its reproductive character and (b) present in the coitus of married couples who know themselves to be infertile, but not present in any sex act other than heterosexual marital coitus. As for evidence of bad consequences of tolerance of homosexuality, the evidence is all the other way.
There is much to discuss in the paper, including Koppelman's response to the argument that sexual intercourse between a man and woman known to be infertile is still "oriented to procreation." He writes:
My action can make sense as part of a process, can take its meaning from its role in facilitating that process, only if the process is known to be capable of completion. This is true even if the success of the project is unlikely. But it is not true if success is impossible.
A surgeon trying to save the life of a gravely sick patient is engaged in the practice of medicine even if the patient‟s death is almost certain. No guarantee of success is necessary. (Little human endeavor comes with a guarantee of success.) So long as the patient is alive and the surgery even marginally increases the likelihood of the patient's survival, then the surgeon's behavior makes perfect sense. He is engaged in a medical-type act. Whether it is a medical-type act now cannot depend on events that occur only later, such as the patient's recovery. But what would we think if the surgeon performed exactly the same actions, involving the same bodily motions, when the patient is already dead?
Koppelman is always a good read because he takes his opponents' arguments seriously. If you're interested in these issues, you should read his paper. And of course you should read George, Lee, and Finnis. And then engage the question: does it make sense to say that sexual intercourse between a man and woman known to be infertile is "oriented to procreation?"
Wednesday, February 17, 2010
Washington archdiocese ends foster care program
The lack of a broad religious exemption in the Washington D.C. SSM bill claims its first, but presumably not its last, casualty.
What should Catholic legal theory say to the "Tea Party" movement?
What does Catholic legal theory have to say, if anything, to the "Tea Party" phenomenon? I realize that the New York Times is pretty quick to attribute ominous motives to any political movements that find considerable traction outside the 212 area code, but the destructive anger that seems to be building -- and the enthusiastic embrace of that anger by leaders of the movement -- is troubling. I can think of a couple of lessons that Catholic legal theory could bring to the table: 1) blanket attributions of bad faith to our political leaders is a recipe for disaster; we are called to work together toward the common good, and a reflexive demonization of office-holders is not in keeping with our obligations as citizens; 2) references to the need for violence or revolution should not be made casually or except as a last resort; in this regard, does the rhetoric of Tea Party leaders reflect an awareness of the ideal toward which we, including our elected leaders, should be oriented -- i.e., a "civilization of love?" This is not to ignore the potential value that the movement can bring, particularly with its focus on fiscal responsibility and its potential to cast a critical light on the corrupting potential of power. But the substantive ends are not all that matters -- the tone of the conversation also matters if we are to promote, as the Church teaches, a "social life based on civil friendship." Thoughts?
The Personhood Movement
I may be the last to know about this, but I was intrigued by the movement in Colorado (and other states?) to add a 'personhood" amendment to the state constitution. Details here. (HT: Howard Friedman) The amendment would be struck down by federal courts, but it raises some interesting issues, such as whether any law allowing abortion -- even in cases of rape, incest, or to protect the life of the mother -- would unconstitutionally discriminate against preborn persons. These are just academic questions, it seems to me, at this stage in American legal history.
DeGirolami on Nussbaum on Equal Respect
Marc DeGirolami has posted his excellent new paper reviewing Martha Nussbaum's book, Liberty of Conscience. Here's the abstract:
This essay critiques Professor Martha Nussbaum’s book, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY (2008). Nussbaum’s thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of “Equal Respect” – that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that Equal Respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free exercise and establishment issues in light of this principle, concluding that the tradition of religious equality is under threat and calling for renewed vigilance in its defense.
This piece criticizes Nussbaum’s elevation of the principle of Equal Respect to supreme normative status. It claims that Nussbaum’s single-minded focus on Equal Respect distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. The essay focuses specifically on the inadequacies of her assessment of two prominent religious liberty cases, one in the free exercise and the other in the establishment context. The essay concludes that there are reasons for deep skepticism about Nussbaum’s approach as a comprehensive theory of the religion clauses.
As Larry Solum says (and did say!), "Highly recommended."
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