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.

Friday, October 3, 2008

Obama's effect on abortion

By Rob Vischer

A reader who wishes to remain anonymous has put together a list of reasons why an Obama administration will increase the number of abortions.  I do not vouch for the legitimacy of every assertion (e.g., I do not believe that we should conclude much from Obama's comment about his daughters being "punished" with a child), but I pass the information along nevertheless:

Many (most notably Doug Kmiec) have made the public argument that Obama would, if elected, reduce the incidence of abortion in America.  This is false.  His record and agenda show that his election would certainly lead to the further entrenchment of right to kill unborn children in constitutional law, an increase in the number of abortions, and a massive increase in the number of embryonic human beings killed for research (to the tune of millions).  Some facts:

Continue reading

Explaining the pro-life to pro-choice move

By Rob Vischer

Over at the Volokh Conspiracy, there's an interesting (and civil, for the most part) set of comments from readers who have moved from pro-life to pro-choice, explaining the reasons for their switch.

Tuesday, September 30, 2008

More on the HHS conscience rule

By Rob Vischer

Just a quick response to Richard Stith's thoughtful comments on the proposed HHS conscience regulation.  First, if local governments (such as New York City's) are getting heavy-handed in negating the moral autonomy of health care providers, I think the proper response is to address those local governments through targeted regulation.  The proper response is not to marginalize the entire lawyer of organizations that stand between the state and the individual.  In terms of subsidiarity, assume that A is the highest level of social actor and F is the most localized.  If C is unnecessarily limiting the freedom of F, A's proper response would be to address C's conduct, not to leap-frog all the intermediate levels by giving F a categorical trump over the identity-forming autonomy of D and E.  I see the conscience regulation as unwisely leap-frogging several levels in the chain of prudently devolved authority. 

Second, I agree that forcing a pro-choice pharmacy to incur the added financial and message-muddying cost of accommodating pharmacists who defy the organization's moral identity is not as personally intrusive as forcing a pro-life pharmacist to dispense products that conflict with her moral convictions.  Nevertheless, it does pose a significant burden on those organizations.  Further, it entrenches the notion that the battle over conscience is really a battle for the reins of state power in service of the individual.  Politically, I don't think there is much perceived difference in forcing all organizations to accommodate every individual employee and forcing all organizations to accommodate every individual consumer.

Friday, September 26, 2008

Why I oppose the HHS conscience rule

By Rob Vischer

If I provide comments to HHS about its proposed new conscience rule, I'm afraid my comments will not be favorable.  Consider this sweeping grant of individual rights in the proposed rule:

Any entity "that carries out any part of any health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services" shall not "require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions."

Our society's ongoing debates about conscience are important and difficult.  This rule provides a single resolution to the debate to more than 584,000 different health care entities.  As explained in this paper (and in a forthcoming book), I am very leery of top-down solutions to our ongoing battles over conscience.  Those of us who favor the idea behind charitable choice should be especially leery of imposing contested moral norms on organizations that receive federal funding.   You might like the "strings" this time around, but you'll have less basis on which to object next time around.  Freedom of conscience is best viewed as a negative liberty, protecting against state encroachment, not as a positive liberty, empowering individuals to act as they wish without the possibility of any negative fallout from the organizations that employ them.  This proposed rule advances an individualist, rights-driven understanding of conscience, further weakening our political commitment to institutional autonomy and suggesting a lack of confidence in the potential power of mediating structures.

Wednesday, September 24, 2008

Human dignity as social hierarchy

By Rob Vischer

I'm delving more deeply into the concept of human dignity, exploring in particular the notion that human dignity is primarily of legal relevance to, and evidenced by, human relationships, rather than a stand-alone construct of the human person.  In this regard, I came across an intriguing passage in Robert Kraynak's contribution to this volume, In Defense of Human Dignity.  An excerpt (pp 90-91):

In the biblical view, dignity is hierarchical and comparative; in the modern, it is democratic and absolute.  The Bible (both Old and New Testaments) promotes hierarchies because it understands reality in terms of the "image of God," which is a type of reflected glory -- a reflection of something more perfect.  Hence, dignity exists in degrees of perfection rather than in abstractions that are absolutely uniform.  Moreover, the dignity or glory possessed by something made in the image of a more perfect being carries moral claims of deference, reciprocal obligation, and duty rather than equality, freedom, and rights.  Christ is bound to the dominion of the Father and Creator; man is bound to the dominion of Christ; woman is bound to the dominion of man; and, reciprocally, God is bound in love to Christ, Christ to man, man to woman.

Following the logic of reciprocal obligation, there is no contraction between the statements of the New Testament that require obedience to hierarchies -- whether the be divinely created, natural, or conventional -- and passages that speak of the spiritual dignity of all human beings.

Thoughts?

Tuesday, September 23, 2008

NRLC on Kmiec on Obama

By Rob Vischer

Doug Johnson, legislative director of the National Right to Life Committee, responds to Doug Kmiec's defense of Barack Obama's opposition to the Born Alive Act:

As legislative director for National Right to Life, I have been closely attentive to the Born-Alive Infants Protection legislation since its inception.  The material on this subject in the Kmiec book contains so many misstatements regarding the Born-Alive Infant Protection bills, laced together with non sequiturs, that it is difficult to know where to begin.

Continue reading

Wednesday, September 17, 2008

Response to Kmiec on Obama

By Rob Vischer

A reader responds to my earlier post:

A couple of important points in response to Kmiec's excerpt on Obama & the Born Alive bill.  Obama's justification at the time for voting against the bill (before the neutrality clause was added) was twofold.  One, he thought that the principle established by the law that previable unborn children are persons would undermine the rationale of Roe, namely, that viability is a meaningful marker regarding a woman's right to abortion.  Put aside for the moment, that even post-viability, the "health exception" (as interpreted in Doe v. Bolton) creates an essentially unlimited right to choose abortion at any gestational stage.  Two, Obama thought that imposing on doctors the obligation to deliver care to a previable child was an unconstitutional burden.  You can read Obama's statements here:  http://www.ilga.gov/senate/transcripts/strans92/ST033001.pdf (at 86-87).

His remarks in no way mirror those of Kmiec's (which seem to be grounded in some kind of "futility" analysis -- that is, no medical care would be beneficial to these kids, and is thus not obligatory).  Obama instead was worried about preserving the principle that previability, unborn children should be regarded by the law as subhuman.  The Illinois law, by contrast, symbolically and actually reflected the norm that moral respect and protection of the law should not be inversely proportional to one's vulnerability or dependence on others.  To hold otherwise, as Obama does, is to turn our best moral traditions on their head.  As Hans Jonas said, "absolute vulnerability invites absolute protection." 

A final thought -- "viability" is not, as a medical matter, a bright line.  It depends on many things unique to the particular baby in question.  Different babies are "viable" at different times.  I think that even if you take Obama's monstrous view (or Kmiec's wrongheaded view), it strikes me that there would be an obligation to determine viability.  But Obama's other positions on abortion clearly imply that he would oppose requiring doctors to determine viability in cases like this.  Finally, the legislative record showed that these babies were being placed in soiled utility closets, and in some instances took many hours to die.  Obama's position would even preclude palliative care for these children.  Kmiec's argument would similarly preclude palliative care -- which I think is deeply misguided.  I think that there is an ethical obligation to provide palliative care.

And, incidentally, contrary to Kmiec's observation, there are many examples in the law (Torts, Criminal Law, etc.) where a previable baby "born alive" can be the victim of a homicide, negligence, intentional torts, etc.

Kmiec on Obama on Infants Born Alive Act

By Rob Vischer

Doug Kmiec has published a new book, Can a Catholic Support Him?, addressing his widely discussed endorsement of Barack Obama.  Steve Waldman has posted, with Doug's permission, the section of the book addressing Obama's opposition to the Infants Born Alive Protection Act.  Here's an excerpt:

Let me say right at top, that if I were in the Illinois legislature I would have given this law my vote. That said, this legislation, in my opinion and, I believe, in Senator Obama's as well, was not aimed at saving lives so much as shaming them. Now, the history of this measure, which is quite convoluted, is being used to suggest that Senator Obama is a proponent of infanticide. This is an outrageous smear as the detailed accounting of this episode by a Chicago Tribune reporter reveals if anyone cares to look before indulging the accusation. As a man who views his own daughters as the miraculous gift of the Creator that they are, the Senator is justifiably angered by what would very likely be libelous blogs were he not a public figure.

So what does the "Born Alive" Act do? Largely, it redefines what it means to be "born alive." From the time of ancient common law, "born alive" has meant live birth at or near the end of a full term pregnancy with a reasonable prospect of survival. If a woman sadly miscarries earlier and expels a non-viable, but temporarily alive, but unborn child with a transient heartbeat, there isn't a county recorder in the country who would record a live birth. The miscarriage is sad enough; we don't worsen it with the grief of death before life has meaningfully taken hold. But that's what the "Born Alive" Act does. For the most part, it redefines live birth to include non-viable unborn who lack any meaningful chance of survival. In essence, the act imposes on the birth process the over-extension of life support to a dying patient without any reasoned chance of survival. Medical ethics does not require so called "heroic" care at either end of life, and neither does Catholic teaching.

You can read the whole section here.

Tuesday, September 16, 2008

Virtue, Autonomy, and Empirical Research

By Rob Vischer

Ekow Yankah has posted his paper, Virtue's Domain.  From the abstract:

Virtue ethics is . . . importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism.

This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.

Larry Solum comments on the paper, noting that:

it could be that some form of autonomy is constituitive of human flourishing.  Certainly, an Aristotelian virtue ethics could (and in my view should) adopt this view of the relationship between autonomy and flourishing.  If an appropriately conceptualized view of human autonomy is accepted as a constituent part of human flourishing and if the proper end of law is to promote human flourishing, then the law should aim to create the conditions for the development, maintenance, and excerize of autonomy by humans.  But as Yankah sees, this aim would be integrated with the promotion of other aspects of human flourishing.

And, getting back to Greg's post about the dearth of Catholic legal empiricists, Solum observes that the law's ability to articulate and facilitate human flourishing, including the prudent role of autonomy within that concept of flourishing, "is likely to turn on a variety of empirical facts."

Repronormativity

By Rob Vischer

Rick Hills takes on the only-in-the-academy concept of "repronormativity," which "denotes the belief that raising children is normatively desirable."  As Rick observes, "[d]iscovering that I have repronormative beliefs was like Monsieur Jourdain’s discovery that he had been speaking prose all of his life without knowing it."

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