January 31, 2009
The Nomenclature of Atrocities and Catholic Legal Theory
Over the last several days a number of MOJ contributors have offered some significant reflections on the use of language regarding atrocities that punctuate human history in this country and around the world. For their contributions and most helpful insights, I will remain grateful. I appreciate, moreover, the analogies that exist in the moral concerns and the outrage as well as the principles of Catholic teachings that apply to the Holocaust, slavery, abortion, genocide, and other atrocities that demand our attention and response so that these events will never happen again.
It is relevant and important for our discussion, debate, and deliberation to keep in mind what makes these atrocities similar and what makes them different if we are to learn from them so that they are never repeated and so that the word atrocity may become a word infrequently used to explain what has happened in present days and the future.
The Holocaust was a particular genocide against the Jewish people that National Socialism had devised to eliminate the Jews from the face of the earth. That was a singular event that has parallels with other plans for mass extermination but was directed to a particular people. We can properly recall the similarities, but we must not forget the differences.
National Socialism also targeted others in its design for mass extermination, especially the Poles. We do not have a name for this other genocide. It, too, was horrendous, and the numbers of human lives sacrificed was also enormous. But, the reasons for this hideous event were not the same as the dehumanizing events and policies that consumed the Jewish people. Each has parallels with the other, but each is also very different.
The targeting of another people for destruction, the Armenians, is another dark chapter of human history. The taking of life of enormous numbers of this people, the Armenians, has parallels with the two previous genocides I have mentioned, but this was also a different aspect of our dark human history that possesses its distinctions.
The existence of slavery, while not necessarily a destruction of human life, was an extraordinary dehumanization of peoples based on race or ethnicity. In our country of the United States, it has taken a toll hundreds of thousands of African Americans. While it has sometimes be given a name—our Peculiar Institution—it has parallels with the dehumanizations that I have already mentioned, but we must not forget the great differences of slavery from what happened to the Jews, the Poles, and the Armenians.
There are other unfortunate and inexcusable episodes of the dark side of human history that I could add to my catalog, such as the mass exterminations under Stalinism. Each of these additional tragic, unnecessary, and gravely wrong episodes has parallels with those I have mentioned, but each retains differences that must not be forgotten.
And then we come to abortion. This relatively new “peculiar institution” has a certain parallel with those I have already mentioned, i.e., the massive extinguishing of human life, but it also has extraordinary differences. In spite of analogies that we may properly draw, it must not be confused with the Holocaust, the Armenian genocide, the destruction of the Poles, the annihilation policies of Josef Stalin, the dehumanization of slavery, etc. And these differences we must not forget. And what distinguishes abortion from these other atrocities? I shall mention two here. The first is that the death count attributable to abortion is approaching fifty million human lives since this national “peculiar institution” of abortion was recognized and institutionalized in 1973. The second is that this atrocity is still taking place, thereby increasing the number of its victims. What name should we give it? Something that “reduces costs”? A woman’s “right”? A “human right”?
No, these names do not work, nor are they appropriate. Moreover, it is not the Holocaust, notwithstanding the parallels. It is not the Armenian genocide, despite the parallels. It is not what happened in Rwanda or Yugoslavia, despite the parallels. It is not what happened in Stalin’s death camps, despite the parallels. Regarding abortion, it is not the name that is important. What is important is that while we seemed to have learned the lessons of these other tragic episodes that I have mentioned and arrested them, the institution of abortion is still on course and increasing multifold the number of its innocent victims, regardless of the analogies it possesses with those circumstances that human civilization has correctly and resoundingly condemned and arrested.
January 30, 2009
Constitutional rights of the unborn: a new decisional path
To my knowledge, US courts have uniformly upheld state and federal statutes that protect fetuses, and even embryos, against homicide, except where the lethal act is authorized by the child's mother. Jurists in other nations, and lay persons in this country, often find this on-and-off-humanity bewildering to say the least (unprincipled and unjust to say the most). But as heirs of centuries of common law fictions and many decades of Legal Realism, it's what we've come to expect of our courts.
Far more rare has been the judicial recognition, post-Roe, of constitutional (as opposed merely to statutory) rights of the unborn. But this is just the path (following an earlier 9th Circuit case) followed by a recent federal district court in Michigan. Here's the link: http://mirrorofjustice.blogs.com/mirrorofjustice/stith/denyingsummaryjudgment.pdf
The opinion by Judge Stephen Murphy is a denial of summary judgment in a section 1983 civil rights case, brought by the guardian of minor child Chelsie Barker, who was born in the Wayne County jail while her mother was incarcerated there, for injuries sustained during and immediately after the birthing process. The plaintiff alleges that three employees of the jail were indifferent to the minor child’s serious medical needs during the labor and birth, resulting in severe mental retardation and cerebral palsy. Here’s some of the Court’s language:
“The plaintiff argues, and the Court agrees, that when the injuries alleged occurred, the minor child Chelsie was being held in jail along with her mother and that, therefore, the state actors had a duty to protect and care for Chelsie.” (at 7)
“The defendants argue that … a fetus is not a “person” within the protection of the Fourteenth Amendment and therefore, the plaintiff cannot state a claim for relief under Section 1983 because all of the allegedly wrongful actions of the defendants occurred prior to Chelsie’s birth.”(at 8)
Here’s the crucial reasoning by Judge Murphy, as I see it: “It may be true that the legal consequences of injuries to children in utero are obscured by a judicially created haze. (at 25)…[But] the Constitution imposes a clearly established duty on state officials to anticipate the serious medical needs of persons in their care. The Court sees no reason to regard this duty as any less clearly established simply because the risk of harm is posed to an individual who may not yet be a legal person, but who obviously will be one by the term [sic] the harm (or a significant portion of it) occurs.” (at 26)
The Court had even added that “Because the injury was a continuous one, and given the Court’s finding that she is entitled to maintain an action under Section 1983, there is no principled reason to distinguish those injuries sustained before the birth from those sustained after birth.”(at 18)
Gironella's THE CYPRESSES BELIEVE IN GOD
Paul Krog makes an interesting and useful analogy of the USA to Spain on the eve of its Civil War (government-tolerated killing in both cases). But in my view, we are heading toward rather more direct analogies: hatred of religious folk leading to church burnings and worse, as has already been publically threatened in Spain itself. In any event, I strongly recommend Gironella's THE CYPRESSES BELIEVE IN GOD, recently republished by Ignatius Press, which is a profound 800-page study of the events leading up to that conflict. The translation is excellent (something which cannot be said for all the subsequent volumes in his trilogy of pre, during, and post war events). It's just a great read.
Abortion and the Spanish Republic
On the topic of abortion analogies, Notre Dame law student Paul Krog writes:
Allowing mobs to butcher priests and burn churches rightfully cost the Spanish Republican government its claim to legitimacy; that was easy for people to see because it happened in the streets. But we have the luxury of wringing our hands over abortion because it happens in euphemistically named buildings without windows; people are generally inclined to become resolutely incensed over only obtrusively visible violence (see also, Vietnam and the color television). As long as violence remains out of sight, people will remain content with the status quo, especially if the status quo is convenient, expedient, profitable (which the abortion business is), or gives them an opportunity to voice their support for socially preferred "values" such as "freedom," "choice," "self-determination," and "children will suck your pocketbook dry." Add in the fact that people in the position to make decisions are absolutely immune from the particular species of violence, and you have a perfect scenario for its continuation. St. Thomas seems to say that the state is compelled to criminalize murder (Prima Secundae 96, 2). One does have to wonder what the enduring consequences of its failure to do so in this context are.
I had a thought in regards to the running discussion at MOJ about the vocabulary and moral theology of the abortion debate. I think Profs. Velasco and Garnett make good points, although I disagree with Prof. Kaveney's insinuation that the most important element of the Scott decision was its determination that a slave was a chattel, rather than its prior determination that he was not and could not become a "person."
Overall, however, while both analogies have their usefulness, neither fits perfectly and both can be counterproductive. A more apt analogy, albeit one that would require an accompanying history lesson if used for general consumption, is the Spanish Republic immediately prior to the Spanish Civil War. Hemingway and our visceral reaction against Franco's supposed fascism cloud modern perceptions of the time, but the anarchy of the Spanish Republic maps nicely. In both cases you have groups of private individuals intent on wreaking violence on a particular group in society (Catholics and the unborn); in both cases the government refuses protection to the targeted group and implicitly supports the violence while issuing occassional platitudes about it being unfortunate; and in both cases startlingly large numbers of the targeted group are killed. Also in both cases the violence had political benefits and dimensions for the perpetrators and the government protecting them. The usefulness of the comparison does not, of course, continue into the following period of streetfighting, terror bombing, and mutual recrimination, but the Civil War itself seems to be a distinct, if consequential, event.
Final note: several commenters indicate that the mother of the unborn child is the murderer in the context of abortion, if we presume mens rea. Is this necessarily right? The abortionist, after all, is the one who works the proximate cause of the child's death---he kills the child. Is he, in this context, the mother's agent, or is he the principal actor and the mother merely an accessory to a crime that he plans and intends independently? Even if the mother's culpability is indistinguishable (which I believe canon law suggests is at least possible), does the Church's pastoral duty require that we not identify the sin in question as murder? Or given the nature of the confessional (and its limitless supply of forgiveness), does it require that we identify it precisely as that, at least on an individual, if perhaps not on a public rhetorical, level? Perhaps those are questions for a different discussion.
Abortion and war
Loras College politics prof David Cochran writes:
On the question of progressive analogies to abortion, as Catholic pacifist the one I often think about is war. I believe that the killing of human beings in war, both combatants and non-combatants, is never morally permitted (while this view is not required by Catholic social teaching it is consistent with it). But while this killing of human beings in war is always wrong, I don’t always think of it in the same way as a murder for money or genocide. Different kinds of morally impermissible killing have different moral circumstances—not ones that ultimately justify them, but ones that mean they don’t always line up as equivalents. So one of the things about both war and abortion is that there are often very understandable, even “good” reasons, for turning to them. I don’t believe these reasons are ever good enough, but those who do can point to motives or ends that are fundamentally better than the ones underlying murder for money or genocide. The other parallel, of course, is trying to speak to the wrongness of war and abortion in a culture where most people see each as legitimate, at least under certain circumstances, and in which popular culture portrays each as a common and morally appropriate occurrence.
The often disappointing (in part because Bobos in Paradise indicates an ability to do better) David Brooks has a column up that connects with, among other things, interesting work by Paul Horwitz (and also with a number of conversations on this and other law-blogs). A taste:
We are defined by what life asks of us. As we go through life, we travel through institutions — first family and school, then the institutions of a profession or a craft.
Each of these institutions comes with certain rules and obligations that tell us how to do what we’re supposed to do. . . . In the process of absorbing the rules of the institutions we inhabit, we become who we are.
New generations don’t invent institutional practices. These practices are passed down and evolve. So the institutionalist has a deep reverence for those who came before and built up the rules that he has temporarily taken delivery of. . . .
The rules of a profession or an institution are not like traffic regulations. They are deeply woven into the identity of the people who practice them. . . .
Institutions do all the things that are supposed to be bad. They impede personal exploration. They enforce conformity.
But they often save us from our weaknesses and give meaning to life.
I think there's a lot to this. (We might think of the legal profession, and the academy, as "institutions" in the sense Brooks is using the term.) A few years ago, in a paper about "expressive association," I wrote:
[W]e are who we are, and flourish to the extent that we do, because of the associations in which we’re “nested” and by which we’re educated. [T]hese soul-making associations are not simply vehicles for self-actualizing choices by autonomous monads. They might be that, too, but they are more than just that. That is, while it is true that we speak and express ourselves through associations, we are also spoken to and formed by them and by their expression. . . .
[I]t is not just that we express ourselves by choosing to associate; we who do the choosing are products, at least in large part, of our given—not chosen—“nest of associations.”
More on abortion and the Holocaust
[Post moved. rg.] I appreciate Rob's post, and the very engaged, and engaging, comments it has prompted. I avoid comparing our abortion regime to the Holocaust, but not because I have any doubts that our abortion regime involves monstrous injustice. For me, the reluctance reflects more my dislike, as a general matter, of the promiscuous use of the term Holocaust, a dislike that, in turn, results from a sense that, in some quarters, the true magnitude of the evil that was the Holocaust is downplayed or denied.
Whether we use the word though, I suspect Rob would agree that there are ways -- non-trivial ways -- in which our abortion regime is like the legal regime that authorized and facilitated the Holocaust. And, there are some similarities between the theoretical premises underlying the former and those underlying the latter. ("Some lives are not worth living," for example.) We can, to be sure, also identify distinctions -- it strikes me that the actions of someone who (intentionally) shoots a 12 year old are almost certainly accompanied by a more culpable mental state than the actions of (to use Rob's example) a vulnerable woman who aborts her unborn child at, say, 8 weeks. Is the mental state of, say, a doctor who performs a late-term, elective abortion on a child with Down's Syndrome clearly, or always, less culpable, than the state that, I imagine, accompanied the actions of many of those who caused deaths in the gas chamber? I'm not sure.
Like Rob, I do not regard (maybe this is a failing on my part) women who have had abortions as "murderers", but that could be because "murder" is a term of art, which has, built into it, a finding of a highly culpable mental state, a state that I suspect is lacking in the vast majority of abortion, because I suspect that most women who have abortions do not believe they are causing the death of a human being. (But, I also suspect, some do.)
What makes the abortion / Holocaust analogy (which, again, I do not use) work, at least to an extent, it seems to me, is that both regimes depend on a legal declaration that some human beings are not, unlike other human beings, to be protected from lethal violence (public or private). Now, our abortion regime (in Roe, anyway) does not usually admit that it is doing this; but sometimes (e.g., when it permits late-term abortions for reasons not involving serious health risks to the mother) it does (doesn't it?).
January 29, 2009
Abortion as slavery, not as Holocaust
Another reader joins the conversation:
I don't like the Holocaust analogy simply because the United States government isn't exactly doing anything affirmatively (except, under some Democratic initiatives, directly funding abortions). It's not comparable to Nazi Germany, where Jews were rounded up by the government and hauled away to slaughter. If anything, a nation like China, performing forced abortions on its people, comes much closer to the Holocaust term than in the United States. Additionally, Jews were affirmatively blamed for something, unjustly, but blamed nonetheless. In contrast, no one really blames a fetus for anything except for being an unfortunate byproduct of a sexual affair.
In contrast, I find many strong parallels in the slavery analogy. Of course, Prof. Kaveny simply proves the point that not all analogies are perfect--they are only as good as their limited means. But the two most salient points of the slavery metaphor strike at the core of the abortion debate. First, the courts effectively took the matter of slavery out of the legislative process. (Granted, Dred Scott didn't forbid states from outlawing slavery, unlike Roe, and other such inconsistencies.) Certainly, we can debate about why majority rule and the legislative process could be good in some instances and bad in others, but the unmistakable parallel is significant. Congress could not decide to outlaw slavery in the territories or to outlaw abortion. It's simply not an option. Second, the courts essentially wanted to wash their hands of the question of what is a human life, and, in the process, defined human life in a limiting fashion--slaves and the unborn were simply not human. . . . I know that it's often used as a rhetorical point, but I think the slavery analogy does have some merit.
Kaveny on the use of analogy in the abortion debate
I agree with you on the analogy to the Holocaust. Here's what I did in a Commonweal column on the topic; I think the slavery analogy falls for obvious reasons (e.g., the unborn aren't persons, but they're not chattel property either).
The reason I think the abortion debate is so hard is that no one analogy works very well. (Pro-choicers highlight Thomson's argument, which talks about the duty to provide life support in terms of an unconscious violinist). In general, all the analogies conceal as much as they reveal. That's why I avoid them, or use them cumulatively. (An old, but interesting article on the topic is Lisa Cahill's "Abortion and the Argument by Analogy," HORIZONS 1982 (if memory serves)).
Moreover, I don't think slavery and the Holocaust are being used precisely as analogies in most pro-life discussion--i.e., as points of factual comparison to illuminate moral reflection in the manner of the common law. I think they are being used as part of a rhetoric of prophetic denunciation. And, as you know, in my view, that's the basic divide: I don't think that there is any way for the "casuists" on this to convince the prophets of their good faith. The rhetoric of "fire and strength," to invoke Matthew Arnold, doesn't have much use for the rhetoric of "sweetness and light." So I don't think there's much point in, casuists trying to convince (most) prophets of their good faith. That's why I think they need to and start their own, constructive projects.
Velasco on legalized abortion and the Holocaust
Earlier today I posted a collection of responses to my post objecting to the use of the term "Holocaust" to describe legalized abortion. Another MoJ-er suggested that the conversation might be furthered by breaking the responses out into separate posts, and so I've done that here and below. To begin, here is Notre Dame law prof Julian Velasco's response (he is at a conference and so apologizes for any choppiness in his comments):
Your comments improperly minimize the horror of abortion. If the fetus is a person, as the Church teaches, then abortion is objectively, instrinsically, and gravely evil. I was particularly disturbed by your assessment that killing a 12-year-old is worse than killing an unborn child. By that logic, one could argue that killing someone in a coma is not as bad as killing a healthy person. By extension of the argument, one might argue that killing a person with many loved ones is worse than killing a loner because of the additional pain and loss that the others will feel (i.e., "even more reasons to protect [him]").
Unfortunately, hiding behind "hard choices" can complicate even straightforward moral issues. If abortion is murder, it doesn't matter whether it was a "hard choice." Mercy killings and many other homicides -- even honor killings, I imagine -- may involve "hard choices," but are still horribly wrong. The circumstances may (or may not) affect the moral culpability of the actor, but not the evil of the act itself. And besides, there's a difference between "hard choices" and "no other choice." In the United States, at least, abortion rarely, if ever, involves "no other choice."
That the general population would be more upset about the killing of a 12-year-old than of an unborn child is virtually meaningless. In the first place, they've already been conditioned that abortion is a matter of personal choice, so it's not surprising. More importantly, they're also likely to be more upset about the killing of attractive teenage girls than of homeless men. But emotion is a poor guide to morality.
I also find it extremely unfair to suggest that anyone who really believed abortion is murder "would be blocking the clinic entrances, physically rescuing the children, [and/or] overthrowing the government." Many people struggle with the issue of what they should be doing, and the right course of action is by no means clear. I suppose one could say that if anyone really believed that the economic imbalances in the world that allow children to starve to death every day is an injustice, they would be doing much more to end it. One can always do more; that may impugn the actor, but not the merits of their cause.
Finally, given the absolute numbers involved, I am not willing to say that "gas chambers are worse." However, I am not necessarily opposed to saying something like that, either. I just don't think that's a meaningful statement if both are horribly evil. What I will not accept is any suggestion that abortion isn't really all that bad. And despite your comments to the contrary, that's what I took away from your post. Perhaps what you meant to say is that people who procure abortions, or support abortion rights, aren't necessarily evil. Of course, that may well be true; it's certainly not my place to judge. It may also be true that not all of the Nazis who killed Jews in the Holocaust were entirely evil -- perhaps they felt that they had "no other choice." And perhaps we might allow that not all the salveholders throughout history were evil people. But that doesn't mean that slavery, the holocaust, and abortion aren't themselves evil. And because they are, the law ought to prevent them.