Mirror of Justice

May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities?

As a follow-up to my last post, here are some more sophisticated legal arguments by the always-insightful Sam Bagenstos, who helped draft the complaint filed with the Office for Civil Rights of HHS, challenging Washington State's plan. 

This is a forthcoming article in the  Yale Law Journal Forum, entitled: May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing.

NCPD Statement: Rights of Persons w/ Disabilities to Medical Treatment During the COVID-19 Pandemic

Here is a statement on this important issue from the National Catholic Partnership on Disability.  We worked hard to try to boil down some complicated ethical concepts into the essential basic ideas, to make it accessible to the widest audience who might need to use these arguments. 

There's a snazzy infographic with the same message here, and we've posted a video with an even more basic description on Utube:

 

 

Australia’s high court overturns guilty verdict against Cardinal George Pell on final appeal

Cardinal George Pell will be released from prison after Australia’s highest court dismissed the convictions of the most senior Catholic found guilty of child sex abuse. Ending an almost five-year juridical odyssey, Chief Justice Susan Kiefel delivered the court’s decision to an almost empty courtroom in Brisbane, Australia, just after 10 a.m. on April 7. Because of the ban on travel due to the coronavirus pandemic, the other high court judges remained in their home states. The decision means Cardinal George Pell will be released from Barwon Prison outside Melbourne.

Pope Francis’ former finance minister was convicted by a Victoria state jury in 2018 of sexually abusing two 13-year-old choirboys in a back room of St. Patrick’s Cathedral in Melbourne in December 1996 while he was archbishop of Australia’s second-largest city.

Full story at America.

The Guardian of Life

“A just governing order must have ample power to cope with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social.... Elaborating on the common-good principle that no constitutional right to refuse vaccination exists [citing Jacobson v. Massachusetts, 197 U.S. 11 (1905)], constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds—biological, social, and economic—even when doing so requires overriding the selfish claims of individuals to private ‘rights.’”

Common-Good Constitutionalism (March 31, 2020)

 

“[T]he district court ignored the framework governing emergency public health measures.... See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). ‘[U]nder the pressure of great dangers,’ constitutional rights may be reasonably restricted ‘as the safety of the general public may demand.’ Id. at 29..... [T]he district court usurped the state’s authority to craft emergency health measures. Instead, the court substituted its own view of the efficacy of applying [the executive order] to abortion. But ‘[i]t is no part of the function of a court’ to decide which measures are ‘likely to be the most effective for the protection of the public against disease.’ Jacobson, 197 U.S. at 30.”

In re Abbott (CA5 April 7, 2020)

 

 

Traveling the world studying Islamic law

Emilia Justyna Powell wants to change how people see Islamic law and culture — because too often, she’s found, people in the West have an inaccurate view of it as strict or outdated.

Powell, an associate professor of political science and concurrent associate professor of law, has spent five years traveling to Muslim-majority countries and interviewing Muslim scholars for her new book exploring the similarities and differences between the Islamic legal tradition and classical international law.

“Individuals outside the Islamic milieu often assume that our way of life is better, but the sad part is that many of us don’t understand Islam at all,” she said. “And my book addresses that.”

Read more about professor Powell and her work here.

US religious freedom ambassador calls for release of prisoners of conscience

The U.S. religious freedom ambassador on Thursday called on governments to release prisoners of conscience during the new coronavirus pandemic.

“In this time of pandemic, religious prisoners should be released.  We call on all governments around the world to do so,” Sam Brownback, U.S. Ambassador-at-Large for International Religious Freedom, said on April 2 during a conference call with reporters.

Full story at Catholic News Agency.

A Series of Unfortunate Events

 

Continue reading

Unborn Human Life and Fundamental Rights -- An Important New Book in Comparative Law

The publishing house of Peter Lang has released an important book edited by Pillar Zambrano of the University of Navarra and William L. Saunders of the Catholic University of America entitled Unborn Human Life and Fundamental Rights. The books chapters present essays by leading scholars examing the legal status of unborn children in various jurisdictions. I read the essays in manuscript for the publisher and had this to say:

This book brings together an impressive group of scholars and obtained from them work of the highest intellectual caliber. In the struggle for the protections of all innocent human life, it will prove to be an invaluable tool.

The volume opens with two excellent essays on abortion law in the United States--one by Bill Saunders and one by Gerard V. Bradley of Notre Dame Law School. There is a very important concluding reflection by John Finnis of Oxford University and Notre Dame. Appropriately, the book is dedicated to Mary Ann Glendon of Harvard Law School as "a valiant defender of the dignity and rights of every member of the human family."

Be Part of a “Listening Team”

In a setting that now feels like an eternity ago - when I was emerging from the house to commute to campus - this essay, “Be Part of a Listening Team: A Response to the Coronavirus,” published in the Focolare’s monthly magazine, Living City, reflects on how the example of love and care for neighbors in the wake of the Taal volcano eruption in the Philippines shines a light on a personal response to the Coronavirus crisis.   Even if, for the time being, we are not chatting in the halls with colleagues or holding in-person office hours, I sense that many are nonetheless finding numerous creative ways to continue to be part of a “listening team.”

Centesimus Annus ¶ 44 and the U.S. Constitution

I've been working on multiple-choice questions for the University of Richmond Law School one-Ls in my Constitutional Law class this semester. Inspired by Adrian Vermeule's "Beyond Originalism" to think more deeply about the relationship between U.S. constitutionalism and Catholic Social Teaching, here's a multiple-choice question for the broader universe of MOJ readers.

* * *

Four key commitments of the Constitution of the United States of America are (1) popular sovereignty, (2) writtenness, (3) federalism, and (4) separation of powers. Which, if any, of these key commitments of American constitutionalism does Catholic Social Teaching endorse as an essential aspect of a sound theory of the State?

A. Popular Sovereignty

B. Writtenness

C. Federalism

D. Separation of Powers

E. All four.

* * *

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Florida, other states allowing church services during coronavirus pandemic draw criticism

Florida this week joined the states directing residents to stay home to help reduce spread of the coronavirus but carving out exemptions for religious services, drawing criticism as the federal government advises against gathering in groups of more than 10.

The stay-at-home order issued by Florida Gov. Ron DeSantis (R) on Wednesday directs Floridians to stay home except to obtain or provide essential services. Attending services conducted in houses of worship is listed under the definition of "essential activities.”

Florida is among several states issuing orders for people to avoid leaving their homes but granting certain exemptions for religious services over concerns that forcing houses of worship to close would violate the constitutional right to religious freedom.

Full story at The Hill.

"Man, Woman, Body, Soul in the Western Tradition" at Harvard, August 3-7, 2020

Last summer, Angela Franks and I co-taught the inaugural session of this intensive summer seminar, "Man, Woman, Body, Soul in the Western Tradition." Sponsored by the Abigail Adams Institute and hosted in the government department at Harvard University, the seminar is open to advanced undergrads, graduates students, and young professionals. This summer, it will take place during the first week of August, assuming things are a bit back to normal. Here's more.

Application deadlines have been extended until April 17th.  

Catholic feminist perspective on on-line learning

As we all sort through the consequences of our crash-landing into the world of on-line education, here's another very refreshing perspective.  Some aspects of what we are all learning to do now could be opening doors to many people, such as this (obviously smart and talented) woman:  https://www.thepublicdiscourse.com/2020/04/61875/  

Communities of Faith and Covid-19

In these precarious times, Americans need more guidance than ever before from religious and spiritual leaders. Yet in many places we have ceased gathering together. How can faith communities cope with the COVID-19 pandemic, and what advice do religious leaders have for American citizens right now?

Hosted by Baylor in Washington's Robert P. George Initiative on Faith, Ethics and Public Policy, this discussion will examine how believers and religious communities can thrive during this extraordinary season and so be prepared to contribute to America's common good.

Apr 1, 2020 07:00 PM Eastern

Registration Link: https://zoom.us/webinar/register/WN_nBv1rjgvQJSxcQ3ZJiBLNw

 

Common-Good Constitutionalism

In the Atlantic, I offer a broad-brush take on constitutionalism and how it might be devoted to the common good. The idea is to explore an alternative to both of the standard views that dominate the legal academy, originalism and left-liberal Progressivism. An alternative inspired by Ronald Dworkin — although with a very different conception of the substantive principles that should inform constitutionalism.

Catholic moral theology has important role as pandemic causes ethical dilemmas

As the world faces the unprecedented effects of the COVID-19 coronavirus pandemic, thorny moral questions are arising. 

From every level and sector of society, people are asking: What is the right thing to do?

From mundane issues such as how much toilet paper is too much toilet paper, to the life-and-death decisions being made in hospitals in northern Italy, ethical dilemmas abound.

Read this conversation at Crux.

"Religious Liberty and the Common Good"

In National Affairs, William Haun has a worth-reading essay called "Religious Liberty and the Common Good."  He opens with this:

Legal and cultural debates involving religious liberty are converging toward a single question: whether free religious exercise is part of the common good, or what might now be called a society's overall well-being. While Americans have long debated how religious exercise should manifest in the public square, the need for a common good shaped by religious practice went unquestioned. But this has changed over the last generation. Now, American law and culture are questioning whether such debates are worthwhile.

My agreement with much of Haun's essay is, I suppose, overdetermined:  Tocqueville and Burke citations, the happy-warrior spirit of the Becket Fund, etc.  My take on the Smith decision, which Haun criticizes, is different -- not entirely, not the opposite, but different -- from his, though.  Among other things, Haun writes:

The Smith decision presumes a deep tension between religious exercise and the common good. . . .  For Smith, the superseding value is majoritarianism: Religious pluralism is good when democratic majorities decide it is worth their solicitude. 

This does not seem right to me.  Every (plausible) account of religious freedom imposes some limits on religious exercise.  The Second Vatican Council's Declaration on Religious Freedom -- the inspiration, in many ways, for the founding of the Becket Fund! -- refers several times to the "just demands of the public order" and assumes that these demands are among the conditions for flourishing that constitute the "common good" of a community.  To say (as the Smith decision does) that our particular Constitution did not allocate to judges the authority to revise politically accountable actors' determinations about what those demands are is not, it seems to me, either to make an idol (as opposed to a mechanism) of "majoritarianism" nor is it presume a "deep tension" -- as opposed to "the unavoidable occurence of occasional line-drawing exercises" -- between religious exercise and the common good.

In addition, it's not obvious that "religious pluralism" (by which Haun means, if I read correctly, the diversity in our society of religious views and commitments) is "good" so much as it is given, and its manifestations protected (not without limit, again) by our commitment to religious freedom, which is grounded in human dignity.  The extent to which manifestations of this pluralism may or should be regulated, or subordinated to the "just demands of public order" is a question that has to be answered by someone, and it does not seem to me that the Smith resolution of this matter is best interpreted as denying the importance -- the goodness -- of religion.

Pope Francis marks the 25th anniversary of Evangelium Vitae

Putting aside the discomfort it causes when things that happened just yesterday turn out to have happened 25 years ago . . .  Here are Pope Francis's general-audience remarks on the occasion of the 25th anniversary of The Gospel of Life.  

"Proxy Wars Over Religious Liberty"

In the latest/current issue of National Affairs (an excellent publication, IMHO), there's a good essay by Ryan Anderson called Proxy Wars Over Religion.  A bit:

The past decade has witnessed some intense battles over religious liberty. But when you consider the character of those battles, it's often hard to avoid the conclusion that both sides have treated religious liberty as the subject under debate in order to avoid the real points of dispute between them. The resulting political arguments have given us all the impression that religious liberty is more controversial with the American public than it really is, and therefore that the progressive enemies of religious liberty have the political winds at their back. To recover a clearer sense of the matter, we need to be more careful in what we expect of religious liberty and how we understand it. . . . 

This unwillingness to engage the substantive moral debates that actually divide us in the culture war leaves us fighting proxy wars over religious liberty. These wars confuse the issue, and put at risk our capacity to defend the rightful place and purpose of religious liberty. . . .

What It Means To Be Human: The Case for the Body in Public Bioethics

Congratulations to my friend and colleague, Carter Snead, on his forthcoming (timely, important) book, What It Means To Be Human.  As longtime MOJ readers know [Ed.:  All too well, Rick; you never shut up about it.]  The issue of moral anthropology is at the heart and foundation of any plausible account of "Catholic Legal Theory."   Here's a blurb: 

The natural limits of the human body make us vulnerable and therefore dependent, throughout our lives, on others. Yet American law and policy disregard these stubborn facts, with statutes and judicial decisions that presume people to be autonomous, defined by their capacity to choose. As legal scholar O. Carter Snead points out, this individualistic ideology captures important truths about human freedom, but it also means that we have no obligations to each other unless we actively, voluntarily embrace them. Under such circumstances, the neediest must rely on charitable care. When it is not forthcoming, law and policy cannot adequately respond.

What It Means to Be Human makes the case for a new paradigm, one that better represents the gifts and challenges of being human. Inspired by the insights of Alasdair MacIntyre and Charles Taylor, Snead proposes a vision of human identity and flourishing that supports those who are profoundly vulnerable and dependent―children, the disabled, and the elderly. To show how such a vision would affect law and policy, he addresses three complex issues in bioethics: abortion, assisted reproductive technology, and end-of-life decisions. Avoiding typical dichotomies of conservative-versus-liberal and secular-versus-religious, Snead recasts debates over these issues and situates them within his framework of embodiment and dependence. He concludes that, if the law is built on premises that reflect the fully lived reality of life, it will provide support for the vulnerable, including the unborn, mothers, families, and those nearing the end of their lives. In this way, he argues, policy can ensure that people have the care they need in order to thrive.

In this provocative and consequential book, Snead rethinks how the law represents human experiences so that it might govern more wisely, justly, and humanely.

I've read the MS, and it's wonderful, in the tradition of Meilaender, Kass, MacIntyre . . . 

Higher Education Post COVID-19

Experts and pundits are already weighing in as to how the COVID-19 pandemic might change the landscape of higher education.  While the results of this pandemic might prove to be financially devastating, I'm not quite ready to agree that it will directly cause any radical change in the way most Americans view universities and the value they bring.

One very likely scenario is that some tuition dependent smaller colleges and universities close or enter into merger agreements.  But, this was already an impending outcome for these struggling institutions well before the corona virus.  This article in the Chronicle of Higher Education offers some interesting points.

One cable news personality, Tucker Carlson, delivered a four minute anti-college rant a few days ago.  It's worth watching, but I think Carlson pretty much got it all wrong.  At one point Carlson suggests that students will see the new value in online education and opt to keep learning over computer screens instead of reporting to college campuses.  Carlson at one point says, "You can do the whole thing online."  Of course, I'm biased as a university instructor and administrator, but you can't just "do the whole thing" online, whatever that means.  It's attitudes like this that make education seem like a commodity or business transaction rather than teaching students how to live better lives, become lifelong learners, and advance the common good.  That is especially true at the nearly two hundred colleges and universities in the U.S, affiliated with the Catholic Church.  I have no doubt that some colleges will suffer in the very near future.  And, I think it's fair to say that many institutions need to be smarter about their budgets moving forward.  However, I'd be surprised if this disastrous time convinces more students and families to seek online education as an alternative to traditional college, at least at the undergraduate level.  If anything, it might cause more students to realize just how much they value campus life.

Can Health Care Providers Discriminate Against COVID-19 Patients on Basis of Age or Disability?

Press Release

Can Health Care Providers Discriminate Against COVID-19 Patients on Basis of Age or Disability?

Thomas More Society & Freedom of Conscience Defense Fund Warn: Age or Disability-Based Denials Violate Rights 

Media contact: Tom Ciesielka, 312.422.1333, [email protected]

(March 23, 2020 – Rancho Santa Fe, California) Current anxiety about the COVID-19 pandemic has been multiplied by the suggestion of “health care rationing” based on the age or disability of infected patients. Attorneys representing the Freedom of Conscience Defense Fund and the Thomas More Society have published a legal memorandum detailing the tenets of federal law and explaining that federal civil rights statutes prohibit discrimination - including discriminatory policies established by state health officials - based on age or disability.

The memorandum was prepared and released at the request of  three prominent scholars after reports that several state level authorities were considering the rationing of care based on age or disability in the wake of critical medical supply shortages and severe strains on health systems, facilities, and staffs.

Charles LiMandri, partner at LiMandri & Jonna LLP, in his capacity as Special Counsel for the Freedom of Conscience Defense Fund and the Thomas More Society, was the lead attorney on the memorandum that confirms the prohibitions of discriminatory health care decisions under federal civil rights laws.

“The present pandemic may be used to try to justify the ‘hard decision’ to issue policies rationing care on the basis of disability or age,” writes LiMandri. “Doing so, however, would violate federal law regarding invidious discrimination. It will open up the purveyors of those policies to legal liability.”

Thomas More Society Vice President and Senior Counsel Peter Breen explained, “We’re reading the unthinkable – the Seattle Times reported that Washington state and hospital officials have been meeting to consider how to decide who lives and dies. In our nation’s capital, the Washington Post is running editorials about the ‘nightmare’ of rationing health care, as is the National Review in the hard-hit state of New York. The horrific idea of withholding care from someone because they are elderly or disabled, is untenable and represents a giant step in the devaluation of each and every human life in America.”

Princeton University’s Dr. Robert P. George, along with Harvard University sociologist Dr. Jacqueline C. Rivers, and bioethicist Dr. Charles C. Camosy of Fordham University, made the request of the Freedom of Conscience Defense Fund and the Thomas More Society, both of whom LiMandri serves as litigation counsel.

The three have heavyweight credentials. George, Princeton’s McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, has also served on the U.S. Commission on Civil Rights and the President’s Council on Bioethics. Rivers is a lecturer at Harvard and is the executive director of the Seymour Institute for Black Church and Policy Studies. Camosy has authored five books examining cultural ethics, including the healthcare focused Too Expensive to Treat?

The joint legal analysis concluded that withholding care based on age or disability would indeed be contrary to federal law, which requires that, “Decisions regarding the critical care of patients during the current crisis must not discriminate on the basis of disability or age. Decisions must be made solely on clinical factors as to which patients have the greatest need and the best prospect of a good medical outcome. Therefore, disability and age should not be used as categorical exclusions in making these critical decisions.”

LiMandri observed that, “All those involved in making critical decisions concerning who gets such life-saving care, including the use of a limited supply of respirators, would be wise to heed this advice.”

Read the March 23, 2020, Memorandum on Federal Law on Rationing Medical Care on the Bases of Disability and Age, published by attorney Charles LiMandri, of LiMandri & Jonna LLP, in the capacity of Special Counsel with the Freedom of Conscience Defense Fund and the Thomas More Society here [https://www.thomasmoresociety.org/wp-content/uploads/2020/03/Age-and-Disability-Discrimination-Memo_FINAL.pdf].

About the Freedom of Conscience Defense Fund

The Freedom of Conscience Defense Fund is a nonprofit civil rights organization dedicated to vindicating the constitutional rights of all Americans. Through impact litigation, educational programs and policy advocacy, the Freedom of Conscience Defense Fund spearheads initiatives on issues related to religious freedom, bioethics, and American values, with a focus on funding trial-level constitutional litigation. For more information, visit fcdflegal.org.

 

About the Thomas More Society

The Thomas More Society is a national not-for-profit law firm dedicated to restoring respect in law for life, family, and religious liberty. Headquartered in Chicago, Omaha, and Fairfield, NJ, the Thomas More Society fosters support for these causes by providing high quality pro bono legal services from local trial courts all the way up to the United States Supreme Court. For more information, visit thomasmoresociety.org.

 

Reflections on Liturgy and Community in the midst of the COVID-19 crisis

As citizens concerned about “flattening the curve” of the impact of the Corona virus, especially for our most vulnerable populations, here in my Maryland Focolare community house we are hunkered down indoors, pretty much emerging only for essential groceries and a socially distanced walk in the neighborhood. 

As we stayed home yesterday (Sunday), what to make of the cessation of public liturgies? I realize there has been some discussion in the religious press about whether this is a sign of solidarity or of cowardly capitulation.  Personally, I see it as an unambiguous sign of wise, prudent, loving solidarity. 

Perhaps because of our community’s international reach, the news of the tragic proportion of the crisis, especially in Italy and other countries, often arrives with a very individual human face: the illness or death of someone we know, or of their relatives, of a community leader in a specific city, and yesterday the news that in one Italian town a whole convent of 40 religious sisters is infected.

With this awareness, I have received the national and local public health recommendations with tremendous sense of gravity.  As a Catholic who in normal times is a daily mass goer, this past week I have found great solace by participating in a recording of the daily mass celebrated by Pope Francis.  I have been wonderfully nourished by his essential homilies, petitions that embrace the wide range of suffering on our planet, and the profound invitation to reverent “spiritual communion.” 

When the Holy Father pauses at length before the Blessed Sacrament at the end of the liturgy, I of course realize that there is a tremendous difference between physical presence in church and my interaction with a recording on a screen.

But in these circumstances, I also sense that this enormous gap can be filled with love: the love that emerges from being united with our local Archbishop, who issued the guidelines to not publicly gather; love for those who are most vulnerable to the virus, especially those who are elderly or with fragile health; and of course a very concrete love for our medical workers, with the awareness of how reductions in public gatherings can contribute to keeping them from getting overwhelmed… and so on.

We are One Body, the Body of Christ – and we are experiencing that reality in a way that I never imagined we could. 

So what is mine to do in these circumstances?  First, I feel a very deep invitation to prayer.  Struggling with insomnia as I worry about the people in my life who are vulnerable, I have been pasting tiny post-its with their names on a large picture of “Mary Untier of Knots,” and I feel that with this Our Lady herself is helping me to let her hold those fears in her loving hands.  Second, I try to reach out (via email, zoom or phone) to at least two people per day (beyond those in my community house), to simply check in, listen, and participate in whatever they are going through, to again bring all of those concerns to prayer. 

Finally, leaning on these two walking sticks, I have sensed over the past week that these practices nourish the insight that I need to be thoughtful in my approach to accompanying my students as we proceed with a virtual teaching platform.  I intuit that they may need different things at different times:  some need continuity in the projects that they have undertaken, others need flexibility, and others are in dire need of a listening ear.  And perhaps most fruitful, these practices also help me to admit that I too feel vulnerable, and greatly in need of a sense of connection and community.   Amy Uelmen

International Law and Religion Moot Court - Brazil 2020

The International Law and Religion Moot Court is a competition organized by the Brazilian Center of Studies in Law and Religion that will take place in Uberlandia, Brazil, between 16 and 18 of June 2020. The Competition is designed to contribute to the training of law students in subjects related to International Human Rights Law as well as Law and Religion.

Read more here.

"On the coronavirus, rapid aging, falling fertility, and Humanae Vitae"

An interesting piece by the always-perceptive John Allen:

Amid the scramble to find a cure for the coronavirus and, in the meantime, to enforce restrictive measures to try to slow down its expansion, there’s been relatively little attention to the underlying factors which may explain why some places have been harder hit, more quickly, than others.

One emerging hypothesis, however, is that there may be a correlation between declining fertility rates and rapidly rising elderly populations in many societies around the world, and the extent to which those societies have been impacted by the coronavirus.

For the Catholic Church, which has sounded alarms about declining fertility for decades, the situation could offer a grim confirmation of its diagnosis that a rapidly aging society places its future in jeopardy – though no one’s likely to celebrate that it’s required a global pandemic which, to date, has claimed more than 7,000 lives, to put the issue back on the table. . . .

Read the whole thing.