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, April 30, 2004

Christianity in India

Following up on discussion about evangelization in India, here is a worthwhile article about the growth of Christianity in that country (thanks to Christus Victor for the link).


April 30, 2004 | Permalink | TrackBack (0)

Thursday, April 29, 2004

End of Life 2

The Pope has recently said (or so I am told by several sources) that withholding of nutrition and hydration from those in a persistent vegetative state is close to if not the same thing as euthanasia by omission. I also understand from an NPR story this morning (is this a good source?) that the practice in many Catholic hospitals has been to treat the withholding of nutrition and hydration as equivalent to the withholding of life support systems and that this latest development will cause major ripples (is this an understatement?) in Catholic health care in the United States.

I am not a medical ethicist, and I have not spent a great deal of time studying or thinking about this issue. But, when I first heard, several years ago, that the developing Catholic position was to treat the withholding of nutrition and hydration as equivalent to the withholding of life support systems, I was troubled by that conclusion. I intuitively rejected or was repulsed by the thought of purposely allowing a person to starve to death when the body (except for the ability to consciously take in food and water) continued to function on its own.

Bishop Sgreccia's paper, discussed below, as well as my limited understanding of our lives as gift (here placed into the service of those who can no longer take care of themselves), leads me to conclude that withholding of nutrition and hydration for those in a persistent vegetative state is very different from withholding life support from someone who lacks the brain function to keep the bodily system functioning as a “unitary organic life.”

Perhaps we have co-bloggers or readers who have studied these issues (and actually read the Pope’s statement), and can provide a more insightful and nuanced response to these developments and the cultural legal debate over end of life issues.

April 29, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Catherine of Siena

The antiphon for the Canticle of Zechariah in Morning Prayer this morning (Catherine's Feast Day) reads: "The holy virgin Catherine steadfastly begged the Lord to restore peace to his holy Church, alleluia." St. Catherine, please pray that peace may be restored in the Church and that Christ through the Spirit raise up holy bishops and priests to lead us. Amen!

April 29, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Tuesday, April 27, 2004

End of Life Issues

I commend to you Bishop Sgreccia's paper, The Subject in a Vegetative State: a Personalistic View, available from Zenit. Exploring the unitary nature of the human being (body and soul) from a Catholic theological anthropology and an ontologically based personalism, Bishop Sgreccia develops a criterion for determining when death occurs (thus allowing for transplants).

He concludes that a person in a persistent vegetative state cannot be considered dead. "[T]he difference between so-called cortical death and encephalic death is clear. In the first case the organism demonstrates the persistance of a unitary organic life, albeit of a vegetative kind -- it is able to breathe autonomously as well, it maintains cardio-circulatory activity, and it is able to be nourished if fed artificially. In the second case none of these funtions is carried out autonomously, respiratory activity is replaced by machines..."

Understanding these distinctions (and the Catholic position) is important for Catholics in the legal profession for both affirmative and defensive reasons. Affirmatively, proposing this anthropology is important in building a culture of life. Defensively, understanding these arguments will better equip us to protect the rights of conscience of health care workers when those rights are threatened by coercive legislation or hospital practice.

April 27, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Earth Day 3

Christine Hurt, a law professor at Marquette informed me that her friend and colleague Jame Schaefer (a professor in Marquette's theology department) writes on environmental ethics from a Catholic Christian perspective.


April 27, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Prosperity and its Discontents

Generally speaking, I believe that markets work, that efficiency matters, and that property- and entrepreneurship-rights are both practically and morally important. At the same time, I have a soft spot for anti-consumerism social critiques, agrarian nostalgia, "crunchy conservativism," the "family farm," and the "old neighborhood." So, while I am sympathetic to many of the arguments set out in Gregg Easterbrook's latest, a lot of what Radley Balko says in this essay -- "Prosperity's Nitpickers," also rings true.

Is there a way to combine the Burkean stance, described below by Steve, with Balko's exhuberant celebration of the many ways in which capitalism improves our lives?


UPDATE: Nate Oman has some thoughts. So does Gordon Smith.

April 27, 2004 | Permalink | TrackBack (3)

Monday, April 26, 2004

Reply to Mark

In his critique of my post on the Burkean nature of CST, Mark ultimately concedes my principal point; namely, that the methodology of CST is Burkean in nature:

Catholic Social Thought, in contrast, is very non-utopian, and certainly repects the situatedness (if that's a word) of human beings in their peculiar local and historical contexts. It does also emphasize the incremental, communal development of doctrine.
Which is the only point I was trying to make. I did not intend to - and would not - claim that the content of CST is Burkean, just the methodology.

April 26, 2004 | Permalink | TrackBack (1)

Burkean Christianity or Radical Christianity?

Steve's post about what he regards as the Burkean character of CST does capture an important aspect of CST, but not the whole picture. That becomes apparent when CST is thought of as part Christian thought more broadly. Christianity indeed has had an inherently "conservative" character in the Burkean sense of a lived tradition that carries meaning and justice in a way that abstract reason cannot; in its incremental approach to change (particularly in Catholicism); in its distrust of utopian (ie totalitarian) politics; in its Augustinian sense of the state's limited claims on the human person and so on. Indeed, as Charles Taylor pointed out in his recent book, MODERN SOCIAL IMAGINARIES, Christianity tended to sacralize existing social orders, to give them a spiritual framework and a mythology (i.e., the medieval concept of the "king's two bodies"). Taylor also points out, however, that Christianity has also always had a radically subversive nature, forcing the individual believer to challenge what he finds in the world around him in light of the Gospel. That subversiveness can lead to profoundly anti-conservative movements, such as the abolitionist and civil rights movements, both of which sought to disrupt traditional social arrangements by explicitly invoking natural law and the Gospel. The Catholic labor movement, long associated with the CST, also had some pretty subversive qualities. My sense is that the constant tension between a kind of conservativism and an explosive critique of the established order is what is most characteristic of Christianity. Of course, different Christian traditions emphasize different things. Christianity has had its share of utopian movements that are profoundly non-Burkean. Catholic Social Thought, in contrast, is very non-utopian, and certainly repects the situatedness (if that's a word) of human beings in their peculiar local and historical contexts. It does also emphasize the incremental, communal development of doctrine. So I guess it does have some of the characteristics Steve describes. I would say, however, that its Christian character -- and its profound critique of many of our social arrangements-- makes CST a bit more of a bomb-thrower (figuratively speaking) than Steve might think.

PS Steve, how can such a devoted contractarian in corporate law be such an anti-contractualist re morality? Is that because economic relations and morality are different?

- Mark

April 26, 2004 | Permalink | TrackBack (0)

Birth Announcement / School Choice

This is, I admit, shameless: I'm pleased to report the birth, on April 22, of Elizabeth Ann Garnett. In order to justify posting this announcement, I suppose I should point out -- given our discussions about school choice, religious freedom, and CST -- that St. Elizabeth Ann Seton serves as a patron to school-choice reforms and parochial-school boosters. God is good.


April 26, 2004 | Permalink | TrackBack (1)

Sunday, April 25, 2004

Physicians in Wisconsin: a moral power play?

In response to my post on the Wisconsin governor's promised veto of the new state "conscience clause" (see "An amoral vision of physicians," below), a Mirror of Justice reader emailed me to point out that the statute seems not simply to excuse physicians from actively participating in certain procedures, but also from providing information on certain procedures. The reader writes:

Should we allow doctors to refuse to provide information based on their moral beliefs? This might seem appropriate to us in the abortion context, but what happens when we get a doctor whose morals, unbeknownst to his patients, differ vastly from theirs on matters far less controversial than abortion? Under the law, (based on the description contained in the article) the doctor could refuse to provide information. Obviously, the appropriateness of this situation depends on the specifics, that is, whether the doctor has any duty to refer his patient to another doctor, whether the patient knew up front that the doctor refused to provide information on certain topics, whether the doctor's morals were disclosed at the outset, etc. My point is simply that in at least some circumstances, we're getting into dangerous territory when we allow doctors to refuse to provide medical information (or diagnoses) based on their moral beliefs. Thus, while I generally agree with your comments, I might take exception to that specific aspect of the law.

His email prompted me to track down a copy of the bill (AB 67 -- I'm not sure if this is the most recent version), and indeed it appears that my blanket endorsement of the statute may have been premature. One relevant section of the bill provides that "a hospital or employee of a hospital is immune from liability for any damage caused by a refusal to participate in [a range of activities, including abortion, sterilization, embryo research, fetal tissue transplants, withholding of nutrition/hydration, and euthanasia] if the refusal is based on religious or moral precepts." Significantly, "participate in" is defined very broadly: "to perform, assist in, recommend, counsel in favor of, make referrals for, prescribe, dispense, or administer drugs for, or otherwise promote, encourage, or aid."

The italicized language potentially excuses physicians even from providing information to a patient relating to a certain procedure and its applicability to the patient's circumstances. At a minimum, the statute does not appear to set forth (or preserve) any obligation to inform, as opposed to promote. If a woman's life is threatened by the continuation of her pregnancy, it should at least (in my view) be brought to her attention that abortion is an alternative, even if, for the physician, it is not an alternative in which he or she could participate in good conscience. Other parts of the statute state that a physician's moral or religious objection must be made in writing, which presumably gives the patient notice that the physician, as a general proposition, will not perform the procedure in question. But it is unlikely that a blanket notice will tell the patient much about abortion's potential relevance to the circumstances of her particular case.

Perhaps I'm misreading the statute. (If so, I'd welcome some enlightenment from a reader or co-blogger.) As I've indicated several times on this weblog, I am an unflagging supporter of allowing professionals to integrate their own moral and religious values with their provision of public goods. But I still believe that consumers must be empowered to make the ultimate decision about their own health care (or legal services, education, etc.) -- they just shouldn't be empowered to force a particular professional to facilitate it, especially when it embodies a morally objectionable vision of the good. But if Wisconsin means to allow physicians to avoid even making information about morally contested (but medically prudent) procedures available to the patient, the statute gives me pause. It's one thing to reinject a robust concept of moral agency into the physician's role; it's quite another to give the physician a statutory trump over the patient's own moral agency.


April 25, 2004 in Vischer, Rob | Permalink | TrackBack (1)