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.

Saturday, September 25, 2004

A Catholic Health Plan as Substandard Care

Today's New York Times reports on a new "Catholic" health plan offered as part of the package of choices given to federal employees:

The Bush administration has broken new ground in its "faith-based" initiative, this time by offering federal employees a Catholic health plan that specifically excludes payment for contraceptives, abortion, sterilization and artificial insemination.

Among a bevy of nonsensical quotes in the article, the prize for silliness goes to Frances Kissling:

Frances Kissling, president of Catholics for a Free Choice, an independent organization of Catholics who support reproductive choices, criticized the inclusion of a plan with such restrictions in the federal program.

"I don't think substandard medical care should be offered through the federal government," she said.

So now not only does the group Catholics for a Free Choice stand for the availability of procedures like abortion, sterilization, artificial insemination, and contraceptives, but if individuals choose to forego those procedures, they have subjected themselves to substandard health care? This certainly gives some indication of the particular conception of "choice" with which the group is concerned.


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

Friday, September 24, 2004

Seventh Circuit opinion in forced-abortion asylum case

The Seventh Circuit has ruled in an immigration case involving a woman seeking asylum to avoid China's practice of forced sterilizations and abortions.

Unfortunately, in what has to be one of the most offensive, snide, and injudicious judicial opinions I have ever read, Judge Evans felt compelled to complain that the Court's ruling (in the woman's favor) would "open the floodgates" to those who "take issue with" China's practices and "do[] not want to submit to [China's] population control policy" (Imagine! The nerve of these people! "Not want[ing] to submit"!):

The majority opinion is beautifully written and quite persuasive. Yet, despite the fact that it concludes by saying we are "not holding here that every woman of childbearing age in China will automatically be entitled to asylum in this country, because they are all potentially subject to the coercive family planning policies," I think, as a practical matter, we are either doing, or coming close to doing, just that. How is Lin's case going to be different from that of any other Chinese woman who takes issue with China's policy and arrives here saying she does not want to submit to its population control policy?

No doubt, Lin's story (if true) is quite compelling. Who would want the state to force a woman to have an abortion? On the other hand, China has a huge population problem, and there are people who applaud efforts to fix it. But when Congress, in 1996, amended the law to add forced abortion as a ground for granting refugee status, it made a value judgment about China's population control policy. That is interesting because it looks a bit like the congressional antiabortion faction outmaneuvered its anti-immigration faction-- which itself is ironic, given that most members of Congress who belong to one o f the factions belong to the other as well. Given the present state of law, it seems that every Chinese woman of childbearing age who says, to quote the words of the statute, that she is in a state of "resistance to a coercive population control program," can only be denied asylum in America if her story is incredible. As a practical matter, that's pretty hard to establish. So, given the present state of the law, the floodgates are probably open. . . .

This is amazing. "On the other hand"? "[T]here are people who applaud efforts to fix [China's 'huge population problem']"? How morally obtuse can this "judge" be? Yes, Congress did "make a value judgment about China's population control policy." How could it not?


September 24, 2004 | Permalink | TrackBack (1)

Bankruptcy in the Church

This week the diocese of Tucson became the second to file for bankruptcy, further underscoring the importance and timeliness of Seton Hall Law School's upcoming conference, Bankruptcy in the Religious Non-Profit Context, scheduled for November 5 and featuring a stellar scholarly lineup, including MoJ's own Mark Sargent.


September 24, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Hon. Richard S. Arnold, R.I.P.

I was blessed, after law school, with the opportunity to work for a brilliant and decent man, Judge Richard S. Arnold of the United States Court of Appeals. He died late last night, after a long struggle with cancer and related complications.

The Judge was humane, wise, and devout. I'd encourage any MOJ readers who are law students to track down (on Westlaw, etc.) one of the many tributes to the Judge that have been written over the years. There are few like him. In terms of the law, he was an old-school liberal who admired both Justice Black and Justice Brennan, and a textualist with originalist leanings who loved and respected Justice Scalia; he was a "strict separationist" who really did believe that such a legal regime was essential to preserving religious freedom; he was passionately committed to fairness and to the dignity and rights of litigants and defendants; he knew that the law should be just, yet knew also that judges cannot right every wrong. His writing was at the same time elegant and simple, clear and memorable.

On a more personal level, he was a southern gentleman -- dignified, unfailingly gracious, and inspiringly considerate. He studied scripture daily, took long retreats with monks, saw God at work in the world. He advised and taught my wife and me about law, but also about faith and family.

God bless him.

Here is Howard Bashman's post on the news, with a link to the local paper's story.


September 24, 2004 | Permalink | TrackBack (2)

Thursday, September 23, 2004

Recommended Reading

In the September 27th issue of AMERICA, which is published by Jesuits of the United States, there are (at least) three items that readers of this blog may be greatly interested in:

George Weigel, "A Catholic Votes for George W. Bush".

James R. Kelly, "A Catholic Votes for John Kerry".

Thomas E. Buckley, "A Mandate for Anti-Catholicism: The Blaine Amendment".

September 23, 2004 in Perry, Michael | Permalink | TrackBack (0)

Abu Ghraib and the Moral Lawyer

Much of my writing focuses on the relationship between a lawyer's own moral identity and her practice of law. On that theme, I have a new paper posted in the column on the right titled Tortured Ethics: Abu Ghraib and the Moral Lawyer. Here's the abstract:

By appearing to offer a legal justification of torture, attorneys at the Department of Justice’s Office of Legal Counsel stand accused of facilitating the government’s mistreatment of prisoners held in the war against terrorism. This article seeks to place attorneys’ complicity in the prisoner abuse scandal into a broader professional context, exploring the purported amorality that serves as the foundation for the infamous “torture memorandum” and, more broadly, for the ethical paradigms under which American lawyers operate every day. Specifically, the article argues that attorneys’ own moral convictions are inexorably part of the interpretive dynamic that makes the attorney-client dialogue possible, whether acknowledged by the attorney or not. When the attorney’s advice is pitched in exclusively legal terms – as was the torture memorandum – the moral component is not erased, but rather is forced into the background, where it is not susceptible to exploration by the client. As such, the lawyer’s interpretive morality is neither challenged nor endorsed by the client; it simply holds sway over the course of representation. In this regard, the amorality of legal advice is a fiction, but not a harmless fiction, for it facilitates the tendency of clients to equate legality with permissibility. This article traces the paths by which attorneys’ own moral convictions can be brought to the surface of the attorney-client dialogue.

Feedback, as always, is welcome.


September 23, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Subsidiarity as Subversion

I have a new paper titled Subsidiarity as Subversion: Local Power, Legal Norms, and the Liberal State, which is posted under my name in the right-hand column. The paper starts with the observation that subsidiarity seems to be a doctrine that is endlessly moldable, depending on one's preexisting view of society's proper organization, as witnessed through its invocation by actors as diverse as Catholic social progressives, the European Union and the Bush Administration. In reality, though:

Subsidiarity’s seeming vacuity arises only when the doctrine is shorn from its surrounding web of truth claims; therein lies its vulnerability to secular domestication. This article seeks to recapture the radical edge of subsidiarity by reconnecting its localizing framework with the substantive anthropological vision of solidarity. Understood in this context, subsidiarity reveals itself as a proposition that is fundamentally subversive to the hyperindividualist norms espoused and increasingly enforced by the liberal state. Specifically, subsidiarity calls for individuals and communities to recognize the objective value of the human person as they strive to meet the needs of those around them.

This call stands in direct opposition to modern America’s brand of liberalism, which appears to value consumer autonomy above all else and increasingly seems willing to collectivize its consumerist norms by legally precluding the exercise of moral agency by providers of certain goods and services. In this regard, the maintenance of subsidiarity’s framework will require a vigorous defense of moral autonomy beyond that of the consumer. This takes us into the realm of value pluralism, for the surrounding society’s emerging conception of the common good appears unlikely to embrace such a defense. In other words, for subsidiarity to continue facilitating the common good as conceived of by Catholic social teaching, society must be persuaded to make room for multiple conceptions of the good, not simply seek to collectivize the Church’s anthropologically authentic conception.

I welcome any feedback on my argument. For those interested, I'll be presenting the paper on October 8 at Villanova's Conference on Catholic Social Thought and the Law.


September 23, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Wednesday, September 22, 2004

Some interesting church-state news

Amy Welborn has several interesting and provocative posts up, including this one on a clergy-abuse lawsuit in Calfornia ("Arguing for the church, lawyer Paul Gaspari said the Constitution forbade punishing the church for the standards it sets for the ordination of priests.'), and this one, dealing with the efforts of the "Interfaith Alliance" to identify churches that, in the Alliance's view, are violating their obligations under the federal tax laws by endorsing political candidates.


September 22, 2004 | Permalink | TrackBack (1)

K. Woodward on Cuomo and Abortion

The current issue of Commonweal includes this article, by Kenneth Woodward: "Catholics, Politics, and Abortion." Woodward notes, with respect to Gov. Mario Cuomo's famous "Notre Dame speech", that:

At this point it is worth noting what Cuomo did not say, as well as what he did. Never once did he say that abortion was evil, intrinsically or otherwise. Never once did he say-as the bishops had, as he himself could have-that opposition to abortion as a matter of public morality is a defense of the human rights of the unborn. Never once did he say the abortion dispute is a disagreement over the scope of social justice. He did not say these things, and never has, I believe, because doing so would make his position difficult if not impossible to defend. He did not say these things, and never has, because, as I think his record makes clear, he does not believe them to be true.

Here is Gov. Cuomo's response. He writes, among other things:

I am not a philosopher or theologian, or even a gifted writer on religion who can, on my own, arrive at sure conclusions about when life as a human being begins. I am an old-fashioned Catholic sinner who needs my church desperately and who chooses to live by my church’s rules because my Catholicism is based on faith and not pure intellect. That faith is strong enough to keep me Catholic, but surely a willingness to believe what I cannot myself prove is no basis on which to build a consensus of Americans (even Catholic Americans) in favor of a ban on all abortions from conception on, even to save the life of the mother.


September 22, 2004 | Permalink | TrackBack (0)

Tuesday, September 21, 2004

Asking the State to save the Church

According to this news story, "[r]esidents eager to preserve the open space and architecture of Our Lady Help of Christians Catholic church packed the Town House Monday night in an attempt to convince the Board of Selectmen to protect the site from development." OLHC is a parish that the Archdiocese of Boston has slated for closing. As many MOJ readers likely already know, there have been movements in several Boston parishes to resist the closure decisions. I understand that the parish-closing issue is difficult and controversial, but I cannot help thinking that it is a bad idea for parishioners to turn to the State, and ask government officials to (in effect) threaten to take Church property, in an effort to try to pressure Bishop O'Malley into changing his mind about this (or any other) parish closing.


September 21, 2004 | Permalink | TrackBack (0)