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.

Monday, February 27, 2006

More on Contraceptives versus Abortifacients

Patrick Shrake (a recent graduate of the St. Thomas Law School) sent me the following on the distinction between contraception and abortifacients:

Everyone agrees that "conception" occurs when the ovum and sperm unite. I don't know if it is possible to find a reputable scientist that would argue that life does not begin at the moment-though many will argue about the value of that life. A simple understanding of English (& Latin) should lead everyone to agree that "contraception" means "against conception" and that a contraceptive works by working "against conception." However, many don't like the precision that such words formerly gave, and so a discussion of when "pregnancy" begins became important to organizations like the AMA.

Nonetheless, I think it useful to think of the matter like this: If a "contraceptive" works by preventing fertilization, then it is working as a contraceptive. If it works by preventing implantation, then it works by killing the already conceived embryo. I think the simplest word for that is abortifacient.

I think this is much cleaner than the language I was using in earlier posts, but it doesn't necessarily resolve the question I was posing.  It does, however, help me (I hope) to clarify the nature of my question:   Given that, in some undefined subset of cases, the use of certain hormonal contraceptives results in the indirect destruction of embryos by preventing implantation, what would the Church say (or has it said) about the therapeutic use of such a contraceptive.  Specifically, would the therapeutic use of such a contraceptive (for non-contraceptive, non-abortive purposes) be inherently impermissible such that the contraceptive is considered evil in itself, or would the therapeutic use of the contraceptive be susceptible to a double effect analysis?  I don't think this question is answered by the Pope's statement today, but I'm wondering whether the Vatican has addressed this question elsewhere.

February 27, 2006 | Permalink | TrackBack (0)

More on the Dennett Controversy ...

Sightings  2/27/06

Doubting Dennett
-- Martin E. Marty

Last year it was Sam Harris's The End of Faith; this year it is Daniel C. Dennett's Breaking the Spell: Religion as a Natural Phenomenon that sets out to rally the anti-religious, and serves to fire up some defenders of religion. Neither lacks notice. Reviewers and editorialists savor conflict, some academics critical of religion sharpen their knives, and many preachers enjoy having sermon topics hand delivered to their pulpits. Next year we will repeat the cycle with someone else's book, as Americans have done since the middle of the eighteenth century.

Exactly fifty years ago I was writing my dissertation on the subject of how "infidels," "freethinkers," "atheists," etc. made use of religion, and how religionists of several sorts made use of them and their tracts and blasts. I have kept on tracking the partisans, noting along the way that the Harrises and the Dennetts do the faithful a favor. Instead of being indifferent, as most self-described non-religious scholars tend to be, they find faith important enough to oppose it. One can make the case that their opposition is helpful. It is easier to sneer back at a sneer than to effectively shrug off a shrug. A-theistic thought, Feuerbach- and Nietzsche-style, is quickening and, with its vital criticism, can encourage reform.

Meanwhile, the religious who get suckered into making emotional responses might take comfort from the knowledge that few people "lose the faith" because of books like these. Many of the religious, as they face their own doubts, show awareness of the faults in religious history and flaws in the communities of faith they themselves profess, and have thought of and faced up to all of these. I've never seen a partial percentage point of a blip downward in trends of support for religion in the face of "outsider" attacks.

Little of what I have written is fair to Tufts University professor Dennett, who makes his case for questioning all religion from the viewpoint of evolutionary biology. It is true that the neurosciences today pose more profound and disturbing questions than Darwinian evolution ever did. "God" reduced to something in the genome or "mysticism" to nothing but neuron firings in the brain produce real challenges, some of which Professor Dennett, albeit naively, furthers in his argument. I don't want to be a sneerer (William Paley: "Who can refute a sneer?"). I do want to tell what I took from a reading and from some reviews. For example, Leon Wieseltier, who savages the book in the New York Times Book Review (February 19), shows that Dennett flubs the case for reason, which he rather strangely defines, and whose backfiring on him he does not notice.

Dennett -- here's where naivete comes in -- wants religion to be studied just like every other phenomenon can be studied, namely "objectively." He seems unaware of the ways scholars in many disciplines question "objectivity," how many students of religion are aware of "hermeneutics" in ways that he is not, how "phenomenologists" among them learn to bracket their own commitments when studying something complex.

Criticism from within religious communities for two centuries, or maybe twenty, has shaken the foundations of the faiths that it often purifies. Maybe next year's critical sensation will show awareness of the kinds of criticisms that have been going on for a long time -- never "objectively."

For Further Reading:
For those who would like a succinct summary of Dennett's proposal, M.E.M. suggests "Common-Sense Religion" by Daniel C. Dennett, in the Chronicle of Higher Education (January 20).

Martin E. Marty's biography, current projects, upcoming events, publications, and contact information can be found at www.illuminos.com.
Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

February 27, 2006 in Perry, Michael | Permalink | TrackBack (0)

Elizabeth Brown (St. Thomas Law School) on Plan B

I received several helpful e-mails providing more information on the distinction between contraception and abortifacients.  They generally agreed on the following information, which I received from Elizabeth Brown, and thought I'd post here (thanks also to Denise Hunnell, MD, who sent along very similar information):

While everyone agrees that an abortion is the termination of a pregnancy, the problem is that everyone does not define when pregnancy begins in the same way.  The American Medical Association defines pregnancy as beginning when a fertilized egg implants in the uterus.  Other groups, like the Catholic Church, define life and pregnancy as beginning when the sperm fertilizes the egg.    

Plan B or the morning after pill is like taking two or three regular birth control pills at once.   Generally, Plan B is taken in two doses within 12 hours of each other.  Like regular birth control pills, it can prevent ovulation, or it can prevent the fertilization of the egg, or it can prevent a fertilized egg from implanting in the uterus.  Plan B cannot disrupt or end an established pregnancy, i.e., it doesn’t have any effect if the fertilized egg has implanted in the uterus.  Plan B only works if it is administered 72 hours after having unprotected sex.  If taken within 24 hours, Plan B has a 95% success rate at preventing pregnancy.  The later in that period that a woman begins taking it, the less effective it is.  If begun within 48-72 hours, it only has a 58% success rate at preventing pregnancy. 

As noted above, the American Medical Association defines pregnancy as beginning when a fertilized egg implants in the uterus.  As a result, the AMA does not view Plan B as an abortifacient because it is not terminating an established pregnancy (as the AMA defines pregnancy).  See AMA House of Delegates resolution opposing the FDA’s decision not to allow Plan B without a prescription.


Many groups opposing Plan B view any fertilized egg as a human being and thus, any chemical that prevents a fertilized egg from implanting is, in their definition, an abortifacient.

Plan B is different from RU-486, or the abortion pill, which is administered 4-7 weeks into a pregnancy and is designed to terminate the pregnancy.  In the case of RU-486, everyone agrees that a viable pregnancy exists and will end if RU-486 is administered.

Not every woman, who has unprotected sex and does not use contraceptives, will become pregnant.  In addition, about 40-60% of fertilized eggs naturally fail to implant on their own.

At this point in time, there is no way for anyone to know whether unprotected sex has resulted in a fertilized egg or not because pregnancy tests can only detect an implanted fertilized egg.  So neither the woman taking Plan B nor the doctor prescribing Plan B nor the pharmacist dispensing Plan B can know for certain that the medication will, in fact, terminate a fertilized egg, instead of merely preventing ovulation, preventing fertilization, or doing nothing.

For more information on Plan B, see http://www.uspharmacist.com/index.asp?show=article&page=8_1567.htm

In general, Plan B may be viewed as being a bit like Russian Roulette.  There is a very small chance that it will, in fact, terminate a fertilized egg compared to the chance that it will prevent ovulation or fertilization or do nothing.  If it prevents ovulation or fertilization then it is no different that any other contraceptive. 

February 27, 2006 | Permalink | TrackBack (0)

Religious Liberty Cases and Catholics: Guest Blogging at The Volokh Conspiracy

In recent empirical study of judicial decisionmaking, Michael Heise (Cornell), Andy Morriss (Case Western), and I have been exploring religious liberty cases in the lower federal courts. The enduring legal myth is that members of minority religious groups face a decidedly uphill battle in securing accommodation for unconventional religious practices, expression, or values from the courts. According to the conventional wisdom, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. However based upon our empirical study of religious liberty decisions in the federal courts, the proposition that minority religions are less successful with their claims was found to be without support, at least in the modern era and in the lower federal courts. In fact, counter to popular belief, adherents to traditionalist Christian faiths, notably Roman Catholics and Baptists, appear to be the ones that today enter the courthouse doors at a disadvantage.

For the next week, I will be guest-blogging once daily on the subject of this study and the nature and meaning of the findings at "The Volokh Conspiracy" (volokh.com), identified just last week in the Wall Street Journal as one of the leading legal blogs in the country (hence my great appreciation for being invited by Eugene Volokh to share some ideas on this topic with his readers). I invite "Mirror of Justice" readers to surf over and, after the week is concluded, I may continue the conversation and respond further to comments back here at home on the "Mirror of Justice."

Greg Sisk

February 27, 2006 in Sisk, Greg | Permalink | TrackBack (0)

The Pre-Implantation Embryo

In his statement today to the Pontifical Academy for Life (at this conference), Pope Benedict:

reaffirmed Catholic teaching that life begins at the moment of conception, saying embryos are "sacred and inviolable" even before they become implanted in a mother's uterus. . . .

By making such a defense of life, the Pope appeared to be trying to cut short any debate that the period between conception and implantation could be seen as a time for legitimate experimentation or manipulation on embryos.


February 27, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Factual Question on Oral Contraception

After re-reading some of these posts on contraception and pharmacists and looking over some of the left-wing blogs' takes on this question, I am a little bit confused about the distinction between abortifacients and oral contraception.  My understanding is that oral contraceptives are permissible for therapeutic purposes, even though they can prevent implantation of a fertilized ovum.  (Ironically, oral contraceptives are sometimes used as part of fertility treatments (to sort of re-zero the hormonal clock).)  Some of the things I've read suggest that Plan B works in the same way.  What exactly is meant by an abortifacient?  Does the hierarchy consider normal oral contraceptives to be such?  (Is the only difference between oral contraceptives and so-called "emergency contraception" the intent of the user?)  I would have thought that abortifacient means something that directly kills an embryo.  But maybe there's something about the hierarchy's teachings on oral contraceptives that I'm misunderstanding.  Can someone point me towards a good (and recent) scholarly analysis of the question? 

February 27, 2006 | Permalink | TrackBack (0)

Carozza on "Secularity or Secularism"

Here is a link to a helpful and thoughtful piece by MOJ-friend Paolo Carozza (Notre Dame), called "Free Church and Limited State," on how "[t]he religious character of American culture and the role of the Church in public debate reveal why a concordat between Church and State is superfluous in the USA."  Here is a bit:

Our law respects and protects that central role that religion has played in our collective life. We have a capacious understanding of freedom of religion, which recognizes that an important part of the liberty of religious communities is the capacity to speak and act publicly on questions of common concern. At the same time, the dominant American notions of freedom of speech are substantially more unrestricted than the prevailing European ones. Much of our tolerance for the presence of religiously informed views on controversial social issues is the consequence of the idea that all speech is given space to be heard in the public square, even if it is unpopular or offensive to some others. This is especially important given the great pluralism of religious identity and commitment among Americans. It is not the role of the state to be the arbiter of what is acceptable as public discourse, and so the law protects the liberty of all to express their views–even, or perhaps especially, those whose views are informed by their religious convictions.
Here there is a close connection between American views of the place of religion in public and American views of the state. While the legacy of nineteenth-century constitutional theories in continental Europe emphasizes the monopoly of the state as the embodiment of the public interest, the United States belongs to a constitutional tradition much more inclined to see the state as a limited actor in the social fabric. From this side of the Atlantic, a Concordat appears to be a response to the need to establish certain protections for the Church against the state’s claim of exclusive and ultimate power and authority. But in a context such as ours, where the freedom of the Church is largely guaranteed by the structural limitations of the state to interfere in her affairs, a Concordat seems to be superfluous. To give a specific example: there is no need for a special agreement ensuring the right of the Church to establish its own educational system, because the state does not have a monopoly of power over education to begin with and so cannot prohibit the creation and operation of religiously affiliated schools.

February 27, 2006 in Garnett, Rick | Permalink | TrackBack (0)

Sunday, February 26, 2006

Catholic Conservative William F. Buckley on Iraq ... Food for Thought

National Review Online

It Didn’t Work
William F. Buckley, Jr.

"I can tell you the main reason behind all our woes — it is America." The New York Times reporter is quoting the complaint of a clothing merchant in a Sunni stronghold in Iraq. "Everything that is going on between Sunni and Shiites, the troublemaker in the middle is America."

One can't doubt that the American objective in Iraq has failed. The same edition of the paper quotes a fellow of the American Enterprise Institute. Mr. Reuel Marc Gerecht backed the American intervention. He now speaks of the bombing of the especially sacred Shiite mosque in Samara and what that has precipitated in the way of revenge. He concludes that “The bombing has completely demolished” what was being attempted — to bring Sunnis into the defense and interior ministries.

Our mission has failed because Iraqi animosities have proved uncontainable by an invading army of 130,000 Americans. The great human reserves that call for civil life haven't proved strong enough. No doubt they are latently there, but they have not been able to contend against the ice men who move about in the shadows with bombs and grenades and pistols.

The Iraqis we hear about are first indignant, and then infuriated, that Americans aren't on the scene to protect them and to punish the aggressors. And so they join the clothing merchant who says that everything is the fault of the Americans.

The Iranian president, Mahmoud Ahmadinejad, elucidates on the complaint against Americans. It is not only that the invaders are American, it is that they are "Zionists." It would not be surprising to learn from an anonymously cited American soldier that he can understand why Saddam Hussein was needed to keep the Sunnis and the Shiites from each others' throats.

A problem for American policymakers — for President Bush, ultimately — is to cope with the postulates and decide how to proceed.

One of these postulates, from the beginning, was that the Iraqi people, whatever their tribal differences, would suspend internal divisions in order to get on with life in a political structure that guaranteed them religious freedom.

The accompanying postulate was that the invading American army would succeed in training Iraqi soldiers and policymkers to cope with insurgents bent on violence.

This last did not happen. And the administration has, now, to cope with failure. It can defend itself historically, standing by the inherent reasonableness of the postulates. After all, they govern our policies in Latin America, in Africa, and in much of Asia. The failure in Iraq does not force us to generalize that violence and antidemocratic movements always prevail. It does call on us to adjust to the question, What do we do when we see that the postulates do not prevail — in the absence of interventionist measures (we used these against Hirohito and Hitler) which we simply are not prepared to take? It is healthier for the disillusioned American to concede that in one theater in the Mideast, the postulates didn't work. The alternative would be to abandon the postulates. To do that would be to register a kind of philosophical despair. The killer insurgents are not entitled to blow up the shrine of American idealism.

Mr. Bush has a very difficult internal problem here because to make the kind of concession that is strategically appropriate requires a mitigation of policies he has several times affirmed in high-flown pronouncements. His challenge is to persuade himself that he can submit to a historical reality without forswearing basic commitments in foreign policy.

He will certainly face the current development as military leaders are expected to do: They are called upon to acknowledge a tactical setback, but to insist on the survival of strategic policies.

Yes, but within their own counsels, different plans have to be made. And the kernel here is the acknowledgment of defeat.

February 26, 2006 in Perry, Michael | Permalink | TrackBack (0)

Religion in MMOGs

I once started, but made no progress on, an essay about religion -- or, more precisely, religious freedom -- in MMOGs ("massively multiplayer online games").  I wondered, what would it mean for an "avatar" (i.e., the "digital you" in virtual-world games) to enjoy and exercise religious freedom?  I was not thinking so much about any real-world, religious-freedom rights that we might have to participate in MMOGs, or about any constraints that religious-freedom laws might impose on the regulation of gamers or games themselves.  Instead, I was trying to imagine what it would really mean to say or wonder if the avatars themselves, in "their" worlds, enjoyed religious freedom.  The question seemed worth asking because -- in my view, anyway -- religious-freedom questions (in the real world) are intimately connected to moral-anthropology questions, i.e., what is a human person and what does the answer to this question mean for additional questions about how human persons ought to be regarded and treated?

Well, again, I made no progress.  This should have come as no surprise, given that I really do not know much about MMOGs or computer-gaming generally.  (Some prawfs -- like Dan Hunter, Michael Froomkin, Timothy Wu, and Jack Balkin -- do, though).   In any event, here is an interesting post, on the "Terra Nova" blog, about "religion in MMOGs" (read the comments, too):

[A]ctual religion and theology are pretty much absent or at best non-operative in most MMOs.  In fantasy games the priest is typically a "healer" but otherwise the character is a façade.  In modern or science fiction games, religion is conspicuously almost entirely absent.

I've been wondering for some time about enabling the presence of both real-world and made-up religions in MMOs as thematically appropriate.  Is this a good way to flesh out a world, to create gameplay surrounding a moral code and shared identity, and to bring a significantly missing piece of human community to the game, or would it just be a way to invite controversy -- in effect, to draw aggro from both religious and non-religious players and cause a heap o' customer service trouble? 

The companion to this question is a bit more introspective: to what degree does the answer to the question of operative religions in MMOs vary with our own degree of spirituality/religiosity?  Is the perceived  agnosticism of the game development community keeping religion out of MMOs?

Any thoughts?

February 26, 2006 | Permalink | TrackBack (0)

Conscience, Catholic hospitals, and contraception

Apparently, lawmakers in Connecticut are putting together a bill "that would require all Connecticut hospitals, including the four Roman Catholic hospitals in the state, to provide emergency contraception to rape victims."  The news story, and the proposal's supporters who are quoted, speak simply of "contraception," while those speaking for the Catholic hospitals speak in terms of early abortifacients:

The Rev. John Gatzak, director of communications for the Archdiocese of Hartford, said the archdiocese would oppose any legislation requiring hospitals to administer contraceptives in cases where an egg already has been fertilized or ovulation has begun.

The Catholic Church "does believe and always has that human life begins at conception and that human life" at the point of conception "is entitled to all the respect that other human life is entitled to," Gatzak said.

I assume that the First Amendment would not require an exemption from Connecticut's "emergency contraception" mandate (though, perhaps, state law would).  Is there any compromise possible?  Or, is the Catholic Church simply going to have to give up on running full-service hospitals?  And, if the Church were to do this, would that be good for civil society and for the poor? 

February 26, 2006 | Permalink | TrackBack (0)