Mirror of Justice

DOJ gives up on prison program

Over at Balkinization, Marty Lederman writes:

DOJ Comes to Its Senses on Faith-Based Prison Program

Marty Lederman

Several months ago, I argued here that the Department of Justice's proposed "residential multi-faith restorative justice program" entitled Life Connections was "manifestly unconstitutional in several respects." I wondered how the Office of Legal Counsel could possibly have signed off on this program.

Well, it appears that someone -- probably in OLC -- has thankfully had some sober second thoughts. On Thursday, DOJ cancelled the program "in its entirety."

[NOTE: This blatantly unconstitutional federal program did have the virtue of raising one very interesting and important constitutional question: Whether the state may ever attempt to promote religious faith or transformation, even (or especially) as a means of advancing secular ends (e.g., rehabilitation, cessation of alcohol dependence, etc.) that the state suspects to be correlated with faith.

I discussed that question with Rick Garnett and Doug Laycock here -- with links to additional thoughts from Steve Shiffrin and Rob Vischer.]

Church Autonomy takes a bit hit

In the U.K., anyway.  Professor Friedman reports:

Clergy Get Employment Protection In Britain

Britain's Employment Appeal Tribunal yesterday handed down a landmark case holding that clergy will be treated as employees of the church for purposes of bringing unfair dismissal cases. Reporting on the case, Personnel Today said that previously ministers were regarded British courts as appointed to a holy office, and not as employees. The decision in New Testament Church of God v. Stewart, (EAT, Oct. 27, 2006), relies on last year's House of Lords decision in Percy v Church of Scotland Board of National Mission, [2006] IRLR 195, in reaching its conclusion. (See prior posting.)

Brooks on Santorum

It seems quite likely that Robert Casey -- a Catholic Democrat -- will defeat Rick Santorum -- a Catholic Republican -- in next week's Pennsylvania Senate election.  I realize that many of my friends and colleagues regard this as a good thing, particularly for the Democrats-for-Life cause.  But, as David Brooks's recent New York Times column suggests (no link available, due to the Times' silly "Times Select" feature), we should hope that, if he is defeated, Sen. Santorum and his service are remembered accurately, and not in the cartoonish way they is often portrayed:

Every poll suggests that Rick Santorum will lose his race to return to the U.S. Senate.  That's probably good news in Pennsylvania's bobo suburbs, where folks regard Santorum as an ideological misfit and a social blight. But it's certainly bad for poor people around the world.

For there has been at least one constant in Washington over the past 12 years: almost every time a serious piece of antipoverty legislation surfaces in Congress, Rick Santorum is there playing a leadership role.

In the mid-1990s, he was a floor manager for welfare reform, the most successful piece of domestic legislation of the past 10 years. He then helped found the Renewal Alliance to help charitable groups with funding and parents with flextime legislation.

More recently, he has pushed through a stream of legislation to help the underprivileged, often with Democratic partners. With Dick Durbin and Joe Biden, Santorum has sponsored a series of laws to fight global AIDS and offer third world debt relief. With Chuck Schumer and Harold Ford, he's pushed to offer savings accounts to children from low-income families. With John Kerry, he's
proposed homeownership tax credits. With Chris Dodd, he backed legislation authorizing $860 million for autism research. With Joe Lieberman he pushed legislation to reward savings by low-income families.

In addition, he's issued a torrent of proposals, many of which have become law: efforts to fight tuberculosis; to provide assistance to orphans and vulnerable children in developing countries; to provide housing for people with AIDS; to increase funding for Social Services Block Grants and organizations like Healthy Start and the Children's Aid Society; to finance community health
centers; to combat genocide in Sudan.

. . .  Like many people who admire his output, I disagree with Santorum on key matters like immigration, abortion, gay marriage. I'm often put off by his unnecessarily slashing style and his culture war rhetoric.

But government is ultimately not about the theater or the light shows of public controversy, it's about legislation and results. And the substance of Santorum's work is impressive. Bono, who has worked closely with him over the years, got it right: ''I would suggest that Rick Santorum has a kind of Tourette's disease; he will always say the most unpopular thing. But on our issues, he has been a defender of the most vulnerable.''

"The Truth About Conservative Christians"

E.J. Dionne has this interesting review of a new book by Fr. Andrew Greeley and Michael Hout, "The Truth About Conservative Christians:  What They Think and What They Believe."  Here's the heart of the piece:

Of conservative Christians, they write: “Insiders and outsiders alike misrepresent, misperceive, and stereotype this large and diverse segment of American culture.” They conclude on the same note. In their final paragraphs, they write: “In our experience most of those who stereotype the conservative Christians do not know any of them.”

One of the reasons this book does not match most analyses of conservative Christians is that Greeley and Hout recognize what many other students of the subject don’t: a large number of theologically conservative Christians are African Americans, the nation’s most loyally Democratic group. Arguing that conservative Christianity is allied with conservative politics makes sense, they write, “only if you want to exclude Afro-American Christians from the ranks of the religiously conservative.” They continue: “But that is a groundless exclusion. Their ‘Evangelical’ credentials are as good as anyone else’s, in some cases marginally better.” Indeed.

And, here is Dionne's conclusion:

All this suggests that a significant share of the white Christian community, including Evangelicals, is willing to hear alternative arguments to those offered by the Right. Greeley and Hout believe the best arguments for Democrats are about economics. “Get economic justice right,” they argue, “and the conservative Christians held back by economic injustice will back you.”

For those who find themselves somewhere on the left side of politics, this is a hopeful view. And it’s certainly true that Democrats cannot win if they are not persuasive on the issues of social justice, economic insecurity, and the shift of risk away from corporations and government onto individuals.

But the very complexity of the human beings Greeley and Hout describe suggests that this economic appeal will not be successful unless it is part of a larger moral message. Conservative Christians-and Americans generally-worry about their paychecks but also about whether they can spend enough time with their families. They care about the economic opportunities their children will have and also about the values their children will inherit. They care about their own economic interests but also seek nurturing communities that are about more than money.

Creating a practical moral politics is not the explicit goal of the authors. Rather, by reminding us that conservative Christians are more interesting and more complicated than many think, Greeley and Hout have once again turned conventional wisdom on its head. In doing so, this book gives liberals a scolding and offers them some hope.

I suspect that Dionne is right when he says that an "economic appeal [to conservative Christians] will not be successful unless it is part of a larger moral message."  It seems to me, though, that this "larger moral message" might have to be a bit more "conservative" on the hot-button issues than Dionne's paragraph suggests.

More on Ectopic Pregnancy

Regarding our conversation on ectopic pregnancy, Boston College law prof Greg Kalscheur, S.J. recommends a 1993 article from Theological Studies by James Keenan, "The Function of the Principle of Double Effect."  (I don't have the link.)  Here's the abstract:

The casuistric principle of double effect should be applied taxonomically rather than geometrically as is currently being done. The geometric application assumes that the principle can be used as moral justification for any action which fits the four conditions of the principle. Instead, the principle should be recognized as an abstraction representing common aspects of paradigm cases which contain their own internal certitude. The taxonomic analysis shows that the principle does not apply to the case of ectopic pregnancy, although it fits the principle geometrically.

In the article, Keenan quotes John Noonan's conclusion that "whenever the embryo is a danger to the life of the mother, an abortion is permissible. At the level of reason nothing more can be asked of the mother."

And John McGuinness writes because he is:

becoming uncomfortable with the prominent role the "burining building" hypothetical is playing in the moral analysis on MOJ, as it has several probalem that make it ill-suited as a moral guide.  First, as Prof. Penalver noted when he introduced the hypothetical, there is a significant moral difference between choosing to save one person over another, and deliberately killing one person for the benefit of another.  Second,  there's often a gap between what we "would" do and what we "should" do.  If I came home today and found a man with a knife standing over the bloody corpses of my wife and children, it's likely I would do some things that are not morally correct.  Third, this type of analysis would work to justify all sorts of discrimination.  A white racist would probably save a white baby over a black baby -- does this make segregation OK?  The ingrained discrimination is precisely what we are trying to confront.  The "burning building" is almost a tautology -- I would discriminate against embryos; therefore discimination is OK.  Fourth, your particular use of it is flawed -- you say that the choice between an embryo or your wife would not be difficult becuase several chidren depend on her for love and care.  But I suspect the choice between your wife and your newborn child would at least be difficult (although perhaps the same), even though nobody is dependent on the newborn child. The hypothetical may be a useful tool for uncovering what our initial moral intuition is, but it should not be one of the first tools we reach for in evaluaing the morality of policies.

Just to be clear, I do not mean to suggest that the fact of my favoring my wife's life over our early-stage embryo's life establishes its moral correctness.  But it raises some questions for me, especially because I am confident that if I was presented with the dilemma 100 times, I'd make the same decision 100 times, and if I reflected deeply on my decision for many months, I'd remain resolute in its correctness.  It's not just a function of my personal bias because if a stranger in the same situation asked for my advice, I'd tell him the same thing.  And it's not the same as reacting in passion to the sight of the person who has just murdered my family.  It is a decision that seems grounded, in a meaningful way, in the core convictions of my conscience. (Hence the relevance of the burning building hypo: in that case, I would not only find it morally acceptable to rescue the infant instead of the blastocyst, I would find it morally unacceptable to rescue the blastocyst instead of the infant.) 

So again, if I choose to save my wife by ending the life of our embryo -- and if I choose what may be the safest route by removing the embryo itself, rather than the tube -- is my conscience improperly formed?  And if so, what moral insight am I lacking? 

To take the inquiry to another level, if the natural law is written on our consciences, whose conscience would tell them to let the mother risk death instead of removing the embryo?  And if the vast majority of persons of faith who do value life, including pre-born life, would choose my course of action on this issue, then where else is the natural law written?

Rob

Radical Subsidiarity

In the September/October 2006 Houston Catholic Worker, Geoffrey Gneuhs, who served as chaplain to the New York Catholic Worker near the end of Dorothy Day's life, has an article entitled "Dorothy Day's Unsentimental Spirituality."  Here is an excerpt:  "For Dorothy the works of mercy were the way to incarnate Christ in daily life: she honored the sacramentality of life.  It gave her joy that the little acts in creation bespeak God's eternal love.  And we must not wait.  She maintained that in modernity governments and bureaucracies had usurped - and very inadequately - our responsibility for our brothers and sisters. ... The "servile state," or welfare state, she said, citing Hilaire Belloc, was the breakdown of community, depersonalization, and loneliness.  Our I-poded, blackberryed, self-absorbed culture has no time for the other in need, for the other who might just inconvenience us."

Same-Sex Marriage

Linda McClain's work is always worth taking seriously, whether or not, in the end, one agrees. See her new book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard, 2006).  If you are interested in the controversy over same-sex marriage, read on ...

"The Evolution - or End - of Marriage?: Reflections on the
Impasse over Same-Sex Marriage"
Hofstra Univ. Legal Studies Research Paper No. 06-28
Family Court Review, Vol. 44, p. 200, 2006

Contact: LINDA C. MCCLAIN
Hofstra University - School of Law
Email: [email protected]
Auth-Page: http://ssrn.com/author=233178

Abstract: http://ssrn.com/abstract=930989

ABSTRACT: The debate over legalization of same-sex marriage
implicates the question of whether doing so would signal the end
- or destruction - of the institution of marriage, or instead
would be an appropriate evolution of marriage laws that is in
keeping with the ends of marriage and with relevant public
values. This essay comments on an earlier published debate on
that question: Special Issue: The Evolution of Marriage, 44
Family Court Review 33-105 (2006). The essay contends that the
appeal to preserving a millennia-old tradition of marriage
against destruction fails to reckon with the evolution of the
institution of civil marriage that has already occurred.
Invocations of gender complementarity between parents as
essential to child well-being also conflict with the growing
recognition in family law that children's best interests can be
served by gay and lesbian parents. Canada's path toward same-sex
marriage suggests that impasse need not be inevitable. In the
United States, the impasse stems in part from the problem that
same-sex marriage serves as an emblem of everything that
threatens marriage.

Abortion in El Salvador

My colleague Elizabeth Brown points out that Nicaragua may simply be following the lead of its neighbor El Salvador, which adopted a total abortion ban in the 1990s.  Elizabeth explains:

El Salvador’s ban admits no exceptions, not even to save the life of the mother.  The Archbishop in El Salvador was a strong supporter of El Salvador’s ban. Proponents of the ban claimed that medical science has advanced to the point where abortion is NEVER needed to save the life of the mother.

Article 1 of El Salvador's constitution declares that the prime directive of government is to protect life from the "very moment of conception." The penal code detailing the Crimes Against the Life of Human Beings in the First Stages of Development provides stiff penalties: the abortion provider, whether a medical doctor or a back-alley practitioner, faces 6 to 12 years in prison. The woman herself can get 2 to 8 years. Anyone who helps her can get 2 to 5 years. Additionally, judges have ruled that if the fetus was viable, a charge of aggravated homicide can be brought, and the penalty for the woman can be 30 to 50 years in prison.  El Salvador is very aggressive about enforcing its ban on abortions. Doctors are not allowed to treat ectopic pregnancies until either the fetus is dead or the fallopian tube ruptures, which places the life of the mother in danger.

Back in April, The New York Times reported from El Salvador:

According to Sara Valdés, the director of the Hospital de Maternidad, women coming to her hospital with ectopic pregnancies cannot be operated on until fetal death or a rupture of the fallopian tube. "That is our policy," Valdés told me. She was plainly in torment about the subject. "That is the law," she said. "The D.A.'s office told us that this was the law." Valdés estimated that her hospital treated more than a hundred ectopic pregnancies each year. She described the hospital's practice. "Once we determine that they have an ectopic pregnancy, we make sure they stay in the hospital," she said. The women are sent to the dispensary, where they receive a daily ultrasound to check the fetus. "If it's dead, we can operate," she said. "Before that, we can't." If there is a persistent fetal heartbeat, then they have to wait for the fallopian tube to rupture. If they are able to persuade the patient to stay, though, doctors can operate the minute any signs of early rupturing are detected. Even a few drops of blood seeping from a fallopian tube will "irritate the abdominal wall and cause pain," Valdés explained. By operating at the earliest signs of a potential rupture, she said, her doctors are able to minimize the risk to the woman.

Is this really what a culture of life demands?

Rob

The Life of the Mother

Regarding my question about Nicaragua's total abortion ban, Georgetown philosophy prof Karen Stohr explains:

Without knowing the details of the law, I'm guessing that they are defining abortion as the intentional killing of a fetus, with the understanding that not all procedures that result in the fetus's death are properly considered to be abortions. For instance, everyone (I think!) agrees that it's permissible to treat an ectopic pregnancy by way of salpingectomy, or the excision of the fallopian tube. This of course results in the baby's death, but it's not considered intentional killing on the double effect grounds that the death is not serving as a means to treating the woman's life-threatening condition. (There is much more disagreement about whether other treatments for ectopic pregnancy constitute abortions, but that's neither here nor there.) Likewise, inducing labor prior to viability to treat a woman's life-threatening eclampsia or HELLP syndrome would not be considered abortive, even when it's known in advance that the baby cannot survive. I don't know enough about obstetrics to know whether there is always a non-abortive procedure that would save a woman's life, nor do I know whether the non-abortive procedures would ever carry significantly higher maternal health risks compared to the abortive procedures. I take it that the Nicaraguan government is assuming that the answer to the first question is "yes" and that the answer to the second question is either "no" or "doesn't matter."

Notre Dame law prof Julian Velasco explains further:

The Church would allow you to take many measures to save the mother's life even if those measures are certain to result in the unborn child's death, but you may not directly kill the child.  It's part of the principle of double effect: you cannot intend the evil as either the end or the means, but can accept it as a result.  The perfect example is the ectopic pregnancy: you cannot have an abortion, because that would be directly killing the baby, but you can remove the portion of the fallopian tube that is causing problems, even though it will result in the death of the baby.  In that case, you neither want the baby to die nor are you killing him/her.  You are merely saving the mother's life.

Here is another explanation of the distinction between "abortion" and efforts to save the mother's life that result in the fetus's death:

Catholic Theologians typically discuss the morality of three common treatments for ectopic pregnancies according to the principle of double effect.[4] One approach utilizes the drug Methotrexate (MTX), which attacks the tissue cells that connect the embryo to its mother, causing miscarriage. A surgical procedure (salpingostomy) directly removes the embryo through an incision in the fallopian tube wall. Another surgical procedure, called a salpingectomy, removes all of the tube (full salpingectomy) or only the part to which the embryo is attached (partial salpingectomy), thereby ending the pregnancy.

The majority of Catholic moralists reject MTX and salpingostomy on the basis that these two amount to no less than a direct abortion. In both cases, the embryo is directly attacked, so the death of the embryo is not the unintended evil effect, but rather the very means used to bring about the intended good effect. Yet, for an act to be morally licit, not only must the intended effect be good, but also the act itself must be good. For this reason, most moralists agree that MTX and salpingostomy do not withstand the application of the principle of double effect.

I'll admit to absolutely no expertise in this area, but I'll also admit that this seems like hair-splitting to me.  Maybe it's important hair-splitting, but to tell a mother whose life is in peril that she cannot simply remove the embryo, but must instead remove a portion of the tube in which the embryo is located, seems to verge on putting principle above prudence, particularly if this increases the risk to the mother or lessens her chances of becoming pregnant in the future (I don't know if it does either of these).

In thinking of "life of the mother" exceptions more broadly, I'm reminded of Eduardo's "burning house" hypothetical.  I realize that there is moral significance to the act/omission distinction in not rescuing vs. removing from the tube.  At the same time, if my choice is between saving my adult wife, on whom several children depend for love and care, and saving an embryo in its earliest stages, that's not a particularly difficult question for me.  (It's a heart-breaking question, but not a difficult one.) And I will presume that it's not a difficult question for the vast majority of Americans.  Is this simply a case where Church teaching is so far removed from the current state of public opinion that it's not worth talking about in our legal and political discourse?  Or do we need to talk about it more because we have a nation of improperly formed consciences (including my own, perhaps)?

Rob

Bainbridge on the Latin mass

It might not be "legal theory," but it is Bainbridge, and that's close enough.  Here is Steve B.'s TCS column on the Latin-mass rumors. . . .