Friday, April 27, 2007
Fr. Neuhaus discusses here Mark's recent Commonweal essay, "Vengeance Time," which is critical of some of the tactics employed by advocates for victims of sexual abuse by clergy. Here's an excerpt from Mark's (excellent) piece:
It is not enough to say, however, that bishops, priests, and the church are finally getting what they deserve. The vengeance game is a dangerous one. When the original offense is terrible, we feel empowered to do terrible things in response. Blinded by our righteous rage and convinced of our moral superiority, we may do things we later regret.
The consequences of the terrible assault of 9/11 on the innocent serve as an example. The moral horror of 9/11 provided, for a while, the sense that we were entitled to transgress our own moral boundaries. Torture seemed reasonable. Equally important, it made the rule of law seem a trivial charade. Why bother with the constitutional rights of Guantánamo prisoners? Why not enact legislation invading the privacy rights of millions of Americans, if that would make it easier to punish our enemies and protect ourselves from harm? In the “war on terror,” it seems that anything goes. In the purity of our victimhood, we can do no wrong-or so we think until wrong has been done.
Our self-righteousness makes us impatient with the law. The law’s careful balancing of rights and interests, its goal of evenhandedness, and its insistence on due process seem to be pettifoggery, mere “technicalities,” and an obstacle to achieving the justice we know in our hearts. This impatience with the law, however, can lead to injustice. The nauseating image of rich white jocks at Duke drugging and raping a black woman at a party led a prosecutor to abuse his prosecutorial discretion, violating the most basic rules for deciding whether to prosecute. The terrible nature of what could have happened made the prosecutor and many members of the Duke and Durham communities indifferent to the legal obligation to prove what actually happened. Who needs the rules of evidence when we somehow know that something awful took place?
There is no need for us to gather every day, or every seven days, or on any high and auspicious day, to proclaim our rectitude or to grovel and wallow in our unworthiness. We atheists do not require any priests, or any hierarchy above them, to police our doctrine. Sacrifices and ceremonies are abhorrent to us, as are relics and the worship of any images or objects (even including objects in the form of one of man's most useful innovations: the bound book). To us no spot on earth is or could be "holier" than another: to the ostentatious absurdity of the pilgrimage, or the plain horror of killing civilians in the name of some sacred wall or cave or shrine or rock, we can counterpose a leisurely or urgent walk from one side of the library or the gallery to another, or to lunch with an agreeable friend, in pursuit of truth or beauty. Some of these excursions to the bookshelf or the lunch or the gallery will obviously, if they are serious, bring us into contact with belief and believers, from the great devotional painters and composers to the works of Augustine, Aquinas, Maimonides, and Newman. These mighty scholars may have written many evil things or many foolish things, and been laughably ignorant of the germ theory of disease or the place of the terrestrial globe in the solar system, let alone the universe, and this is the plain reason why there are no more of them today, and why there will be no more of them tomorrow. Religion spoke its last intelligible or noble or inspiring words a long time ago: either that or it mutated into an admirable but nebulous humanism, as did, say, Dietrich Bonhoeffer, a brave Lutheran pastor hanged by the Nazis for his refusal to collude with them. We shall have no more prophets or sages from the ancient quarter, which is why the devotions of today are only the echoing repetitions of yesterday, sometimes ratcheted up to screaming point so as to ward off the terrible emptiness.
I'm not sure what it means to say that the Catholic Justices who were in the majority in Carhart, or in the minority in the Texas cases, "were not motivated by the authoritative teachings of the Church." Yes, and again, in neither case did Justices Kennedy, Roberts, Alito, Thomas, or Scalia substitute their religiously-grounded moral commitments for the law, as they understand it. That said, and although -- to be clear -- I would like to see the death penalty abolished, I disagree with Eduardo (as I suggested, in response to Michael, here and here) that there is "authoritative church teaching" on the question whether a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim is required to vote to reverse that denial.
Rick -- I think you're making this much too complicated. If you want proof that the Catholics on the Court were not motivated by the authoritative teachings of the Church, you just need to point to the recent Texas death penalty cases, where they all (but one) dissented from the grant of habeas relief. This argument won't work for Kennedy, obviously.
Thursday, April 26, 2007
On a long plane flight yesterday, I had the opportunity to read Gonzales v. Carhart in its entirety. Thinking that there might be a few law journal articles in the making on this important decision, I would like to offer some of my initial thoughts to those who will be studying the case in detail as they begin to draft article manuscripts.
In essence, the majority (with the helpful clarification by Justices Thomas and Scalia) is largely correct in its analysis and legal reasoning. The plaintiffs/respondents, supporters of abortion “rights,” and the dissenters are, to borrow an expression from Stanley Fish, still wrong after all these years of questionable “abortion jurisprudence.”
The majority properly begins with a careful analysis of the statute enacted by Congress that was challenged by Dr. Carhart and the Planned Parenthood Federation. Following sound principles of statutory interpretation within the template of Constitutional adjudication, the majority reaches logical conclusions about the legality of the statute as a proper exercise of Article I authority that is subject to judicial review. I wonder if the dissenters would have joined the majority if this decision about the constitutionality of a statute involved the enactment of a law designed to protect the eggs of some bird on the Endangered Species list rather than the protection of nascent human life?
In the context of nascent human life, the majority could have done a better job in choosing its terms. The drift from using “fetal life” to “unborn child” to “embryonic tissue” confuses rather than clarifies. But, when all is done, it should be clear to the reasonable person that the majority is talking about the same subject: a young human life that is threatened by the intact dilation and extraction method of abortion.
The strong differences of the opinions of the majority and the dissenters about the post-abortion psychological health of the mother who has had an abortion raises the important question about “informed consent” that is so much a part of medical practice in the United States. This divide made me wonder to what extent abortion doctors explain to their patients what happens to the child who is the target of the abortion, regardless of the procedure and the trimester involved? As he did in his Stenberg dissent, Justice Kennedy once again explains the “gruesome” details involved with a variety of abortion procedures, including the intact dilation and extraction process that is the subject of the statute attacked in this case. It would seem that this information should be relayed to the mother who is considering an abortion, but is it? If not, what is the justification?
As I read Justice Kennedy’s description of the more commonly used “dilation and evacuation” method of abortion in which child is dismembered—caused by the “friction [of the procedure that] causes the fetus to tear apart”—I recalled an account of Thomas More’s reaction to the execution of the Carthusian monks who were convicted of treason and put to death by drawing and quartering. In both cases, the limbs of human beings are ripped from their torsos. The dissenters offered no objection to the accuracy of the procedures explained by Justice Kennedy.
While still on the matter of abortion methodology, the majority described another means that employs a poison injected into the child who is killed prior to the surgical evacuation. I wonder if those who argue that execution by lethal injection constitutes a violation of the Eighth Amendment would also argue that administering poison to a child convicted of no offense is equally offensive to our Constitutional order? I hasten to point out that potassium chloride is one of the chemical agents often employed in both procedures: abortion and execution by lethal injection. If it is cruel and unusual in the latter context (and I have no argument against this assertion), why is it also not cruel and unusual in the first?
Justice Ginsburg complained of the disregard by the majority of medical evidence provided to and considered by the District Courts. Yet, the impact of the medical evidence offered by the nurse quoted by the majority about what actually happens to a child (page 8 of the majority opinion) subjected to the intact dilation and extraction method escapes her critical eye. It seems that the reaction of the child subjected to the abortion procedure at issue—fingers clasping, feet kicking, and arms jerking—are of little concern to the dissenters when medical evidence is being examined.
Justice Kennedy and Justice Ginsburg often employ the phrase “necessary to preserve a woman’s health” in the context of the legal justification of abortion. Yet, I remain unconvinced about what standard can possibly be used medically and legally to justify abortion necessary for preserving a woman’s health. To reinforce my concern, one of the reversed Circuit Courts of Appeal itself stated that there are substantial disagreements within the medical community about whether the intact dilation and extraction method is “ever necessary to preserve a woman’s health.” If there is dispute on this method (as I suspect there is on many other methods of abortion including intact dilation and extraction), how can it be deemed “necessary to preserve a woman’s health”? It would appear that this crucial foundation for justifying any abortion procedure is not of solid construction but is more like the unstable house of cards—maybe impressive to look at but unsound in fact.
Elsewhere I have commented on the use of the phrase “anatomical landmarks” used by various members of the plaintiffs/respondents in this case to explain how the killing of a child can be justified or not. I once again make a point I have made earlier (the first time at the March 2001 Symposium convened at Catholic University by Michael Scaperlanda and Teresa Collett on self-evident truths and Catholic perspectives on the law) that it is unjustifiable to claim that a hideous procedure that kills the life of a child can be justified or not depending on the “geographic location” of the baby. I thought the “geographic location” argument was put to rest once the justification of Dred Scot was abandoned. However, it seems that I am mistaken on this point insofar as the plaintiffs/respondents and the dissenters are concerned. For them, just about any abortion can be declared legal as long as the child is located in the right place. But regardless of the child’s physical location, its human ontology remains the same.
At page 29 of the majority opinion, Justice Kennedy states that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Justice Ginsburg scorns this statement of the majority at page 15 of the dissent where she identifies it as “an antiabortion shibboleth.” However, when she refers to the majority’s text, she leaves out the important modifier “some” which the majority used in a careful way to indicate that the “regret” about which they wrote was not universal in their view. Somehow this careful distinction escaped Justice Ginsburg in her harsh critique of those who are opponents of abortion.
Two important questions surface toward the end of the majority’s opinion. The first deals with the fact that the standard dilation and extraction method, which remains unaffected by this decision, is more brutal than the intact method which is the subject of the legislation under review. Could Congress or state legislatures, given this decision now be able to proceed to legislate against the standard method and draft legislation that could survive a legal challenge? The second and more apparent question is the statement proffered by the majority that the statute “is open to a proper as-applied challenge in a discrete case.” How long must we wait for such a “discrete” challenge? Probably not very long.
A few comments about particular points in Justice Ginsburg’s dissent remain in order. Throughout her opinion, she raises concerns about endangering the woman’s life or health. I don’t dispute the need to be concerned about a woman’s life or health. This is important. But surely the life and health of any human being must be of great concern to us all. I remain unsatisfied that the dissent or any proponent of abortion “rights” has demonstrated how the carrying to term of the child is the source of this endangerment to women. After reflecting on the procedures involved in most abortions, I must conclude that they, rather than the presence and development of the child, present the actual endangerment to the mother’s life or health. With so many “passes” through her delicate organ tissues and the possibility of laceration by medical instruments or the baby’s broken bones, it seems that most abortion procedures subject women to far greater risks than do the presence of her unborn child.
On a different front, the first footnote offered by the dissent attempts to correct the use of a term—“partial birth abortion”—when Justice Ginsburg asserts that the recognized term found in medical literature is either “dilation and extraction” or “intact dilation and evacuation.” Fair enough. But, to borrow from Will Shakespeare, a dubious act by any other name is still a dubious act.
While I am discussing the dissents distaste for certain terms, its members raise some objection to referring to doctors who perform abortions as “abortion doctors.” If this is truly a pejorative term, then it would be equally pejorative to refer to cardiac specialists as “heart doctors,” ophthalmologists as “eye doctors,” dermatologists as “skin doctors,” etc.
The dissenters brand the majority’s decision “alarming” because it “refuses to take Casey and Stenberg seriously.” I am mystified by the fact that the dissenters are not alarmed by the fact that this jurisprudence fails to take seriously the fact that abortions kill at least one human being most of the time. This fact must be taken seriously, but it seems to escape the legal reasoning of the dissenters not only in this decision but in past abortion cases, including Casey and Stenberg, as well.
On several occasions, Justice Ginsburg concentrates on the distinction between previable and postviable fetuses that are aborted. I question how much longer this distinction can be made in light of the advances in medical sciences where the lives of embryos, fetuses, and unborn children (should these distinctions be required) are being sustained by artificial means. These medical advances would indicate that the earliest human life is viable if it can be sustained and can grow outside of the mother’s womb.
The dissent also censures the majority for selecting certain medical evidence to support its position while ignoring other evidence. The same argument can surely be made about the “authorities” upon which the dissent relies. In this context, I am reminded of a statement attributed to the late Judge Harold Leventhal about the selective use of legislative history by judges when they decide cases involving statutory interpretation: making the choice of what history is to be used is like entering a crowded cocktail party and surveying the assembled humanity in search of your friends.
In my estimation, the dissenters are on juridically thin ice when they express a particularly harsh criticism of the majority who “dishonor our precedent” of Casey, et al. Yet these dissenters were members of the majority in Lawrence v. Texas. When they penned that opinion, they showed little concern of dishonoring other precedent. Perhaps dishonor exists only in certain cases when precedent of their liking is not followed with exacting detail.
Much more needs to be said about the majority, the concurring, and the dissenting. I am confident that this task will be pursued by many in the coming months. RJA sj
Here is an announcement for a blockbuster church-state-law conference, "The Future of Freedom of Religion: A Dialogue," sponsored by Sidley & Austin, the American Constitution Society, and Catholic University's Interdisciplinary Program in Law & Religion.
From the trenches of tax law, here's the abstract of an article posted on SSRN by Paul Caron, entitled "When Does Life Begin for Tax Purposes?"
I have written before about what I call “tax myopia” - the tax law's failure to consider insights from other areas of law that would inform the tax debate. (Tax Myopia, 13 Va. Tax Rev. 517 (1994); http://ssrn.com/abstract=799007). One illustration of this theme is how the tax law has ignored insights from other areas of law on perhaps the dominant social issue of our time: when does human life begin? The question was addressed in two tax cases decided over 55 years ago, and then revisited recently.
Although Wilson v. Commissioner, 41 B.T.A. 456 (1940), refused to treat an unborn child as a person for purposes of the income tax dependency exemption, Faulkner v. Commissioner, 41 B.T.A. 875 (1940), treated as unborn child as a person for purposes of the gift tax annual exclusion. The Board of Tax Appeals justified the different results on the ground that the dependency exemption benefitted the parents while the annual exclusion benefitted the unborn child. In subsequent rulings, the Service has rejected this distinction and refused to treat unborn children as persons for both income tax and gift tax purposes. In Cassman v. United States, 31 Fed. Cl. 121 (1994), the Court of Federal Claims recently denied the dependency exemption for an unborn child but accepted the Board's facile distinction permitting unborn children to be treated as persons for tax purposes where they benefit from that treatment. Cassman thus perpetuates the schizophrenic state of the tax law in this area and ignores both basic tax principles and nontax considerations in addressing this pivotal issue.
Here's an op-ed of mine, now up on Jurist, called "Carhart, Casey, and the Court's Catholics." It's an expansion of the exchange that Prof. Geoff Stone and I had over at the University of Chicago law faculty blog. Here's a bit:
It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.
It is, of course, hardly a secret that a Catholic justice is taught by his or her Church, and should believe, that abortion is a grave moral evil. However, all judges – Catholic or not – come to the bench with views, commitments, and experiences that shape their decision-making and reasoning. We can, and should, ask of every judge that she work conscientiously in every case to identify not her own preferred or “faith-based” outcome but the answer that is given by the relevant legal texts, rules, and precedents. As it happens, the Catholic understanding of vocation, and of justice under law, extends to Catholic judges the same invitation.
Blogger Matthew Fish has an interesting post up about the recent court decision involving the religious nature (or not) of Saint Louis University. (For earlier MOJ comments on this case, go here). Matthew is not a Jesuit-basher, at all (indeed, I gather from his blog that he is considering joining the Society of Jesus) so his reflections struck me as particularly worth engaging. Here's a bit:
[A]ccording to this decision, and what seems to be the case, the Jesuits (today at least) are no longer really in control of their universities, but only merely affiliated. Of course individual Jesuits may be incompetent or may be exemplary in their respective positions, but as a corporate body, it seems that they cannot change these schools in any kind of direct way any longer. For me, this seems to point to the importance of having patience with the present attempts of the Society of Jesus to continue to faithfully live out its charism and renew itself, particularly in its educational apostolates.
Still, the question remains: can we call these (and most Catholic universities then) “Catholic”? Or are our Catholic universities in fact “secular” in mission and identity (at least, insofar as the Constitution may be concerned)?
What hasn’t been mentioned is, in my mind, the greater responsibility possessed by the local ordinary. It is his responsibility as Bishop to hold “Catholic” institutions accountable, as well as protect or warn his flock. A Bishop can always tell a University they cannot call themselves Catholic, offer the sacraments on campus, as well as tell the Jesuits not to operate in the diocese.
In the end, I am left wondering, what does it mean after all to be a
? Does it mean much of anything anymore?
See also, of course, John Breen's "Justice and Jesuit Legal Education: A Critique".
In response to Rick's post:
My suggestion that the situation at OHSA should be of concern to all of us for whom the life of every human being is precious--is that a controversial proposition?-- was not an effort to link the controversy over OHSA policies to the controversy over partial-birth abortion. (I still don't know where Rick stands on the OHSA policies.) For the record, and as I explained to my students this week: I think Justice Kennedy got it right in the partial-birth abortion case; that is, even given Roe v. Wade, I think the decision in Gonzales v. Carhart was right.
Just as I think that Justice Kennedy got it right in the death-penalty cases. On the reasonableness/unreasonableness issue: Reasonableness in this context is, I think, a matter of degree. I invite MOJ bloggers and readers to read the three death penalty cases and then decide how a Cathoilic justice--or indeed any justice for whom the life even of the most depraved criminal is precious--should have voted, all things considered--not least, that in each case the life of a human being hung in the balance. (Which opinion(s) would you have joined or concurred in, Rick?)
About the dismissal of the U.S. attorneys: To say, as Rick does, that the White House is entitled to dismiss them is ambiguous. Surely Rick doesn't think that the White House is entitled--either morally or legally--to dismiss them for certain reasons. And to say, as I did in my post, that Rick's position is complacent is to say that Rick gives no indication, in his (shoulder-shrugging) comments, of having taken seriously enough the possibility that the White House dismissed at least some of the U.S. attorneys for morally and legally objectionable reasons.