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.

Tuesday, July 31, 2007

Abortion as Infanticide

In response to my post (and Abby Johnson's comments) suggesting that a post-Roe abortion regime could focus more on providers than on the women obtaining abortions, Jonathan Watson suggests that the approach to punishment should borrow from the approach to punishing infanticide:

I do think that abortion is infanticide. I cannot see a reasonable legal argument for assigning a different punishment for ending the life of a human being at X point versus Y point, unless one argues as I have in the last paragraph of this letter.

Some arguments I have seen include:
1) A fetus is less of a person than an infant. Of course, one might argue that this would also entail different punishment for killing an adult than a child than an infant. I don't find this compelling, as it raises the possibility of being able to assign various individuals "personhood" based on arbitrary characteristics (race, nationality, and so forth).

2) The quickening argument, whereby killing the body before movement could be felt by the mother (or some similar argument), thus indicating ensoulment. The image and likeness to God, upon which true personhood ought to be based, is not limited I would say to any point during the developmental process. The quickening line of thinking was also abandoned by the Church once technological advances made determination possible that life was beginning on its own at conception.

3) A fetus has less of an appeal than an infant, as it doesn't physically appear human. I see the same problems inherent here as in the personhood argument in regards to the handicapped, old, and infirm.

Perhaps one could argue that the purpose of criminal punishment of this sort is based not on an object external norm (e.g., all killing is wrong, and therefore, killing a fetus warrants the same punishment as killing an infant, child, adult, etc.) but on internal subjective depravity ( e.g., a person should be more emotionally attached to a born infant), and therefore punished for the greater depravity of the act required to kill an infant than kill an unborn. But, this again makes hash of Catholic arguments in this direction.
On a related note, do you think that one can say that all life is deserving of equal protection of the law, and continue to argue that that life is receiving equal protection when the punishment for destroying that life at different stages is different? It's not something which I have considered before - is it possible that equal protection of two different people under the law might entail different punishment? Would that be the basis of hate crime laws?
I think one could argue that since it is the weakest who need the most protection from external law against physical violence that one could plausibly argue that fetuses and infants, the old, the handicapped, etc., deserve greater protection through deterrance  via imposition of harsh punishments than others in society.

July 31, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Not Rome, but Rainier . . .

Thanks to all my MOJ-colleagues for all the great posts to which I returned today after a week in the Pacific Northwest.  Unlike Greg, I have not been in Rome.  Instead, on Sunday morning, I was here (on top):

July 31, 2007 in Garnett, Rick | Permalink | TrackBack (0)

How Much Jail Time?

Writing in Newsweek, Anna Quindlen believes that pro-choice groups have found a winning strategy:

Buried among prairie dogs and amateur animation shorts on YouTube is a curious little mini-documentary shot in front of an abortion clinic in Libertyville, Ill. The man behind the camera is asking demonstrators who want abortion criminalized what the penalty should be for a woman who has one nonetheless. You have rarely seen people look more gobsmacked. It's as though the guy has asked them to solve quadratic equations. Here are a range of responses: "I've never really thought about it." "I don't have an answer for that." "I don't know." "Just pray for them."

You have to hand it to the questioner; he struggles manfully. "Usually when things are illegal there's a penalty attached," he explains patiently. But he can't get a single person to be decisive about the crux of a matter they have been approaching with absolute certainty.

A new public-policy group called the National Institute for Reproductive Health wants to take this contradiction and make it the centerpiece of a national conversation, along with a slogan that stops people in their tracks: how much time should she do? If the Supreme Court decides abortion is not protected by a constitutional guarantee of privacy, the issue will revert to the states. If it goes to the states, some, perhaps many, will ban abortion. If abortion is made a crime, then surely the woman who has one is a criminal. But, boy, do the doctrinaire suddenly turn squirrelly at the prospect of throwing women in jail. . . .

The great thing about video is that you can see the mental wheels turning as these people realize that they somehow have overlooked something central while they were slinging certainties. Nearly 20 years ago, in a presidential debate, George Bush the elder was asked this very question, whether in making abortion illegal he would punish the woman who had one. "I haven't sorted out the penalties," he said lamely. Neither, it turns out, has anyone else. But there are only two logical choices: hold women accountable for a criminal act by sending them to prison, or refuse to criminalize the act in the first place. If you can't countenance the first, you have to accept the second. You can't have it both ways.

I agree with Quindlen that pro-life advocates need to work harder on articulating what the post-Roe world should look like.  Understandably, though, the focus has been on changing a legal system where most regulation, much less criminalization, of abortion is a non-starter given the governing interpretation of the Constitution.  I also assume that many within the pro-life community would favor government regulation to shut down abortion providers without requiring that women who obtain abortions be thrown in jail.

UPDATE: St. Thomas law student Abby Johnson laments:

Too bad those documentary folks didn't interview me -- I would have had no problem answering a question about penalties for women who have abortions. As you suggested, I think the most reasonable course of action is regulating providers rather than criminalizing women seeking abortions. There are plenty of reasons women shouldn't be criminalized for seeking abortions, not the least of which is that abortion is in many cases a last resort for women who see no feasible way of bearing and raising a child ... it's almost a "necessity" defense.

No one is arguing that women seeking abortions do so because it's fun, or because it's something they want to do. In many cases, they see it as the best of the available solutions to a very difficult situation -- and none of the alternative solutions are very palatable. Friends I've known who have had abortions did so because they were scared of the life-changing consequences of bearing children and of their ability to raise and provide for these children, and didn't have (or didn't think they had) the necessary support systems to be able to adequately care for and support a child. When our answer to these fears is to kill the child rather than find ways to assist in building adequate long-term support, we've failed not only the children but also their mothers.

July 31, 2007 in Vischer, Rob | Permalink | TrackBack (0)

The "culture of life," Putin style

Apparently there is a huge youth organization in Russia called Nashi, sponsored by the Kremlin, that encourages its members to procreate for the sake of the Motherland.  The Daily Mail reports:

Nashi's annual camp, 200 miles outside Moscow, is attended by 10,000 uniformed youngsters and involves two weeks of lectures and physical fitness.

Attendance is monitored via compulsory electronic badges and anyone who misses three events is expelled. So are drinkers; alcohol is banned. But sex is encouraged, and condoms are nowhere on sale.


July 31, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Episcopal Competence

Apparently the national bishops conference plans to meet with Catholic members of Congress in an attempt to forge a bipartisan plan to withdraw troops from Iraq.  Richard John Neuhaus, predictably, is not impressed:

One is inclined to the view that the bishops conference does not have the competence, in the meaning of both ability and authority, to forge, or serve as broker in the efforts of others to forge, worldly stratagems for the Middle East. It is not evident that the nation lacks legitimate political authorities whose task it is to deal with such matters. Nor is it evident that there is a bipartisan call for the bishops to help them do their job.

Kindly note that I have refrained from mentioning that the recent record of the bishops in governing the Church—where they do have competence (at least in the sense of authority)—is not so stellar as to warrant great confidence in their ability to conduct American foreign policy. Nor, be it noted, have I mentioned that no comparable initiative has been announced by the bishops conference to constructively engage the many Catholic members of Congress who reject and persistently work against the Church’s teaching regarding the protection of unborn children, a matter indisputably within episcopal competence and on which the conference has spoken words of admirable clarity.

July 31, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Faith & Politics

In the Christian Century, Jan Linn objects to the recent Democratic presidential candidates' forum on faith and politics:

The issue is not whether Christians or members of any other religious group have the right to vote for candidates who share their faith and values. The question is whether the way Christians on the right and left are involved in politics undermines both our democracy and the faith communities they represent. With good reason many of us have believed that the Christian right has done so. I would suggest that any group that focuses on the faith of candidates as a qualification for public office will negatively affect government and religion, even if its agenda is one of social justice.

Jim Wallis responds:

A forum on "faith, values and poverty" with leading candidates is appropriate in a presidential season. This forum showed that Democratic candidates, along with Republican candidates (who will appear in a similar forum in September), can be comfortable with issues of faith and public life, respect the separation of church and state, and show their own faith to be both personal and real while connecting it to broad policy issues like poverty, environmental responsibility, criminal justice, war and peace, the notion of the common good, the sanctity of life and healthy families (and thankfully not just the last two issues).

Our forum recalled the words of Lincoln, who warned us not to believe that God is on our side, but to worry and pray earnestly that we are on God's side. We might also heed the advice of the U.S. Catholic bishops, whose guidelines on faith and public life bear repeating. As Christians, they wrote, we are called to be political but not partisan, principled but not ideological, clear but also civil, engaged but not used.

July 31, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Monday, July 30, 2007

Wuthnow and Mainline Protestants

With respect to the decline in numbers in mainline Protestant denominations, some of the factors mentioned by Rob have surely played a role. Nonetheless, according to Robert Wuthnow (presented by him at a session honoring his work at the American Academy of Religion), 90% of the decline in numbers is attributable to lower birth rates.

July 30, 2007 | Permalink | TrackBack (0)

Encyclopedia of Catholic Social Thought is available

I wanted to let people know that the Encyclopedia of Catholic Social Thought, Social Science, and Social Policy was just released by Scarecrow Press (a divsion of Rowman & Littlefield). I had the great privilege of editing this project with Michael L. Coulter (Grove City), Stephen M. Krason (Franciscan University), and Joe Varacalli (Nassau Community College-SUNY). This project was sponsored by the Society of Catholic Social Scientists. The Encyclopedia is nearly 1200 pages and is published in 2 volumes. There are about 850 entries from nearly 300 contributors.

Some of the prominent contributors include Cardinal George Pell (Sydney), Bishop Giampaolo Crepaldi (Pontifical Council for Justice and Peace), Bishop Nicholas DiMarzio (Brooklyn, New York), Bishop J. Michael Miller (Congregation for Catholic Education and just named to Vancouver BC), Father C. John McCloskey (Faith and Reason Institute), Mary Ann Glendon (Harvard), James Hitchcock (St. Louis U), Mark Latkovic (Sacred Heart Major Seminary), William E. May (JP II Institute), Father Francis Canavan SJ (Fordham), Father Joseph Koterski SJ (Fordham), Charles Rice (Notre Dame), Ronald Rychlak (Ole Miss), Russell Shaw (Pontifical University of the Holy Cross), and Paul Vitz (Institute for Psychological Sciences).

Ave Maria School of Law had a critical role in the project. Dean Bernard Dobranski generously supported the project since its inception. My assistants Sheri (Ashley) Fornell and Sharon Sansoterra were instrumental to our efforts. Sue Berendt and Dia Moulton also contributed greatly. A number of Ave Maria students (Albert A. Starkus III, Trent Pepper, Daniel G. Byrne, and Heather Brenneman Miles) provided important research assistance. The following Ave Maria professors also contributed entries--Jane Adolphe, Howard Bromberg, Joseph Falvey Jr., Bruce Frohnen, Patrick Quirk, Stephen Safranek, and James Sonne.   

We think that this is a unique resource. It is a bit expensive for individual purchase (the list pric eis $150) although it would certainly be appropriate for libraries. We tried to make an effort to include a range of perspectives within the Catholic tradition. So, for example, on economic issues we have contributions that range from those that are more free-market oriented to those from a more distributist perspective.

We are hoping to have a website resource available within a couple of weeks. This website will have the full list of entries and contributors and also include sample entries so that people can get an idea of the quality of the Encyclopedia. I will post something when the website is on-line.

Richard M.      

July 30, 2007 in Myers, Richard | Permalink | TrackBack (0)

As the family goes . . .

University of Virginia sociologist Brad Wilcox has an article in First Things exploring the connection between the traditional family and church attendance.  He also addresses mainline Protestant churches' efforts to reach out beyond the traditional family:

Perhaps the most visible example of this strategy is the recent “God Is Still Speaking” advertising campaign from the United Church of Christ (UCC). The “Ejector Pew” commercial from this campaign has attracted attention. It depicts a WASP upper-middle-class nuclear family settling comfortably into a church pew as unconventional families—a black single mother, a gay couple, a single man, and so on—are ejected from their pews. The commercial closes with this tag: “The United Church of Christ: No matter who you are or where you are in life’s journey, you are welcome here.”

This campaign—and the larger sentiment behind it—is doubly ironic. First, despite their inclusive rhetoric, mainline Protestant congregations are actually less likely to have single parents, single adults, and married couples without children than are evangelical Protestant churches. Mainline Protestant churches attract upper-middle-class people who live in conventional families but also aspire to the progressive cultural conventions of their class, which is to say, they walk right and talk left. Evangelical Protestant churches attract working- and middle-class people who hail from a range of different family situations but who now aspire to live in accord with God’s plan for their lives.

The UCC campaign is also ironic because it embraces the trends that have been the undoing of the UCC—indeed, of all the mainline. Because they are less likely to adopt a strict and strongly supernatural religious orientation, and to offer an intense experience of communal life centered on God, churchly traditions such as mainline Protestantism depend more on the rhythms and realities of family life to draw men and women into the life of the church. The average young man raised in a Congregationalist home isn’t likely to enter his local UCC church on any day except Christmas and Easter—unless he finds himself married with children.

July 30, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Sunday, July 29, 2007

Combatting Poverty Through Systemic Change

My friend John Freund, C.M., has gathered a treasure trove of resources on systemic change in the Vincentian Encyclopedia on the famvin website.  The systemic change approach to poverty, which has been embodied in a number of movements, emphasizes involving the poor themselves, a holistic vision that addresses a series of basic human needs and espeically self-help and self-sustaining programs particularly aimed at the root causes of poverty.  The Vincentian Encyclyopedia material on the subject includes some terrific media resouces and can be accessed here.   The Vincentian Community is committed to identifying and exploring strategies that implement systemic change; see here for a dicussion of their focus.

July 29, 2007 in Stabile, Susan | Permalink | TrackBack (0)