Mirror of Justice

"The Priority of Reducing Abortions"

In this post, Amy says:  "As a group I think we have the capacity to bring a significant contribution to the positive articulation of how CST might inform an approach to political life."  I wholeheartedly agree.

Amy then mentions "the priority of reducing abortions."  My question, to no one in particular, is this:  Is the sole goal of the pro-life movement to reduce the numbers of abortion? I think not.  In a response to this post at Vox Nova, A Little Shy says:

I want to make a narrow, limited point, and not a partisan or even particularly political one; everyone else can have a happy time discussing how to vote and how a given politician’s record ought to be evaluated.

But it needs to be clearly stated that the abortion issue, for Catholics, is not only about the number of abortions.

Obviously, that number is of critical importance and needs to be weighted very heavily. But the fact of the matter is that even if there were zero abortions, a law allowing abortion would remain an unjust law, a threat to the rule of law itself, a teacher of evil and distorter of conscience, a cause of scandal that can lead to spiritual death and a profound assault on the common good.

Regardless of whose political dogma it may be, it is also the clear teaching of the Holy Catholic Church, articulated both in the Catechism and at length in the encyclical Evangelium Vitae, which goes so far as to call conscientious objection to such laws a grave obligation.

It is about the numbers. But it is also about the law.

MOJ friend and alum, Prof. John Breen, puts it this way in "John Paul II, The Structures of Sin, and the Limits of the Law," 52 St. Louis U. L. J. 317, 345 n.182:  "[A] society composed of perfectly just individuals would still suffer from injustice if any one of its laws repudiated the principles of justice.  Indeed, this would be true even if the unjust law in question did not affect the conduct of those whom it governed. ... a state hat enacted a statute that permitted whites to enslave non-whites would be unjust even if no one attempted to practice slavery.  That is, even if the law was in effect a dead- letter -- the role rhetorical remnant of a racist past long forgotten 0 it would still impair the full realization of justice in the society by continuing to teach the superiority of some individuals over others.  Indeed, for the state to continue to exercise its teaching capacity in this manner -- the official state endorsement of injustice -- would harm the common good, even if the message was ignored by everyone."

A blog of interest

I came across a blog -- one that was new to me -- that might be of interest to MOJ readers.  "Libertas et Memoria" is "a blog on law, politics, faith, culture and the joys of the Inland Northwest."  Check it out.

John F. Scarpa Conference on Law, Politics, and Culture -- Change of date

The third annual John F. Scarpa Conference on Law, Politics, and Culture, which was originally scheduled for September 2008, will be held instead on Thursday, February 19, 2009.  The venue remains Villanova Law School. 

The keynote address will be given by Professor Martha Nussbaum on a topic drawn from her recent Liberty of Conscience (Basic Books 2008).  Also speaking at the conference wil be Kent Greenawalt, Geoff Stone, Jesse Choper, Richard Schenk OP, John McGreevy, Rick Hills, and MOJ's very own Rick Garnett.

Please mark your calendars and plan to join us for the event. 

The Court's death-penalty case

Today, in Kennedy v. Louisiana, the Supreme Court invalidated a state law which authorized the death penalty for aggravated child-rape.  Justice Kennedy, writing for a 5-4 Court, concluded that the death penalty is unconstitutional except in cases involving what he called “the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life.”  (He left open, in other words, the possibility of the death penalty for non-homicide claims "against the state").

I'm sure that much will be made of the fact that four of the Court's five Catholics were in dissent.  I do not believe that the question whether the *U.S. Constitution* authorizes the death penalty for aggravated child-rape is answered by Church teaching, though.

Clearly, today's decision is consistent with the Court’s approach in recent death-penalty cases.  It is widely thought, that the Supreme Court overreached, in the early 1970s, when it attacked the death-penalty head-on.  Today, the Court majority’s approach is instead to focus on limiting the death penalty’s reach – for example, by invalidating its use in cases involving developmentally disabled or juvenile offenders. 

In his decision, Justice Kennedy emphasized not only the legislative trends and sentencing practices in the states – concluding that they suggested a consensus against the death-penalty for child-rape – as well as the Court’s own moral judgment about the purposes of punishment.  The Justices conceded that, of course, the rape of a child is a depraved act and even admitted that there are "moral grounds for questioning" a rule that limits the death penalty to homicide crimes.  (I agree.)  Still, the majority concluded that our "evolving standards of decency" and the principle of proportionality in punishment, preclude the use of the death penalty in child-rape cases.

As I wrote here, several years ago, after the Court's decision involving the death penalty for developmentally disabled offenders -- and here, after the no-executing-juveniles case -- this case presents (for me) an opportunity for one cheer (I oppose the death penalty) but not three.  Our Constitution has much more to say about the processes of the criminal law – search-and-seizure, interrogation, jury trials, and so on – than about the substantive problem – which is inescapably a moral problem – of justifying punishment.  The Court’s death-penalty cases are one of the relatively few arenas in which we see the Justices grappling with the fascinating, challenging questions of moral desert, deterrence, and state power.  At the same time, as the dissenters in today’s case reminded us, our Constitution for the most part leaves the hard work of assigning blame and meting out punishment to legislatures and juries.  The challenge for the Court is to enforce carefully the Constitution’s safeguards and limits without overstepping, and improperly substituting its own views for that of the People and their representatives.

In this case, it seems to me,

even an observer who opposes – as I do – capital punishment could have some reservations about Justice Kennedy’s methodology, about his understanding of the judicial role, and about some of the factors on which he and the majority relied in reaching their conclusion.  Even some who believe that the death penalty is not morally justified will question the Court’s view that the Constitution has removed from legislators the decision whether or not to authorize capital punishment in cases of aggravated child-rape.  That said, today’s decision is clearly consistent with the Court’s recent precedents, and has the merit of affirming, for death-penalty purposes, a relatively clear constitutional line between homicide crimes and other serious offenses.  It is clear that a majority of the Justices are uncomfortable with capital punishment as a general matter.  However, today’s decision confirms that these Justices have decided that it is better course to cabin and constrain capital punishment than to aggressively impose a death-penalty ban.  Even though today’s decision limits the reach of the death penalty, it leaves the general debate about capital punishment, and the question whether the death penalty is sensible policy or morally defensible, in the hands of the public.

Are the Gloucester girls a symptom of moral decay or ray of hope?

Writing in Time, Nancy Gibbs asks us to give the Gloucester girls a break, noting that there is conflicting evidence over whether the 17 high schoolers decided together to get pregnant, or whether they decided together to have their babies after learning that they were pregnant.  She also notes:

While 750,000 teens become pregnant every year, that number is at its lowest level in 30 years, according to the Guttmacher Institute, down 36% from a peak in 1990. This does not suggest that we are witnessing a mass moral collapse, especially since abortion rates have fallen even faster. According to the CDC, since the late 1980s the abortion rate for girls 15 to 17 fell by 55%, and this year the overall US abortion rate was at its lowest level since 1974.

So maybe the Gloucester girls are indicative of a larger trend:

I wonder if some soft message has taken hold, when the data suggests that more and more women facing hard choices are deciding to carry the child to term. This has been the mission of the crisis pregnancy center movement, the more than 4000 centers and hotlines and support groups around the country that aim to talk women out of having abortions and offer whatever support they can. If not in Hollywood then certainly in Gloucester, teen parents and their babies face long odds against success in life. Surely they deserve more sympathy and support than shame and derision, if the trend they reflect is not a typical teenager's inclination to have sex, but rather a willingness to take responsibility for the consequences.

Obama and CST's Constructive Challenge

In reponse to Greg's post on Obama's Catholic advisory panel, the challenge I would like to launch for our conversation here on Mirror of Justice during this campaign season is that we don't lose sight of the possibilty to be constructive.  I think we have the opportunity to in some way move beyond simply reacting to all of the ways in which neither party is completely in line with CST principles, and certainly beyond simply a negative reaction to NARAL's "scoring" system.  As a group I think we have the capacity to bring a significant contribution to the positive articulation of how CST might inform an approach to political life.  (Some of my own initial thoughts on this project are included in this reflection on Forming Consciences, which acknowledges both the priority of reducing abortions, and the complexity and prudential quality of the decisions which will make that a reality in our current system).

Obama's Catholic Advisory Board, Abortion, NARAL, and Criteria for Evaluating Candidates

Developing a new criteria for evaluating political candidates based on Catholic teaching is an intriguing idea, assuming of course that the criteria established (1) would focus on those issues on which Church teaching is most definitive and instructive, while remaining carefully open-ended and nuanced about those matters on which the Church teaches that prudential judgment is appropriate, and (2) places significantly greater weight on those matters that have the greatest priority as a matter of social justice (the bishops having consistently and repeatedly emphasized, for example, that human rights for the unborn is at the highest priority and cannot legitimately be categorized as merely one among a laundry list of political issues).

But, in the meantime, I’d ask that we not be distracted from the question raised in William McGurn’s article about the nature and purpose of the Catholic advisory council assembled by the Obama campaign. When anyone has the temerity to point out Senator Obama’s long-held positions on the question of the sanctity of life (which are extreme even by pro-choice standards, i.e., abortion as a litmus test for appointing judges, public funding of abortion, opposition to the ban on partial-birth abortion, opposition to child born alive legislation, etc.), the Obama campaign and its supporters increasingly refer to the National Catholic Advisory Board as supposed proof-positive that Obama is not your ordinary pro-choice politician. But what if that Catholic panel itself is comprised mostly of ordinary pro-choice politicians? Doesn’t that mean that Obama’s creation of such a panel tells us very little about whether the vaunted “change” Obama promises has any room for the smallest and most vulnerable among us?

So, let’s consider again the 21 present or former political officials on that Catholic advisory board, and remember that 17 of them have a perfect or nearly perfect NARAL approval rating. Saying that these 17 have failed to stand up and be counted for the protection of unborn human life is hardly a matter of cherry-picking a single vote or how one characterizes a particular legislative choice. Nor does it turn on NARAL ratings for a single year or two.

So which of these 17 can be characterized as pro-life with a straight face? Come on, folks, does anyone truly believe that Senators Edward Kennedy, John Kerry, Richard Durbin, or Patrick Leahy are secret members of Democrats for Life? Does anyone really believe that this crew is advising Obama to rethink his position on abortion or to change his plans to further embed abortion-on-demand into every aspect of the law and public policy?

Greg Sisk

A Catholic Legal Theory Perspective on Discrimination

Thanks to Amy and Rob for beginning an exchange on “discrimination.”

Catholic Legal Theory could begin to address the question of discrimination that there is a certain understanding of equality about the human person and the incumbent dignity of the human person that emerges from the fact that everyone possesses the divine image of God—each person, each human being, each member of the human family has an equality before God and for humans to alter this or to attempt to alter this is wrong (it is unlawful discrimination).

But in the human world, things are a bit different due to some other considerations as St. Paul reminds us when he points out that we receive different spiritual gifts (1 Corinthians 12:1-11): “there are a variety of gifts, but the same Spirit; and, there are varieties of service, but the same Lord…”

When we use the gift of right reason, we can see how this plays out in our lives. By way of illustrating my point, we may all enjoy sports to some degree, but we are not all the equal of great athletes. We may all enjoy music, but we are not all the equal of great composers and performers. We may all appreciate great literature, but we are not all great authors, novelists, or poets. And so it goes. Here we see discrimination that is part of our lives and that is inseparable from our human condition and existence. This discrimination is not wrong. It helps to distinguish our individualities as St. Paul suggests.

I do not find the criterion of “demeaning” as has been described to be determinative in assessing whether human actions in the treatment of others constitute discrimination that is antithetical to the dignity of each member of the human family and, therefore, wrong. This criterion may be useful in some circumstances of thinking about discrimination, but its helpfulness diminishes and disappears when a subjective standard is employed to assess whether the “demeaning” that takes place is inappropriate discrimination. If Michael Jordan and I are playing a game of pickup basketball, I think I will be trounced. I may experience humiliation and sense that I have been demeaned, but I have not been the subject of improper discrimination. By objective standards, I have not been demeaned; I have not been the target of inappropriate discrimination. In the realm of the law, the famous Casey “mystery of life” passage that I have critiqued on several occasions in the past illustrates the fundamental flaw of the subjective determination when the isolated, autonomous individual becomes the standard by which human conduct is judged.

When it comes to CLT developing some standards or criteria for assessing what is constitutive of discrimination, both lawful and unlawful, I submit that it is the tool of objectivity that enables those involved with the enterprise to transcend individual caprice which is vital for the success of the assessment. What is most helpful to begin the process of developing standards and criteria is a proper, i.e., objective, understanding of human nature that takes stock of the physical and metaphysical dimensions of the human person and the dignity that is the due of each.

RJA sj

Evaluating Candidates

I agree with Amy that it makes a lot more sense to construct our own criteria for evaluating candidates rather than simply reacting to how they score on NARAL's scale.  With respect to the congressional voting record, the example of the Unborn Child regulation that Amy raises is not the only one that poses complexities.  For example, the United Nations Population Fund is about more than reproductive rights - its concerns include prevention of violence against women, reducing the spread of AIDs and promoting safety of childbirth.  As a result, I'm not convinced there is anything wrong with voting in a way that ensures that the president can not unilaterally remove funding from the UNPF.  I appreciate that there may be some who disagree with that assessment, but the fact that NARAL lists a vote againt an amendment to strike the language that would ensure the president can not do so as "pro-choice" should not be what determines which position is more consistent with Catholic thought.

NARAL Criteria: Case in Point

Thank you, Fr. Araujo, that link is very helpful.  Here is the first entry under Senate votes from the 2007 congressional record on choice votes from the NARAL website: 

"Unborn Child" Regulation. Children's Health Insurance Program Reauthorization Act, H.R.976. Allard (R-CO) amendment to codify the Bush administration's controversial "unborn child" regulation that allows states to make an embryo or fetus - but not a pregnant woman - eligible for health-care coverage. The amendment was an effort to erode further the legal framework for abortion rights by recognizing an embryo, from the moment of conception, as a separate beneficiary of government programs. Rejected 49-50; a pro-choice vote (+) was against the amendment (8/2/07).

With no background on the legislative history of this particular bill, I don't want to wade in over my head, but from a CST perspective this seems pretty complex - and one's vote on this legislation might also be characterized as grounded in a belief that health care coverage should be extended to pregnant women.  My point being, there are a number of complexities behind the NARAL "score" that can obfuscate the deeper questions about how a commitment to foster a culture of life takes shape in the context of a legislative agenda.