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.

Thursday, July 31, 2008

article on conscience in Washington Post

Here is a recent article on rights of conscience in health care. The article deals with the draft HHS regs. One of the key issues involves the proposed definition of "abortion." The proposed definition states that an abortion is "any of the various procedures--including the prescription and administration of any drug or the perfromance of any procedure or any other action--that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation." The controversy is whether this definition is an effort to restrict the availability of "birth control." It seems that the Post article emphasizes the views of the critics of the HHS proposal on this point. I mentioned to the reporter that some medical authorities had redefined pregnancy as beginning at implantation rather than at fertilization, but that this change was not due to any new science on the issue. The reporter mentions, without any sense of irony, that a critic of the HHS proposal states that the HHS definition is ideologically based.

Even if there is room for reasonable disagreement on this point, isn't that the reason for the existing federal law that protects conscience in this area? If everyone agrees on what is a reasonable course of conduct, then we don't need protection for conscience.

Richard M.   

July 31, 2008 in Myers, Richard | Permalink | TrackBack (0)

More on Humanae Vitae: A Response to Eduardo

Expecting a response like Eduardo’s, I almost didn’t include in my post the reflections on the complicated family situations of the two young men.  Yes, at first blush and without being snarky, the reaction is maybe those creating the complicated family situations should have used birth control.  But, at second blush, maybe the answer is that they should have exercised self-control.

Here are the questions.  Has widespread acceptance of birth control contributed to a general lowering of moral standards in society as Paul VI predicted?  Has it contributed to a rise in infidelity?  Has it contributed to a lessening of respect for women by men?  We might rephrase this last one:  Has it contributed to an objectification of persons, both men and women?  If the answer is “yes” to any or all of these questions, then might it be conceded that possibly, just possibly, the Church has an insight into the human condition that has been overlooked by much of the rest of society, including many within the fold?

*          *          *

I’m not sure that looking to Europe undermines the modest connection I attempted to make between human development and contraceptive use.  First, I think it is way too early to tell whether Europe’s social safety net (human development) is sustainable given a declining and culturally changing population. (As an aside for another day, I am not sure why the phrase "demographic suicide" has “some extremely unfortunate eugenecist overtones.”).  Second, although it appears that Europe has been more successful – maybe too successful for its own long-term good – in avoiding the “risk” of pregnancy in an era of sexual revolution than the United States, what is point to be drawn from this fact? 

Can’t we concede that a sexually and relationally “liberated” society with high divorce rates, high rates of children born out of wedlock, high rates of personal and material absenteeism by fathers, is bad for human development?  Aren’t these conditions related to a general atmosphere of self-indulgence predicted by Paul VI?  And, isn’t it possible that the widespread acceptance of artificial birth control with its illusion of giving us control over sexual lives has contributed to this atmosphere of self-indulgent autonomy where a 21 year old fathers three children by at least two women and a 17 year old has six siblings with four different last names?

*          *          *

Eduardo concludes his post with this:  “I think I'd be willing to accept our president's current policy of official hostility to contraception (e.g., abstinence-only sex education, etc.) if the trade-off were a serious governmental commitment to human development among the poorest Americans.  Unfortunately, that deal has never been on the table, at least not during my lifetime.” 

In friendship, I offer two critiques of this statement.  First, if widespread acceptance of contraception is problematic, then why not embrace “abstinence-only sex education, etc.” regardless of what other people are doing or whether the government is serious about human development?  In other words, if “abstinence-only sex education, etc.” is a social good why condition acceptance of it on a trade for some other good?  Second, I want to note the state-centric nature of Eduardo’s concluding lines.  Whether or not the state is involved in the contraception business or abstinence business, we as individuals, professors, Catholics, spouses, parents, members of various communities, can acknowledge that today’s hook-up culture made possible by wide-spread acceptance of contraceptives is not healthy for many reasons.  Can’t we? 

Maybe I am naïve about this, but there shouldn’t be a left/right, liberal/conservative divide here.  We ought to be able to take a common sense look at society and acknowledge that Paul VI had some important insights into what would happen to a society that artificially uncoupled sex from the possibility of procreation. 

July 31, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Saint Batman?

Fr. Raymond J. de Souza reviews society through the lens of "The Dark Knight."  In the middle of his column, he says:  "The fight between Batman and the Joker is not a fight between good and evil, but about something more fundamental than that: the question of whether good and evil exist at all. Is there order, including moral order, or chaos?" 

July 31, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Bix on Truth in Law

Brian Bix has posted Will Versus Reason: Truth in Natural Law, Positive Law, and Legal Theory.  (HT: Solum)  From the abstract:

It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality must choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult.

The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries?

And from the text:

I would not purport to resolve debates within the natural law tradition that go back many centuries. I would note that Finnis is right to raise David Hume’s is/ought problem to traditional voluntarist natural law theory (Hume’s argument, it will be recalled, is that one cannot deduce a normative [‘ought’] conclusion from purely descriptive [‘is’] premises). However, rationalism escapes Hume’s is/ought problem only by entering its own foundational conundrum: what can replace God’s will as a foundational axiom, as a justification for following all the specific norms that natural law will offer as part of a moral code?

The volume in which this paper will appear, Truth: Studies of a Robust Presence (Catholic UP 2009)should be a must-read for MoJers with an interest in philosophy.

July 31, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Tuesday, July 29, 2008

Human Development, Human Capital, and Contraception

Michael S. ponders:

The other day, I read the obituaries of a 21 year old male with three children bearing two different last names and an unrelated 17 year old with six siblings carrying four different last names. (May they rest in peace). As I read, I couldn’t help but wonder if there was a connection between the lack of human development (flourishing), the predictions of Paul VI concerning the widespread acceptence of contraceptives, and the complicated family situations of so many people, including these two young people.

Of course, my first thought when reading Michael's post was that, given the number of children/siblings involved in his examples, the problem in these young men's tragically short lives might not have been contraception but rather the lack of it, but his question is a serious one and  deserves more than my snark. 

I think it's very difficult as an empirical matter to attribute the poor showing of the U.S. on the human development front to contraception.  As one MOJ reader correctly observed to me in an email, Europeans consistently do quite well on human development, and their  widespread use of contraception is well noted among defenders of HV.  (Whether Europe's declining population, which is no doubt related to European use of contraception, is really a problem in a world projected to hit 9 billion people shortly and whether the notion of Europe's "demographic suicide" -- to use George Weigel's phrase -- has some  extremely unfortunate eugenecist overtones is a discussion for another day.)  On the other side of the coin, use of contraception in Central America is more limited than in both Europe and the United States, and Central American countries do particularly badly on human development measures.

Rob Vischer's observations in his most recent post are also relevant to Michael's query.  If one reads the social encyclicals during the roughly 70 years before HV, one finds very rich discussions from Rerum Novarum on about the many social and cultural maladies that result from poverty and inequality, including things like the breakdown of the family, the rise of immorality, and spiritual despair.  Unlike the claims made on behalf of contraception, there are actually a number of studies that have found a connection between, for example, economic inequality and failure of the poor to invest in human capital.  I suspect that, if there's a connection between  contraception and the U.S. problem with human development, it is the one Rob's post obliquely highlights -- our poverty policy discussion has, since the 1980s, been dominated by people who are ideologically far more interested in combating the spread of contraception than in investing in the development of the human capital of the sorts of people in Michael's example. 

Personally, I believe that there is absolutely nothing wrong with the responsible use of contraception within marriage, and that it is usually not appropriate to judge something (whether it be guns, cars, alcohol, or contraception) solely on the basis of its least responsible (or most oppressive) uses.  Nor do I think the evidence remotely supports Eberstadt's view that virtually every sexual, marital or cultural dysfunction that has emerged in Western societies since the 1960s can be attributed to the widespread use of contraception.  Nevertheless, I think I'd be willing to accept our president's current policy of official hostility to contraception (e.g., abstinence-only sex education, etc.) if the trade-off were a serious governmental commitment to human development among the poorest Americans.  Unfortunately, that deal has never been on the table, at least not during my lifetime.

July 29, 2008 | Permalink | TrackBack (0)

More on Pope Paul VI—The Development of Peoples and Humanae Vitae

After my posting on Humanae Vitae this past Sunday, I received an e-mail from a Mirror of Justice reader who wanted to call to my attention to the fact that in 1967, more than a year before the he issued Humanae Vitae, the pope promulgated the encyclical letter Populorum Progressio, On the Development of Peoples. This, indeed is true, and as the reader pointed out, Paul VI stated in the 1967 encyclical,

There is no denying that the accelerated rate of population growth brings many added difficulties to the problems of development where the size of the population grows more rapidly than the quantity of available resources to such a degree that things seem to have reached an impasse. In such circumstances people are inclined to apply drastic remedies to reduce the birth rate. There is no doubt that public authorities can intervene in this matter, within the bounds of their competence. (Italics mine) They can instruct citizens on this subject and adopt appropriate measures, so long as these are in conformity with the dictates of the moral law and the rightful freedom of married couples is preserved completely intact. (Italics mine) When the inalienable right of marriage and of procreation is taken away, so is human dignity. Finally, it is for parents to take a thorough look at the matter and decide upon the number of their children. This is an obligation they take upon themselves, before their children already born, and before the community to which they belong—following the dictates of their own consciences informed by God’s law authentically interpreted, and bolstered by their trust in Him. (Italics mine) (N.37)

I was aware of this because Humanae Vitae refers to the earlier encyclical as well as other documents written by Paul VI, his predecessors in the Chair of Peter, and the Second Vatican Council. The passage from Populorum Progressio that I have quoted may prompt some to think that Paul VI changed his view when he issued Humanae Vitae over a year later. But I submit that this would be an incorrect view of the pope’s thinking. I make this observation because in October of 1965 when the pope addressed the United Nations General Assembly, he commented on and condemned artificial birth control (a matter for which he was criticized a few days later in a New York Times editorial). I contend that Paul VI consistently opposed the use of artificial birth control, be it voluntarily chosen by married couples or be it imposed by the state. In his address at the UN he had this to say,

For you deal here above all with human life, and human life is sacred; no one may dare make an attempt upon it. Respect for life, even with regard to the great problem of the birth rate, must find here in your Assembly its highest affirmation and its most rational defense. Your task is to ensure that there is enough bread on the tables of mankind, and not to encourage an artificial control of births, which would be irrational, in order to diminish the number of guests at the banquet of life. (N.6)

RJA sj

July 29, 2008 in Araujo, Robert | Permalink | TrackBack (0)

Praying for the Killer

The White House press release on the now-authorized military execution says: "The President’s thoughts and prayers are with the victims of these heinous crimes and their families and all others affected.”  If the president is going to bring in his perspective as a person of prayer -- Christian prayer, we know -- shouldn't he say clearly that his prayers are also with Gray, the convicted murderer?  "All others affected" could literally cover that but obviously doesn't suggest it (probably it's meant to suggest, among others, Gray's family).  Saying it clearly would be a crazy, Christian act by a president who often suggests that he is resolute in applying Christian faith in office.  If it's imprudent to say it clearly, then shouldn't "the President's thoughts and prayers" be left out altogether, lest he reinforce all of us in our natural tendency to pray only for the good people?  (This is all separate, of course, from whether executions should happen ever or how often.)

July 29, 2008 in Berg, Thomas | Permalink | TrackBack (0)

Human Development and Humanae Vitae

A couple of weeks ago, Eduardo posted the disturbing results on Human Development in the U.S.  The authors of the report stated:  “The report shows that although America is one of the richest nations in the world, it is woefully behind when it comes to providing opportunity and choices to all Americans to build a better life.”

There are many contributing factors, I suspect, to a person’s or a group’s lack of thriving.  One cause, predicted by Pope Paul VI forty years ago last week (Michael P., Rick, and Fr. Araujo have each posted on this anniversary), is the widespread acceptance and use of contraceptives.  Mary Eberstadt lays this out in her article, “The Vindication of Humanae Vitae, in the September 2008 First Things.

Paul VI warned that widespread acceptance of artificial contraception would result in four trends, as Eberstadt reminds us:  “a general lowering of moral standards throughout society, a rise in infidelity, a lessening of respect for women by men, and the coercive use of reproductive technologies by governments.”

Eberstadt writes:  “Four decades later, not only have the document’s signature predictions been ratified in empirical force, but they have been ratified as few predictions are:  in ways its authors could not possibly have foreseen, including by information that did not exist when the document was written, by scholars and others with no interest whatever in [the Church’s] teaching, and indeed by many proud public adversaries of the Church.”  She then lays out the evidence, which I encourage you to read here for free.

The other day, I read the obituaries of a 21 year old male with three children bearing two different last names and an unrelated 17 year old with six siblings carrying four different last names.  (May they rest in peace).  As I read, I couldn’t help but wonder if there was a connection between the lack of human development (flourishing), the predictions of Paul VI concerning the widespread acceptence of contraceptives, and the complicated family situations of so many people, including these two young people. 

July 29, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Developing human capital

Our belief in the dignity of every person demands that we provide adequate resources to maximize a person's opportunity to develop their own gifts and participate fully in our shared economic, cultural, and political life.  The family environment into which a child is born matters a lot, of course, but so does early childhood education.  The GOP tends to focus more attention on the former (albeit with a tendency to offer rather simplistic answers), while the Dems focus more on the latter.  David Brooks, in a must-read column for those interested in these issues, laments that Republicans "are inept when talking about human capital policies."

July 29, 2008 in Vischer, Rob | Permalink | TrackBack (0)

BARF: In thanksgiving for friendship

I have returned relaxed from my annual BARF weekend on the Frio River in the Texas Hill Country.  I am blessed with the friendship of these ten wonderful guys, our wives (the wives congregate on the Frio in September for their own weekend), and our combined 34 children (our children now plan an annual trip to the beach).  Over the past quarter of a century plus that our lives have intertwined we have experienced marriages – at first our own and now the kids, births, baptisms and other sacraments, a divorce, physical and mental illness, sickness and death among many of our parents and some of our siblings, semi-annual camping trips when the kids were young (imagine 30 kids, many in diapers experiencing the great outdoors), multiple fights followed by multiple reconciliations… You get the picture.  We have shared the highs and lows of life during our entire adult lives.  I am never sufficiently grateful for the gift of these friendships.

Texas Monthly’s August 2008 issue hit the newsstand just as we were departing for our annual excursion.  Charlie Llewellin’s cover story scoped out the 25 Best Swimming Holes in the State Republic of Texas.  Three of us took seven hours to make the three hour trip from Austin to Leakey as we sampled five of the top twenty-five.  The group tried another two over the weekend, and we hit one more on the way back to Austin yesterday.  As expected, Austin’s Barton Springs ranks numero uno,  But, our number one is a secret spot (shown in this photo of yours truly - click on picture to enlarge) within a few miles of Texas Monthly's No. 6.


Oh, and by the way, BARF stands for Boys Assembled for Reflection on the Frio. Thanks for indulging me with the post that is light on "legal" and "theory."

July 29, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)