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.

Monday, August 25, 2008

Evangelicals for Human Rights ... and Against Torture


At Mercer University, just outside Atlanta, on September 11-12.   Check out the agenda (here), which looks very interesting.

August 25, 2008 | Permalink | TrackBack (0)

Saturday, August 23, 2008

U.S. Bishops on doctors and conscience

"A U.S. bishops' aide welcomed a draft of federal regulations aimed to beef up existing legislation protecting health care providers' right to conscientiously object to participating in abortions."  More here.

August 23, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Dr. Carlson-Thies weighs in on North Coast case

Dr. Stanley Carlson-Thies is a well known expert on questions relating to faith-based social services.  After reading this MOJ post (see also this one) about the recent decision in the North Coast Women's Care case, he sent me this comment:

The North Coast Women's Care decision is troubling for its easy subordination of the religious and conscience rights of doctors to the supposed right of a patient to have a desired procedure performed without inconvenience.  And it is troubling for its easy reliance on the Smith decision's odd logic that, as long as the legislature did not set out to prohibit some exercise of religion, the fact that the exercise is suppressed just the same is not so important. 
Still, the decision seems to me a bit more complex than some commentary suggests.  The legal rule at the center of the case, the California Unruh Act's prohibition of discrimination on the basis of sexual orientation (and multiple other bases), applies to business establishments, including health care practices.  That is, the case is not only about the freedom of medical professionals to exercise their best judgment, but also about the duty of institutions to ensure nondiscriminatory treatment of patients.  The decision strangely suggests that the doctors' religious freedom has been honored because they can continue to believe whatever they wish, even though they are prohibited from acting in accordance with those beliefs by not providing an infertility treatment to unmarried women.  And it proposes an inadequate way for the doctors' to align their actions with their beliefs:  they can simply refuse to provide the treatment to every woman.
But there is another sentence in the decision:  the doctors can avoid the conflict between their conscience and the sexual orientation nondiscrimination requirement by making sure that every patient wanting the treatment will receive "full and equal" access to the procedure through some other physician in the practice who does not object to performing it.  It seems, in fact, that the doctors did try to arrange for an alternative provision of the procedure but that the accommodation did not go smoothly because of an unintended mix-up.  A mountain was made out of that molehill.
Nevertheless, the sentence is important:  what is key is access to the procedure, not a requirement that every doctor must perform every procedure, including those to which they have deep moral and religious objections.  Good thing: surely we want our medical professionals to be motivated by high ideals and deep convictions.  But for this to be a realistic solution, something more is needed than this sentence.  Why must the referral be to some other doctor within the practice?  (Note the hint in the concurring opinion that a doctor with a religious objection who works alone should be able simply to refer a patient to some other practice.  What then about a faith-based practice in which all of the doctors have a conscientious objection to performing certain procedures?)
The state desires to root out sexual orientation discrimination.  But it is constitutionally bound to honor the free exercise of religion.  To accomplish both will require something more than putting clashes before judges.  The legislature ought to fashion a remedy (which might require amending the Unruh act). To honor doctors' religious objects while ensuring that patients have access to all legal procedures the legislature could place the burden of ensuring access elsewhere than on the medical practice itself:  on the state regulatory agency (to make sure that a diverse set of clinics is available in every geographic area), on the state itself (it must provide itself, or contract for, services that otherwise would be inaccessible), the health insurance provider (to ensure that such a service is available in the network or will be covered by an out-of-network clinic), or the employer (make arrangements to pay for the service if the insurer does not).  And even if the burden is on the medical practice, why shouldn't it be able to meet the access requirement by making a referral?
True, in all of these instances, the patient might not have instant and easy access to the desired service.  But why should that be the standard, if the only way of achieving it is by trampling on the constitutionally protected freedom of religion?
I'd like to see commentators and legislators give this unfortunate decision a very careful analysis and not just line up in favor of it or against it.

August 23, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Interview with Chaput

(Hey, that rhymes.)  Here is an interview with Archbishop Chaput, on conservative-talk-radio-host Hugh Hewitt's show, about the former's new faith-politics-citizenship book (which was mentioned, here at MOJ, a few days ago), the Pope, World Youth Day, vocations, the scandal, etc., etc.  A bit:

Well, you know, people sometimes pigeonhole me as a conservative, and I hope what I am is a Catholic. And I preach the Gospel honestly without compromise, and that cuts to the right and to the left, because the Truth is supposed to set all of us free from our parties and from our prejudices or whatever. So I think people who want to follow the Gospel will offend people on all sides of the political spectrum.

- -    -    -   

HH: Archbishop, in Chapter 10, you write this, and I think maybe it’s one of the core messages. “The Catholic Church exists to make Jesus known, the bring the will of men and women into alignment with God’s will through a relationship with Jesus Christ, the son of God, the Church has a vital role in building peace and reconciliation, promoting justice and defending Creation, but she does that first by proclaiming the whole council of God.” Again and again throughout Render Unto Casear, you’re very careful to say you know, the Church has got a key mission here, which is to get the Gospel out there.

CC: That’s right, and you know, in terms of our engagement in the world around us, whether it be political in that broad sense, or in a more narrow sense political, is about loving our neighbor. That’s why it’s foolish for Catholics to think they can enter into the political world without bringing their faith with them, because we’re required by our faith to engage the world so that human dignity will be supported, and the common good will be served. It’s a more complicated way of just saying we have to love our neighbors as ourselves. And God commands us to do that, so we just can’t work towards our personal salvation, or you know, just wait for God to save us.  God also throws us back into relationship with our neighbors if we truly love Him.

HH: And you also at the very beginning of the book, though, having understood that Christ is at the center of your mission and the Church’s mission, you write, “People who take God seriously will not remain silent about their faith. They will often disagree about doctrine or policy, but they won’t be quiet. For Catholics, the common good can never mean muting themselves in public debate on foundational issues of faith or human dignity. Christian faith is always personal, but never private” That’s going to raise a lot of eyebrows. You’re asking the faithful to be explicit in what they believe and why. 

CC: I think it’s important. You know, one of the examples I used to underline what I’m trying to say there is to tell a believer that he must be silent in public is like telling a married man he must pretend to be single when he’s at work. And if he does that, he won’t be married very long, because he’ll find somebody else, or his wife will be very disappointed in the fact that he doesn’t love her publicly. And I think our relationship with God is a relationship as a spousal love. You know, He loves the Church as a bridegroom loves his bride, and that it’s important for us to let people know that, not in a way that’s in their face or offensive, but then also to live out the consequences of that, which is to love our neighbor. We can’t say we love God who we can’t see if we don’t love our neighbor who we do see. And that’s political life. Political life is about loving our neighbor. . . . 

UPDATE:  Another interview, this time with ZENIT.

Continue reading

August 23, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Friday, August 22, 2008

Catholic Capitalism?

In the August 23d issue of The Tablet, there is an article that is required reading for all MOJers:  Clifford Longley, An Acceptable Face for Capitalism.  The article opens thus:

With the all-conquering global free market seeming to trounce all competing social and economic ideologies, a moral and practical framework looks increasingly necessary. Could Catholic social teaching fill the gap?

Click here to read.

August 22, 2008 in Perry, Michael | Permalink | TrackBack (0)

Responses to Current Financial Crisis

It is sometimes reassuring to hear that you're not the only one confused about the appropriate response to a situation -- such as the current financial crisis.  The American Banker (available only by subscription) reports on a meeting of Nobel Laureates discussing this issue, and coming to varying conclusions:

Lindau, Germany — Some of the world's brightest economic minds agree the current financial crisis exposed major flaws in the system, but disagree about the role regulators should play in preventing a repeat.

At an annual gathering Thursday of economic Nobel laureates on a tiny, medieval island in southern Germany, three winners of the Nobel Prize in economics and one Peace Prize winner lamented the excessive risk-taking, lax management and impenetrable complexity at the heart of the financial system's current turmoil.

Many of the laureates' criticisms focused on the notion that banking has drifted from its fundamental purpose. Amid a rush to profit, "what's been lost is the idea that a banker has some responsibility to protect the client's interest," said Daniel McFadden, who won the Nobel Memorial Prize in Economic Science in 2000 for research focused on modeling individuals' decision-making processes.

While a market in which homeowners' mortgages can be packaged into securities sold to banks across the globe might be efficient, Mr. McFadden said, "the most efficient way to organize economic activity may also prove to be the most brittle. Congress needs to consider the costs of volatility and instability."

But a rush to regulation could have dire consequences, warned fellow laureate Myron Scholes, who took a Nobel Prize in 1997 for a method of valuing derivatives, which are financial instruments whose price changes based on the value of related assets. Ticking off the financial systems' basic functions — including financing large-scale projects, facilitating saving and assigning prices to assets — Mr. Scholes attributed decades of economic growth to innovations that let institutions "perform these functions more efficiently."

Mr. Scholes, who also co-founded Long-Term Capital Management, a hedge fund that collapsed amid the East Asian and Russian financial crises of the late 1990s, said, "Sometimes, the cost of regulation might be far greater than its benefits." One example, Mr. Scholes said, are the Sarbanes-Oxley accounting rules implemented after Enron Corp.'s collapse earlier this decade. The rules have been criticized as undercutting the U.S.'s attractiveness as a base for investment.

Joseph Stiglitz, a professor of economics at Columbia University who won the Nobel in 2001, suggested misguided innovation itself caused the current turmoil. Noting that homeowners' most important risk assessment is the likelihood that they can retain their home amid market volatility, Mr. Stiglitz said, "These are the problems [financial markets] should have created products to match. But they created risks, and now we're bearing the consequences of this so-called innovation."

There were some areas of agreement. The standards that gauge how much capital banks should hold — called Basel II for the Swiss city in which they were developed — focus too tightly on managing daily risk and not enough on handling crises. "What happens most of the time is not important," said Mr. Scholes, noting the current financial turmoil comes on the heels of the dot-com bubble's bursting and the Asian financial crisis of the early 1990s. "We have to learn how to handle the shocks when they occur."

One idea that might prevent a repeat of the turmoil: a commission that would vet financial products before their release, akin to the U.S. Food and Drug Administration's evaluation of drugs before they are released to the market. Mr. McFadden said, "We may need a financial-instrument administration that tests the robustness of financial instruments and approves only the uses where they can do no harm."

But tinkering with a fundamentally flawed system may not be enough, said Muhammad Yunus, whose success in lending small amounts of money to people too poor for ordinary credit led him and his Grameen Bank to win the Nobel Peace Prize in 2006.

"Our banking is sub sub sub sub prime," said Mr. Yunus, noting his model requires no collateral, offers no insurance, and boasts "no lawyers." The upshot: "Our repayment rate is very high. Like 98 or 99%."

August 22, 2008 in Schiltz, Elizabeth | Permalink | TrackBack (0)

Wednesday, August 20, 2008

Richard McCormick, S.J., and the Magisterium

    Lumen Gentium 25 reads in part: “Bishops, teaching in communion with the Roman Pontiff, are to be respected by all as witnesses to divine and Catholic truth. In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent. This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff, even when he is not speaking ex cathedra . . . .”  (Emphasis added). As many theologians have noted the term submission is a translation from the latin, “obsequium,” and is itself not an infallible teaching of the Church. Chapter 7 of the late Richard McCormick’s outstanding book Corrective Vision discusses this issue in important ways. He points out that respected theologians reject the view that “submission” is to be understood in an absolute way. Karl Rahner did not think the expression was sufficiently nuanced. Andre Naud rejected the “rigid” reading of the passage. And, as was made clear again at the conference in Seattle, Francis Sullivan, S.J. argues that the absolutist reading is based on a misunderstanding of the meaning of obsequium. McCormick suggests that what is required is a “docile personal attempt to assimilate the teaching, an attempt that can end in an ‘inability to assimilate.’”

     Beyond this, McCormick quotes Karl Rahner: “Apart from wholly universal norms of an abstract kind, and apart from a radical orientation of human life towards God as the outcome of a supernatural and grace-given self-commitment, there are hardly any particular or individual norms of Christian morality which could be proclaimed . . . in such a way that they could be unequivocally and certainly declared to have the force of dogmas.” McCormick maintains that the Church has a duty to provide concrete moral guidance, but this guidance is not “buttressed by the certainty and stability” associated with other teachings of the Church. “We cannot be accused of washing dirty linen in public when we candidly acknowledge that our tradition is not free of distortion and error.”

    Error, McCormick argues, is particularly likely to occur in a coercive ecclesial atmosphere where Bishops are appointed only if they ideologically conform and theologians are disciplined. McCormick maintains that the coercive atmosphere in fact exists in the Church. He doubts that that is possible to show what the Bishops have taught for decades on birth control because a coercive atmosphere has had silencing effects. He argues that the formal or informal silencing of theologians, priests, and the laity has also undermined the force of the magisterium because he believes that the Holy Spirit works through the whole Church.

 McCormick writes that: “Contemporary men and women want a magisterium that truly educates, i.e., opens eyes to unsuspected beauty and challenge in our lives. They want teachers who truly teach and maximize the potential of those taught. They will continue to reject a teaching office that is more concerned with control.”

August 20, 2008 | Permalink | TrackBack (0)

california decision on conscience

Thanks to Rick for his post (here) about the California decision. There is some ambiguity in the decision because the case isn't over yet. The Court was disposing of a motion to dismiss one affirmative defense of the doctors involved. One interesting wrinkle is that the affirmative defense the Court considered (is there a religious exemption to California's law prohibiting discrimination on the basis of sexual orientation) is one that the doctors apparently didn't make. The doctors said that their objection to providing intrauterine insemination was because of the patient's marital status (the patient was unmarried) and not because of her sexual orientation. There is apparently a factual dispute about this that is still open on remand. It appears that the California Court dismissed a defense that the doctors never asserted.

Rick's hypo (can the state override a doctor's refusal to perform an abortion?) raises a related point. The doctor would argue that the refusal to perform an abortion is based on an objection to a specific medical procedure and not based on the status of the patient. The argument would be that this doesn't involve sex discrimination and cases such as Geduldig and Bray would seem to agree.

This simply shifts the question a bit. Does the state have a compelling interest in prohibiting discrimination on the basis of marital status or does the state have a compelling interest in preventing doctors from objecting to pregnancy.

I am not optimistic that the courts would resolve these questions in a way that is favorable to the conscience of the medical professionals involved. The California case indicates that the free exercise clause provides little hope (because of Smith) and that state constitutions (to the extent they go beyond Smith) offer little protection because when dealing with claims of conscience in health care the courts tend to apply forms of heightened scrutiny in ways that favor state power.

I wrote a short paper on this topic that I presented at the recent University Faculty for Life annual meeting that was hosted by Marquette. I'd be happy to send that paper to anyone who requests a copy.

Richard M.



August 20, 2008 | Permalink | TrackBack (0)

Tuesday, August 19, 2008

The Presidential Campaign and The Sanctity of Human Life: The Differences Become Ever More Clear

When Senator Barack Obama addressed the question of human life and abortion back during the presidential primaries at the Compassion Forum in April, he said that there is “a moral dimension to abortion, which I think that all too often those of us who are pro-choice have not talked about or tried to tamp down.” Those Catholics who wanted to support the Obama candidacy viewed this language in hopeful terms as signaling a new openness to the message of life, in contrast with the rigidly pro-abortion substance and style of past Democratic presidential campaigns. Please be assured, we were told, despite his unwavering pro-choice record as a state legislator and United States Senator, Obama was not your typical abortion rights extremist. He is someone who will not ignore or despise our witness for life.

During the past week, however, three episodes have unfolded that have begun to clear the air on the sanctity of human life question, as well as cast a more penetrating light on Senator Obama’s commitment to unfettered abortion rights and his genuine attitude toward the pro-life movement. When Obama is pulled away from the glittering generalities of his campaign for “change” and his studied rhetoric in large public forums, he inadvertently may have shown a disdain for the pro-life movement and a lack of candor about his own public record on abortion. Most importantly, we have learned that when Obama was in a position of power and making official decisions, well before he had moved into campaign mode, he had gravitated toward the most extreme position on abortion.

First, over this past weekend, the presumptive presidential nominees appeared right after one another on the same stage at the Saddleback Church Forum. In that exchange, we saw the clearest of differences between the candidates on the question of human rights for infants and abortion.

Senator McCain was direct, did not waffle, and made no attempt to play both sides of the fence. When asked “at what point is a baby entitled to human rights,” McCain said forthrightly “at the moment of conception.” McCain pointed to his pro-life voting record and concluded: “And as President of the United States, I will be a pro life president and this presidency will have pro life policies. That’s my commitment. That’s my commitment to you.” As moderator Rick Warren aptly responded, “Okay, we don’t have to go longer on that one.”

By contrast, Obama responded to the same question by saying that “one thing that I’m absolutely convinced of is there is a moral and ethical content to this issue. So I think that anybody who tries to deny the moral difficulties and gravity of the abortion issue I think is not paying attention.” Obama had said almost exactly the same thing back in April at the Compassion Forum. In the ensuing months has there really been anyone who has publicly tried “to deny the moral difficulties and gravity of the abortion issue?” (Even NARAL and Planned Parenthood have been pulled back publicly on this point.) To whom is Obama supposed to be responding? What is this statement supposed to mean? What difference would it make in the policy-making councils of an Obama administration? Any hint by this language that Obama is genuinely open to the witness for unborn human life was negated only seconds later when Obama proclaimed “I am pro-choice” and “I believe in Roe v. Wade.”

Most troubling was the manner in which Obama began his answer at the Saddleback Forum. The question encompassed not only abortion but was framed as when “does a baby get human rights?” On this pretty simple question about when the newest members of our society are to be treated as human beings and entitled to human rights, Obama could only offer that “answering that question with specificity, you know, is above my pay grade.” What! The man who asks us to trust him with the highest political job in the world cannot give us a straightforward answer to the question of when “a baby gets human rights”! And if he truly is unable to answer the question, shouldn't he logically be doing everything he can to extend full protection to those babies both born and unborn so that we do not commit the atrocity of deliberately taking an innocent human life?

When Obama made a nearly identical nod to the “moral dimension to abortion” at the Compassion Forum back in April, I offered the following comment here at Mirror of Justice: “Given Obama’s unwillingness to affirm that human life is literally at stake, the nature of this ‘moral dimension’ was less than clear. Beyond words, what exactly does this recognition of a moral element mean to someone like Obama who is asking to lead our nation? Is there any evidence that this ‘moral dimension’ to abortion or this ‘moral weight’ to ‘potential life’ has any consequence for Obama’s approach to public policy on the question?”

The next episode followed soon after the first, when Senator Obama was interviewed right after the Saddleback Forum by the Christian Broadcasting Network (the full interview on video is available on the CBN web site). During the interview, Senator Obama let slip the mask of congenial respect for his opponents on the abortion issue and blasted pro-life groups for supposedly “lying” about his abortion record: “They have not been telling the truth. And I hate to say that people are lying, but here’s a situation where folks are lying.” Obama was addressing nagging questions about his startling opposition as an Illinois state senator to the Born Alive Infant Protection Act, which was designed to ensure medical treatment to babies who survived an abortion procedure. As he repeated again in this interview, Obama now claims he would have fully supported the federal version of this law and that he only opposed the state version because “what that bill also was doing was trying to undermine Roe vs. Wade.” For anyone to say otherwise, Obama insisted this week, “it defies common sense and it defies imagination, and for people to keep on pushing this is offensive.”

Yes, it does indeed defy common sense and defy the imagination that Senator Obama would take such an extreme position. But, once the public record of his legislative actions was unearthed, it turns out this is just what he did. As the New York Sun put it by way of considerable under-statement (here), rather than the pro-life movement having “lied” about Obama’s legislative record, Obama was the one who, well, “appeared to misstate his position” in the interview. Facts are stubborn things, as John Adams said.

Which brings us to the third episode, which in turn takes us back in time several years to an incident that became the subject of focused attention this week. This episode is the most revealing and consequential of all. Rather than having to parse his words, we see how Obama makes an actual decision about human rights for the most vulnerable. We have an opportunity to look at his attitude about the sanctity of human life from a time before he was appealing to a wider audience while campaigning for the presidency. In 2003, then-state senator Obama took a more extreme position on abortion than any member of the United States Congress and surpassed even the National Abortion Rights Action League in his promotion of abortion rights. The United States Congress unanimously approved the federal Born Alive Infant Protection Act. Even such pro-choice Senators as Kerry, Clinton, and Boxer cast “yes” votes on this legislation. But when the same legislation came before the Illinois legislature, Obama used his position as chair of a committee to kill it.

Confronted with that outrageous conduct, Obama has repeatedly insisted that he would happily have supported the federal version. He swears that he only opposed the state version because it did not contain a clause stating that it would not overturn existing abortion access laws. And for that reason, Obama says, the pro-life movement is “lying” about his record.

Unfortunately for Obama, the 2003 legislative records have been unearthed and tell a very different story. Multiple versions of the Born Alive Infant Protection legislation came up for consideration before the state legislative subcommittee that Obama chaired. One of those versions was identical to the federal version, containing the very clause that Obama now says would have secured his satisfied approval. And Obama still voted against it as a state senator. (The state bill that was identical to the federal version and which Obama still opposed is available here.)

On the campaign trail, Obama likes to say that “words matter.” But deeds matter even more. For an eyewitness account of Senator Obama’s repeated efforts to defeat the state legislation to protect babies born alive during an abortion, juxtaposed with Obama’s unsettling endorsement of the abortion rights industry at a live appearance before Planned Parenthood, I refer you to a video viewed hundreds of thousands of times at YouTube.

Greg Sisk

August 19, 2008 in Sisk, Greg | Permalink | TrackBack (0)

War and Peace

One MOJ reader has this to say about the question I posed with respect to Merton's quote about the level of the Christian commitment to the peace movement:

"In your MOJ post today, you pose the question - Is it right that even Christians have come to accept the idea of war?  No, but that 'battle' appears to have been lost at the Synod of Arles in 314.  The gradual deadening of conscience noted by Merton was more an early effect of the 'just war' than the 'cold war.'  Ambrose, Augustine and Aquinas have always trumped Martin of Tours, the patron of soldiers."

August 19, 2008 in Stabile, Susan | Permalink | TrackBack (0)