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.

Saturday, October 25, 2008

Abortion, Murder, and Public Attitudes

I think it follows from Eduardo"s excellent posts that the citizenry believes that human organisms in the first trimester should be entitled to less protection than babies (if abortion were thought to be murder, women would be prosecuted and abortions for mental health reasons (just as an example) would be uniformly condemned). To be sure, most citizens believe that first trimester abortions raise serious moral issues. Few would maintain that having an abortion is no more morally serious than having a haircut. But most citizens believe that the moral gravity of having an abortion increases with fetal development. They believe that killing the born is murder. And they do not believe that first trimester abortions are acts of murder.

Why would this be the case? I think part of the intuition is that organisms in the first trimester have not developed a central nervous system or a brain. I think most citizens believe that the moral seriousness of killing increases significantly when a human organism has a central nervous system and a brain. Accordingly, most citizens will think that the abortion murder rhetoric is out of place and they will think that the abortion issue (significant as it is) should not be politically privileged over issues such as the killings of civilians in war or allowing children to starve or other issues of significant moral consequence.

October 25, 2008 | Permalink | TrackBack (0)

Sarah Palin, Average Americans, Intellectualism, and Elitism

Following up on our thread of a couple of weeks ago (here, here, here, and here) about whether the ascendancy of Governor Sarah Palin to the vice presidential nomination reflects an anti-intellectual trend in the Republican Party, readers might check out an editorial in the Boston Globe by Joan Chevalier. Although she writes from the political left, she nonetheless warns against the liberal bias and disdain for non-urban voters that are inherent in the anti-Palin rhetoric. Herewith an excerpt:

[I]n every one of my encounters with America’s rural communities, the diversity of my privileged experience was eclipsed by the depth of theirs. I had rhetoric; they had well-measured speech, punctuated by forbearing silences. I had easy answers; they knew there was no such thing.

It is not that the Republican base is anti-intellectual, as David Broder claims; they are anti-elitist. An Ivy League education is hardly a universal signal of competence in anything other than the liberal cultural canon.


Greg Sisk

October 25, 2008 in Sisk, Greg | Permalink | TrackBack (0)

Rick's post on Jim Wallis

I am a little surprised at Rick’s response to my post about Jim Wallis. First, Rick chides Wallis for not making it clear that he was speaking as a Protestant. I would have thought that already clear.  Leaving that aside, is it clear that a Bishop has the moral authority to make non-negotiable demands of voters in his diocese on their voting decisions? What if those voters as a matter of conscience regard the demands as unreasonable?   
Second, Rick makes his familiar argument that a Republican will do more to reduce abortions than a Democrat. I think he is probably right. 
But Rick has also said as recently as October 19th, “I've always said here at MOJ that I understand full well that many faithful Catholics will conclude that, all things considered, it's better to vote for the pro-abortion-rights Democrat.  But, I think these faithful Catholics should not dodge the implications of Sen. Obama's election (the same is true, of course, of faithful Catholics who vote for pro-life Republicans whose views on some other serious matters might be flawed.)” I believe each of the principles put forth by Jim Wallis deserve thoughtful consideration.

October 25, 2008 | Permalink | TrackBack (0)

Friday, October 24, 2008

Religious education in Germany

I spent today at Humboldt University in Berlin participating in a roundtable discussion about the role of religion in the American and German educational systems.  It was fascinating, partly because, I confess, my understanding of religion's role in public education in Europe is so dominated by the case of France.  The French and German approaches, I've learned, do not resemble each other in the least.

Continue reading

October 24, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Another Response to Eduardo

Though I doubt that this is at what he had in mind, my colleague John Bronsteen has an article in the Indiana Law Journal that may usefully address the point raised by Eduardo in response to Rick’s post.

That is, Eduardo suggests, following the article by Clarke Forsythe cited by Rick, that women were not punished for procuring abortions prior to Roe because doing so was “not an effective means of preventing abortion.”  Eduardo supports “[t]his sort of instrumental, prudential reasoning” but then concludes that this “open[s] the door to the notion that it might, under the right circumstances and on similarly prudential grounds, be appropriate not to attempt to prohibit abortion through the law at all.”

In his article (available here), John Bronsteen attempts to bridge the gap between criminal law theorists who attempt to account for the criminal law in terms of retributive concerns and utilitarian concerns.  He concludes that it is best to understand the recognition of an act as criminal in terms of a judgment regarding the fitness of retribution and the extent of punishment imposed for any given crime in terms of utilitarianism.

Aside from these two modes of discourse about the criminal law, Catholic legal theorists (and others) might describe the controversy in terms of judgments concerning justice that are categorical in nature (i.e. acts that are “intrinsically evil” or malum per se) and judgments of a prudential nature regarding society’s treatment of those who perpetrate such unjust acts.

Whether this traditional language from the natural law tradition is employed or the more contemporary language of retribution and utility, it seems that, with respect to abortion, there is ample room to preserve the rhetoric of murder (without exaggeration, and not merely as a rhetorical device, but as an accurate description of the act) and at the same time account for the disparate forms of punishment that might be dispensed to those who perform abortions and the women who procure them.

October 24, 2008 | Permalink | TrackBack (0)

Responding to Rick and Chris

Rick says:

it is deeply unjust for the law to categorically exclude a particular group of human persons from protection against lethal violence, because this exclusion is entirely incompatible with respect for these persons' rights, but also be open to dealing with political and practical realities that counsel in favor of protecting these persons through some legal mechanisms (e.g., "unlawful homicide" prohibitions) but not others (e.g., "capital murder" statutes).

Picking up on our prior conversation about the nature of the  evil of the state's failure to prohibit abortion, I think we agreed that this sort of dignitary, equal-protection type argument is the strongest contender, and that seems to be the thrust of the first part of this comment.  But surely the first part of this argument (the mandate to extend legal protection) limits the choices available for the second part (the concession to practical reality).  It must be the case that certain legal efforts to provide protection would be excluded by the constraints imposed by the reasons why the law had to provide the protection in the first place, right?  And the basis for distinguishing adequate from inadequate state actions in this area can't merely be the consequences for reducing abortion.  If the touchstone for this were just reduction in numbers of abortions, then the argument that legal protection is mandatory doesn't seem to work.  So there have to be some specific ways of extending the state's protection to the unborn that are required, presumably ways that do not simply replicate the dignitary harm of failing to provide the protection at all in the first place.  I guess for me the question is whether deciding in advance not to pursue for criminal sanctions the person who has procured the intentional killing of the unborn (when the state vigorously pursues that person in every other category of homicide, at least when dealing with those who have been born) does not reproduce, within the legal prohibition, the same dignitary/equal-protection type harm that the legal prohibition was designed to remedy.

And this is where I think Chris's comment is relevant as well.  He's surely right that there's a wide range of options in between utterly lacking in moral agency and having no excuse at all (although I don't think I was taking advantage of that gap, if you go back and look at my original wording).  Again, I'm going to plead some ignorance of the criminal law here, but is there any example from the law of homicide where a person is, by virtue of the identity of the victim, presumed to be entitled to such an excuse?  My sense is that such defenses tend to be handled on a case-by-case basis.  Wouldn't the exceptional nature of such a categorical, ex ante excuse (based solely, as far as I can see, on the identity of the victim, no less) count against the permissibility of this approach from the perspective of the dignitary/equal-protection type argument for the intrinsic evil of the absence of abortion prohibitions?  Why wouldn't this be a species of the same sort of categorical disregard for the rights of the unborn as the failure to protect them at all?  (By the way, I wonder about the empirical grounding for such a categorical excuse.  I can see why it's convenient to make this argument, but I wonder whether it really coheres with the way most women understand the experience of abortions, particularly elective abortions early in a pregnancy.  But that is a separate issue.)

Instead of going to the rubric of excuse, which strikes me as difficult to pull off, an obvious alternative would be to say that, although human beings, the unborn are entitled to less than the born in terms of legal protection (which is not the same as saying no protection). 

October 24, 2008 | Permalink | TrackBack (0)

A question for Jim Wallis

Having read, at Steve S.'s suggestion, Jim Wallis's presentation of his candidate-selection calculus, my first question would be, "Mr. Wallis, isn't a bishop in a very good 'position to tell [Roman Catholics in his diocese] what is ‘non-negotiable'"?  Putting aside the question of what, exactly, is non-negotiable, and also questions about form, tone, timing, etc.:  Isn't Mr. Wallis being a bit presumptuous here?  Shouldn't he have said (somethign like), "as a Protestant, I do not believe that anyone is in a 'position to tell anyone what is 'non-negotiable'"?

My next reaction is to be pleased that, apparently, Mr. Wallis is going to vote for Sen. McCain!  After all, he writes:

And on abortion, I will choose candidates who have the best chance to pursue the practical and proven policies which could dramatically reduce the number of abortions in America and therefore save precious unborn lives, rather than those who simply repeat the polarized legal debates and ‘pro-choice’ and ‘pro-life’ mantras from either side.

Quick, McCain-campaign types:  Jim Wallis wants a candidate whose policies will "save precious unborn lives", which would seem to rule out a candidate who supports increased public funding for abortion around the world, a roll-back of abortion regulations, subsidization of clone-and-kill embryo-destroying research, etc.  Get the word out about this endorsement!  (Heh.)

UPDATE:  Mr. Wallis might, when trying to bring others around to his new point of view, want to refer them to this essay, by Michael New, over at Public Discourse:

As Election Day approaches, the mainstream media is, as usual, showcasing self-identified 'pro-lifers' who are supporting the Democratic Party's pro-abortion presidential nominee. In 2004, a number of media outlets cited an analysis by ethicist Glen Harold Stassen which claimed--wrongly--that the number of abortions had increased slightly since President Bush's inauguration in 2001. The New York Times published an op-ed by Dean Mark Roche of Notre Dame encouraging pro-life Catholics to vote for John Kerry. This year the story is similar. Former Reagan administration Assistant Attorney General Doug Kmiec and Duquesne University Law Professor Nicholas Cafardi, both of whom claim to be opponents of abortion, have received plenty of media attention for their support of Barack Obama.

Their arguments are the same ones put forward in 2004. They have not improved with age. Most of these authors attempt to make one of two points: either a) that there is little that elected officials can do to curb abortion through legislation, or b) that the pro-life movement has not reaped any real benefits from supporting candidates who oppose abortion. Voters should, therefore, they argue, place greater emphasis on other issues. However, an examination of the history of the pro-life movement and a careful analysis of abortion trends demonstrate that these arguments are deeply flawed. In fact, the success of pro-life political candidates has resulted in substantial reductions in the abortion rate.

October 24, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Some thoughts in response to Eduardo

There's a lot in Eduardo's post to think about, and I hope that others will weigh in.  For my own part -- recognizing that this is not a complete response -- I was struck by this:

. . .  A variant on this is the pragmatic position articulated in the essay to which Rick linked, that going after women is not an effective means of preventing abortion.  This sort of instrumental, prudential reasoning about the proper legal response to the problem of abortion seems perfectly appropriate to me, but it also seems to me to open the door to the notion that it might, under the right circumstances and on similarly prudential grounds, be appropriate not to attempt to prohibit abortion through the law at all.  That is, I do not see how one can draw a line that prohibits one sort of prudential compromise without prohibiting others.  At a minimum, this sort of reasoning about the penalties associated with abortion strikes me as in some significant tension with the arguments used to make the case that the failure of law to prohibit abortion is an intrinsic evil.

It strikes me, though, that we can "draw a line that prohibits one sort of prudential compromise without prohibiting others."  We might think (as I am inclined to think) that it is deeply unjust for the law to categorically exclude a particular group of human persons from protection against lethal violence, because this exclusion is entirely incompatible with respect for these persons' rights, but also be open to dealing with political and practical realities that counsel in favor of protecting these persons through some legal mechanisms (e.g., "unlawful homicide" prohibitions) but not others (e.g., "capital murder" statutes).  It is not inconsistent with the basic obligation to protect the human rights of human persons -- all human persons -- to decide that it makes sense to deal, legally, with intentional abortions (and those who procure them, and those who perform them) as a discrete category of homicide.  On the other hand, to go with a "in a pluralistic society, we have to permit abortions, while working hard to reduce their numbers" is, it seems to me, to compromise a fundamental obligation of a political community.

UPDATE:  Chris Green writes:

[In response to Eduardo's statement,] "[a]nother possibility would be that women (or, perhaps, pregnant women) are somehow not capable of full moral agency that would give rise to criminal liability for their actions.  I suspect that, historically speaking, this may have been part of the reason for the way abortion was treated (where illegal) prior to Roe.  But clearly that cannot be a reason to treat abortion differently from murder today":

Because I think there's certainly a lot of space between "not capable of full moral agency" and "having no excuse at all," I think this greatly understates the plausibility of the idea that women seeking abortions have a personal excuse (i.e., an excuse that an abortionist lacks) because of the inherent pressures of pregnancy, which haven't changed over the years.  I don't think it's improperly demeaning to women, or otherwise out of step with these modern times, to say that a woman wants an abortion the way an animal caught in a trap wants to chew its leg off.

I made some comments along these lines in a thread on Prawfs a few weeks ago.  [RG:  Do check out the post and comments at Prawfsblawg.]

October 24, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Abortion and Murder

Rick says:

In my view, there is nothing hypocritical or otherwise suspect about saying (a) our Constitution permits legislatures to regulate abortion more closely than Roe permits; (b) abortion involves the killing of an innocent human person; and (c) women who have abortions should not be prosecuted and punished like those who commit homicides against born persons.

I agree that there is nothing inconsistent about adhering to all three propositions, but I want to add a thought to his perfectly reasonable post.  I think there is an inconsistency between these three propositions and the fourth proposition that abortion is "murder," at least if we are using the term "murder" in anything but the most metaphorical sense.  Consider this passage from the essay Rick recommends:

To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.

Why did the states target abortionists and treat women as a victim of the abortionist?

It was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

I can think of no other category of intentional murder that is treated this way under the law.  If abortion is murder, a woman procuring abortion is not an accomplice, she is a principal.  She is the equivalent of someone who hires a hit-man to kill the victim. Although I am not a scholar of criminal law (I'm sure someone will correct me if I'm mistaken about this), I believe that such people are typically prosecuted for conspiracy to commit murder or, simply, murder.

Again, I see no logical inconsistency in treating abortion differently from  intentional murder, but that differential treatment suggests two things to me.  First, why is abortion treated differently from murder, even by those who advocate its prohibition?  I can think of several possible justifications (I'm sure there are more).  One answer might be the one suggested above -- that women are victims of the abortionist.  But why would that be the case, when they have freely sought out his services?  We do not consider the person who hires a hit man to be a victim of the hit man.  She's only a victim of the abortionist if there is something very different about procuring an abortion and hiring a hit-man.  The response simply begs the question. Another possibility would be that women (or, perhaps, pregnant women) are somehow not capable of full moral agency that would give rise to criminal liability for their actions.  I suspect that, historically speaking, this may have been part of the reason for the way abortion was treated (where illegal) prior to Roe.  But clearly that cannot be a reason to treat abortion differently from murder today.  The other possibility is that abortion a homicide of a very different sort than is addressed by the murder laws because it is, for some reason, less culpable and is, as such, properly treated more leniently by the law. I take it that this is not the position of most people on in the pro-life movement.

Standing in a different category from these justifications for differential treatment is the pragmatic position articulated in the essay to which Rick linked:  that going after women is not an effective means of preventing abortion.  Without the help of some notion that women are not responsible for their own actions or that abortion is a less grave form of murder, the proponent of this argument must be committed to the notion that women who procure abortions deserve to be punished for murder, but, for pragmatic reasons, society chooses not to go after them because doing so will not be (practically) effective.    I.e., it's a question of policing strategy, not culpability.  I'm not sure where the data is to support the notion that going after women would not (as a practical matter) be an effective way to stop abortion, but if this is the argument, it is fully consistent with the contrary social choice (on strategic grounds) to prosecutefor murder women who procure abortions.  (That is, its not an argument about desert and so it doesn't have much power to rebut arguments by abortion-rights advocates that, if it had its way, the pro-life movement would seek to jail women who procure abortions.)  Of course, it's hard to imagine such a "policing strategy" argument being made in the context of the murder of human beings after birth, which further suggests to  me that something more is at work here.

This sort of instrumental, prudential reasoning about the proper legal response to the problem of abortion seems perfectly appropriate to me, but it also seems to me to open the door to the notion that it might, under the right circumstances and on similarly prudential grounds, be appropriate not to attempt to prohibit abortion through the law at all.  That is, I do not see how one can draw a line that prohibits this sort of prudential compromise without prohibiting others.  At a minimum, this sort of reasoning about the penalties associated with abortion strikes me as in some significant tension with the sorts of conceptual arguments used to make the case that the failure of law to prohibit abortion is an intrinsic evil. 

In any event, and this is really my principal point in writing this post, given the differential treatment of abortion, I think it is highly inappropriate for advocates of prohibition (and, to be clear, I'm not accusing Rick of this) of using the rhetoric of "murder" in trying to rule out certain ways of balancing abortion against other issues about which voters might appropriately be concerned.  That is, if abortion is "murder" only in some attenuated sense that justifies treating it differently from all other sorts of intentional murder under the criminal law, then I think the same differences from murder that justify that differential treatment also undermine the argument that abortion is the only issue (or by far the most important issue) that ought to matter in deciding how to cast one's vote, arguments that almost always rely on the language and imagery of murder (e.g., Cardinal George's blood-drenched language, frequent references to the killing of millions of defenseless "children," comparisons to the holocaust, etc.).  I don't think that proponents of this particular mode of argument can have their rhetorical cake and eat it to.

October 24, 2008 | Permalink | TrackBack (0)

Thursday, October 23, 2008

Jim Wallis and the 2008 Elections

I think the principles put forth by Jim Wallis on the 2008 elections are well worth considering. Here is what he has to say:

“I am in no position to tell anyone what is ‘non-negotiable,’ and neither is any bishop or megachurch pastor, but let me tell you the ‘faith priorities’ and values I will be voting on this year:
“1. With more than 2,000 verses in the Bible about how we treat the poor and oppressed, I will examine the record, plans, policies, and promises made by the candidates on what they will do to overcome the scandal of extreme global poverty and the shame of such unnecessary domestic poverty in the richest nation in the world. Such a central theme of the Bible simply cannot be ignored at election time, as too many Christians have done for years. And any solution to the economic crisis that simply bails out the rich, and even the middle class, but ignores those at the bottom should simply be unacceptable to people of faith.
“2. From the biblical prophets to Jesus, there is, at least, a biblical presumption against war and the hope of beating our swords into instruments of peace. So I will choose the candidates who will be least likely to lead us into more disastrous wars and find better ways to resolve the inevitable conflicts in the world and make us all safer. I will choose the candidates who seem to best understand that our security depends upon other people’s security (everyone having "their own vine and fig tree, so no one can make them afraid," as the prophets say) more than upon how high we can build walls or a stockpile of weapons. Christians should never expect a pacifist president, but we can insist on one who views military force only as a very last resort, when all other diplomatic and economic measures have failed, and never as a preferred or habitual response to conflict.
  “3. ‘Choosing life’ is a constant biblical theme, so I will choose candidates who have the most consistent ethic of life, addressing all the threats to human life and dignity that we face — not just one. Thirty-thousand children dying globally each day of preventable hunger and disease is a life issue. The genocide in Darfur is a life issue. Health care is a life issue. War is a life issue. The death penalty is a life issue. And on abortion, I will choose candidates who have the best chance to pursue the practical and proven policies which could dramatically reduce the number of abortions in America and therefore save precious unborn lives, rather than those who simply repeat the polarized legal debates and ‘pro-choice’ and ‘pro-life’ mantras from either side.
“4. God’s fragile creation is clearly under assault, and I will choose the candidates who will likely be most faithful in our care of the environment. In particular, I will choose the candidates who will most clearly take on the growing threat of climate change, and who have the strongest commitment to the conversion of our economy and way of life to a cleaner, safer, and more renewable energy future. And that choice could accomplish other key moral priorities like the redemption of a dangerous foreign policy built on Middle East oil dependence, and the great prospects of job creation and economic renewal from a new ‘green’ economy built on more spiritual values of conservation, stewardship, sustainability, respect, responsibility, co-dependence, modesty, and even humility.
“5. Every human being is made in the image of God, so I will choose the candidates who are most likely to protect human rights and human dignity. Sexual and economic slavery is on the rise around the world, and an end to human trafficking must become a top priority. As many religious leaders have now said, torture is completely morally unacceptable, under any circumstances, and I will choose the candidates who are most committed to reversing American policy on the treatment of prisoners. And I will choose the candidates who understand that the immigration system is totally broken and needs comprehensive reform, but must be changed in ways that are compassionate, fair, just, and consistent with the biblical command to ‘welcome the stranger.’
“6. Healthy families are the foundation of our community life, and nothing is more important than how we are raising up the next generation. As the father of two young boys, I am deeply concerned about the values our leaders model in the midst of the cultural degeneracy assaulting our children. Which candidates will best exemplify and articulate strong family values, using the White House and other offices as bully pulpits to speak of sexual restraint and integrity, marital fidelity, strong parenting, and putting family values over economic values? And I will choose the candidates who promise to really deal with the enormous economic and cultural pressures that have made parenting such a ‘countercultural activity’ in America today, rather than those who merely scapegoat gay people for the serious problems of heterosexual family breakdown.”

October 23, 2008 | Permalink | TrackBack (0)