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, December 7, 2009

Quick Point on Cathy Kaveny's Observation

Hello All,

I've been out of town and away from the present conversation, and am just now catching up.  (More on the interesting conference that had me away in a subsequent post presently.)  I do think I have a quick partial reply to Cathy, however, with which perhaps Robby and others will agree:

So I think that in a scenario like Cathy's 2, I would argue, for one thing, along lines of her option 2.d.  But I would also argue along another line that sort of fuses, in what I think more persuasive form, Cathy's stated options 2a. through 2.c.: 

I would first note that there are a very few quite morally fundamental issues (all of which seem to involve life or death) over which disagreement is and has always been widespread and profound, which we accordingly often call 'inherently contestible' issues.  I would then say that where somebody conscientiouasly holds a position in re such an issue which in good faith prevents her performing certain actions that represent a very small portion of the full set of those actions constitutive of a particular profession, accommodation is not only reasonable, but is both morally and, perhaps, legally (on 1A grounds) required.  One might indeed be incapable of being a conscientiously Catholic abortion clinic operator, for example; but it beggars belief to suppose that one could not be a conscientious Catholic doctor simply because one could not in good conscience perform one or two or three (life-taking) out the the literally thousands of (over-whelmingly life-ensuring or -saving) procedures that doctors characteristically perform. 

To take up one of Cathy's proferred analogies, by way of illustration:  It is of course true that we do not admit those who will not fire weapons to the profession of police officer.  But this would seem to be because, in the US at any rate as distinguished, say, from the UK, weapons-use is, for better or worse (I think maybe worse), at the core of the job. 

(Perhaps, by the way, we should indeed allow conscientious objectors to weapons use into our police forces.  It might be a very good idea, and even take us in the direction of the UK.  I'd go for that -- it might even be an instance of the good that Cathy sees promised by her Option d. -- at least if we could get Uzis out of the hands of crooks.  Real gun control laws might enable us to employ many more unarmed constables.) 

Now contrast the situation of the would-be non-lethal constable with that of Catholic medics, who object to only the tiniest fraction of procedures now considered 'medical.'  To my thinking, it would constitute an intolerable form of intolerance for the state to say, to so all-pervasively life-cherishing a healer as our envisaged Catholic doctor, 'no, you must be willing to perform this marginal killing procedure as well, on pain of prohibition from licensure to perform any of them, including the thousands of life-ensuring ones.' To me it would be disquieting indeed to learn that anyone thought this reasonable. 

I also am quite convinced, by the way, that I would argue this even were I the most militantly NOWish of 'pro-choicers.' Choice surely cuts both ways if it cuts any.  To say otherwise is surely to be, not pro-choice, but pro-conscription.

All best,



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