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.

Friday, February 26, 2010

Greenawalt on conscience at BYU

Kent Greenawalt, not surprisingly, offered a treasure trove of thoughtful comments and questions about rights of conscience.  He does not believe that individual religious claims of conscience should be privileged over non-religious claims, but he does believe that institutional claims of conscience should be limited to religious organizations because they are fundamentally separate from the state.  At the individual level, he would look to four factors for determining whether a health care professional should have her claim of conscience recognized: 1) the portion of the job duties affected by the claim; 2) her expectations (e.g., was she training at time when abortion was illegal?); 3) "calling" and 4) public expectations.  I found the third factor -- calling -- to be the most interesting and unexpected.  Kent explained that some jobs seem to entail a greater sense of calling than other jobs, which means that there is a greater cost entailed by having to give it up.  He tentatively offered his view that folks who decide to become nurses or doctors do so out of a sense of calling more frequently than a lawyer or druggist.  This is obviously open to debate, but it struck me as a creative way to avoid the contention that our recognition of conscience claims is a function of professional elitism (lawyers and doctors are entitled, pharmacists usually aren't, cashiers definitely aren't).  In terms of the limits on a provider who is otherwise entitled to claim conscience, Kent would look to "substantial inconvenience" to the customer as the guide, and what constitutes substantial inconvenience may change depending on the service in question.  Having to drive 30 miles for an abortion would not qualify as substantial inconvenience, but having to drive 30 miles for the morning-after pill might.

February 26, 2010 in Vischer, Rob | Permalink | Comments (1) | TrackBack (0)

Wilson on conscience at BYU

Today BYU is hosting a conference on rights of conscience in health care, and I'll try to post a bit as the presentations occur.  (I won't go so far as to call it "live blogging," but it might be "somewhat sporadic but pretty quick blogging.")  Washington & Lee law prof Robin Wilson just presented a fascinating overview of the history of conscience rights in health care, noting that civil rights litigation, rather than legislation, does a poor job providing guidance as to how a new right affects third parties.  (Another problem of the Roe regime.)  She talked about the 2009 case of Catherina Cenzon-DeCarlo, a New York nurse who sued Mount Sinai Hospital for forcing her to assist in a second-term aborton.  She sued under the Church Amendment, which prohibits federally funded organizations from discriminating against health care professionals who refuse to participate in abortion because of their religious beliefs.  Her suit was dismissed because the Amendment does not provide a private right of action.  The problem, though, is that it is unclear how vigilant HHS is being about violations of the Amendment.  Is HHS required to sanction a hospital for this sort of discrimination?  If so, it's not entirely clear how a person in Cenzon-DeCarlo's position can force the agency to meet its obligation.  If HHS is reluctant to use the funding sanctions availabe, it might be time for Congress to consider creating a private right of action.

February 26, 2010 in Vischer, Rob | Permalink | Comments (0) | TrackBack (0)

Tollefsen on double-effect and "enhanced interrogation"

Christopher Tollefsen discusses here the recent effort by Marc Thiessen to evaluate, in Catholic terms, the "enhanced interrogation" of those suspected of having knowledge of planned terrorist attacks.  Here is the concluding paragraph:

[T]he upshot of my discussion is this: if, as the double effect defense presupposes, waterboarding or some other interrogation technique is done in a way that is expected to cause harm to the suspect, then that harm is most likely intended as a means by the interrogator and double effect will not justify it. And if such techniques are performed with the intention to cause pain, but not either direct physical harm, or psychological disintegration, then they are likely to be ineffective. Either way, it is, in my view, a good thing that United State’s policy has moved (as it did in the second Bush term) beyond the grim, if understandable, policies of the first few years after 9/11.

Read the whole thing.  And, since Public Discourse does not have comments-boxes, this might be an appropriate post for which to open them here.  I am particularly interested not only in Tollefsen's conclusion regarding "enhanced interrogation", but also the "structure" of the double-effect reasoning that he employs.

February 26, 2010 in Garnett, Rick | Permalink | Comments (3) | TrackBack (0)

Thursday, February 25, 2010

Any Gay &/or Lesbian Catholics Out There Who Read This Blog?

If so, you especially may be interested in this piece, just published:

Shannon Gilreath, "Not a Moral Issue:  Same-Sex Marriage and Religious Liberty," 2010 llinois Law Review 205 (reviewing Douglas Laycock et al., Same-Sex Marriage and Religious Liberty (2008)).

(In criticizing vigorously and passionately Doug Laycock's position, Shannon--who is a convert to Catholicism, an "out" gay man, a former student, and a dear friend--implicitly takes me to task for being one of the signatories to the Laycock-drafted letters that have been sent to various lawmaking bodies over the course of last year.)

February 25, 2010 | Permalink | TrackBack (0)

The magistrium and bioethics

For those who may be interested:

Lisa Fullam and William R. O'neill, S.J., "Bioethics and Public Policy," 71 Theological Studies 168 (2010).

The abstract:

Part I of this note assesses recent developments in embryonic stem cell research and HIV/AIDS treatment and prevention in light of two recent magisterial texts:  Dignitatis personae on Certain Bioethical Questions of the Congregation for the Doctrine of Faith and Pope Benedict XVI's encyclical, Caritas in veritate.  Part II explores the implications of these developments for public policy in religiously pluralist societies.

February 25, 2010 | Permalink | TrackBack (0)

Thanks to Robby, a Note on Rescher, and More to Come

Hello All,

I hesitate to write on the fly in connection with a subject so large and so fraught as that addressed by Robby in his post yesterday; but alas, notwithstanding my hurry at the moment I cannot resist the impulse to express admiration for Robby's splendid exposition of our tradition's mode of addressing matters of bioethics.  I hope to be able to add two or three cents' worth of substative reflection in the days ahead, but for now will confine myself simply to saying 'hats off!' to Robby -- and to hoping that I might do even half as good a job as he has done here when my turn comes up, early next month, to open discussion of Allen's discussion of environmental ethics.

One other thing, while I am at it here:  Some MOJ readers might find this recent news release by the University of Pittsburgh, on Nicholas Rescher, to be of some interest: http://www.news.pitt.edu/m/FMPro?-db=ma&-lay=a&-format=d.html&id=3983&-Find.  I often find it tempting to think that if the present age can boast any philosopher with a combination of depth and breadth remotely comparable to that of Thomas, it would be Dr. Rescher. 

All best, thanks again to Robby, and more soon,


February 25, 2010 | Permalink | TrackBack (0)

Christian realism and the terrorist threat

Lately I've been having an interesting, but ultimately depressing, convergence of knowledge inputs: I'm reading Dexter Filkins' The Forever War (if you're only going to read one book about the Iraq conflict, this should be the one), I'm plowing through a bunch of books about social trust as part of my research for a new project, and I've been listening to conservative talk radio on my drive in to work (it's maddening but strangely addictive).  In combination, these information streams have been kicking any confidence I have in humanity right out of me, which might not be altogether inappropriate for Lent.  In terms of specifics, though, I have become even more concerned about our society's apparent expectations that our government eliminate any risk of terrorism at any cost.  Our policy discussions seem to be premised on the notion that we must do everything humanly possible to prevent an act of terrorism on American soil.  President Bush made it plain when he explained that he wouldn't risk a single American life on trusting Saddam Hussein.  Well, he didn't, and you can read Filkins to see how that turned out.  I wouldn't trust Hussein either -- Filkins details the horrors of his regime with horrific accounts -- my point is really about American lives.  We see a similar reaction to the Christmas Day "underwear bomber."  In order to prevent any possibility of such an act, we must move heaven and earth, even if it means full-body scans, billions of dollars in resources, and diverted attention from other pressing social problems.  If a successful terrorist attack occurs on American soil, the most tragic consequences will of course be the lost lives.  I also fear, though, that a corresponding tragedy will be the fact that whoever is President will be categorically deemed a failure, especially if he or she has had the gall to extend a semblance of rights to any suspected "terrorists" in the past.  

To be clear, I'm all in favor of being aggressive and creative in battling terrorism.  But when we set the bar so high, as though the death of any Americans at the hands of a terrorist is automatically considered an epic failure of the federal government, it warps our national priorities and commitments.  I should note that I've also been reading plenty of Niebuhr recently: the world is messed up, evil is out there (and in us), and more Americans will probably die at the hands of terrorists.  We should not passively accept that sad reality, but we also shouldn't defy that reality to the point that it defines us. 

February 25, 2010 in Vischer, Rob | Permalink | Comments (1) | TrackBack (0)

We won't let you get married here (yet), but if you go there to get married and then come back here, we'll honor your marriage ...

February 24, 2010

Gay Marriage Makes Gain in Maryland

ANNAPOLIS, Md. (AP) — State agencies in Maryland should recognize same-sex marriages performed in other states until the legislature or courts decide otherwise, Maryland’s attorney general said Wednesday in a long-awaited legal opinion.

The opinion by Attorney General Douglas F. Gansler concluded that the state’s highest court was likely to rule that legal same-sex marriages in other states are valid in Maryland. But, he said, the matter “is not free from all doubt.”

Maryland law defines marriage as being between a man and woman, and the state is one of six that do not specifically address the validity of same-sex marriages from other states.

While the opinion does not change the law, it can guide state officials. The attorney general’s office would defend a state agency in court for recognizing a same-sex marriage from another state.

Proposed legislation explicitly stating that same-sex marriages performed in other states would not be recognized in Maryland has not made it through the General Assembly.

Measures to allow same-sex marriages have also failed, but Maryland lawmakers have extended protections to same-sex couples.

For example, domestic partners who own homes together are exempt from the state inheritance tax. Members of same-sex couples are permitted to make medical and burial decisions for each other and are eligible for tax benefits that married people get when transferring property.

February 25, 2010 | Permalink | TrackBack (0)

Wednesday, February 24, 2010

John Allen, the Biotech Revolution, and the Future Church

According to John Allen, one of the ten trends revolutionizing the Catholic Church is the advance of biotechnology.   Allen’s proposition, as I understand it, is that unprecedented developments in reproductive technologies, genetic engineering, and the like will provoke and, indeed, require fresh thinking when it comes to the Church’s philosophical anthropology, moral theology, and social doctrine.

 Indeed, the resources of the Church’s thought in these areas have already been challenged by biotechnological developments.  Although the application of Christian principles as historically understood by the Church enabled the magisterium fairly easily to decide, for example, that the epigenetic reprogramming of ordinary body cells to make them pluripotent (capable of being morphed into a variety of cell types) is morally acceptable, and that the destruction of human embryos to produce pluripotent cells is not, the Church has not found it so easy to decide whether it is morally acceptable for a woman to “rescue” or “adopt” (by having implanted in her womb) an embryo that will otherwise be left permanently in cryopreservation or destroyed.  Is “embryo adoption” morally like ordinary adoption, and therefore a legitimate and even laudable thing to do, or is it like in vitro fertilization, and therefore morally bad?  As Allen observes, the Congregation for the Doctrine of the Faith, in its 2008 document on bioethics entitled Dignitas Personae, gave a strong cautionary “yellow light” on embryo adoption, without resolving the question definitively.

Biotechnology will in the years ahead, Allen believes, throw more and more of these difficult questions at us, and the magisterium of the Church will not be able to avoid them.  Allen says:

Even if the Church were not inclined to make the biotech revolution a priority, the surrounding culture won’t let it off the hook.  Few matters are as anguished, and as politically explosive as the questions of when human life begins and ends, and to what extent human life ought to be manipulated at its most basic levels.  The twenty-first century will witness endless upheaval over these points, and the Church, as a microcosm of society, will inevitably reflect those tensions.

Of course, biotechnology will also bring (indeed, it has already brought) many undoubted blessings.  So there is no question of the Church joining the “technophobes” of the left or right who view the entire enterprise of biotechnology with suspicion (at best).  The Church’s opposition to in vitro fertilization, embryo-destructive biomedical research, cloning and a few other practices has led overwrought defenders of those practices to claim that the Church is “anti-science.”  As Allen’s chapter on biotechnology makes clear, however, that is silly.  Despite Allen’s claim that running beneath all biotech debates is “a basic ideological fault line between those who fear where the biotech revolution is headed and those who revel in it,” his own analysis makes it plain that the Church herself does not believe that one must choose between accepting or rejecting biotechnology tout court.  On the contrary. the magisterium has chosen, and will continue to choose, to evaluate each application of biotechnology on its merits to determine whether it can legitimately be employed to promote human health and well-being or whether it must be rejected as contrary to the good of human beings integrally conceived, and thus to the dignity of persons.

Allen’s chapter on biotechnology does not report anything new or break any ground in analyzing or predicting the direction of arguments within the Church about bioethical questions.  Still, Protestant and Jewish readers (and secular readers, too) will likely find one thing about it striking.  The various analyses and competing arguments Allen reports are virtually entirely philosophical.  They do not appeal to scripture or even the authority of sacred tradition, but are framed, rather, in what will certainly seem to non-Catholics to be secular terms.  Of course, it doesn’t seem that way to Catholics, because the Catholic view of the relationship between faith and reason makes us tend to reject the division of moral arguments into “secular” and “religious” (though we do distinguish arguments that appeal to biblical revelation and other forms of religious authority and those that do not).   Arguments that strike our non-Catholic friends as “secular,” we understand as arguments about natural law—arguments that have a legitimate and, indeed, indispensable place in moral theological reflection.  We think and argue about bioethical and other moral questions in the way we do, not because we are pandering to a certain species of contemporary liberal scruple about making “religious” arguments in the public square, but rather because we think that getting to the right answers to moral questions requires us to understand the bearing of competing options for possible choice on the diverse aspects of human well-being and fulfillment that reason grasps as first practical (i.e., action-guiding) principles and basic precepts of natural law.

Consider the question of in vitro fertilization for spouses who cannot conceive a child by sexual intercourse.  In reporting the arguments pro and con on the issue among Catholics, Allen does not quote or even cite scripture or sacred tradition.  That is because Catholics rarely invoke these authorities, or religious authority of any type, in debating the question.  The first argument that Allen reports against in vitro fertilization is that it “separates the act of love-making from procreation, rupturing something meant to be unified.”  The counterargument that Allen reports in reply is that “while IVF separates intercourse from procreation it does so for the purpose of procreation, not contraception.”  Now, just as stated, no one who is undecided about the morality of IVF will be able to resolve the issue by deciding which claim is more credible.  A very great deal needs to be said on the competing sides.  If contraception is wrong because it separates the unitive and generative meanings of marriage, then perhaps the fact that in IVF one is separating these meanings for the sake of procreating, and not because one is trying to prevent conception, is inadequate as a defense of the practice.  Perhaps.  It would depend, in the end, on what it means to separate the unitive and generative and why it is wrong to do so.  My point here, however, is not to explore the question, interesting though it surely is, but only to call attention to one of dozens of examples in Allen’s chapter on biotechnology of arguments that are purely philosophical, making no appeal whatever to biblical revelation.

Allen usefully reminds readers that technology is creating significant issues not only at the beginning of life, but at its end.  The Church has always permitted people in extremis to hope and even pray for death to end their suffering, but it has always firmly held that it is wrong to will one’s death (or the death of any person, apart from the just imposition of a capital sentence).  No act or omission to act whose point (object, goal, end) is to cause or hasten death can be regarded as morally legitimate.  However, as technology has enabled us to preserve the lives of seriously debilitated and sometimes suffering people for lengthy periods of time, the question arises as to when it is permissible to forego or remove life-preserving technology.  In the 20th century, the magisterium attempted to handle the problem by distinguishing “ordinary” from “extraordinary” means.  Technology constituting ordinary means may never be foregone or removed;   technology that counts as extraordinary means often may be.  The trouble, of course, is coming up with clear criteria for deciding what counts as ordinary and what counts as extraordinary.  A particular issue Allen addresses is the provision of nutrition and hydration by means other than mouth feeding.  Is this always “ordinary”?  As Allen points out, “Pope John Paul II . . . said that the provision of food and water for patients in a persistent vegetative state is always an ‘ordinary’ means and therefore obligatory.”  But what if the question is not food and water, but expensive pharmaceutical products?  What if it is a technology that is capable of leaving a person suspended between life and death for an indefinite period of time?   What if that technology itself were not especially burdensome or even expensive and could easily be made routine?   Would it be “ordinary” or “extraordinary”?   Allen doesn’t say so explicitly, but it is increasingly clear that Catholic moral theology will either have to identify more rigorous criteria for distinguishing “ordinary” from “extraordinary” or abandon these terms and the mode of moral analysis in which they figure so centrally in favor of a different way of resolving hard cases in end-of-life care.

Allen’s chapter contains a short, but interesting, treatment of issues arising as a result of technological developments enabling scientists to create genetically modified organisms (GMOs) for use in agriculture.  Most Americans do not object to GMO technologies, but many Europeans (especially those on the secular left) do.  As Allen remarks, “[t]o date, the Vatican has been more receptive to the pro-GMO argument.”  But as bishops from the global South grow more influential in the Church, that could change.  Despite the fact that many people (I am one) see GMO technologies as providing abundant and nutritious food for people across the globe, important voices in the South have expressed grave objections to these technologies on health, environmental, and economic grounds.  They see the technologies more as threats to people in the developing world than as means of feeding them and strengthening their economies.

Among the “near certain” consequences Allen envisages as a result of the biotech revolution are a boom in Christian anthropology; the rise of the theologian-biologist; and a revival of natural law.  I agree on all three of these counts.  Philosophy and theology have wrestled from the beginning with the great question of what it means to be a human being.  Biotechnology now forces us to ask whether or not certain entities are indeed human beings.  However convenient it is for some advocates of abortion and embryo-destructive research to deny it, a human embryo is, as a matter of biological fact, a human being.  That’s easy.  But what about a “chimera” produced in a laboratory by mixing human genes with the genes of non-human animals?  What about an entity produced by “altered nuclear transfer,” a technology designed to yield a non-embryonic  entity whose cells are identical to those taken from embryos to produce pluripotent stem cells?  (Full disclosure:  I am an enthusiastic supporter of experiments in non-human animals to determine whether altered nuclear transfer technology of one type or another might be used reliably to produce non-embryonic entities (akin to teratomas and complete hydatidiform moles) that could be a source of cells that mimic the scientifically desirable qualities of cells produced by destroying embryos.)

A final point:  Allen rightly points out that Catholic moral teaching does not in principle reject all genetic intervention.  Pope John Paul II made this clear in an address to the World Medical Association more than twenty-five years ago:  “A strictly therapeutic intervention whose explicit objective is healing . . . will, in principle, be considered desirable.”  The key things, from the Church’s point of view, are (a) to avoid the temptation to eliminate the disease or disability by eliminating (or sterilizing) the person afflicted with the disease or disability, and (b) to resist using genetic technology to engineer a superior (stronger, smarter, prettier, etc.) human.   As Allen puts it, “Catholic teaching seems to be striving for a middle position,” albeit (I would add) a principled one that welcomes truly therapeutic genetic technology but firmly rejects eugenics.

February 24, 2010 | Permalink | TrackBack (0)

Tuesday, February 23, 2010

Angry about waste, bail-outs for the rich and spiraling debt?

"Crunch time has come on a question central to the nation’s future, where an acknowledgment is needed that, when it comes to health, we’re all in this together. Pooling the risk among everybody is the most efficient way to forge a healthier society. That’s what other developed societies do. And they don’t have 30 million plus uninsured.

Now, as I understand it, the Tea Party movement is angry about waste, bail-outs for the rich and spiraling debt. They detest big government. But if waste and debt are really what’s bothering them, how about the waste in the more than 1,800 daily health-care related personal bankruptcies, the 25 to 30 percent of some corporate insurers’ costs going on administration (versus 6 percent for Medicare), the sky-rocketing health premiums that are undermining U.S. corporations (and so taking jobs), the endless paperwork of private reimbursement procedures, and the needless deaths?

Americans don’t want a European nanny state — fine! But, as a lawyer friend, Manuel Wally, put it to me, 'When it comes to health it makes sense to involve government, which is accountable to the people, rather than corporations, which are accountable to shareholders.'

All the fear-mongering talk of 'nationalizing' 17 percent of the economy is nonsense. Government, through Medicare and Medicaid, is already administering almost half of American health care and doing so with less waste than the private sector. Per capita Medicare costs for common benefits grew 4.9 percent between 1998 and 2008, against 7.1 percent for private insurers. Why not offer Medicare as a choice — a choice — to everyone? Aren’t Republicans about choice?

The public option, not dead, would amount to recognition of shared interest in each other’s health and of the need to use America’s energies and resources better. It would involve 300 million people linking arms."

--Roger Cohen, "The Narcissus Society," NYT, 2/13/10

February 23, 2010 | Permalink | TrackBack (0)