Mirror of Justice

Bradley on anti-proselytism laws

My colleague, Gerard Bradley, has a very thoughtful paper up at The Immanent Frame about anti-proselytism laws, and the dangers they can pose to religious freedom, properly understood.  In the paper, he engages those who "frame[s] the question in terms of a 'right to win adherents by persuasion' balanced against a 'right of communities to defend their respective traditions.'”  He concludes:

The duty of any political community to respect religious liberty as it is defined in countless constitutional, legal, and, yes, religious documents, and the extension of this duty, even to people whose beliefs and practices are largely false or misguided, is rooted in the basic moral (not legal or social) duty of everyone to seek the truth about reality, including reality’s furthest reaches—which reaches transcend the concerns of the political community itself. The political community’s duty is further rooted in everyone’s moral duty to shape his or her life according to what one judges to be the truth about reality. From here—this foundational ground—one can see straightaway that anti-conversion and anti-proselytizing laws strike at the heart of religious liberty.

From here, you can see, too, that if one thinks that religious liberty attaches to an established social order in which religion plays an important role, and if one credits reports that even peaceful encounters with articulated alternate conceptions of reality are “experiences” of attempted “destruction,” then one might well affirm some putative right to “non-interference.” But then one will have drifted very far from a sound understanding of religious freedom—the understanding on offer in so many authoritative documents—and one will have abandoned its foundations altogether.

I also tried, a few years ago, to say something worthwhile about persuasion, evangelization, and proselytism in this paper, "Changing Minds:  Proselytism, Religious Freedom, and the First Amendment."

Infanticide

Recently, in Italy, a 22-weeks-old infant who had survived an attempted abortion -- the reason for the abortion, apparently, was the child's cleft-palate -- was found hidden but alive by a hospital chaplain, 20 hours after birth.  The child died the next day.  The full story is here.

. . . Eugenia Roccella, the under-secretary of state in the health department, on Wednesday night promised a government inquiry into the incident.

“The minister of health will send inspectors to the hospital in Rossano Calabro to investigate what actually happened, and to see if the Law 194, which prohibits abortion when there is a possibility of the foetus living separately from the mother, and permits it only when the continuation of the pregnancy would result in life-threatening danger to the mother.”

She said that if initial information is correct, “this would be a case of deliberate abandonment of a seriously premature neonate, possibly also with some form of disability, an act contrary to any sense of human compassion but also of any accepted professional medical practice".

She added: “We must remember that a baby, once born, is an Italian citizen equal to all the others, and is entitled to all fundamental rights, including the right to health and therefore to be given full support.” . . .

My sense of the abortion debate in this country is that many would disagree with the claims that a child who is born alive, despite (or in the course of) an abortion attempt, is -- without regard to the mother's wishes -- "entitled to all fundamental rights", including a right to life-sustaining medical care.  Am I wrong?

"Abortion neutral"? Someone tell Planned Parenthood . . .

Following up on Robby's post, from a few days ago, on the debate over the "abortion neutrality" of the new health-care law . . . this story, out of Michigan, caught my eye: 

[T]he new national health care law, combined with a bottomed-out Michigan economy, is changing the landscape for Planned Parenthood of Mid and South Michigan, which serves 55,000 women every year.

An early sign of health care reform's impact is Planned Parenthood's decision to open a new Oakland County clinic within the next 18 months, adding to 15 locations, including Detroit, Warren and Livonia. Unlike other Detroit area centers, the new location is likely to include abortion services.

Richards and Lori Lamerand, executive director of Planned Parenthood of Mid and South Michigan, are ramping up for a boom in birth control and other reproductive services -- what Lamerand calls "an onslaught" of women poised to gain new access to reproductive health care. Recession has heightened demand for contraception and for abortion, especially from clients who wouldn't have gone to Planned Parenthood in better times.

Health Care Reform: The Perspective of Physicians

Earlier this month, I completed a five-part series about the recently-enacted health care legislation, concluding that it was unlikely to succeed and that the cause of greater access to health care might be set-back rather than advanced by this irresponsible legislation.  I argued that we must maintain our attention on the matter of health care and diligently continue the search for genuine reform, because the Democrat-party-line enactment was not prudent, was not economically viable, and was not politically sustainable.  (The full series can be found here.)

A commentary today by Daniel Palestrant in Forbes reports on a recent survey of physicians which found that 79 percent were more pessimistic about the future of health care after enactment of the Democratic health care legislation.  Moreover, two-thirds of physicians were considering opting-out of government-funded health care programs, which of course would make the approach pushed through by the Democrats a non-starter:

The same reform bill that will provide "care for all" may drive away more physician caregivers than attract previously uninsured patients. What a predicament that would be.

Many may find the data from the poll puzzling. How could physicians be so pessimistic about a bill that clearly has so many positives? For one, the bill addresses none of the issues most consistently ranked by physicians as the most critical for lowering costs and improving access. Tort reform, streamlining billing and payment, and fixing the flawed government formula for calculating physician reimbursement are given little, if any, serious attention.

* * *

Health care without active physician participation is no health care at all.

Greg Sisk

More on the new Arizona law

Several of us have weighed in, with reactions to the new illegal-immigration-related law enacted in Arizona.  (Disclosure:  my family moved to Arizona 25 years ago, and I love the place.)  My initial reaction was -- and I think my view still is -- that the law is misguided.  That said, I have an uneasy sense that many of the law's critics are engaging in hyperbole (this is not surprising, of course -- it's an election year) and failing to take seriously enough the concerns that, in my view, the law (for the most part) reflects.  (I say "for the most part" because, as Eduardo hints, it is probably the case that some of the law's supporters are in the grips of an unattractive nativism.  But, in my view, the vast majority are not.)

In today's New York Times, there is an op-ed by Prof. Kris Kobach (a law-school classmate of mine), who was one of the drafters of the new law. He responds to the leading criticisms of the law, and concludes that:

[The law] takes a measured, reasonable step to give Arizona police officers another tool when they come into contact with illegal aliens during their normal law enforcement duties.

Again, I think there are good reasons to worry about this law.  But, Rob's earlier expressed concerns about Cardinal Mahoney's reaction to it ring more and more true for me.

Ominous judicial reasoning in the U.K.

Conscience battles show no signs of diminishing, particularly in the U.K.  From today's London Times:

Christianity deserves no protection in law above other faiths and to do so would be “irrational” , “divisive, capricious and arbitrary”, a senior judge said today, as he rejected a marriage guidance counsellor’s attempt to challenge his sacking for refusing to give sex therapy to gay couples.

The father of two, who had worked for the national counselling service since 2003, had alleged unfair dismissal on the grounds of religious discrimination.  But rejecting Mr McFarlane’s application to appeal, Lord Justice Laws said that legislation for the protection of views held purely on religious grounds could not be justified.

I cannot tell from the article why, if the worker's liberty of conscience were to be protected, it would amount to favoring Christianity above other faiths.  Suffice to say that the judge is not a fan of conscience rights.   Linking the worker's claim to theocracy, the judge explained: “The law of a theocracy is dictated without option to the people, not made by their judges and governments.  The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.”

The danger (to chaplains) of "normalizing homosexuality" in the military

A group of retired military chaplains has written a letter to President Obama objecting to the repeal of the "Don't Ask Don't Tell" policy. (HT: Friedman)  I support the repeal, but I can see how reasonable people can disagree about this issue on the merits.  I have a harder time seeing the persuasive power of the chaplains' argument, which is that the repeal will effectively force chaplains to alter their ministries.  It seems a bit of a stretch to argue that we should keep kicking out openly gay members of the military in order to avoid making chaplains feel bad about preaching that homosexuality is immoral.  If there is a legitimate concern that chaplains will be disciplined or suffer other negative employment consequences for preaching about homosexuality, or for refusing to minister to same-sex couples, then let's argue about the need for a conscience clause.  Rarely does the "let's continue mandating government discrimination in order to avoid making my ministry more awkward and difficult" argument prove effective.  Am I being too harsh in my evaluation?

UPDATE: As a friend points out, not a single Roman Catholic chaplain signed the letter.  Significant?

More on the new Arizona law

Several of us have weighed in, with reactions to the new illegal-immigration-related law enacted in Arizona.  (Disclosure:  my family moved to Arizona 25 years ago, and I love the place.)  My initial reaction was -- and I think my view still is -- that the law is misguided.  That said, I have an uneasy sense that many of the law's critics are engaging in hyperbole (this is not surprising, of course -- it's an election year) and failing to take seriously enough the concerns that, in my view, the law (for the most part) reflects.  (I say "for the most part" because, as Eduardo hints, it is probably the case that some of the law's supporters are in the grips of an unattractive nativism.  But, in my view, the vast majority are not.)

In today's New York Times, there is an op-ed by Prof. Kris Kobach (a law-school classmate of mine), who was one of the drafters of the new law. He responds to the leading criticisms of the law, and concludes that:

[The law] takes a measured, reasonable step to give Arizona police officers another tool when they come into contact with illegal aliens during their normal law enforcement duties.

Again, I think there are good reasons to worry about this law.  But, Rob's earlier expressed concerns about Cardinal Mahoney's reaction to it ring more and more true for me.

Violent Video Games

The Supreme Court has agreed to hear a case involving a California law, passed in 2005, prohibiting the sale or rental of violent games to anyone younger than 18. It defined such a game as one that includes "killing, maiming, dismembering or sexually assaulting an image of a human being" in a way that a reasonable person would find appeals to a "deviant or morbid interest," is patently offensive, and lacks "serious literary, artistic, political, or scientific value for minors."

The Court recently struck down a law involving depictions of animal cruelty on the ground that it was overbroad. It intimated that a narrower law would be constitutional, but it suggested that the test for determining whether speech was unprotected was historical in character. That is, if it was not unprotected before, it will not be unprotected now.

I doubt that this historical approach will stand up. I suspect that a number of justices signed Chief Justice Roberts opinion for its results rather than for its selective exercise in history-worship. Perhaps we will find out next term. The violent video game case permits the Court to hold that our first amendment is hermetically sealed off from conceptions of public morality other than sexual morality. It would be fitting for this Court to so hold, fitting -- but perverse.

cross-posted at religiousleftlaw.com

Does the health care legislation expand the abortion license? Commonweal vs. Public Discourse

The editors of Commonweal say that the newly enacted health care legislation is "abortion neutral" and maintains the status quo ante on abortion.  They accuse pro-life critics of the legislation of "crying wolf" about the legislation's expansion of the abortion license:  See here  http://commonwealmagazine.org/crying-wolf.  Today the editors of Public Discourse (on whose board I serve) criticize their colleagues at Commonweal, arguing that, in truth, (1) the executive order obtained by Bart Stupak in return for his support of the legislation will not prevent abortion subsidization under the legislation; (2) Community Health Centers will be permitted to use federal funds for abortions; and (3) the Hyde Amendment was not extended by the legislation to new funding streams created by the legislation, and as a result pro-life citizens will be compelled to subsidize abortions under their state's insurance exchanges.  See here: http://www.thepublicdiscourse.com/2010/04/1280 

To Commonweal's claim that pro-life groups and the U.S. Bishops (who favored health reform but opposed the legislation that was finally enacted because of its abortion expansion) are "crying wolf," Public Discourse says: "If implicating us in abortion by government-mandated payments is indeed 'the wolf,' then it is time to note that the wolf is no longer merely at the door—he is in the house."