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, May 29, 2010

"From Religious Freedom to Moral Freedom"

Yesterday I posted a new paper to SSRN.  Some Mirror of Justice readers may be interested.  Here is the abstract:

In one or another articulation, the right to religious freedom is a familiar part of national constitutions and of regional and international human rights instruments. The canonical articulation of the right is that of Article 18 of the International Covenant on Civil and Political Rights, to which the United States is one of more than 160 state parties. I argue in this essay that the "logic" (so to speak) of the best case for the right to religious freedom also supports an analogous right to moral freedom. At the end of the essay, I comment on the proper, and properly limited, role of religiously grounded moral premises as a basis of laws and other policies that implicate the right to moral freedom.

This essay will appear in a symposium issue of the University of San Diego Law Review -- a symposium issue devoted to freedom of conscience. A shorter version of the essay will appear in Religion and Human Rights, edited by John Witte Jr. and M. Christian Green (Oxford University Press, forthcoming).

Some of the material in this essay first appeared in my new book, The Political Morality of Liberal Democracy (Cambridge University Press, 2010), the table of contents and introduction to which are available at http://ssrn.com/abstract=1525920.

Comments welcome: [email protected]

[The paper is downloadable here.]

May 29, 2010 | Permalink | TrackBack (0)

What does Catholic social theory have to say about this?

Hey, everybody, does this matter?

Robby, what do you and your confreres in the Republican Party have to say about this?

[Simon Johnson is the Ronald A. Kurtz Professor of Entrepreneurship at the MIT.]

So Damn Little Money

By Simon Johnson

The financial reform legislation currently heading into a June Senate-House conference will, at best, do little to affect the incentives and beliefs at the heart of the largest banks on Wall Street.  Serious attempts to strengthen the bill through amendment – such as Brown-Kaufman and Merkley-Levin – were either shot down on the floor of the Senate or, when their prospects seemed stronger, not allowed to come to a vote.

Senator Blanche Lincoln is holding the Alamo with regard to reining in the big broker-dealers in derivatives.  But these same people are bringing to bear one of the most intensely focused lobbying campaigns of recent years, bent on killing her provisions (or weakening them beyond recognition).  All the early indications are that the lobbyists, once again, will prevail.

At one level, Robert Kaiser nailed this topic in his recent book, “So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government.”  Elections have become more expensive, with most of the funding provided by special interests.  You can argue about which is the chicken and which is the egg, but the basic facts are inescapable.

“In 1974, the average winning campaign for the Senate cost $437,000; by 2006, that number had grown to $7.92 million. The cost of winning House campaigns grew comparably: $56,500 in 1974, $1.3 million in 2006.”[1]

Or look at the lifetime contributions by the financial sector to (some) senators who voted for and against the Brown-Kaufman amendment, which would have imposed a hard size cap and a hard leverage cap on the biggest banks – over $2 million per senator by this one partial count.

But wait. This is actually very little money considering what is at stake.  For an individual large firm actively engaged in derivatives trading, the stakes could easily be in the billions of dollars.  For the big banks as a whole, the amount they will be allowed to earn (and pay themselves) as a result of the failure of these financial reforms is – conservatively speaking – in the tens of billions of dollars.

In terms of modern Wall Street – for top bankers and also for hedge funds – the political contributions needed to make a difference are chump change.

And even if opponents of today’s biggest players on Wall Street were to become organized and raise money, presumably the big financial players could see that money and raise you some tens of millions of dollars without breaking a sweat (particularly after the Citizens United decision by the Supreme Court).

What can you possibly propose that would make a difference in the face of such resources – for example, as they will be deployed in and around the upcoming House-Senate conference to make sure that anything at all objectionable to Wall Street is further diluted?

Continue reading

May 29, 2010 | Permalink | TrackBack (0)

Okay, let's talk about scandal ...

I read Rick's comment about "an appropriate desire to avoid creating a scandal or causing confusion among people who are not schooled in the intricacies of these difficult questions ..."  And then I read a new post by Lisa Fullam at dotCommonweal.  Fullam is associate professor of moral theology at the Jesuit School of Theology at Berkeley.  An excerpt from her post:

When I teach my students about scandal, I have them repeat after me: “Scandal always has two sides.” When Olmsted avoids the scandal that people might think (rightly or wrongly) that the Church has suddenly gone soft on abortion by publicly announcing the excommunication of Sr. McBride, he unwittingly creates the flip-side of the scandal–people will believe (rightly or wrongly) that the Church cares more for the life of any fetus than for the life of the woman carrying the fetus. When we make exceptions like excising Fallopian tubes in some cases of ectopic pregnancy instead of allowing less damaging chemical means to the same end, we avoid the scandal that people might think some elective abortion is justifiable, and create the opposite scandal–that it’s okay to unnecessarily mutilate women in order to maintain a moral distinction between direct and indirect in situations in which the result for the embryo is identical. Similarly, when the magisterium refuses to strongly support the use of condoms by HIV sero-discordant married couples, they avoid the scandal that people might think that the Church no longer opposes birth control. (In fact, this is a clear case of classic double-effect.) Then they create the opposite scandal–that the Church cares more about the particularities of its sexual teaching than about the life and well-being of uninfected partners, and, by extension, their children. When USCCB (then) vice president Francis Cardinal George was voted into the presidency as per usual practice despite having publicly admitted to violating the Dallas Charter in the very recent past, they avoided the scandal of, what? Seeming to be influenced by bad press? Instead they created the opposite scandal–that the USCCB cares more for the smooth accession to power of its leadership than for the observance of the Dallas Charter. And on, and on.

If an appeal to moral imagination (Might a bishop consider what it might be like to be a woman in danger of death from pregnancy, with other kids at home? Or at least consider being her husband, and loving her deeply?) doesn’t help here, and if deft parsing of the Catholic moral tradition falls on deaf ears, and if the canonists don’t step up to defend mere laypeople against mighty bishops who defame them, well, perhaps the Church’s leaders might consider the fact that scandal always has two sides.

May 29, 2010 | Permalink | TrackBack (0)

more on Olmstead and McBride

Thanks to Michael for his questions. There is a lot of good discussion on the Commonweal and First Things blogs about the Arizona case. On the First Things blog, there is, in addition to the post by Michael Liccione, an interesting post by Elizabeth Scalia. (Here.) There is a good discussion of the canon law issues on Ed Peters's blog. (Here.)

I think the moral discussion recapitulates the discussion we had about ectopic pregnancies back in October and November of 2006. That is why it was not a surprise to see Karen Stohr (from Georgetown) weigh in on the Commonweal blog. Karen contributed some very useful comments to our discussion of ectopic pregnancies. 

The problem that I have with Cathy Kaveny's account is that it seems a too facile description of the acts involved in the Phoenix case. She says that the doctors were only engaged in the surgical separation of mother from baby. She makes this sound as if it were a failed C-section. Yet, it seems that the doctors were engaged in a D&C or D&E. To call this a removal is similar to describing a craniotomy as simply rearranging the dimensions of the baby's skull. It seems that Cathy is trying to justify a direct killing by the good motive.

Richard M.    

May 29, 2010 | Permalink | TrackBack (0)

A different question about the Arizona case

I am not sure whether or not the procedure approved by Sr. McBride in Arizona is best regarded as "intentional" killing of the innocent or, indeed, whether -- even if it isn't -- it is well regarded as justifiable or "fair."  Here's another question, though:  Given all the givens, was there any good reason for Sr. McBride to approve this procedure at a Catholic hospital?  I have not read anything that leads me to believe that the procedure was immediately necessary to save the mother's life.  Assuming for now it wasn't, then shouldn't the fact that the procedure approved was (at the very least) plausibly regarded as immoral -- combined with an appropriate desire to avoid creating a scandal or causing confusion among people who are not schooled in the intricacies of these difficult questions -- have resulted in a different decision by Sr. McBride?

UPDATE:  Cathy Kaveny brought to my attention this story, which reports that:

[The mother] was 11 weeks pregnant with her fifth child, and she was gravely ill. According to a hospital document, she had "right heart failure," and her doctors told her that if she continued with the pregnancy, her risk of mortality was "close to 100 percent."

The patient, who was too ill to be moved to the operating room much less another hospital, agreed to an abortion. But there was a complication: She was at a Catholic hospital.

So, the question I asked -- which, in my view, remains an important question at a general level -- does not seemed to be presented in this particular case.  Thanks to Cathy for the pointer. 

May 29, 2010 in Garnett, Rick | Permalink | TrackBack (0)

Dear Richard, Part 2

[Please take a look at this too:  Michael Liccione, blogging at First Things on May 21:]

For approving an abortion at an Arizona hospital late last year, Sr. Margaret McBride has incurred excommunication latae sententiae—meaning that her actions have caused her to excommunicate herself. Or so, at least, her bishop, Thomas Olmstead of Phoenix, has announced. And the bishop’s announcement has ignited something of a firestorm among Catholic commentators.

The moral principle of Double Effect plays a role here. Catholic teaching condemns only “direct abortion”: abortion in which the death of the child is either directly willed in itself or directly willed as a means to some specific end. The Church does not condemn “indirect abortion”: abortion that is a foreseen but unintended side effect of a medical procedure designed to preserve the mother’s life, which is not wrong, at least not merely as such. (The most common example is an ectopic pregnancy, in which the Fallopian Tube must be removed to save the mother’s life, but the resulting death of the child is not directly willed.)

And that, apparently, was the defense McBride offered to Bishop Olmstead. He rejected it, apparently believing that the abortion was direct and thus immoral. And under Church law, all who procure or otherwise “formally cooperate” in direct abortion excommunicates themselves.

But the question is whether he is indeed right, and that is not clear even to some orthodox Catholics. The mother-to-be had pulmonary hypertension, a condition putting her at high risk of the life-threatening eclampsia that giving birth can cause in women with chronic high blood pressure. And so, one could argue, the purpose of the abortion was not the death of the child (either as an end or as a means) but merely the removal of the child from the womb to save the mother’s life—an indirect abortion, in other words, and thus justified.

Continue reading

May 29, 2010 | Permalink | TrackBack (0)

Friday, May 28, 2010

Dear Richard Myers,

Where does Cathy Kaveny go wrong--if indeed anywhere--in what she says at dotCommonweal?

What Is “Abortion,” Anyway?

Posted by Cathleen Kaveny

The Catholic Church condemns “abortion” as a seriously wrongful act.  But  what, exactly, is the condemned act?  Even a cursory examination of our great moral tradition makes it clear that the moral definition of  “abortion” does not precisely track the medical definition.  To understand the moral definition, you need to go back to its two basic purposes:  1) the recognition that each and every human being is made in the image and likeness of God, and 2) the articulation of the basic respect due to them as such.

The principle that it is never  permissible intentionally to kill an innocent human being  is a foundational principle of Catholic moral and social thought.  You cannot regard every other human being as an imago dei, as a living icon of God, while at the same time deliberately erasing them from  existence to achieve your own purposes, when they threaten no harm to anyone.   This principle is foundational in two senses:

First,  it extends across the spectrum of  social activity, orienting our interaction with other human beings in each and every sphere of our existence.  So it is never permissible intentionally to kill the old and weak (euthanasia).  It is never permissible intentionally to attack non-combatants in war time (counterpopulation warfare).

Second, it is a floor, not a ceiling.  We have an obligation not unfairly to impose a risk of death on others–even if we’re not intentionally killing them.  We have an obligation to help others in their distress.  B t as a floor, the principle safeguards the basic level of respect owed to each and every human being.

Articulating the principle, however, important, isn’t enough.  We need also to define its terms, and apply it to specific cases.  In the case of abortion, three questions arise:  1) What is a human being; 2) What is it to be “innocent” in the relevant sense; and 3) What does it mean to intentionally kill?   Contemporary Catholic moral analysis judges that embryos and fetuses are equally protectable human beings from the moment of conception.  It also treats them as innocent.

A  question long debated by Catholic moralists, however, is what does it mean to “intentionally” kill another human being?  This is also a  thorny problem of contemporary action theory. In my view, the best approach to this question has been provided by the English analytic philosopher Elizabeth Anscombe in her book Intention.  She argues that the best way to find out what a person intends is to ask them what they are “doing”, followed by a series of “why” questions.

An intentional act is a human act–a purposeful act.  In order to know the agent’s intention in acting (the “object” of the act), we need to know the description under which the agent is engaging that action.  It’s not enough to simply look at the isolated physical act and judge from there.   So a serial killer and a surgeon may both cut into the human body with a knife, but the intentional acts in which they engage are very different–they would honestly answer the basic question “What are you doing?” in very different ways.

Furthermore, an intentional act is a purposeful act.  Human beings act generally act with purposes and plans–and those plans are nested.  So we intend not only what we are doing here and now, but the purposes and plans in the chain of action of which they are a part.  We intend our ends, and the means to our ends.  We do not, however, intend every consequence caused by our action–even if we foresee they will occur.  So, to take a homey example, if I take NyQuil, I intend to quell my cough, not to get buzzed.  It’s the quelling that is a means to my future plans–a good night’s sleep–not the buzz.    I accept getting buzzed as a foreseen but unintended side effect of taking medicine that is quelling my cough.

In most cases, the medical procedure called “abortion” involves the intent to kill the baby–that’s its purpose.  There are some rare situations, however, where that is not the case.  The immediate aim (object) of the procedure is simply to separate the baby from its dependence on the mother’s system, not to kill the baby, either as an end in itself or as a means to another end.  The baby’s death does not contribute to the saving of the mother–only the separation does.  If the baby lived after separation, everyone would rejoice. The baby’s death is not intended as either an ends or a means, but is accepted as a terrible side effect of the separation procedure.  Is causing the baby’s death as a foreseen but unintended side effect fair?   In some cases, this might be a difficult question.  In a situation where both mother and baby otherwise would die, I think one could make a strong case that it is fair to go ahead with the procedure .

In the Arizona case discussed in Lisa’s post below, I think it is likely that what took place wasn’t an  “abortion” in the sense the procedure is prohibited by Catholic moral teaching.  It was a surgical separation of mother from baby, with the foreseen, terrible, and unwanted side effect of causing the baby’s death. And without the procedure, both mother and baby would die.  So causing the baby’s death as a side effect of the separation was fair.

Germain Grisez–whom no one ever accused of being either a consequentialist or a Commonweal Catholic–analyzes the situation more fully and along the same lines in a section of f his three-volume The Way of the Lord Jesus entitled “Is Abortion Always the Wrongful Killing of a Human Person?”.

[There are as of now 50 comments on Cathy's post, here.]

May 28, 2010 | Permalink | TrackBack (0)

Bishop Olmstead and Sister McBride

The circumstances in Arizona do seem quite compelling. I don't have a good grasp of the facts. I have, however, seen respected commentators raise questions about whether the abortion was in fact necessary to save the life of the mother. (See the comment by John Hass here.) But even assuming that the abortion was necessary to save the life of the mother, I think Bishop Olmstead was correct to defend the moral principle involved--that one may not directly take the life of an innocent human being.

In the context of assisted suicide, I wrote something a few years ago that addresses this same point. The principle (noted above) holds even if the actor has a good motive. "The basic idea is that one cannot  do evil that good may come from it. So, it has never been regarded as permissible to kill an innocent human person for some good reason (to see their suffering--and that of their loved ones--come to an end; for research purposes; or to prevent their sizeable estate from being squandered on futile medical expenses). The acceptance of exceptions--even supposedly narrow ones--is devastating. As John Finnis has stated: 'If appropriate circumstances and good intention can sometimes justify choosing to kill an innocent, the lives of each of us depend on everyone judging, at every moment, that in the circumstances no greater good would be achieved, or greater evil avoided. by killing us....Once itis is allowed that a 'proportionate reason' can justify choosing to kill an innocent person, the genie is out of the bottle and exceptions cannot be contained.'" See.

Richard M.

May 28, 2010 in Myers, Richard | Permalink | TrackBack (0)

Oil Spill Blame

We can point fingers at big corporations (BP) or big government, blaming them for the oil spill disaster.  But, shouldn't we also look in the mirror so that the finger is also pointed directly at ourselves.  To a large extent isn't this forseeable disaster a product of our own insatiable appetite for cheap fuel? 

May 28, 2010 in Scaperlanda, Mike | Permalink | Comments (1) | TrackBack (0)

Agree with Sr. Margaret McBride's decision ... or not?

Sister Margaret’s Choice


We finally have a case where the Roman Catholic Church hierarchy is responding forcefully and speedily to allegations of wrongdoing.

But the target isn’t a pedophile priest. Rather, it’s a nun who helped save a woman’s life. Doctors describe her as saintly.

The excommunication of Sister Margaret McBride in Phoenix underscores all that to me feels morally obtuse about the church hierarchy. I hope that a public outcry can rectify this travesty.

Sister Margaret was a senior administrator of St. Joseph’s Hospital in Phoenix. A 27-year-old mother of four arrived late last year, in her third month of pregnancy. According to local news reports and accounts from the hospital and some of its staff members, the mother suffered from a serious complication called pulmonary hypertension. That created a high probability that the strain of continuing pregnancy would kill her.

“In this tragic case, the treatment necessary to save the mother’s life required the termination of an 11-week pregnancy,” the hospital said in a statement. “This decision was made after consultation with the patient, her family, her physicians, and in consultation with the Ethics Committee.”

Sister Margaret was a member of that committee. She declined to discuss the episode with me, but the bishop of Phoenix, Thomas Olmsted, ruled that Sister Margaret was “automatically excommunicated” because she assented to an abortion.

“The mother’s life cannot be preferred over the child’s,” the bishop’s communication office elaborated in a statement.

Let us just note that the Roman Catholic hierarchy suspended priests who abused children and in some cases defrocked them but did not normally excommunicate them, so they remained able to take the sacrament.

Since the excommunication, Sister Margaret has left her post as vice president and is no longer listed as one of the hospital executives on its Web site. The hospital told me that she had resigned “at the bishop’s request” but is still working elsewhere at the hospital.

I heard about Sister Margaret from an acquaintance who is a doctor at the hospital. After what happened to Sister Margaret, he doesn’t dare be named, but he sent an e-mail to his friends lamenting the excommunication of “a saintly nun”:

“She is a kind, soft-spoken, humble, caring, spiritual woman whose spot in Heaven was reserved years ago,” he said in the e-mail message. “The idea that she could be ex-communicated after decades of service to the Church and humanity literally makes me nauseated.”

“True Christians, like Sister Margaret, understand that real life is full of difficult moral decisions and pray that they make the right decision in the context of Christ’s teachings. Only a group of detached, pampered men in gilded robes on a balcony high above the rest of us could deny these dilemmas.”

A statement from the bishop’s office did not dispute that the mother’s life was in danger — although it did note that no doctor’s prediction is 100 percent certain. The implication is that the church would have preferred for the hospital to let nature take its course.

The Roman Catholic hierarchy is entitled to its views. But the episode reinforces perceptions of church leaders as rigid, dogmatic, out of touch — and very suspicious of independent-minded American nuns.

Sister Margaret made a difficult judgment in an emergency, saved a life and then was punished and humiliated by a lightning bolt from a bishop who spent 16 years living in Rome and who has devoted far less time to serving the downtrodden than Sister Margaret. Compare their two biographies, and Sister Margaret’s looks much more like Jesus’s than the bishop’s does.

“Everyone I know considers Sister Margaret to be the moral conscience of the hospital,” Dr. John Garvie, chief of gastroenterology at St. Joseph’s Hospital, wrote in a letter to the editor to The Arizona Republic. “She works tirelessly and selflessly as the living example and champion of compassionate, appropriate care for the sick and dying.”

Dr. Garvie later told me in an e-mail message that “saintly” was the right word for Sister Margaret and added: “Sister was the ‘living embodiment of God’ in our building. She always made sure we understood that we’re here to help the less fortunate. We really have no one to take her place.”

I’ve written several times about the gulf between Roman Catholic leaders at the top and the nuns, priests and laity who often live the Sermon on the Mount at the grass roots. They represent the great soul of the church, which isn’t about vestments but selflessness.

When a hierarchy of mostly aging men pounce on and excommunicate a revered nun who was merely trying to save a mother’s life, the church seems to me almost as out of touch as it was in the cruel and debauched days of the Borgias in the Renaissance.

URL:  http://www.nytimes.com/2010/05/27/opinion/27kristof.html?src=me&ref=homepage

May 28, 2010 | Permalink | TrackBack (0)