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.

Thursday, January 24, 2013

The Rise of Pro-Life Incrementalism

I'm a bit late on this, but here's an interesting post, from the Legal History Blog, by Prof. Mary Ziegler, on "The Rise of Pro-Life Incrementalism."  Thoughts?


Garnett, Rick | Permalink

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Amazing that none of the bloggers here have the guts to address this:


Posted by: Observer | Jan 25, 2013 1:33:14 PM

There has never been a case when a human person has conceived a son or daughter who was not a human person.

Posted by: N.D. | Jan 25, 2013 11:28:08 PM

Well, N.D., it seems that conclusion doesn't apply if it might lead to greater legal exposure for a Catholic institution. Still waiting for the wise and brave contributors to this blog to take up this rather problematic story.

Posted by: Observer | Jan 27, 2013 10:14:19 AM

Observer, In order to be Catholic, one must be in communion with Christ's One, Holy, Catholic, and Apostolic Church.(See Catholic Canon 750)

The Catholic Church recognizes the self-evident truth that every son or daughter of a human person can only be a human person. To claim that one can be Catholic while denying the personal and relational inherent Dignity of the human person created in The Image and Likeness of God, would be a lie from the start. It would not surprise me if The Bishops are preparing a statement as we speak.

Posted by: N.D. | Jan 27, 2013 5:52:42 PM

N.D., I'm trying to grasp the implications of your point. Would it not follow from what you say that this Catholic hospital is not, in fact, Catholic? By the way, given that you would not be surprised if "The Bishops" are preparing a statement as we speak, does it surprise you that the no Mirror of Justice blogger has addressed the case?

Posted by: Observer | Jan 28, 2013 11:01:12 AM

Observer, I am assuming that someone from The Mirror of Justice will address this case soon as ironically, this case could be the case that will overturn Roe v. Wade by recognizing the self-evident truth that every embryo of a human person is a son or daughter of a human person, and every son or daughter of a human person can only be a human person.

Posted by: N.D. | Jan 28, 2013 12:03:44 PM

"Observer" seems to imagine that he or she has uncovered and exposed an instance of lack of "guts" on the part of MOJ bloggers, and seems uninterested in the possibility that we (a) didn't click on the link contained in his or her snarky anonymous comment or (b) are not familiar with every case mentioned on HuffPo. So, keeping in mind that I had heard nothing about the case until "Observer" helpfully brought it to my attention, I gather that, in the context of a wrongful-death action, a Catholic hospital association is arguing that "state law protects doctors from liability concerning unborn fetuses on grounds that those fetuses are not persons with legal rights." Of course, there is no inconsistency between it being the case that (i) unborn children are, in fact, persons and (ii) the relevant state law does not treat unborn children as persons for the purpose of wrongful-death actions. I'm probably inclined to the argument that a Catholic hospital should not even make the argument -- even if failing to do so will expose it to unauthorized tort liability -- because it muddies that hospital's pro-life witness, but there is, we should admit, a counter-argument. Now that "Observer" has helped me find my "guts", I'll follow this case with some interest.

Posted by: Rick Garnett | Jan 28, 2013 12:46:20 PM

(1) The hospital must be in a joint-defense agreement with its insurance provider, which is footing the bill here. So it actually might not be able to say "you can't offer that defense" depending on the terms of the agreement. Now, one could argue that after the sex-abuse scandals the Church and her subs should demand a greater role in their defenses, and maybe the hospital here does. The point is nobody commenting on the matter knows what the contractual obligations on the parties to the defense are, so all the negative inferences drawn therefrom are, at best, ignorant.

(2) Wrongful death was probably a bad argument for the plaintiffs to make; as a general matter loss of parental consortium is the better claim in this kind of case (although I don't know what that looks like in Colorado). Given, however, that wrongful death seems clearly barred, they should have found a better cause of action. So (a) why should the Catholic hospital have to let the plaintiffs win on bad lawyering (i.e. a barred COA)and (b) if it wasn't bad lawyering, the best explanation seems to be that the plaintiffs laid a trap for the Catholics (i.e. present them with a barred claim they can't accept as being barred in the hope of settlement). In either case the hospital needn't roll over. Especially because . . .

(3) The common law rule against pre-live-birth personhood in wrongful death actions makes sense legally, even if it is neither scientifically nor morally satisfying. Once an unborn child is a person for wrongful death purposes there will be a new cottage industry of miscarriage med-mal torts the costs of which will be staggering both in terms of payouts and insurance coverage and in terms of expert discovery in litigation (because causation will be a mess every single time). Now, given what we know now about life in the womb it might be worthwhile for jurisdictions to revise this rule even at significant cost it will impose. Regardless, the rule is not irrational and these kinds of messy lines get drawn all the time in tort law. "What is the value of a human life" is not some deep question to a plaintiffs' lawyer or a state trial judge.

(4) *Even if* the CL rule against pre-live-birth personhood should be changed (a)it is not obviously the case that it should be done by the courts and not the legislature (indeed, given the competing balance of policy goals it seems much better suited to the legislative process) or (b) *even if it should* be done by the courts that it is not the role of a trial or intermediate-appeals court to do so against settled, binding precedent (I think by wrongful death statute here).

(5) Otherwise, to quote Whit Stillman, "Oh my God--the Catholics really are always bad."

Posted by: Analyst | Jan 28, 2013 2:27:44 PM

Ok, Prof. Garnett, I'll accept that sometimes a fetus is a person, and sometimes it's not, which is the only way there "is no inconsistency. . . ."

If, as Analyst speculates, the hospital exchanged its right to insist on the personhood of the unborn child in return for insurance coverage, that says something about the depth of this particular institution's (at least this one's) convictions.

It's pretty harsh for Analyst to say that "the best explanation seems to be that the plaintiffs laid a trap for the Catholics." The plaintiff's wife died; it's unlikely he cares much about laying traps for Catholics. I guess when you get in a jam, compassion is a luxury.

Analyst's argument, in point (3), in support of "the common law rule against pre-live-birth personhood in wrongful death actions" is eminently practical. The problem for anti-choice advocates is that there are many similarly compelling practical reasons to permit individual women to decide the identical "personhood" question for themselves -- at least "legally" if not "scientifically or morally."

Analyst's point (4) is rather a straw man. The issue is not about a court versus the legislature making the applicable rule of law. It's about the defendant standing true to its own avowed principles, even at great cost.

Posted by: Observer | Jan 28, 2013 3:37:19 PM

Actually, "Observer", the issue is not whether sometimes a fetus is (in fact) a person and sometimes it's not. An unborn child is, in fact, a human person. But, if the question is whether a particular legal claim, in a particular jurisdiction, can go forward, then the issue is not what is in fact true but rather the content of that particular jurisdiction's positive law. And, I don't see how (4) is a "straw man" at all. The fact that the Church teaches (correctly) that an unborn child is a person cannot give a court power, in a wrongful-death suit, to treat an unborn child as a person, if that jurisdiction's positive law does not, for wrongful-death purposes, regard the unborn child as a person.

Again, I'm actually somewhat sympathetic to the idea that the Church should not make the argument that's being made here (though, of course, the insurance-company is probably calling the shots). But, the "gotcha, hypocrites!" way you've suggested that idea is not, in my view, very helpful.

Posted by: Rick Garnett | Jan 28, 2013 4:20:19 PM

Professor Garnett, with all due respect, The Catholic Church would never argue that a human fetus is not a person because that would be a lie from the start. A law based upon a lie would be an unjust law to begin with, and should be overturned. Truth begets truth, while error begets error.

Posted by: N.D. | Jan 28, 2013 8:33:49 PM

Roe v. Wade is not settled, binding precedent, because Roe states that if personhood for the fetus can be established, Roe goes away, as the fetus is entitled to protection under The Fourteenth Amendment. Thanks for all you have done for the unborn, Professor Garnett. If "Observer" simply observed your work on behalf of the unborn, he/she would know that there was a logical reason as to why you had not yet commented on this particular case.

Posted by: N.D. | Jan 28, 2013 8:59:09 PM