Tag Archives: Abortion

Liviatan on the Changing Function of Law in Europe’s Cultural Debates

Ofrit Liviatan (Harvard U.) has posted From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates. The abstract follows.

The Article rethinks the law’s role in present-day European debates over Islam in light of its calming effects on the once fiercely-fought abortion reforms across Western Europe. Using examples from Germany, Italy, France, Belgium, Britain, the Netherlands and Switzerland the article demonstrates that the role of the legal process in each of these culture-based debates diverged along its two social functions. Reflecting growing public anxieties, legal actions concerning Muslims typically focused on generating social and cultural change, foreclosing the likelihood of political compromises. In contrast, at the time of abortion reform legal measures acted as mechanisms of social and cultural order, contributing to the pacification of the fierce public controversies even as moral disagreements over abortion endured. Drawing on this comparison, the article suggests that Europe’s constitutional review processes present a compromise-building path to deliberate contemporary conflicts over Islam.

The Article proceeds in three parts. Part II and III analyze the legal developments in the context of Islam and abortion across Western Europe, revealing a contrasting dynamics in the roles of the legal process in each of these debates. Part IV assesses the effects of the legal process in each of the debates and rules out alternative explanations for this divergence. It argues that the factor of time or European secularization cannot account for the current intensity-difference in each of these debates. The article concludes by proposing a path to launch the currently absent constitutional conversation over Islamic-based tensions in Western Europe. Modeled on abortion reform, constitutional courts should reach beyond proportional balancing and dictate policy frameworks addressing both the roots of Muslim disadvantages and the anxieties of the European public.

Dilley & Palpant (Eds.), “Human Dignity in Bioethics”

9780415659314Last December, Routledge published Human Dignity in Bioethics: From Worldviews to the Public Square (2012) edited by Stephen Dilley (St. Edward’s U.), and Nathan J. Palpant (U. of Washington). The publisher’s description follows.

Human Dignity in Bioethics brings together a collection of essays that rigorously examine the concept of human dignity from its metaphysical foundations to its polemical deployment in bioethical controversies. The volume falls into three parts, beginning with meta-level perspectives and moving to concrete applications.

Part 1 analyzes human dignity through a worldview lens, exploring the source and meaning of human dignity from naturalist, postmodernist, Protestant, and Catholic vantages, respectively, letting each side explain and defend its own conception. Part 2 moves from metaphysical moorings to key areas of macro-level influence: international politics, American law, and biological science. These chapters examine the legitimacy of the concept of dignity in documents by international political bodies, the role of dignity in American jurisprudence, and the implications—and challenges—for dignity posed by Darwinism. Part 3 shifts from macro-level topics to concrete applications by examining the rhetoric of human dignity in specific controversies: embryonic stem cell research, abortion, human-animal chimeras, euthanasia and palliative care, psychotropic drugs, and assisted reproductive technologies. Each chapter analyzes the rhetorical use of ‘human dignity’ by opposing camps, assessing the utility of the concept and whether a different concept or approach can be a more productive means of framing or guiding the debate.

Izunwa & Ifemeje on Right to Life, Abortion and the Principle of Double-Effect

Maurice Okechukwu Izunwa and Sylvia Ifemeje (both from Nnamdi Azikiwe U., Awka) has posted Right to Life and Abortion Debate in Nigeria: A Case for the Legislation of the Principle of Double-Effect. The abstract follows.

The controversy as to whether abortion on demand will be legalized in Nigeria has been long and protracted. This is not unconnected with the fact that the issues that border on life are always sensitive for society and all the more for the legislature and the Courts. Notwithstanding the comparatively conservative status of law on abortion in Nigeria, arguments from differential fields of knowledge relating to the amendment of the law as it is, are far reaching. A great many insist that all forms of willful abortion should be criminalized. In this school of thought, we find the Catholic Church at the baseline. Nevertheless, the leftist pro-choice school defends the opinion that it is only fair and just that a woman should be left to decide in such a grave matter about her life and health. This essay makes an ethical detour in differential arguments as a necessary prerequisite for the much needed legal mediation of the rival camps. It proposes the legislation of the “principle of double effect” as the legal middle course.

Wilson on The Calculus of Accommodation

Robin F. Wilson (Washington and Lee U. School of Law) has posted The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State. The abstract follows.

This Article considers a burning issue in society today—
whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political
maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion
and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex marriages. In all these contexts, religious objectors claim a special
right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and
may impose significant costs on others. Legislators and other policymakers have struggled with how to advance two compelling, and at
times conflicting, values—access and religious liberty. This Article examines, and responds to, a number of “sticking points” voiced by legislators
about a qualified exemption for religious objectors to the duty to facilitate same-sex marriages—concerns that bear an uncanny resemblance
to reasons why some believe the Obama administration should not yield
further on the contraception mandate. This Article maintains that religious accommodations qualified by hardship transform what could be a zero- sum proposition into one in which access and religious freedom can both be affirmed.

Storrow on Religion, Feminism and Abortion

Richard F. Storrow (City U. of N.Y. School of Law) has posted Religion, Feminism and Abortion: The Regulation of Assisted Reproduction in Two Catholic Countries. The abstract follows.

Perspectives on abortion and religious values have been two primary influences on the development of the various regulatory regimes that govern assisted reproduction around the world. This article examines why two countries with similar histories of allegiance to Roman Catholicism have developed highly divergent legal regimes to regulate assisted reproduction. Italy has enacted one of the most restrictive regimes known, Spain one of the most permissive. The comparative analysis employed here will afford insight into how the development of legislative responses to assisted reproduction correlate with religious commitments, feminist sentiment and the regulation of abortion. This article concludes with a discussion of what implications its analysis might have for the regulation of the infertility industry in the United States.

Müller, “The Criminalization of Abortion in the West”

Fordham historian Wolfgang P. Müller has written a new book on the origins of criminal punishment for abortion in western law, The Criminalization of Abortion in the West (Cornell 2012). The publisher’s description follows.

Anyone who wants to understand how abortion has been treated historically in the western legal tradition must first come to terms with two quite different but interrelated historical trajectories. On one hand, there is the ancient Judeo-Christian condemnation of prenatal homicide as a wrong warranting retribution; on the other, there is the juristic definition of “crime” in the modern sense of the word, which distinguished the term sharply from “sin” and “tort” and was tied to the rise of Western jurisprudence. To find the act of abortion first identified as a crime in the West, one has to go back to the twelfth century, to the schools of ecclesiastical and Roman law in medieval Europe.

In this book, Wolfgang P. Müller tells the story of how abortion came to be criminalized in the West. As he shows, criminalization as a distinct phenomenon and abortion as a self-standing criminal category developed in tandem with each other, first being formulated coherently in the twelfth century at schools of law and theology in Bologna and Paris. Over the ensuing centuries, medieval prosecutors struggled to widen the range of criminal cases involving women accused of ending their unwanted pregnancies. In the process, punishment for abortion went from the realm of carefully crafted rhetoric by ecclesiastical authorities to eventual implementation in practice by clerical and lay judges across Latin Christendom. Informed by legal history, moral theology, literature, and the history of medicine, Müller’s book is written with the concerns of modern readers in mind, thus bridging the gap that might otherwise divide modern and medieval sensibilities.

Contraceptives and the Complexities of American Catholicism

There’s word this morning that the Obama Administration plans to announce a compromise on the new HHS regs that require religiously-affiliated entities to cover contraceptives, sterilization, and abortifacients in employee health insurance plans. (When stories start to leak about how the Vice President opposed the regs, you know the White House is in political trouble). It’s not clear what the compromise is, exactly, or whether it will satisfy religious leaders.

For the moment, though, I’d like to focus on something this crisis reveals about American Catholicism. Some proponents of the HHS regs have been shocked at the negative reaction from many American Catholics, large numbers of whom use artificial birth control. Surely Catholics who use artificial birth control should have rallied to the Administration’s side. As Ross Douthat points out in an insightful column, however, religious belief and practice are rarely so clear-cut. One should not, he says,

gloss[] over the complexities of religious faith and practice, which ensure that many Catholics’ relationship to the teachings of their Church is more complicated than a simple “agree or disagree.” There are Catholics who accept the Church’s view on contraception but simply don’t live up to it. There are Catholics who respect the general point of the teaching while questioning its application to every individual case…. There are many American Catholics, as Daniel McCarthy noted in a perceptive interview recently, who are neither devout nor dissidents — Catholics who practice their faith intermittently, drifting away and then being tugged back, without having any particular desire to see its teachings changed to suit their lifestyles. And then there are Catholics (and this is a large category) who do explicitly dissent from Church teaching, but who also don’t want to see secular governments set the rules for what Catholic institutions can and cannot do…. If this issue a matter of conscience only for the “formal hierarchy of the Catholic Church,” then why is the White House taking so much criticism from Catholics with a reputation for disagreeing with the hierarchy — from Commonweal Catholics and National Catholic Reporter Catholics, from famous Catholic liberals like E.J. Dionne and Chris Matthews, Catholic Democrats like Tim Kaine and Bob Casey, Jr., and so on? The answer can’t be that they’re all afraid of the bishops, since we’ve just established that most Catholics don’t agree with the bishops on this issue. Something else is going on here.

“Neither devout nor dissident” — that phrase probably captures the way most people feel, most of the time, about their faith traditions. It surely describes many American Catholics today. When one takes into account the complex social reality of American Catholicism, and the still-profound sense Americans have that government should not interfere with religious conscience, the reaction to the new HHS regs is not too surprising, after all.

Skeel on Hauerwasian Christian Legal Theory

David A. Skeel Jr. (U. of Penn. Law School) has posted Hauerwasian Christian Legal Theory. The abstract follows.

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.

After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.

Wardle on Abortion, Same-Sex Marriage, and Education

Another paper by Lynn Wardle (BYU), The Impacts on Education of Legalizing Same-Sex Marriage and Lessons From Abortion Jurisprudence.  The abstract follows.

One of the most contentious issues to arise in public policy debates concerning the legalization of same-sex marriage is whether legalizing same-sex marriage has a significant detrimental impact on education, particularly public education. However, legal scholarly and professional consideration of this issue is scarce and one sided. This article reviews the evidence that legalizing same-sex marriage has had a serious, profoundly controversial, and arguably detrimental impact on public education. It then explains why legalization of same-sex marriage must have some impact on educational curriculum. When the meaning of marriage changes it must be reflected in the curriculum that covers that subject. Next, the existing constitutional protections against detrimental impacts upon parents’ rights and family integrity interests of legalizing same-sex marriage are reviewed. The article also presents an analogy from abortion jurisprudence that may provide some protection for parental rights to control the education of their children and protect them against some detrimental effects on education from legalizing same-sex marriage. Finally, the article provides some recommendations for legal remedies and community action that may address these concerns.