Category: law

Seal of Confession in Court – The Case in Louisiana

Recently the Supreme Court of Louisana made a decision pertinent to a civil lawsuit naming Rev. Jeff Bayhi and the Catholic Diocese of Baton Rouge as defendants. According to the official statement of the diocese, the decision of the Louisiana Supreme Court "attacks the seal of confession and the attempt by the plaintiffs to have the court compel testimony from the priest, Fr. Bayhi, as to whether or not there were confessions and, if so, what the contents of any such confessions were." (sic)

While the original lawsuit filed is itself under seal, the course of events implied by the published statements are as follows:

1. On July 6, 2009 the parents of a minor child filed a lawsuit alleging that Bayhi, having heard their child's confession regarding her abuse by a church member, was negligent in advising the minor regarding the alleged abuse and failed his duty to report the abuse as a mandatory reporter in compliance with the Louisana's Children Code. It also held the diocese vicariously liable for the alleged misconduct of Bayhi and for failing to properly train him regarding mandatory reporting of sexual abuse of minors.

2. The defendants made a motion in limine to prevent the plaintiffs from "mentioning, referencing and/or introducing evidence at trial of any confessions that may or may not have taken place" between plaintiffs' minor child and the priest, including testimony by the minor child herself about the confessions, on the grounds that nothing that was said in confession could lead to a mandatory duty to report; consequently, there could be no breach of the duty to report arising from anything said in confession, making any and all testimony regarding confessions, including testimony of the minor child, irrelevant to the alleged failure of duty to report.

3. This motion was denied by the court, on the grounds that the legal privilege of confidentiality in confession belongs to the one making a confession to a priest, and as such can be waived by this person. In addition, it noted an apparent inconsistency in the law, one provision of which states that clergy are excepted from being mandatory reporters for anything that is a confidential communication (603(15)(c)), and the mandating reporting "notwithstanding any claim of privileged communication." (609)

4. The decision was appealed to the First Circuit Court of Appeal, which agreed with the defendants, and thus granted the motion in limine, excluding from trial all evidence regarding confessions between the minor child and the priest. Regarding the claimed inconsistency in the law, it noted that the mandatory reporting "notwithstanding any claim of privileged communication" could not be interpreted to apply to priests as mandatory reporters, since that would make the exemption for clergy meaningless. (In addition, the appeals court found a peremptory exception of no cause of action, effectually dismissing all of the claims against Jeff Bayhi and the Church, on the grounds that he was not a mandatory reporter, that even if he were, it would be a matter of criminal law enforcement, not a civil cause, and that, finally, no standard is established by which his advice to the child could be judged negligent.)

5. This decision was appealed to the Louisana Supreme Court, which reversed the appelate court's decision; (1) it reversed the motion to exclude all evidence regarding confessions on the grounds that the legal privilege of confidentiality in confession can be claimed by the one who made a a confession to a priest, or by the priest on behalf of this person. Since the privilege belongs to the penitent, if the penitent waives the privilege, the priest cannot invoke it to protect himself; (2) it reversed the appelate court's dismissal of the case, on the grounds that the question of an alleged mandatory duty to report is here a mixed question of law and fact; two questions of fact in particular it held to be open: (a) whether the communications between the child and the priest were confessions per se, and (b) whether the priest obtained knowledge outside the confessional that would trigger his duty to report.

Some remarks:

Neither the appelate court's decision nor the supreme court's decision directly implies or supports the trial court's right to "compel testimony from the priest, Fr. Bayhi, as to whether or not there were confessions and, if so, what the contents of any such confessions were." The claim by the diocese the the plaintiffs attempted to have the court compel this testimony may or may not be true, but is not implied in the statements made by the appelate court and the supreme court, which deal only with the question of whether all evidence about the confessions, including the testimony of the child, may be excluded from the case.

The question of whether there were confessions

Granting that the court were to hold the content of confession relevant, and that the legal privilege of confidentiality of the confession cannot be invoked by the priest, having been waived by the penitent, so that her testimony regarding the confession could be introduced as evidence in court, it remains a separate question whether the priest could be compelled to testify about the confessions, despite appealing to the freedom of religion together with the Church's prohibition of speaking about the contents of an individual's confession.

The facts do not seem to indicate any real reason for doubt about whether the child's communications with the priest fall within the confidentiality of confession (apparently the talks were made just before the evening Mass, in the time and place for the Sacrament of Reconciliation, and the girl herself described what she was doing as going to "confession"); still, it does seem in principle to be within the court's right to inquire as to the criteria by which the communications are held to be confession, or more precisely, within the confessional forum. (Otherwise a priest could theoretically claim that everytime someone had spoken with him, whether about finances, plans for a celebration, or anything else, it fell under the rubric of confession.)

According to the official statement of the Diocese, "Pursuant to his oath to the Church, a priest is compelled never to break that seal. Neither is a priest allowed to admit that someone went to confession to him." As pertinent to the case, the second statement is false, and indeed, the defendants argued precisely that certain testimony must be excluded because it fell under the confidentiality of confession!

A priest may not say whether someone actually confessed sins to him. But a person has to say or do certain things in the external forum in order for the context of confession to be established; for example, he has to come into the confessional, to say "Can you hear my confession, father?", or by some other means indicate his intention to present himself and his conscience in the confessional forum. Since these things by definition take place prior to confession, and thus in the external forum (or in some cases, an internal forum such as that of spiritual direction), they do not as such fall under the sacramental seal, and a priest may testify as to whether someone did or did not enter into the forum of confession, though prudence and justice demand a general confidentiality about exactly what someone says that indicated his wish to make a confession.

Indeed, in many places and for a long time, penitents would in various cases receive a certificate testifying that they had been to confession. Till today couples in Poland have to present certificates of confession in order to get married!

The official diocesan statement further maintains: "for a civil court to inquire as to whether or not a factual situation establishes the Sacrament of Confession is a clear and unfettered violation of the Establishment Clause of the Constitution of the United States."

While there may be legal nuances of which I'm not aware, it seems rather that a civil court's purporting to determine what establishes the Sacrament of Confession, or any other sacred matter, would be a infringement of the state into the religious sphere, but that it's inquiring into what establishes the Sacrament of Confession, and indeed, for purposes of civil consequence and liability, making a judgment in a particular case on the basis of principles given by a respective religious authority, is no infringement, and falls within its competence. If the state is to protect various goods connected with the exercise of religion, it has to be able to make some judgment as to what things pertain to religion. For example, many states of laws against desecration of places of worship. Now let's suppose I'm upset about spray-paint vandalism of my back-yard shed. So I take it on myself to declare it a sacred chapel, to raise the stakes for vandals… if a civil or criminal case is then brought against a vandal, the court will need to ask whether it is truly to be considered a place of worship.

The question of knowledge gained outside of confession

Since according to the allegations and the deposition testimony, Fr. Bayhi met with the man accused of sexual abuse, Mr. Charlet, concerning the "obsessive number of emails and phone calls" between him and the girl, there does seem to be a question about whether he had grounds for suspicion outside of what he learned in confession that would have resulted in a mandatory duty to report suspected abuse.

The question of the right to waive the confidentiality of confession

The diocese statement claims: "Church law does not allow either the plaintiff (penitent) or anyone else to waive the seal of confession."

Now, the penitent is not bound to begin with by the seal of confession. In this case the Church did not seek to exclude the penitent's testimony about confession on the grounds that it was forbidden for her to disclose the contents of the confession, but on the grounds that the testimony was irrelevant to the case, as nothing that the priest knew from confession could result in a duty or imply a breach of duty to report suspected abuse.

The issue rather concerns whether the penitent can release the confessor from the seal of confession, so that he can reveal to another person the content of a confession. The issue is not a simple one; St. Thomas Aquinas seems to indicate that the penitent can do so in some way; while there has always been disagreement, the majority of moral theologians and canonists maintain the same; and canon law presupposes it — canon 1757 §3 (2) of the 1917 code excludes priests at ecclesiastical trials from "giving testimony pertaining to matters known to them through confession, even if they have been freed from the obligation of the seal", and canon 1550 § 2 (2) of 1983 code similarly prohibits testimony at ecclesiastical trials "as regards everything which has become known to them by reason of sacramental confession, even if the penitent requests their manifestation". Due to its complexity, I'll take up the issue in a separate post.

USA Supreme Court Gets It Right on Religious Liberty

Yesterday, January 11, 2012, the USA Supreme Court ruled unanimously and decisively in favor of Hosanna-Tabor Evangelical Lutheran Church and School's right to complete freedom in hiring and dismissing its ministers, regardless of provisions of civil law concerning employment such as those of the Americans with Disabilities Act. A case alleging unfair discrimination had been brought against the school by the Equal Employment Opportunity Commission et al. and Chreryl Perich. (Summary statement, full judgment and concurring opinions [PDF])

"Cheryl Perich" had been hired by the school and had later accepted the position of a "called" teacher (in contrast to a "lay" teacher). She had taken disability leave at the beginning of the 2004-2005. She then wanted to return to work the following February. The school's principal stated that it had contracted with a lay teacher to fill her position for the remainder of the earth, and school administrators expressed their opinion that she was unlikely to be physically capable of returning to work that year or the next, and offered to pay a portion of her health insurance premiums if she would resign as a called teacher. She refused, showed up to work on the first day when he doctor cleared her medically for work, February 22. The congregation considered this behavior and insistence inappropriate, and voted to rescind her "call", thereupon terminating her employment. She filed a charge against the church and school with the Equal Employment Opportunity Commission, alleging that her employment had been terminated in violation of the Americans with Disabilities Act, which prohibits discrimination on the basis of disability and prohibits retaliation for making a charge under the ADA. The EEOC then brought a suit against the Hosanna-Tabor church and school, claiming that she had been fired in retaliation for threatening a lawsuit under the ADA. Hosanna-Tabor argued that the suit was barred by the First Amendment because it concerned the freedom of a religious institution to regulate its own affairs and ministers, that Perich had been fired for a religious reason, namely that her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally. (Following St. Paul in Corinthians 5).
A district court had originally decided in favor of the school. The Appeals Court reversed that decision, and the case finally came to the USA Supreme Court in 2011.

The Supreme Court ruled that (1) the "ministerial exception" to legislation concerning employment of ministers was valid, and that (2) Perich was a minister for the purposes of this exception.

The justification given for the "ministerial exception" to legislation concerning employment of ministers was that the employment of ministers is intimately linked to religious belief.

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The EEOC and Perich had argued that Hosanna-Tabor's stated reason for firing Perich, namely that her way of acting had violated the church's religious beliefs, was merely a pretext, and that the real reason was her disability. To this the court noted that it is irrelevant what the "real" reason for firing Perich was. "The purpose of the [ministerial] exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful — a matter “strictly ecclesiastical,” — is the church’s alone.

The court did not, however, affirm that the discernment of who is a "minister" lies outside the court's competence. The opinion of the court, as delivered by Chief Justice Roberts, suggests that it does lie within the court's competence; the court gives a number of reasons why Perich is to be considered a minister, of which one reason is the fact that she was called and considered such by the church. For this reason, Justice Thomas noted his own opinion in a concurring note that "the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization’s good-faith understanding of who qualifies as its minister." He notes that "a religious organization’s right to choose its ministers would be hollow" if it lay in the competence of secular courts to determine whether a given person is or is not a "minister", "if secular courts could second-guess the organization’s sincere determination that a given employee is a“minister” under the organization’s theological tenets." Whether an employee of a religious organization is a "minister" is of itself a religious question, and therefore to be decided by the religious body. This opinion seems right to me, and it is unfortunate that the court did not adopt this view as a whole — though that need not overshadow the value and importance of the important and correct decision of the court.

The summary judgment suggests that there is a certain tension between the state's interest in regulating employment to foster justice and hinder unjust discrimination, and the freedom of religious groups to regulate themselves, but that the judgment here comes principally on the side of religious freedom.

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

The suggested tension is also, in my opinion, a real one. As St. Augustine, e.g., and St. Thomas Aquinas point out, human law cannot punish or forbid all wrongdoing, since while seeking to do so, it would do away with many good things, and would hinder the common good. (De libero arbitrio I, 5,6, Summa Theologiae I-II, q. 91, a. 4 & q. 96, a. 2). Opinions may differ about whether American government's regulation of employment even in general benefits the common good by fostering justice and hindering injustice. But in any case, such lawful regulation can in principle be so beneficial. It can hinder various injustices. Given the realistic supposition that some such injustices will be present in religious organizations, the government could hinder those injustices by refusing to recognize the right of religious organizations to govern themselves, prohibiting and punishing those injustices, but this would be to do away with particular injustices by means of an even graver injustice.

On An Argument in Favor of The Legality of Abortion

I was asked for my thoughts on the blogpost On a Logical Argument in Favor of Abortion, which aims at analyzing the real logic behind a proposed argument that abortion should be legal, and thus manifesting the flaws in it. The argument as proposed to the author of the blogpost was:

P1: If abortion is not legal, there will be women who would be desperate enough to find a specialist to abort her fetus illegally.
P2: She would be putting herself at risk of an abortion operation from a quack.
P3: She could die along with the fetus.
C: For the life of the woman, abortion should be legal.

The author of the blogpost draws out the hidden premises that he sees as necessary in order to make the conclusion truly sound, specifically that "Abortion is necessary for the life of women" and that "Legal Abortion is not a risk to the life and health of women". Since these hidden premises are false, the conclusion is invalid.

Given that not a speculative argument, but a practical argument is being made, and that a practical argument resolves to some good which is being sought, I would suggest rather the following analysis:

P1. If abortion is illegal, certain women will choose and have an illegal abortion.

This can be derived from the premise: Certain women will, in fact, choose and obtain an abortion whether it is legal or illegal.

P2 and 3. To have an illegal abortion entails a higher risk of having a poorly performed abortion.
To have a poorly performed abortion entails a higher risk of death from the abortion for the woman who has it than having a "correctly" performed abortion does.

The truth of this premise is an empirical matter. As far as I know it is true.Note, however, the qualification "risk of death from the abortion". Theoretically the risk of death through, e.g., suicide might be higher for women who have a legal abortion than for women who have an illegal abortion. But in the absence of particular evidence for this, the point is only a theoretical one.

C1. If abortion is illegal, then the women who will choose and have an abortion whether it is legal or illegal will be subject to a higher risk of death from the abortion than if abortion is legal.

This follows logically from the previous premises.

C2. Abortion should be legal for the protection of (reduction of risk to) the life of the women who will choose and have an abortion whether it is legal or illegal.

This is a valid argument in favor of abortion being legal, and its premises seem to be true. However, it is insufficient for a practical judgment that abortion should be legal, because it is based on a very limited consideration of the goods and evils involved in abortion being legal or illegal. It considers only the women who will have an abortion whether it is legal or illegal, and it considers only their risk of dying. It does NOT consider: (1) the women who will have an abortion if it is legal, but will not have an abortion if it is illegal: the physical and psychological harm done to them, the death of the children aborted, the injustice to those children, etc.; (2) the moral harm done by failing to clearly acknowledge abortion as a moral evil. Since there are many women who will have an abortion if it is legal but will not if it is not legal, and there is a great deal of harm done by abortion whether legal or illegal, and since the moral harm done to persons by the failure to acknowledge abortion as a moral evil is itself a great evil, the judgment that abortion should be legal is unsound.

Crucifixes in Public Classrooms in Italy

The highest European court of human rights announced last Friday, the first Friday in Lent, at 3:00 PM, its judgment on the case of Lautsi and others vs. Italy, on whether crucifixes in classrooms in public schools was prejudicial to the right of non-Catholics to educate their children in accordance with their own convictions, as well as against the right to freedom of religion. The decision was in favor of the state of Italy's right to have crucifixes in its classrooms–more precisely, the judgement was that Italy's decision to have crucifixes in its classrooms does not violate the two rights mentioned (the right of parents to educate their children in accordance with their convictions and the right to freedom of religion).

While the court's judgment to some extent depends on the practical judgment that crucifixes do not have a significant religious influence ("A crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality…. It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities"), it still seems overall a good outcome, making an important distinction between a state's being "neutral" in regard to religions, and being "secular".

Read the full text of the court's judgment (PDF)

Lying and Moral Intuitions

Peter Kreeft recently wrote a post titled "Why Live Action did right and why we all should know that". There are three elements to his thesis, two bare affirmations–Live Action did right; we should all know that–and an affirmation of how any sound person would know they did right.

His position and argument can be summed up in the following sentence:

By an intuitive judgment that is based on moral experience and on a comparison with other ways of defending person's lives (eg., spying, physical harming someone else to keep them from killing people), it is evident to most people, and to all normal human beings that what Live Action did is right, and if you think otherwise, you're morally stupid, and care about principles or moral uprightness more than about people.

I'm not going to take a position on the legitimacy of what Live Action did, but I take a definite position on this manner of arguing: it is unsound, guilty of several classic fallacies, and uncharitable, arguing by ridiculing one's opponents.

1. Appeal to the people–because most people think its so, it must be so–or simply begging the question. Peter Kreeft premises: Most of my students immediately and firm conviction is that Dutchmen "were not wrong to deliberately deceive the Nazis about the locations of the Jews they had promised to hide". He then affirms that these students "know, without any ifs or ands or buts," that such Dutch deception is good, not evil, and that anyone who is more certain of a universal philosophical principle, from which he would conclude that such deception was wrong, "is not functioning as a human being but as a computer, an angel, a Gnostic, or a Kantian."

When we discuss Kant and the issue of lying, most of my students, even the moral absolutists, are quite certain that the Dutchmen were not wrong to deliberately deceive the Nazis about the locations of the Jews they had promised to hide. … They know, without any ifs or ands or buts, that such Dutch deception is good, not evil. If anyone is more certain of his philosophical principles than he is that this deception is good, I say he is not functioning as a human being but as a computer, an angel, a Gnostic, or a Kantian.

Here Kreeft is either (1) begging the point at issue, using his students merely as a illustration of that which he takes as a fact anyway, namely that whatever deception was realistically necessary to save lives (whether one uses the term "lying" or not) was good, or (2) arguing from the fact that the intuition of most persons is in favor of lying in such situations.

2. Begging the question and ridiculing your opponent: "Physical hiding and verbal hiding are two sides of the same coin, whether you call it lying, or deception, or whatever you call it. What it is, is much more obvious than what it is to be called. It’s a good thing to do. If you don’t know that, you’re morally stupid, and moral stupidity comes in two opposite forms: relativism and legalism. Relativism sees no principles, only people; legalism sees no people, only principles."

3. Argument by ridiculing your opponent: "If lying is always wrong, then it is wrong to lie to a nuclear terrorist (the “ticking time bomb” scenario) to elicit from him where he hid the nuclear bomb that in one hour will kill millions if it is not found and defused. The most reasonable response to the “no lying” legalist here is “You gotta be kidding”—or something less kind than that."

4. Argument from analogy, which, however, reduces to the previous fallacies, either appeal to the people or a begging of the question). The genuine morality of what Live Action did is the same as that of spying in order to save lives. But spying in order to save lives is morally right. Therefore what Live Action did is morally right.

The closest analogy I can think of to Live Action’s expose of Planned Parenthood is spying. If Live Action is wrong, then so is all spying, including spying out the Nazis’ atomic bomb projects and saving the world from a nuclear holocaust.

This is a logically valid argument. Kreeft does not argue for the premise that spying is morally licit, but this premise is probably not disputed by those whom he is opposing. The more questionable premise is his supposition that the morality of spying is the same as that of lying. He does not give any argument for this, thus it is either simply assumed (begging the question) or assumed on the basis of majority opinion.

 

Peter Kreeft does give a certain argument in favor of the use of the argument from majority opinion in moral matters: because they deal with concrete realities, "moral experience, instinctive moral judgments about concrete situations by our innate moral common sense" has priority over "clear definitions of general moral principles and valid logical reasoning from them"

Several questions pose themselves in regard to this: (1) what do we do when faced with a moral situation, such as that of lying to save someone's life, where the instinctive moral judgment says it is morally right, and the instinctive moral judgment of others says that it is morally wrong? If we say that the instinct of the majority is right, it seems we would have to say that the use of artificial contraception is morally right, a conclusion Kreeft would not accept. In the Aristotelian and Thomistic account, it is not just anyone's instinctive judgment which is decisive, but the judgment of the virtuous man? Is Kreeft so sure of his virtue that he can say that one who denies that his instincts are correct are "morally stupid" and is "not functioning as a human being"?

(2) What do we do when faced with a moral situation where, when the situation is presented in one way, we have one instinctive moral judgment, and, if the situation is presented in another way, we have a different instinctive moral judgment?

I hope to return to the question of instinctive judgments and moral reasoning in a later post.

See also: A Response to Peter Kreeft, On Lying, posted on the New Theological Movement Blog, and Augustine vs the Priscillianists by Mark Shea, two other responses worth reading.

Are We Obliged to Do the Impossible?

In asking whether passions and emotions can be sinful, Aquinas raises the objection:

“No one sins in doing what he cannot avoid,” as Augustine says (On the Free Choice of the Will III, 18). But man cannot escape the inordinate movement of sensuality, since “the sensuality ever remains corrupt, so long as we abide in this mortal life, and that is why it is signified by the serpent,” as Augustine says (On the Trinity XII, 12,13). Therefore the inordinate movement of the sensuality is not a sin. (ST I-II, 74:3, obj. 2).

The response he makes to this objection is that though it is impossible to avoid all inordinate movements of sensitive appetite, it is possible to avoid any particular inordinate movement, and that this ability is sufficient for a voluntary sin.

[The corruption of the sensitive appetite] does not prevent man from using his rational will to suppress individual inordinate movements, if he has a presentiment of them. He can do this by, for example, turning his thoughts to other things. Yet while he is turning his thoughts to something else, an inordinate movement may arise about this also: thus when a man, in order to avoid the movements of concupiscence, turns his thoughts away from fleshly pleasures and to the consideration of science, sometimes an unforeseen (impraemeditatus) movement of vainglory will arise. And therefore a man cannot avoid all such movements, on account of the aforesaid corruption. But it is enough, for the account of a voluntary sin, that he be able to avoid each individual one. (Ibid., ad 2)

Now, if a man is in proximate danger of having an extremely disordered desire for sensitive goods, it seems clear that he ought to do what he can to avoid that, and would be guilty of neglect if he turned his attention to avoid sins into which he is in no special danger of falling. Consequently, it seems to follow from Aquinas's position that a man can in one and the same period of time have acted morally as well as he could, have made the best moral decisions that he could make, and yet be guilty of a voluntary sin. This conclusion seems, on the face of it, rather problematic.

Does Aquinas hold the same position when he considers more particular matters? It does not appear so. In a later article, he asks whether disobedience is a mortal sin, and raises the objections:

Someone is said to be disobedient when he does not fulfill his superior's command. But superiors frequently give so many commands that it is scarcely or not at all possible to keep all of them. Therefore, if disobedience were a mortal sin, it would follow that man could not avoid mortal sin, which is an untenable position. Therefore disobedience is not a mortal sin. (II-II 105:1 obj. 3)

Now, it seems equally true in this case that a person could keep any given command, and thus, by focusing on keeping the most important commands, he fails to keep some of the less important commands (whether because of time conflicts or just because there are some many commands that he can't remember all of them). It was nonetheless absolutely speaking possible for him to keep any individual one of those other commands, and thus by Aquinas's general reasoning, it would seem that the failure to keep the command remains a sin.

Aquinas does not accept the reasoning in the concrete, however, but replies:

No one is obliged to what is impossible. Therefore, if a superior gives so many commands that a subject cannot fulfill them, the subject is free of sin. And therefore superiors should refrain from giving very many commands. (Ibid, ad 3.)

I'm not sure what to think about Aquinas's position here. Is he, in an attempt to describe scientifically a real human experience, to get at the experienced psychology of such faults, making an abstract argument that is not strictly valid, and this becomes evident when one considers not abstract but concrete cases? Or is there a decisive difference between the two cases?

Are Quick and Slow Death Different?

In the post The Principle of Double Effect and Abortion, or more precisely, in a comment on the post, the example was given, taken from Steven Long, of two persons in a space capsule with a limited air supply. There would be enough air for one of the persons to reach earth safely, but not for both. Moreover, one person is mortally allergic to an anti-viral agent in the air, and so will die in any case. The question was raised, can the other person deny him air by ejecting him from the spaceship?

I would like to compare this case with a analogous case inspired by my last post. Two persons are on a island with just barely enough water for one person. Again, one person is allergic to something in the water, and will die in three to four weeks if he drinks it–whereas he will die in one to two weeks if he does not. Can the other person deny him water, by force if necessary, or is this murder?

Steven Long asks, apparently, rhetorically, "By moving him, do we not in fact hasten his death? If we deliberately hasten the death of another—and let us suppose we do so against his will—do we not then commit murder?" I think in terms of people's instincts, it makes a tremendous difference how much the death of another person is hastened by our action, that ejecting someone from a spaceship, where he will die immediately, is much more revolting and instinctively wrong (at least to persons who are not in that situation; I would not be surprised to find that the moral instincts of persons on both sides who were actually in such a situation were much less strongly against this action) than denying a person water that is anyway poisonous to him, and thus shortening his life span from about three weeks to one week.

Is this right? Are your instinctive judgments regarding the two cases the same or different? Is denying someone water that would kill him anyway over a space of three weeks seem instinctively the same or different than denying him air that would kill him over a space of one week?

The Mistake of Expecting Moral Systems to Resolve All Cases

Aquinas points out that while the first principle of natural law, "good is to be done and pursued and evil to be avoided", is most certain, the more concrete and particular the principles and situations at which one looks, the less great is the certainty that can be attained. Consequently, anyone who sets out to develop or expound a moral system that will enable him to objectively judge every moral case with certainty, is sure to fail in this mistake: either there will be cases that cannot be judged with clarity by the system, or there will be cases that are misjudged by it. The following series of situations may serve as an illustration of inevitability of "grey" cases.

1. A mother is stranded with her child, aged 10, on an island, has no way to contact anyone off the island, and no way to procure additional fresh water. She knows that people will be arriving by boat in four weeks, as the island is a scheduled and never missed stop on a cruise. There is enough water for her child to survive four weeks, though getting somewhat dehydrated. She refrains from drinking any of the water, so that she can give it all to her child, though she knows she is morally certainty to die herself.

2. Ten adults are stranded with ten children in a similar situation. The adults all go without water for the sake of the children, and die of thirst.

3. Twenty adults are stranded on the island. Ten volunteer to give their share of the water to the others.

4. Twenty adults are stranded on the island, with adequate fresh water for all of them for 18 days. Thus, if they all drink a normal share of the water, they may well not all die, but will all run a serious risk of death. Five of them therefore volunteer to give up their share of water, and are thus virtually certain to die.

5. The same situation as four, with the additional remark that those who volunteer to give up their water persons with incurable cancer who expect to die within a few years, and so consider a greater chance of survival for the healthy and younger persons worth giving up their own chance of survival for.

6. The same situation as five, except that there is adequate fresh water for everyone for a little more than 20 days, so that if everyone drinks their share of water, the risk of death for each individual is relatively low, around 0.5%.

7. The same situation as six, except that the persons who give up their water are persons suffering from a disease that will kill them within two months in any event, and causes them constant and great pain, and this horrible pain and short life span plays a significant role in their decision to volunteer to give up their water.

It is quite clear, in the first three cases, that the persons who give up their water are not guilty of suicide either directly or indirectly, that is, either by reason of their intention (they will to die), or by reason of the objective character of their choice. (By "objective character" I mean that theoretically, it might be that giving up the water only makes sense if someone considers his life of no value, and is basically throwing it away; but this is clearly not the case in the first three examples.)

In the last case, if the risk of death given that everyone drinks water is low enough, and if the painfulness of the people's lives plays a great enough role in their deliberation, it is clear that their decision to give up drinking water is suicidal in its very intention. Similarly the sixth case is clearly suicidal in fact, if not in intention, and is morally wrong.

There is, however, a continuum between the first cases and the last cases–a continuum both in regard to the greatness of the risk of other people's death avoided by giving up one's own water, and in regard to the shortness of life and greatness of pain that makes one less concerned to preserve one's own life.

Consequently, it is impossible to make a system that will enable one to objectively judge every such decision as objectively right or objectively wrong. One might say that "if a person in giving up their water is objectively treating their life as though it were of no value, the decision to give up their water is wrong," but there will be cases in which it is unclear whether giving up their water is "treating their life as if it were of no value."

The Principle of Double Effect and Abortion

Some time ago I posted on the principle of double effect, and mentioned cases of conflict that are not evidently resolvable by the principle of double effect, at least not in its usual sense. There is also a problem applying the principle of double effect to resolve an issue or dispute, if the very point in question is whether a given effect can or should be considered as an effect, that is, as a circumstance of the action, or whether it must be considered as a defining aspect of the object.

For example, when a live baby is delivered by the induction of labor or C-section before it is mature enough to live for long outside the womb, is the death of the child an effect of the action, so that it could fall under the principle of double effect, or does the action morally need to be described as the direct killing of an innocent child?

A discussion arose recently about the case in Phoenix, where a nun at a Catholic hospital approved an abortion that was considered medically necessary to save the mother's life, and when there was (apparently) not considered to be any reasonable hope of her carrying the child until viability. The bishop of the diocese of Phoenix declared the nun who approved the abortion to have been automatically excommunicated by her action.

The diocesan's Q and A on the situation (PDF) says, "If a necessary treatment brings about the death of the child indirectly it may be allowable. A Dilation and Curettage (D&C) or Dilation and Extraction (D&E), however, would never be such a treatment since it is the direct killing of the unborn child and is, morally speaking, an abortion." This suggest that such a procedure may have been done at the hospital. I have been unable to verify the facts on this question. But suppose that the abortion was carried out by C-section, delivered a live baby, who died hours or days later because it was as yet too immature to live outside the mother's womb. Would that change the situation?

The doctrinal commission of the USCCB's statement on this case, as well as the USCCB's Ethical and Religious Directives for Catholic Health Care Services (5th edition, 2009, PDF), seem to imply that it would not alter the situation morally. The ethical and religious directives say "Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended   destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion." The doctrinal comission's comment on this is: "Direct abortion is never morally permissible. One may never directly kill an innocent human being, no matter what the reason." In other words, it considers any "directly intended termination of pregnancy before viability" to be, morally speaking, the "direct killing of an innocent human being," even when physically it is indirect, as when a live baby is delivered before viability.

The same thing seems to be taught by a statement of the Holy Office:

Dr. Titius, when called to a pregnant woman, who was very ill, observed repeatedly that the only cause of her deadly disease was her pregnancy, i. e., the presence of a fetus in her womb. Hence there was but one way open to him to save the patient from certain and imminent death, namely, to cause abortion. On this course he usually decided in similar cases, taking care, however, to avail himself of such remedies and operations which would not of themselves, or not immediately kill the fetus in the womb, but, on the contrary, would, if possible, deliver the child alive, although, not being able to live, it would die soon afterward. But after reading a rescript from the Holy See to the Archbishop of Cambrai, dated August 19, 1888, that it was unsafe to teach the lawfulness of any operation which might directly kill the fetus, even though such were necessary to save the mother, Dr. Titius began to doubt the lawfulness of the surgical operation by which he had not unfrequently caused abortion to save pregnant women who were very ill.

Therefore, in order to set his conscience at rest, Dr. T. humbly asks whether, on recurrence of the like circumstances, he may resort to the aforesaid operations.

Response:

To this urgent request the Cardinals of the Holy Roman Congregation of the General Inquisition, after advising with the theological consultors, have decided to answer: No; according to other decrees, namely, those of May 28, 1884, and of August 19, 1888…. (Response of the Holy Office to the Archbishop of Cambrai, July 24, 1895; AAS 28, 383ff., Denzinger, n. 3298)

More related statements of the Catholic Church on Abortion

In response to the argument that the death of the child that is consequent upon delivery of the child is an effect of the delivery, and thus the delivery of a child through induction of labor or C-section before viability may fall under the principle of double effect, when without such an operation both mother and child will die, the position taken by the Holy Office at that time (the CDF has been curiously silent on the question in the past forty years in its various statement on procured abortion, respect for life, etc.) and by the USCCB seems to amount to: one may not consider the principle of double effect applicable; one must consider the death of the child as an essential, determining aspect of the act of delivering the child.

I must admit, I am quite at a loss as to the logic that could be behind the position of the Holy Office and the USCCB (Dear readers, HELP!), and wish that the CDF would make a statement on the issue, either to say that this earlier decision of the Holy Office (assuming I'm rightly interpreting it) is correct, or that it is incorrect or misunderstood or not applicable, or that the question is an open one: the silence I find distressing, particular in view of the wide gap that seems to be present between the views of Catholic doctors and the views of many bishops.

Crucifixes in Public Schools

From the oral submission given on Wednesday by Joseph Weiler, on behalf of several third-party intervening states (Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, The Russian Federation and San Marino) in the case (Lautsi v. Italy) regarding Italy's right to display crucifixes in its public schools.

21… Secularity, Laïcité is not an empty category which signifies absence of faith. It is to many a rich world view which holds, inter alia, the political conviction that religion only has a legitimate place in the private sphere and that there may not be any entanglement of public authority and religion. For example, only secular schools will be funded. Religious schools must be private and not enjoy public support. It is a political position, respectable, but certainly not “neutral.” The non-laique, whilst fully respecting freedom of and from religion, embrace some form of public religion as I have already noted. Laïcité advocates a naked public square, a classroom wall bereft of any religious symbol. It is legally disingenuous to adopt a political position which splits our society, and to claim that somehow it is neutral.

…

23. If the social pallet of society were only composed of blue yellow and red groups, than black – the absence of color – would be a neutral colour. But once one of the social forces in society has appropriated black as its colour, than that choice is no longer neutral. Secularism does not favour a wall deprived of all State symbols. It is religious symbols which are anathema.

…

24. What are the educational consequences of this?

25. Consider the following parable of Marco and Leonardo, two friends just about to begin school. Leonardo visits Marco at his home. He enters and notices a crucifix. What is that?’, he asks. ‘A crucifix – why, you don’t have one? Every house should have one.’ Leonardo returns to his home agitated. His mother patiently explains: ‘They are believing Catholics. We are not. We follow our path. Now imagine a visit by Marco to Leonardo’s house. ‘Wow!’, he exclaims, ‘no crucifix? An empty wall?’ “ We do not believe in that nonsense” says his friend. Marco returns agitated to his house. ‘Well’, explains his mother, ‘We follow our path.” The next day both kids go to school. Imagine the school with a crucifix. Leonardo returns home agitated: ‘The school is like Marco’s house. Are you sure, Mamma, that it is okay not to have a crucifix?’ That is the essence of Ms. Lausti’s complaint. But imagine, too, that on the first day the walls are naked. Marco returns home agitated. ‘The school is like Leonardo’s house,’ he cries. ‘You see, I told you we don’t need it.’

Read more.