“Precedents” and Justice

March 22nd, 2017

We are now in the midst of yet another set of hearings on the nomination of a new justice of the Supreme Court. As with prior hearings, it has been considerably less than edifying, given the political grand-standing and speechifying. But once again, some of the more illuminating exchanges have centered on the concept of “precedent”.

“Precedent” is a legal term for a previous judicial decision. In many cases, courts will consider precedent to be the controlling legal authority. For example, lower courts must follow the precedents of higher courts in all similar cases. This is an important feature of a common law-based legal system, like ours. It means that once a legal issue has been resolved, there is a strong preference for respecting and giving deference to that decision, so that there can be some clarity and predictability about what the law is. The fancy Latin term for this respect for precedent is “stare decisis”, which means, basically, “maintain what has been decided”.

Of course, not all previous judicial decisions are worthy of being followed. It has always been understood that prior decisions are not controlling if they are “flatly absurd or unjust” or “contrary to reason” (to quote the great legal scholar William Blackstone). Courts frequently overrule prior decisions when it becomes clear that they were wrong or poorly reasoned. In fact, in the words of another great legal scholar, Chancellor James Kent, “If, however, any solemnly adjudged case can be shown to be in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error” (emphasis added).

The Supreme Court has overruled prior cases, or declined to follow them, many times. The most famous example is Brown v. Board of Education, which overruled the earlier erroneous decision by the Court that endorsed legal racial segregation. There have also been other cases that are universally seen as unworthy of being followed, even if the Court has never formally overruled them. For example, we have the infamous Dred Scott v. Sandford, which held that African-Americans “had no rights which the white man was bound to respect”, or the case of Buck v. Bell, which upheld the involuntary sterilization of mentally handicapped persons since, as the Court said, “Three generations of imbeciles are enough”. Clearly, those “precedents” are not worthy of any respect.

This brings us to the current confirmation hearings. The Democratic Senators on the Judiciary Committee are repeatedly asking the nominee about his views on the cases of Roe v. Wade, Planned Parenthood v. Casey, and their ilk. They have invented a term, “super-precedent”, to indicate that they believe these decisions are beyond any further judicial review and can never be overturned — a concept so foreign to our Constitutional order and to the rule of law as to be laughable.

However, in response to one of those questions, the nominee said: “”Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

That is a very unfortunate way of thinking. Roe, Casey, and their progeny have excluded unborn children from virtually any legal protection, declared them not to be “persons” under the law, and permit their destruction with impunity. They have established the unborn as a virtual underclass, whose rights no man is bound to respect. They violate the fundamental principles of natural law and justice, and the promise of universal equality under the law and the right to life as expressed by the Declaration of Independence. They are widely recognized as being poorly reasoned, even to the point where legal scholars who favor abortion rights have derided them.

It is therefore very troubling that the new Supreme Court nominee has called these decisions “precedent” and “settled”, and that we have to “move forward”. When a law — either a statute or a judicial decision — violates the inherent, inalienable rights of any human being, that law can never be considered to be “settled”. It can never be respected or given deference as a binding “precedent”. Such a law is not really a law at all, but is instead a usurpation of power and an act of violence. A true respect for authentic justice means that it must be opposed and changed.

Justice must take precedence over “precedents”. Otherwise we do not have an authentic rule of law for all, and we will never fulfill the dream of respecting the inalienable rights given to us by our Creator, particularly the right to life. I hope that the nominee will consider this more carefully when he is on the Supreme Court, and take seriously his right and duty to correct the injustice of the Court’s abortion decisions.

Thanks to My Patron Saints

March 7th, 2017

(Today is my birthday, so I thought I would re-post a blog that I wrote several years ago, for the same occasion)

If you’re like me, you have lots of favorite saints, and lots of saints who you think are looking out for you and helping you.  That’s one of the best things about being Catholic — a regular, daily awareness of the communion of saints. And also, if you’re like me, you had the good fortune to be born on a day on which the Church honors the memory of particular saints.

I’m old enough to have been born when the old Roman Calendar was still in effect.  As a result, I was born on the feast day of St. Thomas Aquinas.  I have received many graces through his intercession, including a keen interest in theology and my middle name.  Thomas led a fascinating life, and he wrote so beautifully and deeply on all aspects of the faith that he has been a great gift to my faith.  I am particularly mindful of one of his final thoughts, after having some kind of mystical experience.  He ceased work on a project, and upon being asked by his secretary why he didn’t finish the work, replied “all that I have written seems like straw to me.”  That’s a good reminder that nothing that we could do in this life could ever stand comparison to the glory of God.  As St. Paul said, “But whatever gain I had, I counted as loss for the sake of Christ.  Indeed I count everything as loss because of the surpassing worth of knowing Christ Jesus my Lord.” (Phil 3:7-8)

When they reformed the Roman Calendar in the Sixties, they decided to move Thomas’ feast to January 28.  Oddly enough, they chose the day that they “translated his relics” — that is, the day they dug up his body and moved it from one resting place to another.

Although I still have some hard feelings about them taking Thomas from me, I have to say that I lucked out again when the Church restored the ancient feast day of Saints Perpetua and Felicity to their proper day.

If you aren’t familiar with Saints Perpetua and Felicity, you should immediately drop all that you are doing and correct this.  Perpetua, a Roman noblewoman, and her slave Felicity, were martyred in 203 A.D., in Carthage.  Perpetua was nursing her baby when arrested, and Felicity was pregnant. Perpetua’s child was taken from her by her family, but Felicity gave birth while imprisoned and the child was adopted by a Christian family.  Perpetua wrote an account of their ordeals in prison with other Christians — one of the earliest written records by a Christian woman.  The story of their witness to Christ is vivid and moving, and should be required reading for all Christians who want a glimpse into the heroism of our ancestors in faith.

The night before their martyrdom, after having celebrated a “love feast” (the ancient name for the Mass) with her fellow prisoners, Perpetua had a dream about being led to the arena by one of the men who had already been martyred, who beckoned her to come and join them.  In the arena, she was beset by a mighty enemy, but she vanquished him and was called to enter the Gate of Life.  Realizing the significance of this dream, she wrote, “I understood that I should fight, not with beasts but against the devil; but I knew that mine was the victory”.

The next day, March 7, Perpetua, Felicity and their companions were taken to the arena, whipped, attacked by wild beasts and slain by gladiators.  They have been honored ever since.  As Tertullian said, “the blood of martyrs is the seed of Christians”.

I certainly do not consider myself to be in the intellectual ballpark of Thomas, or anywhere near as courageous as Perpetua and Felicity.  But I feel very close to them, as if they were my friends, but just separated from me for a short time.  Perhaps one day, if their prayers for me are heard, I will meet them, and I can thank them for their help and friendship.

Politics, Factions, and the Church

February 15th, 2017

At the time of the founding of our Republic, one of the great concerns was the danger that political factions would undermine the fragile unity of the new nation. This was so serious that the Founding Fathers specifically and repeatedly warned about the deleterious effects factions would have on the country. For example, George Washington, in his Farewell Address (a document that is amazingly prescient and relevant in our age) said:

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Likewise, James Madison in the Federalist Papers (No. 10) said this:

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.

There is no question that the spirit of faction is very widespread in our nation and that it is driving us further apart. The past election was a particularly bad season for this, and virtually everyone can tell about divisions in their families, uncomfortable or hostile conversations at dinner, being “un-friended” or seeing vitriol on Facebook, and so on. There is not just anecdotal evidence for this. A major study by the Pew Center last year documented the rise in partisanship and animosity over politics.

American politics is becoming almost tribal in nature. A person’s political affiliation is becoming a dominant aspect of their identity and it is increasingly shapes not just their views on public issues but their friendships, associations, etc. Party loyalty is becoming one of the highest values and group-think is becoming the acceptable standard. Politics is also invading more and more aspects of life. It’s becoming increasingly common at sporting or entertainment events for some athlete or singer to inject their political views into the show. Facebook is becoming more about political rants than pictures of the kids and silly cat videos. Corporations whose purpose is to sell us stuff are now seeing it as their role to tell us how to think as well. People on both the left and the right are bemoaning the fact that we are facing the politicization of everything.

This is not news, but I raise it at this time for a reason.  The President recently said that one of his major goals is to eliminate something called the “Johnson Amendment”. That’s a provision of the Internal Revenue Code that bans certain tax exempt organizations — particularly churches — from engaging in partisan politics. This has long been a goal of many Evangelical organizations and some Catholics as well. They want pastors to be able to openly endorse political candidates from the pulpit and to lend them material support through their churches.

I think this would be a disaster for the Church and for our society — and for our souls. Politics has its place, and its place is not everywhere. A healthy society has many institutions and activities whose purpose is to bring people together, not to divide them or to “kindle their unfriendly passions”. One of the most important of these places is in Church.

The purpose of Church is not to contemplate or promote temporary solutions to worldly problems. The purpose of Church is to worship God, the Creator and King of the Universe. It is a time to separate ourselves from the Kingdom of Man and immerse ourselves in the Kingdom of God, which is our true homeland. It is a time to renew our communion with Our Lord Jesus Christ and with His Mystical Body — with our fellow sinners of all political views. It is the place where we recall our solidarity with the Communion of Saints around the world, those who have preceded us and those who will follow us. We are called to lift our hearts and minds to God, to listen to His Word, and, if we are worthy, to receive His Body and Blood. In Church, nothing should distract us from trying to come closer to God in our hearts, minds and souls. Nothing.

Factions, parties, and partisanship — whatever term we use for it — have no place in the Church. They divide us in the most important place where we must stand united. St. Paul went so far as to call “party spirit” a work of the flesh, and compare it to many very wicked sins that exclude people from the Kingdom of God (Gal 5:19-21). We certainly need more guidance from our Church about the principles and demands of our faith, and how we can apply that to the issues of our day.  But we cannot allow partisan politics to turn us against each other — or against the Church — and divert us from our real role in the world. In the famous Letter to Diognetus written way back in the second century, this was how the Christians were described:

… there is something extraordinary about their lives. They live in their own countries as though they were only passing through. They play their full role as citizens, but labor under all the disabilities of aliens. Any country can be their homeland, but for them their homeland, wherever it may be, is a foreign country… They pass their days upon earth, but they are citizens of heaven. Obedient to the laws, they yet live on a level that transcends the law… To speak in general terms, we may say that the Christian is to the world what the soul is to the body. As the soul is present in every part of the body, while remaining distinct from it, so Christians are found in all the cities of the world, but cannot be identified with the world…  Such is the Christian’s lofty and divinely appointed function, from which he is not permitted to excuse himself.

That is indeed a lofty function, one that we cannot allow to be diluted by politics or factions.

Judges — Not Tribunes of the People

February 6th, 2017

The President has nominated Judge Neil Gorsuch to fill the current vacancy on the Supreme Court. This has excited and inflamed many people, and the battle over his confirmation will be a wild one. Filibusters and nuclear options are all on the table, and it will be very interesting to see what happens.

One thing that has already become clear, though, is that a great many Americans have no idea what a judge is really supposed to do. It may sound too trite to even be mentioned, but the fundamental truth is that a judge’s job is to decide cases. Nothing more.

A great deal of the commentary that you will see from the opponents of Judge Gorsuch is startlingly uninformed. After the announcement, people were already labeling him as “dangerous” and “extreme”, even though they hadn’t heard of him five minutes before. They were portraying him as some kind of wild-eyed maniac who somehow had managed to get on the Circuit Court of Appeals. Never mind that he was confirmed unanimously by the Senate for that position and that he has served there for the last decade without the Republic collapsing or anyone moving to impeach him.

The reality is that these advocates couldn’t care less about who Judge Gorsuch is (a pillar of his church and community), what his background is (both Columbia College and Harvard Law School, a few years behind me), or his years of outstanding public service (clerking on the Supreme Court and in a high position in the Justice Department). The reality is that these advocates only care about having a Supreme Court Justice who will enact their favored policy positions from the bench. And based on their rhetoric, the only issue that really seems to matter to them is abortion — they desperately want to keep abortion on demand legal in this country, and they don’t care how many people they have to calumniate and destroy to do it.

This campaign against Judge Gorsuch also betrays a complete lack of understanding about what a judge is supposed to do, and it illustrates how important it is for a judge to have a coherent philosophy of the law and a firm grasp of the essential principles of the American constitutional order.

Judges are not supposed to be super-legislators who make sure that their favored policies are embodied in their interpretation of the Constitution and statutes. Policy-making is the province of Congress and the President — the political branches that are subject to oversight by the electorate. The only job of the Supreme Court, as anyone can see in Article III of the Constitution, is to decide cases and controversies that arise under the Constitution and laws as well as certain other specific cases (like disputes between states).

Our Supreme Court has been violating that limited role for a very long time now. At least since the Progressive Era and especially since the New Deal, the Court has seen itself almost as a body of Platonic Guardians who can discern new meanings in the Constitution that nobody saw before. This is the body of judges who had the gall to say in the case of Casey v. Planned Parenthood:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

What gaseous nonsense. I defy anyone to find even a hint of such a role for the Court in the Constitution or in any of the writings of the Founders of our Republic. Madison, Hamilton and Washington would be appalled by such a pronouncement.

This highlights the importance of a sound judicial philosophy and a coherent understanding of the structure and principles of our Constitution. Too many Justices are on the bench already who lack this, and instead are ideologues (like Justices Ginsberg and Sotomayor), smart but lock-step liberals (Justice Kagan and Breyer) or vacuous pragmatists (Justice Kennedy). They appeal to a non-existent entity they call the “living constitution” and use that to make up new laws as they go along. If you want to see how it’s done, see Obergefell v. Hodges. And in doing so they hijack the proper roles that the Constitution gives to Congress and the President.

Judge Gorsuch, on the other hand, is an “originalist” and a “textualist”, which means that his philosophy is to discern the actual meaning that Constitutional provisions had when they were adopted and the actual meaning of the words that appear in laws enacted by Congress. Then, in the common law tradition, he would see his job as applying those principles to decide the actual case or controversy that is before him. No vaporous pronouncements about grand roles of the Court, and no discoveries of new rights and liberties hiding in invisible ink in the penubras, emanations and miasmas of the Constitution.

This restrained approach to the law is what actually scares the advocates who oppose the judge. They have become so used to judges enacting their favorite policies that they can’t imagine one who does otherwise. They are desperate to hold onto their policy gains, and they dread putting them before the elected branches for an open democratic debate.

In ancient Rome, there was an office called the “Tribune of the People”. He had the power to veto any law or government action, and he was absolutely unaccountable to anyone — nobody could overrule him or even lay hands on him. That is not what our Constitution envisions when it gives the Supreme Court its “judicial power”. Judges should decide cases and controversies, give effect to the laws that were actually enacted by “we the people”, and not set themselves up as unaccountable rulers.

The Politics of Principle

February 2nd, 2017

(This is a repeat of a post from this same day the last eight years.  This post was written in memory of Jack Swan, a great warrior of faith and politics, who entered eternal life on February 2, 1998.  God sent Jack into my life to teach me these lessons about politics, and I’m just a pygmy standing on the shoulders of a giant.  As time goes by, I see more and more a need for us to recapture the politics of principle — perhaps now more than ever, in this poisonous political environment.  Jack, please pray for me, that I get the lessons right.)

In the mind of most people, “politics” is the struggle of candidates, political parties, and their supporters to gain power and influence in the government. That is certainly true up to a point, and it makes for interesting entertainment.

I write a good deal about politics on this blog and elsewhere, and I’m frequently perceived as being “political” in that sense — of being”partisan”. That completely misses the point.

There is a deeper, more significant nature of politics. It is the way we order our society together, so that we can live according to our vocations and be happy, and ultimately attain eternal life. In this understanding of politics, the partisan theater is an important reality, but it is not the main focus. What really matters is principle.

Without principles, politics becomes mere pragmatism, where the question is whether something “works”, or, in the less elevated version of the game, what’s in it for me. Now, don’t get me wrong. Pragmatism is important — we want our government to be effective. But again, principle is more important.

I received much of my tutelage in the real world of politics from a man who devoted his life to being a practitioner of the politics of principle. I learned that it was fine to be keenly interested in the partisan scrum, but only to the extent that it advanced the principles we hold dear — defense of human life, protection of marriage, family and children, and religious liberty. The promotion of those principles is more important than party label, and the idea is to support — or oppose — politicians based on their fidelity to those principles, not based on what party label they happened to be wearing this week.

That’s how I try to practice politics, in my small and limited way. I have opinions and judgments about many pragmatic issues, and what kinds of national security, economic and other policies would “work” better than others. But none of those pragmatic issues matter at all, compared to the core principles.

Here’s how it works for me. If a politician doesn’t protect human life, I don’t care what his position is on other issues. If he can’t understand that human life is sacred and must be protected at all stages, I have no reason to trust his judgment about any other issue. And, very frankly, anyone who does not understand that basic principle is not, in my opinion, fit to hold public office.

The same holds for the other core issues. I don’t care if you’re a Republican or a Democrat. If you don’t respect human life, don’t see the need to preserve marriage as one man and one woman, and won’t defend religious liberty, they you just have to look elsewhere to get your fifty percent plus one.

This means that I am perpetually dissatisfied with our political process and our politicians. But that’s fine with me. They are all temporary office holders anyway, here today and gone tomorrow, and their platforms are passing fancies that nobody will remember in a short time. The principles, however, remain perpetually valid.

Listen, Our Lord made a very simple request of us. He said, “Follow me”. He didn’t say, be a Republican or a Democrat, a Socialist or a Whig. He demands that I be his follower. So I need to look to the Lord for my principles, and in this age that means I have to listen to the Church. That’s what Our Lord wants me to do — after all, he said to his apostles “he who listens to you listens to me; he who rejects you rejects me; but he who rejects me rejects him who sent me” (Lk 10:16). We happen to have in our midst the successors of those apostles — the Holy Father, our bishops, and my bishop in particular. As a Catholic I must listen to them, and get my political principles from them, not from Fox News, CNN, talking heads of the left or the right, the editorial page of the Times, or either the Democratic or Republican Parties.

This, to me, is the way to live as a disciple of Christ in this crazy political process. I realize that this will be considered odd by many, and even dangerous by some.

But we hardly need more party loyalists at this, or any other, time. And we certainly need more practitioners of the politics of principle.

Following the Higher Law on Refugees

January 30th, 2017

The news has been filled over the past few days with the new President’s Executive Order on immigration and refugees. The refugee part of the order bears very close examination, and, I believe, unequivocal condemnation. The order temporarily suspends the admission of any refugees into the United States, slices in half the number of refugees that will eventually be admitted, and places an indefinite ban on Syrian refugees.

The plight of refugees, especially from the war-torn areas of Syria and Iraq, is well known. It is a catastrophic tragedy, and has caused the worst humanitarian crisis involving refugees and displaced persons since World War II. Over 6 million Syrians have been displaced because of the civil war, and over 4 million of them have fled their country. Over 3 million Iraqis have been displaced, with over 200,000 fleeing the country. Religous minorities have faced brutal persecution to the point of genocide — primarily Christians, but also Yazidis, and Sunni and Shi’ite Muslims. Many of them are sheltered in refugee camps where the living conditions are awful, and in which some of the persecution has continued.

There’s no doubt that the President has the legal authority to impose regulations and limits on refugee admissions. That’s a settled matter under both American and international law. It’s also clear that the primary obligation of civil authorities is to protect the people in their community.

There certainly can be a healthy debate about the extent of the threat posed to the United States by refugees. Studies of terrorist strikes against our country shows that very few were carried out by refugees, and that the great majority were by citizens or permanent residents. There can certainly be concerns about the potential for future radicalization of refugees. But that is all speculative and conjectural and in some ways beside the point — we have no idea what will happen to these people in the future, but we do know exactly how they are suffering now.

But apart from the prudential issues under secular law and public policy, there is a higher law that we must consider — God’s law. In his Message for the 2017 World Day of Migrants and Refugees, the Holy Father said this:

we need to become aware that the phenomenon of migration is not unrelated to salvation history, but rather a part of that history. One of God’s commandments is connected to it: “You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt” (Ex 22:21); “Love the sojourner therefore; for you were sojourners in the land of Egypt” (Deut 10:19). This phenomenon constitutes a sign of the times, a sign which speaks of the providential work of God in history and in the human community, with a view to universal communion. While appreciating the issues, and often the suffering and tragedy of migration, as too the difficulties connected with the demands of offering a dignified welcome to these persons, the Church nevertheless encourages us to recognize God’s plan. She invites us to do this precisely amidst this phenomenon, with the certainty that no one is a stranger in the Christian community, which embraces “every nation, tribe, people and tongue” (Rev 7:9). Each person is precious; persons are more important than things, and the worth of an institution is measured by the way it treats the life and dignity of human beings, particularly when they are vulnerable, as in the case of child migrants.

Jesus himself was also quite clear that we will be judged based on our conduct towards our least brethren, including “strangers”:

`Depart from me, you cursed, into the eternal fire prepared for the devil and his angels; for I was hungry and you gave me no food, I was thirsty and you gave me no drink, I was a stranger and you did not welcome me, naked and you did not clothe me, sick and in prison and you did not visit me.’  Then they also will answer, `Lord, when did we see thee hungry or thirsty or a stranger or naked or sick or in prison, and did not minister to thee?’ Then he will answer them, `Truly, I say to you, as you did it not to one of the least of these, you did it not to me.’ (Mt 25:41-45)

The President’s order is utterly incompatible with God’s law. It rejects the inherent solidarity that exists between all human persons, and fragments the human family into competing camps. In God’s eyes it is utterly irrelvant that a person happens to have been born within arbitrary national boundaries, most of which were invented out of whole cloth by cynical European imperialists. Arbitrarily suspending all refugee admissions, reducing the number of refugees that we will take, and closing the door indefinitely to refugees from Syria, is to condemn our brothers and sisters who are made in God’s image to continued persecution and suffering.

This all may sound idealistic and naive to modern ears, particularly in a world that lives in fear of terrorism. But I have faith that if we follow God’s higher law, we will actually reduce the threats to our nation. We can show the world that the American Dream is not just material prosperity, but is a welcoming society in which all kinds of people can flourish in freedom and peace. We can prove that we are vigilant but also compassionate, and that we are confident that once people come to our nation they will be converted to our values. True American values are the antidote to radicalization and terror.

I am proud to stand with George Washington, who shared my faith in America. He once said this to an association of Irishmen who had recently emigrated to America, most of whom were Catholics, an oppressed religious minority:

The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations And Religions; whom we shall wellcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.

There are Never Enough Abortions for our State Leaders

January 23rd, 2017

Does anyone seriously think we need more abortions in New York, or that abortions are hard to get in our state? Apparently, our Governor and some leading Democratic legislators do. What can they possibly be thinking?

According to the most recent state statistics from 2014, there were 93,300 abortions in New York State. The Alan Guttmacher Institute, a well-known pro-abortion research group, puts the number highter, at 119,400. Thanks be to God, these number have been coming down in recent years, but regardless, it’s a mind-boggling number — in less than two years, the equivalent of the population of my home town, Yonkers, is exterminated.

There are few, if any, limits on access to abortion in New York. Women of every single county have abortions, and there are over 200 facilities where they take place, mostly stand-alone clinics. 79% of New York’s abortions are currently paid for by health insurance, 47% by Medicaid. In 52% of the abortions, the mother had at least one prior; in 15%, the mother had 3 or more priors;  in 4.3%, the mother had 5 or more priors. Nobody is having a hard time getting an abortion.

There is no evidence that wider access to abortion is necessary to preserve the health of women. The vast majority of abortions have nothing to do with health concerns. According to Guttmacher, “The three most common reasons — each cited by three-fourths of patients — were concern for or responsibility to other individuals; the inability to afford raising a child; and the belief that having a baby would interfere with work, school or the ability to care for dependents. Half said they did not want to be a single parent or were having problems with their husband or partner.” In other words, most abortions are taking place as a method of back-up contraception, and have nothing to do with the health of mothers.

So why are the Governor and legislators pushing for more abortions?

The Governor just announced a new set of regulations that would require every health insurance plan to cover “medically necessary” abortions, with no co-pays or deductibles. The term “medically necessary” isn’t defined in his rules, but pro-abortion advocates have typically used it to mean basically any abortion that a doctor either recommends or agrees to. In short, the Governor thinks that every woman in New York should be able to have an abortion for any reason whatsoever at any stage of pregnancy — for free. I’m sure the Governor understands economics, so I’m sure he understands very well that if you reduce the cost of something to zero, more people will avail themselves of it.

And take a look at the new bill that’s been introduced by Democrats in the Legislature (and that I would expect the Governor to sign into law, if it ever passes). This bill is really wicked. It would:

  • Permit non-doctors to do surgical abortions.
  • Increase the number of late-term abortions.
  • Endanger the few health and safety regulations that we currently have.
  • Compel hospitals and doctors to participate in abortions.
  • Eliminate any criminal penalties for back-alley abortions.

The worst part of this bill is so extreme that it boggles the mind. It would repeal a section of our Public Health Law (Section 4164, the “Baby Doe Law”) that gives full civil rights protection to any child who might be born alive as the result of an abortion. This law also requires a second doctor to be available during a late-term abortion — when the baby is likely to be able to live outside of the womb with basic medical care.

This evil bill would eliminate that law and treat those babies as non-persons — essentially saying, to paraphrase the infamous Dred Scott decision, that “a baby born alive after an abortion has no rights that born people are bound to respect”. Yet our Politburo-like Assembly passed the bill by a wide margin, and the only thing standing between it and the Governor’s pen is the slim pro-life majority in the Senate.

It is hard to conceive a reason to repeal these humane protections of basic human rights — unless you understand that the true motivation of pro-abortion advocates is to ensure the death of more “unwanted” babies.

This is what our state has come to. All the hooplah over marches for women and full civil rights for weak and vulnerable people is just a charade. The tragic reality is that powerful people in New York — particularly our Governor and Democratic legislative leaders — want to change the law so that there are more dead children, more damaged mothers and fathers, and an increase in the malign effects of the Culture of Death.

When will enough be enough?

The View in the Rear-View Mirror

January 19th, 2017

The time has finally come to say “goodbye” to the Obama Administration. Not a moment too soon. Whatever one may think of the personal character of Mr. Obama, or whatever one may think about the wisdom of some of his policies, I think it cannot be denied that his Administration was a disaster for the issues that are most important to Catholics — the defense of human life, religious liberty, the truth of human sexuality, and marriage. Let’s review some of the low-lights.

Celebrating Abortion.  The Obama Administration was the most committed pro-abortion group that we’ve ever had in a leadership position. They were completely committed to expanding “access” to abortion, defending it against any legal challenge, and to stigmatizing anyone who opposed them. The President repeatedly expressed his support for the abortion on demand regime of Roe v. Wade, he issued Presidential Proclamations lauding the decision, and he frequently praised Planned Parenthood.

Abortion and Health Insurance. The President personally promised that his health care reform bill would not involve public funding for abortion, and even issued an executive order that purported to ensure that. But it was false when he said it and it was proven false by how the law was implemented. There will be tax subsidies for health plans that cover abortion, and many Americans will be forced by law to pay premiums for abortion itself. Just last year, the Administration even went so far as to re-interpret anti-discrimination laws to force all health insurance plans to cover abortion.

The Mexico City Policy. This long-standing policy prohibited tax dollars from going to international organizations that do abortions, such as UNFPA and International Planned Parenthood. The President signed an executive order revoking this policy on his very first day in office.

Embyonic Stem Cell Research. Just a few months into his first term, the President signed an executive order that allowed tax dollars to fund stem cell research that involved the deliberate destruction of human beings in the embryonic stage of their development.

Appointment of Pro-Abortion Officials. The President was utterly consistent in appointing pro-abortion people to key positions, including Kathleen Sebelius as Secretary of Health and Human Services and Justices Elena Kagen and Sonia Sotomayor to the Supreme Court.

Funding for Planned Parenthood. The President and his Administration were unwavering in their support for that evil organization, which kills over 300,000 unborn children each year and receives over a half billion dollars a year in federal money. He vetoed a bill that would have de-funded Planned Parenthood, and even went so far as to threaten to shut down the government, in order to coerce Congress to remove a de-funding provision from the budget.

Violating Religious Liberty. The President and his Administration have an incomparably deplorable record of hostility to religious liberty. Their singleminded adherence to the HHS Mandate, which ran roughshod over the freedom of religious organizations like the Little Sisters of the Poor, is just the tip of the iceberg. They consistently opposed religious freedom in court, including advocating for government interference in the appointment of religious ministers. They suggested that churches might lose their tax exemptions if they failed to fall in line with the re-definition of marriage. Virtually every one of their regulations involving abortion and/or contraception failed to respect religious freedom and sought to squash any religious-based objections. They excluded the US Bishops’ conference from serving refugees solely because the Church would not promote abortion. They refused to enforce existing federal religious liberty laws, and revoked regulations that would have required enforcement actions.

Re-defining Marriage. During his first campaign and in the first few years in office, the President stated that he did not support re-defining marriage to include same-sex couples. Nobody believed him then, and he proved that they were right. He directed his Attorney General to stop defending the Federal Defense of Marriage Act, and ultimately urged the Supreme Court to overturn that law. Soon thereafter, the President disingenuously announced his “evolution” on the issue of marrage and came out in support of re-defining it. His Administration then supported the litigation that ultimately changed the meaning of marriage.

Gender Ideology. His Administration has been relentless in advancing the bizarre notion that “gender identity” can be separated from biological sex and can mean virtually anything. They have been equally consistent in seeking to coerce into conformity anyone who disagrees. More and more federal agencies have been issuing regulations and “guidance” letters that require people to accommodate and acquiesce in variations in a person’s totally subjective “gender identity”. They have even tried to re-define the word “sex” in old discrimination laws to include “gender identity” and “sexual orientation”, and thus to coerce every health care institution and professional to participate in surgical mutilations of people’s sex organs.

It’s been a bad eight years for our issues. We can only hope that the next four will be better.

The Awful Truth of Assisted Suicide Advocacy

January 11th, 2017

When they speak to the general public or to legislators, advocates for assisted suicide routinely express concern about ensuring patient safety, and point to the allegedly rigorous safeguards that they have written into their proposed bills. We have long countered that these safeguards are mere shams, and provide no real protection for vulnerable patients.

Now, thanks to an article at an obscure legal blog, we know what the assisted suicide advocates really think. They want no safeguards at all. They believe that any patient protections written into law are harmful and unnecessary. They want assisted suicide to be a normal part of medical practice and for doctors alone to set the standards.

In other words, they’ve been deceiving us all along about what they really want.

The truth was revealed in a recent article by Kathryn Tucker, who is the Executive Director of the “End of Life Liberty Project”. She is a leading advocate for assisted suicide, and is one of the attorneys who is suing New York State to have assisted suicide legalized. She was commenting on the recent District of Columbia law that legalized assisted suicide — a bill that her fellow advocates drafted and which is similar to all the bills that have been introduced around the country, including the one her own organization has endorsed in New York.

But despite the lip service that they pay to patient protection, the reality is that she has no use for  safeguards that are designed to protect patients from abuse and manipulation. Instead she calls them “burdens and restrictions”, and adds:

While in some ways these enactments are a step toward expanding end of life liberty, they impose heavy governmental intrusion into the practice of medicine, which is concerning because it creates barriers to patient access and to physician participation.

“Barriers” to more death, in other words.

She then went on to object to such common-sense protections as:

  • Requiring the patient to make multiple requests, including at least one in writing, which is designed to ensure that the patient isn’t acting rashly.
  • Requiring that the request be witnessed, which would ensure that the request is being made by a competent person who is not under coercion.
  • Obtaining a second opinion, which is intended to protect the patient from a mis-diagnosis
  • Referring the patient to a mental health specialist to ensure that they are competent to make medical decisions.
  • Mandating a fifteen-day waiting period, again to ensure that the decision isn’t being made rashly.
  • Requiring that doctors collect and report data about the case, which would allow public health authorities and law enforcement to oversee what is happening and take action if there are abuses.

Now, to be clear, we consider all of these supposed safeguards to be inadequate to protect vulnerable patients. They leave too many loopholes, such as the failure to insist on a psychological screening for depression. And most alarming, they don’t provide any protection whatsoever after the medicine has been dispensed and the patient leaves the hospital. These problems can’t be fixed, and that alone is a reason to oppose legalization.

But now we know what assisted suicide activists are really after. They want more patients to have “access” to suicide, so that more people can kill themselves. And they want more doctors who are willing to participate in the killing. They don’t want to give patients even the minimal protections that go along with the execution of simple legal documents like wills, health care proxies or powers of attorney. They want doctors like Dr. Kevorkian to make up their own rules. And they don’t want anyone to be able to oversee what’s happening and hold people accountable.

The awful truth is that their agenda is death, and more of it. They want to push us down the slippery slope. They must be stopped.

Pro-Life Judges

January 2nd, 2017

I was recently asked my opinion of the list of the President-Elect’s potential Supreme Court nominees. I don’t have any personal knowledge of any of the people on the list, so I can’t really say anything useful about them. But I do have some observations about whether these people, or any judges, can be said to be “pro-life”.

In most cases, it is extraordinarily difficult to divine the personal views, and even at times the judicial philosophy, of lower-court judges based on isolated judicial opinions. Conscientious lower court judges are bound by precedent and are not free to overrule or widely diverge from it, even if they disagree with it. It is not good practice for lower court judges to openly criticize precedent. So even if a lower court judge rules against the “pro-life” side in a case, it doesn’t necessarily mean anything about their personal views or their judicial philosophy. It could just mean that the judge is doing his job.

Plus, sitting judges generally avoid writing law review articles or giving substantive talks on issues, since that might be considered pre-judging cases. There is also a phenomenon in the legal world where a person who hopes to be appointed to the bench deliberately declines to speak openly about controversial topics, to preserve their confirmability. So most sitting judges are a bit Sphinx-like when it comes to their actual views.

It is also a fact that there is probably not more than a handful of sitting federal or state high court judges who are “pro-life” in the sense that I would use the term — namely, they believe that unborn human beings are “persons” within the meaning of the 14th Amendment and are entitled to full legal protection. No Justice of the Supreme Court has ever taken that position — not even Justices Scalia or Thomas — and I would doubt that any sitting state judge has done so either.

So I would be very reluctant to call any judge “pro-life”, lest the word lose its real meaning.

In the absence of such persons, our best bet at this point is a “constitutionalist” or “originalist”, who would hold with Justice Thomas (and the late Justice Scalia) that there is no right to abortion guaranteed in the Constitution, and that the issue is therefore reserved to the states to permit and regulate or prohibit. I am not satisfied with that view, but I think it is just about as good as we can get in the current legal climate.

My general impression, from what I have read, is that the people on the President-Elect’s list would likely fit that description. Since I have no confidence whatsoever that the President-elect would recognize constitutionalism if it hit him over the head, I take some comfort in the probability that he is getting advice from the Federalist Society, which is committed to that view of the law.

Of course, one never knows what a person will do once they’re on the Court (as we have seen from Warren, Brennan, Souter, Kennedy, O’Connor, Roberts and many, many more examples). The Court is generally reluctant to overturn major precedents, and instead prefers to adjust or adapt them (see Casey). So I am not particularly sanguine about any reversal of Roe/Casey in the near term. I think that if a couple of constitutionalist Justices are appointed, we might get a ruling that backs away from the expansive application of Casey’s “undue burden” standard that we saw used to devastating effect in Whole Women’s Health to strike down Texas’ health and safety regulations for abortion clinics. That would be a tremendous accomplishment in itself because it would open up the field for further state restrictions, and it could lay the groundwork for an eventual direct attack on Roe/Casey.

One thing that I particularly fear is a sense of pro-life over-confidence that might lead to a premature assault on Roe/Casey. Pushing flawed and risky cases too fast (e.g., heartbeat bills) could produce a disastrous reaffirmation of Roe/Casey, perhaps with an even stronger constitutional justification based on the (spurious) idea that the Equal Protection Clause requires abortion rights to ensure the ability of women to fully participate in society. That is a position long proposed by Justice Ginsberg, and given the tenor of recent Court decisions like Obergefell, it may appeal to a majority of other justices as well.

At this point, I’m more concerned with the Executive Branch appointments, since that’s where most of the action is right now — regulations, enforcement actions, etc. I also fear that too much attention will be paid to DC, and not enough to the states where the pro-death movement will be very active in expanding abortion rights and promoting assisted suicide. State legislatures and courthouses are the battlefront right now, and our movement needs to focus on them, and less on crystal-ball gazing about potential judicial appointments.