Monday, August 30, 2010

Linda Greenhouse on the establishment clause argument against the prolife position

My friend, Matthew Franck, ably dismantles a lament by the New York Times' Linda Greenhouse that the departure of Justice John Paul Stevens from the U. S. Supreme Court means that the Court has lost an important Establishment Clause argument against the prolife position on abortion. Stevens' argument is found in several of his opinions, though it is a view not shared by any of his colleagues on the Court. Writes Greenhouse:
For years, Justice Stevens was the Supreme Court’s strictest separationist. For example, in the abortion context, he was the only justice willing to articulate the position that laws incorporating the view that life begins at conception are theological exercises that should be invalidated on Establishment Clause grounds. (The fact that we may soon have to endure another debate over embryonic stem cell research makes me miss Justice Stevens and his wisdom all the more.)
Having published critiques of this and similar arguments in not only two of my most recent books--Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press, 2007), ch. 3; Politics for Christians: Statecraft as Soulcraft (InterVarsity Press, 2010)--but in several articles including ones that appeared in Christian Bioethics (2007), American Journal of Jurisprudence (2004), Journal of Law and Religion (2009), and two in the Journal of Church and State (2001, 2003), it seems incomprehensible that someone of Ms. Greenhouse's acumen would confidently trot out Stevens' argument as if it were not the subject of withering critiques in the literature.  Here is what I write in my 2009 article in the Journal of Law and Religion in response to an article by law professor Sherry F. Colb (notes omitted):
...[S]upporters of embryonic stem cell research and its government funding have drawn attention to the theological roots of the bioethical views of these citizens and have concluded that their policy proposals are in violation of the First Amendment's establishment clause. Take, for example, the comments of Rutgers law professor, Sherry F. Colb:...
.... [T]he idea that full-fledged human life begins at conception is a religious notion, and it is one to which some, but not all, religions subscribe.
The idea of "ensoulment" is, of course, a purely religious concept. The notion that life begins at conception is counterintuitive if understood in secular terms. In a secular world, because an embryo lacks the capacity to think, to experience joy, and to suffer pain or distress, it accordingly lacks legal entitlements that could possibly trump or even equal the interest in saving lives and curing disease through research. A secular perspective, then, would unequivocally approve of stem cell research....
Only a religious view would equate a clump of undifferentiated cells the size of a pinprick with a fully formed human being deeming both equivalent "life." Proceeding on the basis of this equation,.., wrongfully imposes a religious perspective on all citizens, regardless of their religious belief or lack thereof. 
The sort of analysis that Professor Colb offers is ubiquitous in both the professional and popular literature on the subject. And like some of those other works, she seems to commit two mistakes: (1) She privileges, without adequate justification, what she calls the secular perspective; and (2) she mistakenly presents the so-called secular and religious perspectives as two different subjects rather than two different answers about the same subject. 

[First, Professor Colb] privileges, without argument, a controversial view of the human person that depends on sources of authority not shared by her opponents. Calling this view the "secular perspective," Colb claims that it requires the law to protect only those human beings with interests that arise when they possess certain mental and physical capacities. Because the embryo apparently lacks these capacities, he or she has no interests that the law ought to safeguard, in the "secular" view, in her opinion. Although this is a widely-held point of view defended by some of the finest minds in the academy, it is not clear why we should embrace it as the secular perspective. After all, Aristotle, whose views many Christians, including Thomas Aquinas, have found congenial to their theological projects, offered "secular" theories of ensoulment and philosophical anthropology that rely on empirical observation, philosophical reflection and arguments to the best explanation. His conclusions are inconsistent with what Professor Colb calls the secular perspective.

Thus, the contemporary Christian or non-Christian Aristotelean can raise the question: why should I accept this understanding of human beings and their interests? After all, there is a sense in which embryos do have these interest-making capacities from the moment they come into being. From its genesis, the embryo possesses the capacity to acquire powers and properties, its being and its constituent parts are intrinsically ordered to work in concert to bring these powers and properties to maturation. For this reason, Professor Colb is simply mistaken when she describes the embryo as "a clump of undifferentiated cells." Even when the embryo's cells are undifferentiated (i.e., the cells are totipotent and thus have the capacity to develop into any organ), the early embryo, as several scholars have pointed out, functions as a substantial unity whose parts work in concert with one another for the growth, development, and continued existence of the whole.... 

With these clarifications, Professor Colb may now want to make the counter-argument that excluding the early embryo from legal protection is still justified, but not because it lacks certain ultimate capacities for the actualization of certain powers, actions and experiences, for the typical embryo surely does not lack those capacities. Rather, she may want to argue that it is the present and immediate exercisability of those capacities that distinguishes protectable persons from early embryos, since the latter do indeed lack that power. This is clearly a more defensible position than Professor Colb's initial salvo. Yet, like her first argument, this revised one has its sophisticated detractors as well. 

Nevertheless, no matter which argumentative strategy she procures for her case, it is clear from the above analysis she can no longer present the embryonic stem cell debate as if it were a dispute between two different subjects-religious and secular understandings of embryonic stem cell research-rather than what it really is about, two different answers to the same question: What should be our public policy on embryonic stem cell research? Instead of confronting the arguments for the position she labels "religious," Professor Colb seems to believe that if a position on a policy question can be labeled religious, it is no longer a position that may legitimately have a bearing on the public's deliberation on the issue. But that's putting the cart before the horse. For unless Professor Colb first shows that no argument in principle can provide warrant for a view of embryonic personhood connected to a theological tradition, justice requires that we treat so-called religious and secular understandings of embryonic personhood as different answers to the same question.

After all, Professor Colb offers an answer to a question of philosophical anthropology that religious traditions have also offered an answer. She makes her case by suggesting that because the early embryo lacks certain capacities (or in our revised version of her argument, certain present and immediately exercisable capacities), the early embryo does not have interests that require that the law protect it. But by doing this, Professor Colb is offering an account of the human being, a philosophical anthropology if you will, in order to exclude early embryos from the realm of moral subjects. Not surprisingly, those who oppose Professor Colb's position, mostly Christians, present arguments and counter-arguments in order to first show that the early embryo is a moral subject and then from there show that killing that entity in the way that Professor Colb suggests is unjustified. She responds to their position by calling it "religious," even though its advocates offer real arguments with real conclusions and real reasons.

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