Archbishop Samuel J. Aquila of Denver speaking last May.
When the Colorado Independent reported late last month that a Catholic hospital in Colorado was arguing in a malpractice case that fetuses aren’t people, the incident was immediately (and rightly) denounced as hypocrisy. The next day, local bishops promised to investigate the litigation and the policies of Catholic Health Initiatives (the non-profit organization that runs the hospital) in order “to ensure fidelity and faithful witness to the teachings of the Catholic Church.” The bishops then met with CHI executives.
As a result, the group yesterday released a statement (PDF) acknowledging that it was morally wrong for hospital lawyers to argue that fetuses are not persons, stating it will no longer use that argument in court, and affirming its adherence to the Church’s position on when life begins. The bishops, too, released a statement describing the case and reiterating Catholic beliefs.
So the matter seems to be resolved, even if it took public embarrassment for that to happen. There may have been hypocrites among the hospital’s executives, or they may have just neglected to supervise their lawyers as closely as they should have, but Church teaching has, thanks to the bishops’ efforts, seemingly won out.
A small victory, perhaps, but the damage has been done. Some publications—the Colorado Independent, several prominent free-thought and atheist blogs, and a few religion blogs—managed to cover the initial hypocrisy, but not, as of yet, the bishops’ response (despite the significant national attention it received). So the image of the Catholic Church as hypocritical will be further cemented in their readers’ minds. The way stories like this one play out reminds me of John Henry Newman’s description of how even fictional stories of Catholics’ vice can never be disproven:
After a great deal of trouble, after writing about to friends, consulting libraries, and comparing statements, let us suppose [a Catholic can] prove most conclusively the utter absurdity of [some] slanderous story, and to bring out a lucid, powerful, and unanswerable reply; who cares for it by that time? who cares for the story itself? it has done its work; time stops for no man; it has created or deepened the impression in the minds of its hearers that a monk commits murder or adultery as readily as he eats his dinner. Men forget the process by which they receive it, but there it is, clear and indelible.
Or supposing they recollect the particular slander ever so well, still they have no taste or stomach for entering into a long controversy about it; their mind is already made up; they have formed their views; the author they have trusted may, indeed, have been inaccurate in some of his details; it can be nothing more. Who can fairly impose on them the perplexity and whirl of going through a bout of controversy, where “one says,” and “the other says,” and “he says that he says that he does not say or ought not to say what he does say or ought to say?” It demands an effort and strain of attention which they have no sort of purpose of bestowing.
None of this is to say that people should not criticize the Church for hypocrisy, for the ongoing sexual abuse crisis, or for any of its other sins. But please, critics: At least be honest. When Church leaders correct a mistake, give them some credit.
February 5th, 2013 | 5:01 pm
This whole thing is completely absurd. Abortion and wrongful death are completely different.
Abortion is immoral, and should be illegal, as an infringement of the child’s rights. Human beings have a right not to be killed and the state has an interest in protecting that right through the criminal system. A criminal abortion law would vindicate the state’s interest in protecting the rights of the unborn child.
By contrast, wrongful death has absolutely nothing to do with the state’s or decedent’s rights. Wrongful death is about the rights of the survivors to financial support and/or companionship from the deceased.
There are also survival actions, where the decedent’s estate sues for a tort done to the decedent. Colorado doesn’t appear to have a survival statute, but does have wrongful death.
For instance, let’s imagine that A murders B. That’s a tort (battery) and also a crime. B’s estate could sue A for battery, and the state could prosecute A for murder. The battery lawsuit vindicates B’s rights, and the murder prosecution vindicates the state’s interest in B’s rights. A wrongful death lawsuit could only be brought by B’d wife or kids because they’re the only ones who have suffered the injury that is wrongful death.
February 5th, 2013 | 5:08 pm
Here is a case where I was defending the Church, and now they have turned around and done the wrong thing!
Just because a law refers to person or persons doesn’t mean it refers to unborn persons. If a pregnant woman got on an elevator with 9 people that had a sign saying it was unlawful for more than 10 people to ride the elevator, surely the unborn baby would not count as a person. As a much more serious example, most people (including Justice Scalia) would not interpret this part of the 14th Amendment to refer to the unborn:
Laws mean what the legislators intended them to mean, and the Constitution and its amendments mean what their authors intended them to mean. If the laws governing wrongful death suits in Colorado were not written to cover the unborn, then there is nothing wrong with Catholic lawyers arguing that, under this particular law, the unborn don’t count as persons. It is not a metaphysical question about what a person is. It is not a matter of Catholic doctrine on when personhood begins. It is a matter of what the legislators intended when they wrote the law, and the way the law has been interpreted in previous cases.
February 5th, 2013 | 5:35 pm
Well, I did point out the followup on the thread here where I’d mentioned it.
http://www.denverpost.com/breakingnews/ci_22516686/suit-catholic-lawyers-wont-cite-defense-that-fetuses
On the other hand, “the damage has been done” in other ways, too:
Stodghill attorney Beth Krulewitch said the statement comes too late to help her clients. “They can’t unring the bell. The case was dismissed (in district court in Fremont County) because they argued it. Their statement now doesn’t do anything to correct the injustice to the Stodghills.”
February 5th, 2013 | 5:36 pm
@Jamie — You know the legal issues better than I do, but my impression is that in this case, the husband/father was suing over the death of his unborn twins on behalf of himself and his young daughter (presumably arguing that he and the daughter were suffering from the lack of the baby twins’ companionship). If Colorado law considered unborn babies to be persons, would that argument be legitimate in a court? Or does it somehow not fit with wrongful death suits?
@David — I understand your argument from a legal point of view, but surely it remains hypocritical for a Catholic group to use a legal classification they consider immoral and unjust (laws saying, or being interpreted to say, that fetuses are not persons and thus not human beings with a right to life, etc.) for personal gain (to avoid being sued). Imagine a parallel with a law classifying some racial group as inhuman: Using that law to protect oneself in court would be racist, no matter what one’s internal opinions about the justice of the law.
February 5th, 2013 | 5:43 pm
@Ray, yes, I saw and appreciated your follow-up (though I was drafting this post before you posted the comment). For what it’s worth (and I can’t weigh in here, not having read courtroom transcripts or decisions), Catholic Health Initiatives seems to contradict Beth Krulewitch (on whether the fetuses/persons argument affected the case’s outcome) in its statement:
February 5th, 2013 | 7:37 pm
@Anna,
Correct. Doctrinally, the plaintiffs are not suing for the injuries to the deceased woman and twins. The husband/father and daughter/sister are suing for the injuries to themselves, which is the lack of companionship. If Colorado law treated fetuses as persons, it would only affect this case if it treated them as persons for purposes of wrongful death.
Legal personhood and moral/ethical personhood are completely independent. God and the angels are not legally persons. Corporations are not morally or ethically persons. On top of that, legal personhood in some respects doesn’t equate to legal personhood in all respects. Corporations are persons for purposes of contracts and most torts, but not for, e.g., voting.
On top of that, wrongful death is purely a creation of statutory, positive law. There’s no natural law right to bring a wrongful death action. There’s no common law right. There’s no constitutional right. There’s no logical connection between abortion and wrongful death. Until about 40 years ago, wrongful death did not exist as a cause of action, and abortion was illegal.
Even if Roe v. Wade were overturned and abortion was illegal, that wouldn’t, by itself, create a wrongful death cause of action for fetuses.
February 5th, 2013 | 11:01 pm
I share David Nickol’s view. This strikes me more as a case of bad symbolism rather than bad faith on the part of the defendants. The relevant question is, what was the legislature’s intent in adopting the statute in question? The fact that the legislature chose the word “person” does not suddenly transform this case into a surrogate for the abortion debate – except in the facile mind of a journalist, and now, in the facile mind of the public.
I’m reminded of the fact that some Catholic jurisdictions faced with sex abuse cases would declare bankruptcy. This was precisely the RIGHT course of action. It gave notice to everyone who might bring suit to do so promptly and share in the finite pool of funds available for compensating victims (rather than leaving late-filing victims uncompensated because all the funds had been claimed by earlier victims). And it signaled to people who might want to make donations to the church for purposes OTHER than compensating victims that they would be able to do so. Thus, bankruptcy was the entirely legal, appropriate, and laudable step to take.
True, it was bad symbolism. But substance is more important than symbols.
February 6th, 2013 | 1:19 am
@David Nickol
“If a pregnant woman got on an elevator with 9 people that had a sign saying it was unlawful for more than 10 people to ride the elevator, surely the unborn baby would not count as a person.”
If, instead, she stepped on with a small baby in her arms, nobody would consider her (or them) to be lawbreakers either.
February 6th, 2013 | 6:06 am
First let me say actions trump words. It’s all very well and good to say you believe in something, but what really counts is if you act on that something when acting carries a real cost. So the hospital having a change of mind is a good thing IMO.
Jamie R
Abortion and wrongful death are different but what was relevant here was the hospital’s assertion that it wasn’t liable for a wrongful death because there was no person who had died. The connection to abortion is obvious. Unborn children can’t be ‘nonpersons’ when you’re defending your checking account but suddenly become persons when you’re talking about young women who do not want to be pregnant.
Those here who make a habit of defending the Church no matter what are in an odd position. If the Catholic hospital was right to use the ‘unperson defense’ then the Church has to be wrong from asserting it was immoral to do so. What’s interesting is how few people who take the Catholic view of abortion here were willing to call out the hospital *before* the larger Church stopped them. One blogger even asserted the hospital was practicing ‘civil disobedience’ by using the defense!
David
I don’t think your elevator side works. The *intent* of such a law clearly is to limit the weight and crowdedness of the elevator.
Furthermore the Church has embraced the position that the unborn are entitled to equal protection, laws that exclude them would then be immoral to embrace just as it would have been immoral for the Church to have traded in slaves in the US in 1850, even though it was legal.
February 6th, 2013 | 6:20 am
“They can’t unring the bell. The case was dismissed (in district court in Fremont County) because they argued it. Their statement now doesn’t do anything to correct the injustice to the Stodghills.”
Well actions do speak loudest. Since the Church has asserted the use of the argument was immoral then the hospital should offer them a settlement. Otherwise they would be profiting off an immoral action.
Newman’s discussion of vice doesn’t seem to specifically apply to Catholics. Everyone here remember how Bill Clinton was supposedly murdering people left and right? ‘Cept as soon as he left office all the evidence of that disappeared and those making the accusations quickly moved on to other quack causes?
It’s also not applicable. This was no fictional accusation of vice. A Catholic hospital did it and profitted from it. There is no slander here. The Bishops have clearly stated it is morally wrong for a Catholic Hospital to argue fetuses are not persons. Those who insisted on defending the hospital before would appear to base their morality on tribalism (in other words “if it says it’s Catholic, I’m on its side”). Those who defend the hospital after have to be saying the biships moral teaching is defective.
February 6th, 2013 | 7:43 am
If, instead, she stepped on with a small baby in her arms, nobody would consider her (or them) to be lawbreakers either.
Nehemiah Madeup,
If so, would that mean that people don’t consider babies to be persons? Obviously not. It would mean that they were going by the intended purpose of the rule limiting the number of persons rather than considering it a philosophical statement involving personhood. I hate it when people say this to me, but you prove my point. Interpreting Colorado law regarding wrongful death suits not to apply to the unborn is not making a religious or philosophical statement that unborn babies aren’t persons. It is simply following the intended purpose of the law.
But suppose the elevator has a limit of 10 persons, and 10 women carrying babies want to ride on it at the same time. We might then reasonably conclude that a woman carrying a baby counts as more than one person but less than two. Would that mean a baby is a fraction of a person?
The point is that reasonable people, even if they believe a person is present from the moment of conception, can agree that rules, regulations, or laws using the words person or persons do not always apply to the unborn, no matter how firmly convinced they may be that a person is present from the moment of conception.
February 6th, 2013 | 8:30 am
Boonton,
The Bishops of Colorado are incredibly wrong in abandoning that defense. It’s stupid and even sinful to conflate the two issues.
Moral and ethical personhood is NOT the same as legal personhood. Personhood for purposes of one law is NOT the same as personhood for purposes of another law.
The hospital isn’t asserting that because no person died it isn’t liable. It is asserting that the Colorado wrongful death statute only imposes wrongful death liability (which is about the survivor’s rights, and NOT the decedent’s) for the deaths of persons who have been born alive.
The word “person” in the personalist philosophy that’s been adopted by some of our recent popes and “person” in the common law tradition are mere homophones. They’re mere equivocations like dog, the animal, and dog, the star.
February 6th, 2013 | 9:37 am
David Nichol makes some valid points. Even so, this case illustrates the need for robust organizational ethics education for leaders of Catholic institutions so they understand the Catholic perspective–even if they disagree with it–and explain the perspective to legal counsel. This bruhaha might have been avoided had there been fuller communication between CHI and its counsel. I wonder if the CHI ethicist was consulted. While the “non-person” argument may have merits from a legal standpoint, it should have activated flashing caution lights for CHI which could have instructed counsel to avoid that line of reasoning.
February 6th, 2013 | 10:15 am
Maybe y’all are all right. Properly making the distinctions between the intent of the law and the moral status of the unborn would have allowed them to proceed, so strictly speaking, they should not have abandoned the defense.
However, it is at least admirable that given their possible misconception about the moral import of their position, they abandoned it in order to make the moral point. It would have been better had they been both correct and principled, but at least they were principled.
February 6th, 2013 | 10:30 am
“Just because a law refers to person or persons doesn’t mean it refers to unborn persons . . . Laws mean what the legislators intended them to mean, and the Constitution and its amendments mean what their authors intended them to mean.”
No, it’s true: The original public meaning of the statute was meant to refer to born persons. I don’t think the bishops would dispute that.
Nor would the bishops dispute that the statute allows them (or rather, the Catholic hospital) this legal defense.
What you are missing, I think, is that the bishops believe that the the law *should* include the unborn within its definition. And that the bishops refuse to undermine that moral position by taking this valid legal defense open to them.
Most observers, within the Church and without, saw the hospital’s move as hypocrisy by the Church – and rightly so. I’m a little puzzled that you don’t perceive that.
February 6th, 2013 | 10:42 am
Catholic Health Care Sister,
It would be very strange, in my opinion, for Catholic institutions to hire lawyers and then to tell them they shouldn’t interpret statutes according to their legal meaning. Why do people hire lawyers if not for their understanding of what laws mean and how they are to be applied?
Are we now to understand that lawyers representing Catholic institutions, or perhaps all Catholic lawyers, must read every law that refers to persons to refer to the unborn?
Perhaps in this case, what should have been done was to acknowledge in the initial arguments that although the Catholic faith considers persons to be present from the moment of conception, the intent of the laws governing wrongful death suits deals only with “post-born” persons, without in any way implying that “pre-born” persons are not authentic persons.
February 6th, 2013 | 10:45 am
Since everyone ignores the media’s hypocrisy, it is surely the Church most wounded by their own hospital’s hypocrisy. The case does highlight other,often ignored, problems within the Church:1) the reliance on lawyers; 2) the hiring of people to substantial positions who may be faithful to Catholic Teaching but are utterly clueless to the world we are living in. Lawyers (along with insurance bean-counters) were the great unpunished, though clearly implicated, in the Church sexual abuse scandals.
February 6th, 2013 | 10:49 am
Jamie r
The Bishops of Colorado are incredibly wrong in abandoning that defense. It’s stupid and even sinful to conflate the two issues.
I give you credit for being consistent in that if you still want to defend the hospital you must now attack the Bishops, but I disagree that two different issues are being conflated.
The pro-life argument is the unborn are people hence those who cause their deaths should be no less liable than those who cause the deaths of those who are already born. If a Catholic hospital would have had to settle for malpractice that caused a 7 yr old child to die, then it should have to settle for malpractice that causes a 7 month old unborn child to die. This is esp. glaring given that pro-lifers have taken to demanding that Equal Protection be read to apply to the unborn. In that case you couldn’t exclude the unborn from wrongful death suits anymore than you could say that wrongful deaths wouldn’t apply to people of a particular race or religion.
David
Again I’m not sure it’s actually a law that only so many persons may be in a particular elevator. If I see anything, I see signs advising weight limits. I think you have to factor in the intent of the law there. Suppose a chap had multiple personalities, how much time would it be worth debating whether he should be barred from all elevators?
February 6th, 2013 | 11:09 am
Reminder: As recently stated on our blog, we do not allow multiple-part comments (though we do allow back-and-forth exchanges, and, when not repetitive, individual replies to different people you’re debating with). The multiple-part rule is why a few comments on this thread have not been posted, despite their relevance and civility.
February 6th, 2013 | 11:21 am
Richard M,
“Person” for purposes of Colorado’s wrongful death law, and “person” for purposes of Colorado’s abortion law, do not have the same meaning, and even if one law was changed, the other wouldn’t.
There’s only any perceived hypocrisy if you assume that legal terms don’t have their own meaning which is largely independent of its ordinary language meaning. In law school, this idea is drilled into future lawyer’s heads. A professor will call on you and ask you what a word means. If you answer based on its ordinary meaning, the professor will either tell you you should’ve looked the word up, or ask you a series of rhetorical questions aimed at making you feel dumb for not looking the word up.
As a rule of thumb, for non-lawyers, you should just assume that every single word in a news story about the law is a term of art and that its meaning is, at most, only historically connected to the legal term’s meaning. I can understand your puzzlement, but once you accept that law is basically a different language, the lack of hypocrisy should be clear.
Keeping that in mind, the CHI’s response is absolutely bizarre. How in the world is CHI supposed to respond to a lawsuit based on the wrongful death act when they are saying “that it was morally wrong for attorneys representing St. Thomas More Hospital to cite the state’s Wrongful Death Act in defense of this lawsuit”? How are the Bishops, presumably with access to lawyers who can explain this to them, still conflating the two completely independent meanings of person to hold that “[t]hat law does not consider fetuses to be persons, which directly
contradicts the moral teachings of the Church”?
February 6th, 2013 | 11:35 am
Boonton,
When the Church says that unborn children are “persons,” they mean “person” in a very specific sense, built off of a long philosophical tradition. When a judge says someone is a “person,” he or she means “person” in a very specific, different sense, built off of a long tradition including common law judges and legislatures. The two definitions have virtually nothing in common, and it’s pure coincidence that the two words happen to be orthographically similar.
You know what happens if fetuses are persons? What’s going to happen in an ectopic pregnancy? Presently, this is textbook double effect. You remove the fetus and the tube, and send the woman on her way. You know what happens when you conflate “person” and “person” together? Murder. What happens when a woman has a first trimester miscarriage (which happens to about half of pregnancies)? Murder. Maybe she won’t get convicted. She might beat the rap, but she won’t beat the ride. Do you trust prosecutors with enough discretion to give them a colorable argument for murder in nearly half of all pregnancies? You must have vastly more faith in our legal system than I do.
There’s a reason common law punished abortion as the common law crime of abortion, and not as the common law crime of murder.
February 6th, 2013 | 12:03 pm
What you are missing, I think, is that the bishops believe that the the law *should* include the unborn within its definition.
Richard M,
That would not be a moral judgment on their part, it would be a judgment about the purpose of wrongful death suits, and from the admittedly little I understand, it would be a wrongheaded judgment. As I understand it, those who may bring about a wrongful death suit are the deceased’s heirs and beneficiaries. The suits attempt to put a monetary value on the deceased person’s life to calculate what the beneficiaries have lost by the deceased’s untimely death. Bringing a wrongful death suit is not the civil equivalent of bringing criminal charges for homicide. It is not to brand the defendant as a killer. It is to get monetary compensation for what the deceased person would have been worth to you had he or she not died. There is not much point in bringing a wrongful death suit when the person who dies is very young or very elderly, because it is extraordinarily difficult to put a value on their lives had they not died.
February 6th, 2013 | 12:39 pm
Hypothesis:
1. Judges have jurisdiction to enforce the laws – BUT ONLY that jurisdiction; they cannot bestow jurisdiction upon themselves, even if all parties consent.
2. Laws should be construed to give them the meaning intended by the legislature.
3. The legislature did not intend for the wrongful death statute to apply to unborn people.
Ergo, a judge should not construe the law to apply to unborn people, even if the judge and all parties would prefer a different construction. The bishops are free to contract for the services of a 3d party arbitrator to evaluate whether the hospital would be liable if the law were otherwise, and the bishops are free to make a voluntary payment if they think the hospital has done wrong. But the bishops should not seek to commandeer the judiciary for this purpose – even if the judiciary would acquiesce in the project.
February 6th, 2013 | 3:52 pm
Jamie r
The two definitions have virtually nothing in common, and it’s pure coincidence that the two words happen to be orthographically similar.
Suppose the law said that for purposes of wrongful death suites, mixed race babies are not legal ‘persons’. In a heartbeat you’d have lawyers fighting all over themselves to hit the SC with an Equal protection claim. Do you think for a moment such a law could stand on the flimsy grounds you describe? That person doesn’t mean person…it’s just a legal word that by pure coincidence happens to be spelled exactly the same as the everyday word ‘person’?
You know what happens if fetuses are persons? What’s going to happen in an ectopic pregnancy?…murder
Possibly, but how does that alter the argument by pro-lifers that the unborn should be considered persons under the law subject to Equal Protection?
.What happens when a woman has a first trimester miscarriage (which happens to about half of pregnancies)? Murder
Now now, it’s not that difficult since miscarriage would be considered a natural cause of death.
nobody.really
Ergo, a judge should not construe the law to apply to unborn people, even if the judge and all parties would prefer a different construction.
Irrelevant, if it’s immoral to embrace the defense then the Catholic Hospital should not have done so. Even if that meant the judge would have still thrown the case out on the hospital’s behalf.
February 6th, 2013 | 4:06 pm
The bishops have acted correctly. The law allows a defense of arguing that unborn babies are not persons for the purposes of a wrongful death suit. nobody.really is correct in assuming that a judge could cite that defense even if neither party made the argument. It seems to me that it is still wrong for the hospital or their counsel to avail themselves of the argument.
However, what appears to be the basis for the ruling is that the actions of the hospital were not the proximate cause of the deaths. That has nothing to do with the possible personhood of the babies. This is a common cause of contention in medical malpractice lawsuits and is often decided by expert opinion. The ruling is that, whatever the plaintiffs say the defendants did incorrectly, the action did not cause the deaths.
February 6th, 2013 | 8:11 pm
Boonton,
Of course, it isn’t actually pure coincidence. “Person” and “person” are cognates. They both derive from the Latin word “persona.” “Person” developed its meaning gradually through the work of common law judges and then Parliament and Congress. By contrast, “person” developed through the work of philosophers and theologians, like St. Thomas Aquinas, and, more recently, folks like Erazim Kohak and Karol Wojtyla/Bl. John Paul II.
Cognates like this that develop in parallel routes should be familiar to you. “Substance” has a very specific meaning in Thomistic writings, and a very vague meaning in ordinary language. “Material” means relevant in the law and “the other half of substantial” in Thomism.* A “host” can be an army who is going to kill you or someone who offers you a drink and a snack. “Gift” means “gift” in English and “poison” in German (that’s not really a cognate though). If the Church says that children are a gift from God in one context, and then says they aren’t a gift from God in another, you wouldn’t object, would you?
I have no idea which pro-lifers are framing their argument on the basis of the 14th amendment. I don’t think any one who thinks the 14th amendment does or should protect fetuses has thought that through. Abortion is wrong because of the fetus’ moral status, and not because of the 14th amendment. The law should reflect the fetus’ moral status. This does not require doing anything crazy like treating them as persons for all purposes, which would make almost all women prosecutable as murderers. (Even where miscarriages are purely natural, do you want to give a DA the option to take that to trial?).
*See also: will, necessary and proper, appeal, competence, jurisdiction, res ipsa loquitur, complaint, memo, brief, property, etc. All of these words have normal meanings that are more or less…
February 6th, 2013 | 8:17 pm
The law allows a defense of arguing that unborn babies are not persons for the purposes of a wrongful death suit.
bobster,
Is it really that the law allows the argument to be made that unborn babies are not persons? Or is it that the statute is simply not considered to apply in the case of the death of unborn babies? If it is really the former, then wouldn’t the matter have to be argued in court? That is, wouldn’t the plaintiff have to make the argument that unborn babies are persons, and the defendant have to make the argument that unborn babies aren’t, and the judge or jury would have to decided (at each trial?) whether an unborn baby is a person?
Isn’t the issue what the law was intended to mean, not whether an unborn baby is or is not a person? Also, if the bishops believe that an unborn baby should be recognized as a person for the purposes of wrongful death suits, shouldn’t they lobby the Colorado legislature to amend the statute?
Are all Catholic lawyers now duty bound to consider unborn babies legal persons and ague (or not argue) cases accordingly? Would it be unjust discrimination for an insurance company to refuse to sell the parents of an unborn child life insurance for the child?
February 7th, 2013 | 8:30 am
Jamie r
I don’t think any one who thinks the 14th amendment does or should protect fetuses has thought that through. Abortion is wrong because of the fetus’ moral status, and not because of the 14th amendment. The law should reflect the fetus’ moral status. This does not require doing anything crazy like treating them as persons for all purposes
I don’t think your reasoning works here as cleanly as you would like. If fetuses should not be aborted because of their moral status, the first question is what moral status? The pro-lifer will answer they are human persons. If they are persons then why would some rights of personhood apply to them but not others? Why would it be ok to kill them via medical malpractice, for example, but not purposeful abortion? Why would Equal Protection and Due Process not apply? Despite you being unaware of it, this is a refrain that is quite common among pro-lifers. You are free to assert they haven’t thought through the consquences of their position, but that doesn’t alter that it is their position nor does it refute the logic.
David
Are all Catholic lawyers now duty bound to consider unborn babies legal persons and ague (or not argue) cases accordingly?
No but they would be obligated to inform Catholic clients who care about not only winning their cases but aligning with morality the arguments they are using. In fact this is an obligation of any lawyer to his or her client.
February 7th, 2013 | 10:11 am
“Why would it be ok to kill them via medical malpractice, for example, but not purposeful abortion?”
It’s not “OK”. It is simply no more “not ok” then in the case of any other homicide through accident or negligence. And as with adults surgeons who prove incompetent should be subject to dismissal but cannot be subject to prosecution lest other surgeons be to nervous to perform. Accidental homicide is just as much different from murder in a baby as an adult.
February 7th, 2013 | 10:25 am
Hello David,
It would be very strange, in my opinion, for Catholic institutions to hire lawyers and then to tell them they shouldn’t interpret statutes according to their legal meaning. Why do people hire lawyers if not for their understanding of what laws mean and how they are to be applied?
True. But lawyers work for clients. Clients have the last word on what motions their lawyers file on their behalf. And they have whatever moral responsibility attaches to those motions. And that’s the problem here.
Just because a legal action is open to a client doesn’t mean that it is moral to take it.
One other point:
There is not much point in bringing a wrongful death suit when the person who dies is very young or very elderly, because it is extraordinarily difficult to put a value on their lives had they not died.
You’re basically correct in your understanding of wrongful death actions, but I think you’re begging the very point in dispute when you say there is not much point in bringing a suit in a case such as this one – notwithstanding whether the law recognizes such persons for the purposes of the statute in the first place.
The Church adamantly believes that the unborn *are* persons, and that their deaths are a great evil. For the hospital to file this defense – whether the law permits it or not – it is chucking that moral position out the window when it happens to redound to its financial and legal benefit. It’s a horrible, horrible witness.
I don’t make any judgment on whether the hospital *was* responsible for the death of this mother and (unborn) child, because I am not acquainted with the facts of the case. The hospital may well have grounds to defending itself against a wrongful death suit. But for it to argue that it is not responsible for the death of the unborn child simply on grounds that it is not a child…
February 7th, 2013 | 10:34 am
Hello Jamie,
“Person” for purposes of Colorado’s wrongful death law, and “person” for purposes of Colorado’s abortion law, do not have the same meaning, and even if one law was changed, the other wouldn’t.
Point taken. But it is beside the point.
The Church’s opposition to abortion isn’t just about abortion per se; it is a broader understanding of personhood and its dignity that it wants to see upheld in law and welcomed in life.
I think your problem and David Nickol’s problem is that you’re looking at this case in purely legal terms. The bishops – and those of us who were outraged by this – are looking at it in moral terms. Whatever the law may say about who “counts” as a person for purposes of wrongful death, *we*, the Catholic Church, are saying that the personhood of the unborn should be recognized fully in *every* aspect of criminal and civil law (not just abortion law).
While Colorado’s wrongful death case of action statute may differ in some way in its definition of “person” from that in its abortion statute, it still happens to be wrong. That’s the Church’s position. And the Church has a moral obligation to make sure that its litigation activity – indeed, all of its activity – conforms to its moral principles.
February 7th, 2013 | 10:39 am
Hello nobody,
But the bishops should not seek to commandeer the judiciary for this purpose – even if the judiciary would acquiesce in the project.
But the bishops are not “commandeering” *anything.*
All they are saying is that it was wrong of the hospital to avail itself of this valid (but immoral) legal defense. As their statement says: “It is an unfortunate and regrettable point of fact that Colorado law, as it now stands, fails to adequately protect the rights of the unborn.” That failure is reflected not only in the state’s abortion law, but in other laws as well.
But the Church’s advocacy for changes in those laws notwithstanding, all it is doing here is declining to take advantage of a valid legal defense open to its institutions, because doing so would be immoral. That’s all.
February 7th, 2013 | 11:15 am
But doesn’t a fight over the definition of “person” deny the unborn their basic humanity?
In a somewhat analogous case, see Toy Biz v. United States (2003). Under US tariffs, “dolls” are subject to nearly twice the import tax that “other toys” are. What’s the difference? A doll must “clearly represent a human being.” So Toy Biz, importing X-Men action figures on behalf of Marvel Comics, succeeded in arguing that the X-Men action figures should be subject to the lower tax because their various mutant qualities demonstrate that they do not clearly represent human beings.
Now, if you’re not a fan of the X-Men, you may not know that they are mutants that are constantly called upon to employ their extraordinary qualities to save mankind – but are then shunned because people regard them as, well, sub-human mutants. Their struggle for social acceptance is a constant theme. So, whatever the legal merits, fans of the X-Men were NOT happy with this litigation strategy, or its outcome.
February 7th, 2013 | 12:17 pm
David, the statute determines the requirements for a wrongful death suit. If the statute excludes unborn infants, the characterization of their status does not matter. Lawyers being the anal retentive (does that require a hyphen?) beings that they are, it would be a no-brainer for the hospital counsel to cite the statute as a defense.
I agree with Boonton and Richard M that a Catholic lawyer should advise Catholic clients about the availability and moral problems of using that defense. A Catholic lawyer might have to refer non-Catholic clients to someone else if he felt morally bound not to argue that specific defense.
February 7th, 2013 | 1:09 pm
Wow, a word (e.g., “person”) has more than one meaning. Who could have known?
Though I rarely agree with David Nickol, in this discussion here I believe he has the better argument.
The Catholic hospital’s lawyers could have worded their court filing a bit differently to communicate their intent to the court and accomplished the identical legal result without making the faux pas that the pro-death agitators, atheists, and Catholic haters generally have seized upon.
By the way, I’m amused by the crop of materialist critics who’ve been insisting here that there exists a non-material thing they call personhood. And they call the Church inconsistent! Heh heh.
February 7th, 2013 | 1:52 pm
Richard,
First, it is absolutely not the case that the Church teaches that a fetus is a person for every aspect of criminal and civil law. If that were so, every case of ectopic pregnancy involves a murder. The only solution to ectopic pregnancy, if you give the fetus the exact same legal status as its mother, is for at least one person to commit at least one murder.
Second, is CHI a person? If not, who should the plaintiffs be allowed to collect from if they win? If so, why are the plaintiffs allowed to treat CHI as a person when CHI isn’t a person according to Catholic social teaching? That is, if *every* aspect of civil law is supposed to use the Church’s definition of person, why is CHI allowed to even exist as a corporation?
Or maybe “person” in the law and in theology are equivocal terms that don’t mean the same thing, and never have meant the same thing.
If you think the judge’s job is to interpret things in terms of what they perceive to morality, then don’t complain when liberal judges rule in a way that you don’t like. If lawsuits are about moral terms, then there’s no principled legal (as opposed to moral) argument against, e.g., Roe v. Wade. If SS. Augustine, Isidore, and Thomas can recognize a distinction between law and morality, then so can we.
February 7th, 2013 | 2:37 pm
Simple…..Hire a more competent Law Firm and fire the one you have now before they do another stupid thing….very basic, very practical and very just.
February 7th, 2013 | 5:20 pm
Jamie r
I suggest you consult http://en.wikipedia.org/wiki/Catholic_Church_and_abortion#Ectopic_pregnancy
In Ectopic Pregnancies the fetus is only allowed to be killed ‘indirectly’ (i.e. by removing the tube that contains it). While this may seem to be a distinction without a difference, the reasoning does indeed seem to be premised on the concept that the fetus is a person as opposed to your claim that a fetus is viewed as a person in some cases (a woman who wants an abortion) but not in others.
If so, why are the plaintiffs allowed to treat CHI as a person when CHI isn’t a person according to Catholic social teaching? That is, if *every* aspect of civil law is supposed to use the Church’s definition of person, why is CHI allowed to even exist as a corporation?
Corporations are not persons. But since corporations are controlled by persons moral teaching would apply to them. A corporation dedicated to a Catholic mission, likewise, would obligate those who run it to align with Catholic moral teaching.
The doctrine of Corporate Personhood is explicitly stated as a ‘legal fiction’. Corps are sometimes treated as persons not because they are but because they are owned by persons. The corporation therefore is an extension of *their* personhood rights.
If you think the judge’s job is to interpret things in terms of what they perceive to morality
No one said that. A judge (Catholic or not) has to read the law as written even if he disagrees with it. The objection here is not the judge tossing the case but the hospital using the argument.
February 7th, 2013 | 5:30 pm
Hello Jamie,
First, it is absolutely not the case that the Church teaches that a fetus is a person for every aspect of criminal and civil law. If that were so, every case of ectopic pregnancy involves a murder.
The Church opposes abortion in all instances, however – even in cases of ectopic pregnancy. In any event, I think this is a rabbit hole that misses the point about what the Church insists that the civil law recognize in regards to the unborn.
Second, is CHI a person? If not, who should the plaintiffs be allowed to collect from if they win?
Well, again, another rabbit hole – this isn’t a debate about different kinds of legal persons – although, now that you mention it, it’s amusing that a fictive legal “person” like a corporation still has far more rights than an unborn child.
If you think the judge’s job is to interpret things in terms of what they perceive to morality, then don’t complain when liberal judges rule in a way that you don’t like.
I’m becoming quite flabbergasted about this misunderstanding that seems to persist here, no matter how many times some of us explain it. While the Church does urge that the law be changed in regards to the legal status of the unborn, that’s not the issue here. Nor is the judge being asked to make new case law. The question is whether the hospital had a *moral* obligation to require its lawyers not to adopt any legal defenses that would be inconsistent with Catholic teaching. That’s all. Nothing more.
February 7th, 2013 | 7:17 pm
Boonton,
Double effect isn’t an affirmative defense to murder. It certainly isn’t an affirmative defense to the torts of wrongful death or battery. “Intent” like “person” doesn’t mean the same thing in court as it does in Church.
The fact that legal persons, like corporations, have more rights than fetuses should be enough to make perfectly clear to you that “person” as a legal term has only an historical relationship to “person” as a theological term.
What would you have the hospital do? They were sued on a nonexistent tort. There aren’t any defenses to it, as it doesn’t exist. There’s no way they can challenge the measure of damages, as under Colorado law, there are no damages. The court doesn’t even have jurisdiction as to the fetal wrongful death claim. Do you really want the coercive power of the state to depend on the defendant’s moral beliefs?
Counterintuitively, if you actually want the wrongful death law to be changed to include fetuses, you know what needs to happen? The hospital needs to raise the exact argument you’re criticizing them for raising, which is that there is no cause of action for fetal wrongful death so that that becomes the issue on appeal, and the plaintiff needs to ask the Colorado Supreme Court to create such a cause of action.
Richard,
I thought it was a debate about the legal definition of personhood, and that the legal definition of personhood has virtually nothing to do with the theological / philosophical definition.
There’s no legal or logical connection between wrongful death and abortion. Without that connection, there’s no moral issue raised.
February 7th, 2013 | 7:50 pm
The Church opposes abortion in all instances, however – even in cases of ectopic pregnancy.
Richard M,
This is not quite correct. The Church opposes all direct abortions, but it does not oppose all indirect abortions. To take the classic example, if a woman is pregnant and has a cancerous uterus which must be removed to treat the cancer, the uterus may be removed with the unborn baby inside, even if this is certain to kill the baby. However, performing the exact same surgery if the uterus was not cancerous would be a direct abortion. It is really, in this case, a matter of intention.
In the case of ectopic pregnancy, it is considered an indirect abortion to remove the fallopian tube (or part of it) to which the embryo is attached, even though this is certain to kill the embryo, but it is considered a direct abortion to remove the embryo itself from the fallopian tube or to administer a drug to the woman that will kill the embryo.
There is not universal agreement as to what is a direct and indirect abortion in certain difficult cases, for example, in the case of the “Phoenix abortion,” for which Sister Margaret McBride was announced by her bishop to have excommunicated herself by approving the procedure in her role on the hospital ethics committee.
February 7th, 2013 | 9:55 pm
Double effect isn’t an affirmative defense to murder.
It actually is a basis upon which you can raise self-defense as a defense against a murder charge.
The fact that legal persons, like corporations, have more rights than fetuses should be enough to make perfectly clear to you that “person” as a legal term has only an historical relationship to “person” as a theological term.
Again corporations do not have rights as persons. Their rights are only the collected rights of the persons who own them.
There aren’t any defenses to it, as it doesn’t exist. There’s no way they can challenge the measure of damages, as under Colorado law, there are no damages.
They could argue there was no malpractice. They could argue that even if there was malpractice it did not cause the featus’s death. They could argue the calculation of damages. Why would that be different than any other wrongful death claim?
Do you really want the coercive power of the state to depend on the defendant’s moral beliefs?
What power of the state? The state didn’t sue, the family did. And yes outcomes do depend on moral beliefs. Why should one’s moral beliefs not have consquences? Your entire argument amounts to an assertion that considering fetuses persons results in awkward consquences. The coherent response to that is either reject the proposition that fetuses are persons or accept the consquences that they are. Your answer seems to be accept the assertion when it isn’t awkward, reject when it is.
February 8th, 2013 | 6:21 am
You do know what a law suit is, right? The plaintiff is asking a judge to order a sheriff to forcibly seize the defendant’s property, sell it, and give that money to the plaintiff. Without the coercive power of the state, the plaintiff might as well just hope the defendant wants to get rid of his money.
I don’t understand why you’re clinging to the idea that there is one definition of personhood. It isn’t a question of convenience. It’s a question of there are multiple definitions of a word.
February 8th, 2013 | 8:09 am
You do know what a law suit is, right? …Without the coercive power of the state,
Without the coerceive power of the state private disputes would be settled by private means. The state is simply acting as a referree here (and in many lawsuits it’s not even the state but a private arbitrator!) How is choosing not to use all the possible legal arguments available to one in a lawsuit being ‘coerced by the state’?
It’s a question of there are multiple definitions of a word.
You haven’t given us multiple definitions of the word. You have simply stomped around demanding that in cases of wrongful death the unborn child isn’t a person but in cases of a woman who desires to have an abortion it is a person. Since I don’t have multiple definitions from you I have no idea why one would apply in one case and another in the other except because you say the legislature wanted it that way and if it was any other way women who have miscarriages or ectopic pregnancies would be tried for murder (again not clear why that would be).
February 8th, 2013 | 9:32 am
And the private means here would be the plaintiffs walking into the hospital and taking stuff. Do you think the defendants’ religious beliefs give the plaintiffs a right, with or without the coercive power of the state, to walk into the hospital and, using force if necessary, take stuff? Because that is exactly what you are arguing.
“Person,” at common law, for most tort and crime purposes, is defined as individuals born alive.
February 8th, 2013 | 10:26 am
Hello David Nickol,
Are all Catholic lawyers now duty bound to consider unborn babies legal persons and ague (or not argue) cases accordingly?
I think that you can make a good case that they are duty bound to never advance a legal argument that denies that they are.
The Catholic hospital, is certainly duty bound to refrain from making such a legal argument, regardless of whether the law permits it (as it seems to do here).
February 8th, 2013 | 10:51 am
One other point, David, now that I have seen your other newest response:
This is not quite correct. The Church opposes all direct abortions, but it does not oppose all indirect abortions.
I’m not at all comfortable with this language of “indirect abortions,” and I think it’s unwise for you to use here as well. It *is* true that Directive 47 states that “Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.” But it avoids the phrase “indirect abortion,” since what it is contemplating is not considered an abortion per se at all. The integral nature of the act is not to abort an unborn baby. It is, instead, to remove a damaged or diseased organ which if left unchecked will result in the death of the mother.
There is not universal agreement as to what is a direct and indirect abortion in certain difficult cases, for example, in the case of the “Phoenix abortion,” for which Sister Margaret McBride was announced by her bishop to have excommunicated herself by approving the procedure in her role on the hospital ethics committee.
I don’t think that there’s much that’s difficult about the McBride case, however. She approved a direct (induced) abortion as a response to the mother’s pulmonary hypertension. There’s no principle of double effect to justify her act; it was a direct abortion, and that is never licit under Church teaching.
February 8th, 2013 | 12:00 pm
And the private means here would be the plaintiffs walking into the hospital and taking stuff. Do you think the defendants’ religious beliefs give the plaintiffs a right, with or without the coercive power of the state, to walk into the hospital and, using force if necessary, take stuff?
How am I arguing that? Your argument’s getting off the bend here. If there was no state there most likely couldn’t be a hospital or medical profession (I’m sure the hospital relies more upon courts to sue for unpaid bills than the reverse). But yes without any state people do tend to resort to ‘just taking stuff’ and fighting each other to settle private arguments like this. See, for example, Somalia.
If the hospital is aligned with the Catholic view of the unborn, they should not use an argument that the unborn are not persons to win a civil suit. That hardly means the family of the woman and unborn child who died have a right to ‘just take stuff’ from the hospital.
February 8th, 2013 | 12:08 pm
I think that you can make a good case that they are duty bound to never advance a legal argument that denies that they are.
Richard M,
It seems to me quite different for lawyers to argue that a given statute does not apply—and was not meant to apply—to the unborn, than for a lawyer to argue that the unborn are nor persons and should not be covered by the statute.
Remember I have been giving rather trivial examples of laws that are obviously not meant to count the unborn as persons. Recall the pregnant woman stepping into the elevator already carrying 9 people, with the legal limit being 10 people. Are you saying that if someone tries to prosecute a pregnant woman for smuggling an eleventh person onto an elevator that a lawyer could not in good conscience argue that the regulation limiting the elevator passengers to 10 did not count unborn babies?
There are no doubt a great many laws that mention persons that we would not want to apply to the unborn. For example, in inheritance law, the unborn cannot inherit. If a man dies without a will, and his wife is pregnant with twins, the husband’s money will go to his wife. It will not be split between the wife and the unborn twins.
February 9th, 2013 | 6:36 am
So the intent of the elevator law is to limit the weight put onto the elevator. So say there’s 8 people on one and a man working for a funeral parlor comes on wheeling a casket with a corpse. I think one might argue he is violating the rule, even though a dead body isn’t traditionally viewed as a person.
But what is the ‘intent’ of saying an unborn child cannot be subject to a wrongful death suit but one who was born a minute ago can? If you hold to the pro-life view that the unborn are persons, the intent is clearly to deny equal protection to one class of persons.
Let’s use a slightly different example. It’s 1850 and a man accuses Frederick Douglass in court of not paying him wages for working in his house. Douglass asserts that the man is black and since slavery is legal he shouldn’t have to pay the black man. Would it not be hypocrisy for Douglas to make that argument, then go off to work as an abolitionist? Would it be sufficient to just shrug and say sure he won’t have slaves once the law gets changed but right now it’s a valid legal argument?
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