Russell Shaw on Gen. Kagan and natural rights

Without an evidence at all, Russell Shaw, in this week's Arlington Catholic Herald, concludes that Supreme Court nominee, Solicitor General Elena Kagan, has no acquaintance with natural law. Indeed, his article borders on calumny. You can read them here: http://www.catholicherald.com/detail.html?sub_id=13066

I would disagree with his comments. The essence of equal protection jurisprudence, which is responsible for most precedent on both gay rights and abortion, resides in the natural rights tradition, which, as you say, has its source in natural law. You might not agree with how it has been argued of late, and it certainly does not agree with how the CDF sees it, but that does not mean the concepts are not in play.

The concerns you cite are both examples of rights being balanced - albeit not in a way that Shaw would agree with. It is definitely the case that the rights of the unborn are given short shrift in comparison with those of the mother - however it would take a particularly egregious act of judicial activism to change this in the name of natural law. Indeed, a natural law argument could be made for disregarding the rights of the unborn before assisted viability. Conferring rights any earlier than the time most natural miscarriages has occurred confers impossible responsibilities on doctors to preserve the lives of unborn individuals with fatal defects that probably should be left to die. Such a requirement would lead medical professionals to avoid, if at all possible, caring for mothers until that time has passed. This puts all pregnancies at risk and that risk is not justified. Of course, this is a prudential judgment, as is the debate over how best to preserve life. There is nothing in natural law that indicates the criminal power of the state - exercised solely against abortion providers - is a necessary conclusion to a finding that the unborn have rights from the point of gastrulation (natural science proves that nothing earlier is justified).

On gay rights, it seems that society at large could benefit from natural law reasoning. Fagothy's Right and Reason (the ethics text used when I took a minor seminary ethics course as a pre-law student) could not, based on the merits, could not justify not granting full rights to homosexuals without resorting to the teaching authority of the Church. In a natural rights construction of the issue without such an option, the natural law position is to grant full rights to gays and lesbians. The entire body of law against gay marriage is about to be overturned based on the natural rights of such people not to have laws made against them which are based solely on malice. If Miss Kagan agrees to such a construction when it comes before her, I will be satisfied that she does indeed consider the role of both natural rights and natural law.