Wednesday, February 6, 2013

Were Colorado Bishops Wrong To Reverse Catholic Hospital Not A " Person " Defense

First Thoughts has the story and the link to the Bishops statement here at Catholic Hypocrisy in the Public Mind

I have to admit when this story broke over the National March For Life I suspected this to be debated over at Catholic and religious legal blogs I visit. For the most part I never saw it.

That is unfortunate and it seems much of the debate was dominated on both sides by people that don't seem to have a understanding of the legal actions involved.

Thankfully there were robust responses in the comment section above.

They include :

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.



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.


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.

Read all the comments. Now I get in this might be a PR problem in this soundbite world. LOOK THE CATHOLIC CHURCH IS SAYING UNBORN CHILDREN ARE NOT REALLY PEOPLE. However that is really not what is going on. I am not sure one has to turn in their prolife credentials because you are pointing out the legislative intent was not to include unborn children in a case of positive TORT LAW.


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