Mirror of Justice

A big "ministerial exception" decision in the Ninth Circuit

The invaluable Prof. Friedman reports:

In Alcazar v. Corporation of the Catholic Archbishop of Seattle, (9th Cir., March 16, 2010), the U.S. 9th Circuit Court of Appeals dismissed under the "ministerial exception" doctrine claims by two Catholic seminarians who alleged violations of Washington state's Minimum Wage Law. The two claimed that they were not paid required overtime wages while they served in a placement program as part of their preparation for the priesthood. The Court held that the religion clauses of the 1st Amendment compel a ministerial exception from neutral statutes that interfere with the church-clergy employment relationship. It also announced a test for determining whether an individual is a minister for purpose of the doctrine:

if a person (1) is employed by a religious institution, (2) was chosen for the position based "largely on religious criteria," and (3) performs some religious duties and responsibilities, that person is a "minister" for purposes of the ministerial exception.

Importantly, the court emphasized that the ministerial exception is required by the First Amendment.

"On Holy Ground"

My friend Mary O'Callaghan has an incredibly powerful piece, up at The Catholic Thing, called "Down Syndrome:  On Holy Ground."  It is amazing -- though, to those of us who know her, not surprising -- that she is able to describe a monstrously hateful incident and yet to use that description as an occasion for (what would have been entirely justified) fury, but for profound reflection:

[A]fter seeing the online ridicule of Down Syndrome children, I wonder whether the deepest sorrow that pierced Mary’s heart was not the physical suffering of her son, but the cruel taunts and mockery to which he was subjected. It must have been bewildering to her that his tormentors could not see that all the life and goodness, truth and beauty in her Son. Of course our children are not messiahs. But a Holy Cross Priest at Notre Dame reminded us last week that those of us who care for individuals with cognitive handicaps stand on holy ground. Knowing a child with Down Syndrome is like getting a small glimpse of the divine; original sin has been cleansed by baptism, and their souls are barely touched by actual sin. And that’s why we feel that when they are shown disrespect, something innocent and holy and sacred has been profaned.

Our Lady of Sorrows, may all of us see in the faces of those with disabilities, particularly this March 21 those with Down Syndrome, the image of the God who saved us.

Steve Schneck, of CUA, on the Proposed Health Insurance Reform Legislation

Hello again, All,

Steve Schneck, Director of the Institute for Policy Research & Catholic Studies at CUA, is one of the signatories to the pro-life letter in support of the health insurance reform bill that I posted earlier. That post has drawn nearly 30 comments by now, a few of which evince some want of information and clarification, if not indeed a full 'hermeneutic of suspicion.'  Happily, the most recent comment comes from Steve himself, and affords the said information and clarification.  Because it so very nicely explains why the Senate version of the health insurance reform legislation comports with Hyde and actually is apt significantly to lessen the incidence of abortion, as well as why it comports so well with Catholic social teachings more broadly, I am converting it to a full post with Steve's permission.  Here it is:

It’s difficult at this point to separate the spin from the reality in comparing the House and the Senate bills as they pertain to abortion. But, as one of the signers of the document above, let me try. This is an important matter that deserves careful reflection.

The House bill with the Stupak provisions, is a good bill. It provides health care coverage to all but about 9 million Americans, which in and of itself will encourage many at risk women to carry their babies to term. Comparing the high abortion rate in the U.S. with the much lower rates in Europe and Canada, suggests the possibility that good health care coverage matters for abortion rates. The Stupak language, moreover, does not allow abortions to be performed in any of the health care exchanges, except for rape, incest, or danger to the life of the mother.

The Senate bill, by my analysis, does a slightly better job for pro-life concerns. While it does allow insurers in the exchanges to offer abortion coverage, it requires participants to write a separate “abortion check” to pay for them out of pocket and not from federal funds. States which do not want abortion coverage in their exchanges may opt out. Following on a similar enlargement by the Bush administration, the Senate bill also provides $11 billion of new money for community health centers–which provide desperately needed care for the poorest of the poor. The Bush administration’s rules that prohibited these centers from providing abortion services remain in effect and the Obama administration has pledged to abide by those regulations. The Senate bill also dramatically extends CHIP protection to infants and children and greatly extends Medicaid coverage for the poor. Perhaps even more importantly, the Senate bill (thanks to Senator Casey) has incorporated all the policy provisions of the Pregnant Women Support Act that was so strongly endorsed by the American bishops. This package of policies includes a number of provisions designed to encourage at risk women not to abort, including: fulsome pre- and post-natal health care and very generous adoption incentives. I am concerned that the Senate bill leaves more Americans without coverage than the House bill, but in sum I think the Senate bill is slightly more friendly to pro-life concerns than the House bill.

You may, of course, come to a different conclusion than me on this. Fair enough…these are difficult prudential determinations. But, please think long and hard before ascribing perjorative motives to me or the other pro-life signers who have struggled mightily with the moral implications of these two bills.

Best wishes,

Stephen Schneck

 

Thanks again to all who are taking part in this important dialogue, and especially to Steve,

Bob

Catholic Hospitals for the Health Insurance Reform Bill

Here: http://hosted.ap.org/dynamic/stories/U/US_HEALTH_OVERHAUL_ABORTION?SITE=TXHAR&SECTION=HOME&TEMPLATE=DEFAULT

Nuns for the Bill

Mar 17, 10:14 AM EDT Catholic nuns urge passage of Obama's health bill By RICARDO ALONSO-ZALDIVAR Associated Press Writer

WASHINGTON (AP) -- Catholic nuns are urging Congress to pass President Barack Obama's health care plan, in an unusual public break with bishops who say it would subsidize abortion. Some 60 leaders of religious orders representing 59,000 Catholic nuns Wednesday sent lawmakers a letter urging them to pass the Senate health care bill. It contains restrictions on abortion funding that the bishops say don't go far enough. The letter says that "despite false claims to the contrary, the Senate bill will not provide taxpayer funding for elective abortions." The letter says the legislation also will help support pregnant women and "this is the real pro-life stance."

Some interesting news from the legislative front

NYT online, March 17, 2010, 11:55 am

Thanks for Rick's Further Thoughts, and a Few Observations on the Legislative Process for Father Araujo

Hello again, All,

And many thanks to Rick for his further thoughts.  It's lovely to see that we're once again more or less on the same page, even if understandably breaking a bit differently on how some of the inherently uncertainty-fraught empirical probabilities are apt to resolve.  'That's what makes horse races,' as 'they' say.

On Father Araujo's queries concerning the legislative process, I've a few tentative thoughts. 

The first is that I doubt that Catholic legal, political, or moral theory says much that is fundamentally different from what more garden variety democratic theory says on the matter of legislative processes.  But I would be happy to be set straight if I'm wrong about this. 

The second is that I would be surprised if the Catholic tradition, like democratic political theory more generally, did not presumptively favor majoritarian legislative decision-making, with any departure from that default setting requiring justification by reference to some extraordinary circumstance.  (A classic case in point would of course be that circumstance in which certain fundamental individual rights are at stake, which even a supermajority of everyone-save-the-affected party cannot legitimately disregard.)  Personally, I think that most of the anti-majoritarian rules of the Senate are outmoded, rooted in earlier times when the Senate was truly deliberative, collegial, and significantly more insulated from political hackery than the House.  Those days appear to be gone, and we seem as a polity to have evolved into something much more like a parliamentary democracy than we used to be.  There accordingly seems to be significantly less 'benefit' purchased with that 'cost' to democratic governance which are the antiquarian Senate rules.   

The third is that Father Araujo is surely correct that legislators ought to know what they are voting on, and that a bill that occupies thousands of pages in its articulation is apt to be difficult to read carefully in a short span of time.  Regrettably, however, just about all Congressional legislation for many decades now seems to sprawl over thousands of pages.  I don't know that there's any way round this any more than there seems to be any plausible way to comport in the old fashioned (pre-20th century) way with the pre-modern understanding of the 'Non-Delegation Doctrine.'  I suspect that we're stuck, for better or worse, with simply working to keep such changes within reasonable bounds, more or less as we've done in the delegation context throught the APA.

My fourth observation seques immediately from the third:  Over the past couple of decades, it seems to me to have become common for a side of the Congressional aisle that is poised to lose a battle over charged legislation to adopt a troublingly disingenuous tactic.  This is (a) to seize upon some quirk of the legislative process that is quite familiar to all members of Congress but not so well known to the general public,  (b) observe that the winning side has made use of this quirk, and then (c) suggest that in doing so the winning side has done something highly irregular or even extra-constitutional.  Both major political parties, alas, have resorted to this tactic -- the Dems, unsurprisingly, when Republicans have held Congress and perhaps White House, and the Republicans, unsurprisingly, when Democrats have held Congress and perhaps White House.  And I think it deplorable, amounting to the willling sacrifice of longterm confidence in, and even acceptance of, constitutional government in order to reap cheap short term public opinion games.  (A political analogue to much Wall Street trading activity.)

Here are three cases in point that seem to me to have been salient of late:

First, highlighting the 'bigness' of 'big' bills and suggesting that 'bigness' of this sort is both unusual and tantamount to 'socialist' 'takeover' of something:  During the President's 'health care summit' a few weeks back, Rep. Cantor ostentatiously stacked the pages of the many-thousand page legislation up on a table, as if to suggest that there is something unprecedented about the size of this complex piece of legislation.  Unstated here was that similarly sized stacks could have been piled up in connection with countless 'big' pieces of Democratic and Republican and Bipartisan legislation alike over the past 70 years or so.

Second, suggesting that resort to budget reconciliation as a means around frivolous use of the anti-majoritarian Senate filibuster is somehow nefarious.  This suggestion was, of course, all the rage just a few weeks ago.  But a look at all past uses of budget reconciliation since this procedure was introduced about thirty years ago quickly reveals that (a) Republican Congresses have employed this procedure twice as often (ten times) as have Democrats (five times), (b) Republican Congresses have employed the procedure in three of their ten resorts to it to increase the size of the federal budget enormously -- ironic, of course, in view of current Republican piety about budget balancing -- while Democratic Congresses have employed it in all five of their resorts solely to decrease -- in two or three of those cases, enormously -- the federal deficit, and (c) all past Republican and Democratic resorts to reconciliation have been just as 'social issue' involving as is the currently contemplated Democratic resort to this process.  If you find this surprising, you might find even more astonishing the fact that the data I report here comes from Norman Ornstein of the American Enterprise Institute, writing in conjunction with a couple of others.  Here is the fuller story, still summarized: http://www.dorfonlaw.org/2010/03/republican-deficits-and-budget.html .

Third, suggesting that resort to 'deem and pass' is somehow unconstitutional or uniquely 'Democrat' in character.  This canard is the new 'reconciliation.'  And while I have no particular attachment to this procedure -- I think reconciliation is going to be necessary henceforth, now that we have in effect transitioned to being a parliamentary democracy, but I think deem and pass likely always to be less common -- it is definitely an error to associate it uniquely with one party.  Of five resorts to this process in the past 20 years, two have been by Democratic Congresses, three by Republican Congresses.  The first two of those uses -- in 1989 and 1993 -- were by Democrat-controlled Congresses to pass smoking bans on domestic airline flights and the Family and Medical Leave Act, respectively.  The next three of those uses -- in 1996, 1997, and 2005 -- were by Republican-controlled Congresses to confer an ultimately-deemed-unconstitutional line-item-veto power on the President, to prohibit use of modern statistical sampling techniques in the census, and to trim Medicaid, welfare, and student loan program growth, respectively. 

I emphasize once more that neither major political party appears to have a lock on resort to the unfortunate tactic I describe here, but it is common for the losing side to be that which employs it.  Currently that is the Republicans.  When one day in future the Democrats do the same, it will be just as deplorable.  It would be lovely were the general public sufficiently knowledgable about the legislative process as to render the tactic less politically useful to losing sides.  But I won't now indulge that Quixotic hope.

Thanks as ever,

Bob  

Stop evangelizing!

In the New York Times, Robert Wright complains that Christian missionaries are at least partially responsible for Christian-Muslim tension when they try to establish common ground with Muslims in order to bring them to Jesus.  Some of the missionaries even call themselves "Muslims" because it means "one who surrenders to God."  Then Wright asks:

Let’s put the shoe on the other foot. Suppose you were a Christian parent in America and you heard that someone who called himself a Christian had bonded with your son via genial Bible talk and then tried to convert him to Islam. That would be annoying, right? Might even lead to some blowback?

Would I find it annoying?  Maybe, depending on how old my son is and the context of the conversation.  Blowback?  Hmm . . like seeking to restrict non-Christians from using the word "God," rioting and killing Muslims?  Probably not.  I won't defend every tactic employed by Christian missionaries, but if we cannot draw any meaningful distinction between the efforts by some Muslims to impose a set of truth claims through law and/or violence and the efforts by some Christians to persuade non-Christians to embrace a set of truth claims through personal evangelism, we have a problem.

Another Pro-Life Coalition in Favor of Current Health Insurance Reform Legislation

Pro-life group urges Congress to pass Senate health care bill

By Thomas C. Fox

Created Mar 12, 2010

Twenty-five pro-life Catholic theologians and Evangelical leaders yesterday sent letters to members of Congress urging them not to let misleading information about abortion provisions in the Senate health care bill block passage of sorely-needed reform.

Catholics in Alliance for the Common Good, a Washington-based advocacy group, said that the Senate health bill upholds abortion funding restrictions and supports pregnant women.

The letter included a page by page analysis of the Senate bill as it pertains to abortion.

The group asked members of Congress “to make an informed decision about this legislation based on careful deliberation guided by facts.”

“We believe that the provisions below provide extensive evidence that longstanding restrictions on federal funding of abortion have been maintained. Furthermore, this bill provides new and important supports for vulnerable pregnant women,” the letter states.

The complete text of the letter follows:

Dear Member of Congress,

As Christians committed to a consistent ethic of life, and deeply concerned with the health and well-being of all people, we want to see health care reform enacted. Our nation has a rare and historic opportunity to expand coverage to tens of millions of people, make coverage more affordable for all families, and crack down on many of the most harmful practices of the health insurance industry.

We are writing because of our concern about the lack of clear and accurate information regarding abortion provisions in the health care reform bill passed by the Senate on December 24, 2009.

Reforming our health care system is necessarily complex, and the provisions related to abortion, or any other issue, require careful examination of the facts as they exist in the legislative language. We believe that the provisions below provide extensive evidence that longstanding restrictions on federal funding of abortion have been maintained. Furthermore, this bill provides new and important supports for vulnerable pregnant women.

Following is a comprehensive factual listing of all provisions related to abortion and positive supports for pregnant women in HR 3590, along with specific page references.

Abortion-Related Provisions Included in the Senate-Approved Health Care Reform Bill “Patient Protection and Affordable Care Act” (HR 3590 EAS/PP)

· Prohibits the Secretary of HHS from requiring the coverage of any abortion services as part of the essential health benefits for any qualified health plan offered in a state insurance Exchange (pg. 2070);

· Allows the insurance company to decide whether or not to include coverage of abortion services, including the Hyde abortion exceptions, in a qualified health insurance plan offered in a state insurance Exchange (pg. 2070);

· Prohibits insurance companies from using federal funds, including federal tax credits and cost-sharing assistance, to pay for abortion services except for those services allowable under the Hyde amendment (pg. 2071);

· Requires an insurance company that chooses to offer a plan in a State Exchange with abortion coverage, beyond the Hyde abortion exceptions, to collect a separate second premium payment from each enrollee for the cost of the abortion coverage (pgs. 2071-2072 & 2074-2075);

· Requires the insurance company to deposit all separate payments into a separate account that consists solely of abortion premium payments and that it is used exclusively to pay for such services (pgs. 2072-2074);

· Requires the state health insurance commissioners to ensure that insurance companies comply with these requirements in accordance with guidance and accounting standards set by the Office of Management and Budget and the Government Accountability Office (pg. 2075);

· Requires insurance companies that offer general abortion coverage as part of a qualified health plan to provide a notice of coverage in the summary of benefits and coverage explanation (pg. 2076);

· Allows states to pass a law prohibiting the inclusion of abortion coverage in plans offered in a state health insurance Exchange (pg. 2069);

· Requires the director of the Office of Public Management to ensure that there is at least one private, multi-state qualified health plan offered in each state insurance Exchange that does not provide coverage of abortion services beyond the Hyde exceptions (pgs. 2087-2088);

· Prohibits insurance companies offering qualified health plans from discriminating against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions (pg. 2076);

· Prohibits the preemption of state laws regarding abortion (pg. 2077);

· Maintains current Federal laws relative to conscience protection; willingness or refusal to provide abortion; and discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion (pg. 2077);

· Establishes and provides $250 million for programs to support vulnerable pregnant women (pgs. 2170-2173); and

· Increases the adoption tax credit and makes it refundable so that lower income families can access the tax credit (pgs 2400-2407).

We are now at a critical moment in the history of our country. More than 30 million Americans may finally gain access to a health care system that is affordable -- providing families, children and seniors with fundamental care that is essential to human dignity. We respectfully ask that you make an informed decision about this legislation based on careful deliberation guided by facts.

Sincerely,

Morna Murray
President
Catholics in Alliance for the Common Good

Ron Sider
President
Evangelicals for Social Action

Rev. Jim Wallis
President and CEO
Sojourners

Stephen F. Schneck
Director, Institute for Policy Research & Catholic Studies
The Catholic University of America

Joel Hunter
Senior Pastor
Northland Church

Dr. David P. Gushee
Chair
New Evangelical Partnership for the Common Good

David O’Brien
Professor of Faith and Culture
University of Dayton

Francis Xavier Doyle
Former Associate General Secretary
U.S. Conference of Catholic Bishops

Jean Stokan
Director
Institute Justice Team
Sisters of Mercy of the Americas

Lisa Cahill
Professor of Theology
Boston College

Bryan N. Massingale, S.T.D.
President, Catholic Theological Society of America
Associate Professor of Theology
Marquette University

David DeCosse
Director of Campus Ethics Programs
Markkula Center for Applied Ethics
Santa Clara University

Nicholas P. Cafardi
Dean Emeritus and Professor of Law
Duquesne University School of Law

Dennis M. Doyle
Religious Studies
University of Dayton

Terrence W. Tilley
Avery Cardinal Dulles, S.J. Professor of Catholic Theology
Chair, Theology Department
Fordham University

Richard Gaillardetz
Murray/Bacik Professor of Catholic Studies
University of Toledo

Vincent J. Miller
Professor
Department of Religious Studies
University of Dayton

Alex Mikulich
Research Fellow
Jesuit Social Research Institute
Loyola University

Sandra A. Yocum, Ph.D.
Chair of Religious Studies
University of Dayton

Rev. Dr. Cynthia L. Hale
Senior Pastor
Ray of Hope Christian Church, Decatur, GA

Dr. Barbara Williams Skinner
President
Skinner Leadership Institute

Cheryl Bridges Johns
Professor of Christian Formation & Discipleship
Pentecostal Theological Seminary

Brian McLaren
Author, Speaker and Founding Pastor
Cedar Ridge Community Church

Glen Stassen
Lewis B. Smedes Professor of Christian Ethics
Fuller Theological Seminary

Lisa Sharon Harper
Executive Director, NY Faith & Justice
Author, Evangelical Does Not Equal Republican...or Democrat

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Healthcare reform and the Senate bill: more facts (because the facts matter)

Here,

here,

and here.

The second "here" is the new Commonweal editorial on the bill.

Does Catholic Legal Theory have something to say about the legislative process?

 

 

I am one of those folks who thinks that the parliamentary process of legislation necessitates the deliberation of texts so that legislators and citizens can know, if they read it, what pending legislation says and what it does not say. This is a point I have been making in my legislation courses that I have taught over the past twenty-four years. I find it of great concern when legislators do not know on what they are voting regarding the content of the text. I realize that there are occasions, especially when legislative proposals are hundreds or thousands of pages long (such as the stimulus package of last year) that legislators’ familiarization with the text is difficult to master. But this is not a good pretext to excuse legislators from having the opportunity to know on what it is that they are committing the nation whom they represent. Texts and familiarization with what they contain are vital to law-making and to the democratic process to which we citizens entrust to our legislators.

So, I, for one, am concerned about the parliamentary process being considered by the Congress, the so-called “deem and pass” method, where a vote on a concrete text may be bypassed in favor of a parliamentary fiction that could nevertheless result in the passage of a law whose content is unknown at the time the legislators are committed to “passage”. Speaker of the House Nancy Pelosi recently was quoted as saying, “But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” [news clip Download Breitbart.tv » Nancy Pelosi We Need to Pass Health Care Bill to Find Out What’s In It] I may be in a minority, but I think it important to know what is in the bill prior to its passage rather than after its “adoption”. In my estimation, the Speaker’s approach intensifies rather than eliminates controversy and its fog.

Words in bills mean something; words in laws mean something. They are not fluff; they are substance with serious legal implications for the future.

As I understand the procedural matter, the House is gearing up for passage of a Senate “bill” which has not been finalized. I am putting aside Constitutional concerns of Article I for the time being and focusing on a parliamentary maneuver to adopt a future text that does not yet exist but whose “adoption” has sweeping and irreversible implications on the fact that Members of the House and citizens may be committed to a bill (and, therefore a law) whose language does not exist at the time of passage. [See March 16, 2010 Associated Press report here, which further states, “House Speaker Nancy Pelosi wants to shield lawmakers from having to vote directly on the Senate-passed health care bill because it’s unpopular with House Democrats. ‘Nobody wanted to vote for the Senate bill,’ Pelosi, D-Calif., explained...” I find this a poor excuse for passing a “bill” which may be unpopular, especially when its language is unknown because it does not yet exist.]

A further concern I have is that some elements of existing legislative proposals may well find their way into any future law regarding health care that the Congress may soon pass. I am sure we are all grateful to Michael Perry for his bringing to our attention the analysis of Professor Timothy Jost of the Washington and Lee School of Law countering the position of the United States Conference of Catholic Bishops. In his memo Professor Jost makes the claim that, “The Senate bill (1303(b)(1)(A)(i)), like the House bill (222(e)), provides that qualified health plans may not be required to provide abortion as an essential benefit.” But I find Professor Jost’s argument unpersuasive and discomforting.

True, the final language that may eventually be adopted may not “require” something, but that does not mean that it will not be “permitted.” Why do I suggest this? Again, my teaching legislation courses for almost a quarter of a century reminds me of what happened to Section 703(j) of Title VII of the 1964 Civil Rights Act that was at the heart of the legal controversy in Weber v. United Steelworkers (1979). The applicable legislative text (known by or at least available to the Congress at the time of the passage of this important legislation) stated that nothing contained in Title VII “shall be interpreted to require any employer...to grant preferential treatment...to any group because of the race...of such...group on account of” a de facto racial imbalance in the employer’s workforce. In writing for the majority, Justice Brennan went on to conclude that had Congress mean to prohibit all race-conscious affirmative action, it could have provided that Title VII would neither “require” nor “permit” racially preferential integration efforts. And so, I look at what Professor Jost has said and conclude: Congress may not be requiring “abortion as an essential benefit,” but, following Weber, it may very well permit “abortion as an essential benefit.”

Surely the matter of health-care legislation of the magnitude that Congress is considering demands a clear text known in advance of its deliberation and voting. If the Congress does not desire this, indisputably the American people deserve to know in advance how their elected legislators are making extraordinary laws without knowing what is in them. Perhaps some members of Congress see no need in putting the American people on notice of what may be expected and required of them, but I think the American people deserve to know this before it is too late.

 

RJA sj

 

Some more health-insurance-and-abortion thoughts in response to Bob

Thanks, as always, to Bob for the interesting conversation.  A few quick (but, I hope, not too quick!) thoughts in response:

First, Bob asks:

Why would we ever think that assisting the poor in the purchase of what the non-poor already purchase -- comprehensive health insurance policies -- would entrench the constitutionally permissive abortion regime?  If we're actually concerned with the entrenching effects that private-market-offered health insurance policies, most all of which cover abortion, have on the legal regime concerning abortion, why don't we call for regulation of those insurance companies, all of which currently enjoy statutory exemption from federal regulation, requiring them to offer policies that do not cover abortions in addition to what ever policies they offer that do cover abortions?

The second sentence raises (to me) interesting questions about the relevance of the fact that, under the proposed health-insurance proposals, people would be required to buy insurance.  But Bob's main question, it seems to me, is in the first sentence:  My thoughts (which might be mistaken, of course) are that we might very well think that increasing the extent to which the government helps to create expectations regarding the availability of (indirectly subsidized) abortions might well help to entrench the current legal regime.  Additionally, I worry that the political experience of all this -- that is, the experience of seeing that the prospect of increased regulations of (or, reduced indirect subsidization of) abortion is so unacceptable to the Democratic leadership that many of them seem willing to risk  losing the opportunity to enact the President's signature piece of legislation -- could, for many, result in a hardening of their attachment to the idea of constitutionally protected abortion rights.  Is this a "speculative" concern?  Absolutely.  I'm not sure.  But, I worry about it.  (Some, of course -- Michael Sean Winters, over at America, for example -- think it will have the opposite effect.  I hope he is right!).

With respect to his second point -- about the best terminology to use -- I guess it is not clear to me that "subsidy" necessary says anything about intent, but I don't have any objections to the terms he usees . . . so long as we do not forget that for many (most?) of the Democrats in Congress, it is a desired side-effect of this legislation that access will be increased to abortion-services.  I understand, of course, that Bob and I are in the same place, and regret equally any such side-effects of health-insurance regulation.

Finally, I certainly hope that neither Bob nor anyone else "heard" me to be saying that the intent / double-effect questions are not interesting or important.  Yes, absolutely, a conscientious legislator would need to engage these questions.  My point is just that I am happy to assume, for the sake of discussion, that a pro-life, conscientious legislator could in good faith come to the conclusion that he or she is not culpable for any bad abortion-related side-effects of what he or she thinks is, on balance, a good piece of policy.  That such a legislator could avoid culpability, though, would not mean -- it seems to me -- that there are not serious pro-life concerns about the enactment of the policy.

"New Hope" for school choice and Catholic schools in DC?

Perhaps, the Washington Post reports / editorializes:

THE D.C. Opportunity Scholarship Program may finally get the attention it is due on the floor of the Senate. Sen. Joseph I. Lieberman (I-Conn.) plans to offer an amendment to the Federal Aviation Administration reauthorization bill that would continue federally funded vouchers for low-income students attending private schools in Washington. This could well be the program's last chance, so it is time to separate fact from fiction about this important initiative.

Mr. Lieberman's proposal would provide for another five years and -- unlike the disappointing "compromise" touted by the Obama administration -- would permit the enrollment of new students. With a vote possible as early as Tuesday, opposition groups are stepping up their attacks. The National Education Association claims the program "has yielded no evidence of positive academic impact on the students the program was designed to assist." Americans United for Separation of Church and State says vouchers have "taken money away from the D.C. public schools." Others, including the American Civil Liberties Union, say it's improper to use taxpayer dollars to fund the religious education of children.

To those who claim that the program hasn't helped targeted students, we offer the results of the rigorous scientific study that Congress insisted on when the pilot program was launched in 2004. "The D.C. voucher program has proven to be the most effective education policy evaluated by the federal government's official education research arm so far," wrote Patrick J. Wolf, principal investigator for the Education Department's study. He went on to say: "in my opinion, the bottom line is that the OSP lottery paid off for those students who won it. On average, participating low-income students are performing better in reading because the federal government decided to launch an experimental school choice program in the nation's capital." . . .

With all the complaining about "partisan" gridlock, and the purported desire for "bipartisan" cooperation, one would think / hope that this could be an opportunity to do some good.  Spread the word!

The Problem with 'Abortion Subsidies' & Other Intention-Suggestive Terms: And a 'Thank You' to Rick Garnett

Hello, All,

And many thanks to Rick for the clarification in his response to my earlier post yesterday.  I had not realized that Rick is uninterested in double effect analysis of legislators' votes -- perhaps because I've only recently begun following and contributing to this weblog -- so apologies for any implication that Rick might be interested in something that he's not.  I do nevertheless have three quick comments, while I am at it here, to add in response to Rick's helpful post yesterday:

1)  I certainly agree with Rick that the factors he adduces are relevant to the second, 'proportionality' step of a double effect analysis.  I also, however, think it quite 'speculative' and indeed indeterminate, pending careful empirical investigation or, failing that, consideration of widely observed causal relations of the sort implicit in Rick's suggestions here, to suppose that a health insurance reform bill that simply enables some 20 to 30 million more people than presently are able to purchase insurance from private insurers all of which seem to have been independently offering abortion coverage (even to most if not all of us here at MoJ, I suspect, as noted yesterday) for decades with no calls from conservatives that they be required also to offer non-abortion-covering policies, would somehow further solidify 'the current legal/constitutional regime' on abortion.  Why would we ever think that assisting the poor in the purchase of what the non-poor already purchase -- comprehensive health insurance policies -- would entrench the constitutionally permissive abortion regime?  If we're actually concerned with the entrenching effects that private-market-offered health insurance policies, most all of which cover abortion, have on the legal regime concerning abortion, why don't we call for regulation of those insurance companies, all of which currently enjoy statutory exemption from federal regulation, requiring them to offer policies that do not cover abortions in addition to what ever policies they offer that do cover abortions?   

2)  Insofar as any of us is uninterested in the motives of legislators, I do think it behooves us to avoid locutions like 'abortion subsidies' in our posts, which latter phrase strikes me as strongly suggesting, on at least one quite natural reading, the deliberate targeting of abortion itself as something to be subsidized.  Much better to say something like 'abortion-affecting,' or 'possibly abortion-affecting' legislation, which keeps clear that we're speaking of collateral effects rather than intended effects.  (That is of course why I keep using such phrases.)  I think similar remarks hold for such phrases as 'implicit endorsement of the notion that (elective) abortion is health care,' which figures in the last line of Rick's post, and perhaps even of the phrase 'alleged health-care-reform measure,' which figures in the last two lines of that post.  If it really is solely collateral effects that concern us, our descriptive lingo, it seems to me, ought scrupulously to reflect that fact.  (I see no endorsement of abortion at all here, incidentally, any more than I see vouchers as implicit federal endorsements of 'Popery.')

3)  Finally, a brief word on why I myself am interested in the first -- intention-concerned -- step of double effect analysis along with the second such step in this context:  My aim is to think through the moral and legal significance of the proposed health insurance reform legislation now before Congress, from the point of view of the conscientious legislator.  Were I such a legislator, and were I a Catholic one who took both the Church's social justice teachings and its abortion teachings seriously, could I vote in favor of the legislation now before Congress?  It seems to me that in order to reach 'yes' here, I must first assure myself that I would not in thus voiting be intending to aid or abet abortion.  Only after reaching confidence on that question could I then proceed to step two and conduct the inherently probablistic 'proportionality' sort of analysis.  Why am I concerned with these questions?  Easy:  First, in hopes of contributing to a sort of public brainstorming together, as it were, with some legislators of conscience who might be reading MoJ and deliberating internally even now about how to vote.  (Bart Stupak, are you out there?)  And second, in hopes of doing the same with all other participants in our community, many of whom might themselves be wondering whether to support, oppose, or remain on the fence in respect of the current proposed legislation.   

Thanks again to Rick and to all of you who are reading,

Bob    

"Michigan: Trucker Guilty in Killings"

Get Religion notes that the trial and conviction of Harlan Drake, killer of anti-abortion protester James Pouillon, received curiously little media coverage.

Dana Gioia wins Laetare Medal

I have to admit that, for me, Notre Dame's Laetare Medal won't shine quite as brighly as it should until Mary Ann Glendon accepts it.  That said, I am pleased to report that Fr. John Jenkins has announced that "Dana Gioia, poet and former chairman of the National Endowment for the Arts, will receive the University of Notre Dame’s 2010 Laetare Medal."

“In his vocation as poet and avocation as arts administrator, Dana Gioia has given vivid witness to the mutual flourishing of faith and culture,” said Notre Dame’s president, Rev. John I. Jenkins, C.S.C. “By awarding him our University’s highest honor we hope both to celebrate and participate in that witness.”

A native of Hawthorne, Calif., Michael Dana Gioia was educated in Catholic elementary and secondary schools before, as he has joked, he “traded down” for Stanford University, from which he was graduated in 1973, and Harvard University, from which he earned a master’s degree in comparative literature in 1975, studying with the classical translator Robert Fitzgerald and the poet Elizabeth Bishop. He returned to Stanford to earn a master’s of business administration degree in 1977.

Even while pursuing a business career from 1977 to 1992 with the General Foods Corp. in New York, where he served as vice president of marketing, Gioia wrote and published widely. He also served as poetry and literary editor for numerous magazines and won recognition for his own poems, including the Frederick Bock Award for Poetry in 1986 and the 1992 Poet’s Prize. He left General Foods in 1992 to begin writing full time.

Gioia has published three full collections of poetry, including “Interrogations at Noon,” which won the 2002 American Book Award. He also has published eight smaller collections of poems, two opera libretti and numerous translations of Latin, Italian and German poetry. In addition to editing more than 20 literary anthologies, he also writes essays and reviews in such magazines as The New Yorker, the Atlantic, the Washington Post Book World, the New York Times Book Review and Slate. His 1992 volume “Can Poetry Matter?” – which was widely discussed in both the United States and abroad – often is credited with helping revitalize the place of poetry in American public life.

From 2003 to 2009, Gioia served for two terms as chairman of the National Endowment for the Arts. He is credited with revitalizing an agency through which he sought to strengthen bipartisan support for public funding of arts and arts education, to champion jazz as a uniquely American art form, to promote Shakespeare readings and performances nationwide, and to distribute NEA grants more widely.

In a lecture in 2000, Gioia argued that art and Catholicism mutually flourish because “the Catholic, literally from birth, when he or she is baptized, is raised in a culture that understands symbols and signs. And it also trains you in understanding the relationship between the visible and the invisible. Consequently, allegory finds its greatest realization in Catholic artists like Dante.”

A (late) response to Bob

In the ongoing conversation about the health-insurance-reform debate and abortion, Bob responds here to my post (here).  Bob writes:

[T]he phrase 'abortion subsidies' that occurs therein is ambiguous as between intended financing of abortion on the one hand, and collateral effects on the disposable income of people who might seek abortion on the other -- precisely the distinction that step one of a double effect inquiry aims to keep clear.  (That is in view of the decisiveness, for purposes of moral evaluation, of intentions in individuating morally evaluable actions -- including those actions which are votes on legislation.) . . .

I had intended (but failed, obviously) to make it clear that I was not addressing the "intended financing of abortion."  I have said -- enough times to bore regular MOJ readers to death, I fear -- that I am not particularly interested in the double-effect analysis of legislators votes.  I assume that some legislators *want* to fund abortions, others don't care if they fund abortions or not, others are willing to fund them for the sake of achieving what they regard as another good, others really, really hope they are not indirectly funding them, etc., etc.  Like Rob, I am "thinking about collateral effects."  Like Rob, I think it makes sense to ask "how a legislator ought to factor intervening choices into the inherently probablistic 'cost benefit analysis' that is a double effect stage 2 inquiry."  I would say, though, that this "inherently probabilistic 'cost benefit analysis'" must include, not only considerations relating to the number of abortions that are committed, but also the effect on the current legal / constitutional regime -- and on the public's support for such a regime -- of including, in an alleged health-care-reform measure, even indirect financial support for abortion, and even implicit endorsement of the notion that (elective) abortion is health care.

A bit more on Marty, Glen Beck, and Social Justice

So, I'm not a fan of Glen Beck, and I am a fan (most of the time) of Martin Marty.  I would hope that all those who are outraged by Beck's recent (silly) statements regarding churches that preach "social justice" would also be outraged by the (much more common, in my experience) suggestions that Christians should abandon traditions, denominations, and churches whose commitment to an authentically Christian moral anthropology leads them to hold "traditional" views on matters of religious liberty, the role of the state, human sexuality, and the equal dignity of unborn children?  After all -- for Catholics, anyway -- it all comes from the same place.  No?  

Others respond to T.R. Reid: "Why Universal Health Care Will Not Reduce Abortion Rates"

Michael New (here) writes:

[S]upporters of Obama’s health-care reform are now changing their approach and going on the offensive. In an editorial that ran in the Washington Post on Friday, author and journalist T. R. Reid argued that universal health care will lower the abortion rate in the United States. Using data from the United Nations, his argument relies on the fact that several European countries with universal health care also have lower abortion rates than the United States does.

However, Reid’s analysis is superficial and unconvincing. First, abortion rates in the United States are lower than what the UN statistics indicate. In 2005, the most recent year for which data is available, the U.S. abortion rates reported by the Alan Guttmacher Institute and the Centers for Disease Control are 19.4 and 15, respectively. As such, the incidence of abortion in the United States is comparable to that of many European countries with universal health care, including Great Britain, France, and Sweden. Furthermore, even though Australia and New Zealand offer more generous public health benefits than the United States does, their rates of abortion are similar to ours.

More importantly, simply comparing the U.S. abortion rate to abortion rates in countries with universal health care is misleading. The United States has a far more racially diverse population than many of these European countries, and statistics show that a number of minority groups have higher-than-average abortion rates.

Furthermore, the experience of states that have offered more generous provision of public health benefits is instructive. For instance in 1974, Hawaii passed legislation requiring all employers to provide relatively generous health care benefits to any employee who works 20 hours a week or more. Since that time, Hawaii has consistently had one of the lowest rates of uninsured adults in the country. However, according to data from the Alan Guttmacher Institute, Hawaii’s abortion rate consistently exceeds the national average

An even better example comes from Tennessee. In 1994, Tennessee launched an ambitious public insurance program to cover its uninsured. TennCare, as it is called, expanded Medicaid to cover people who couldn’t afford insurance or who had been denied coverage by an insurance company. With an initial budget of $2.6 billion, TennCare quickly extended coverage to an additional 500,000 people by making access to its plans easy and affordable. The program, however, became so expensive that Tennessee was forced to scale it back in 2005.

Despite the fact that Tennessee invested heavily in more generous public health benefits, their abortion rate has not changed much since the mid 1990s. In fact, the decline in Tennessee’s abortion rate is actually well below the national average. Between 1995 and 2005, the Guttmacher Institute reports that the national abortion rate fell by 13.8 percent. However, in Tennessee the abortion rate fell by only 3.3 percent. Overall, it seems clear that more generous health benefits in Tennessee did little to reduce the incidence of abortion.

More importantly, there exist many reasons current health-care reform proposals would actually increase abortion rates. For instance, the legislation which passed the Senate and which Democrats are trying to push though the House includes public funding for abortion. This should concern pro-lifers for several reasons. First there is plenty of evidence that government subsidies for abortion increase abortion rates. Second, if abortion becomes a federally mandated benefit, that could jeopardize a number of state-level pro-life laws — including parental-involvement and informed-consent laws. Finally, one reason why the abortion rate in the United States has fallen is the substantial decline in the number of abortion providers. A steady flow of federal funds to abortion providers could stem or even reverse this trend.

More on Citizens United: A reponse to Michael

I do not think my views about the Citizens United decision should divide Michael and me, because it seems to me that the theory of judicial review (and constitutional interpretation) that Michael defends in his recent books point in the same direction as the Court majority.  But -- and this is awkward, I admit, for me! -- Michael (the author of those books) disagrees.  Oh well.  That said, I want to echo Michael again:  Facts matter.  And, as my colleague, election-law-expert Lloyd Mayer wrote:

There are several reasons why the[] worst case scenarios are unlikely. First, the decision does not threaten the longstanding prohibitions on corporate contributions to candidates or probably even the more recent prohibition on such contributions to political parties. . . .

Second, corporations were able to engage in a significant amount of election-related spending even before this decision. . . .

The decision therefore does not mean we will suddenly see a flood of election spending by big corporations such as GE or Microsoft. A more likely scenario is that smaller corporations, without the resources needed to legally avoid the prohibitions that Citizens United overturned, may now enter the election arena. . . .

At the end of the day, the key question will be whether we the voters, who are the targets of all this spending, will be able to rise to the challenge of filtering this increased volume of messages. Regardless of how much corporations can and do spend, it is up to us as individual citizens, not any corporation or union, to decide which candidates we elect.

Indeed.

T.R. Reid responds to Rick Garnett

[Whether he responds effectively or not, you decide.]

Washington Post, 3/14/10

Universal health care tends to cut the abortion rate
T.R. Reid

Countless arguments have been advanced for and against the pending bills to increase health-care coverage. Both sides have valid concerns, which makes the battle tight. But one prominent argument is illogical. The contention that opponents of abortion should oppose the current proposals to expand coverage simply doesn't make sense.

Increasing health-care coverage is one of the most powerful tools for reducing the number of abortions -- a fact proved by years of experience in other industrialized nations. All the other advanced, free-market democracies provide health-care coverage for everybody. And all of them have lower rates of abortion than does the United States.

This is not a coincidence. There's a direct connection between greater health coverage and lower abortion rates. To oppose expanded coverage in the name of restricting abortion gets things exactly backward. It's like saying you won't fix the broken furnace in a schoolhouse because you're against pneumonia. Nonsense! Fixing the furnace will reduce the rate of pneumonia. In the same way, expanding health-care coverage will reduce the rate of abortion.

At least, that's the lesson from every other rich democracy.

The latest United Nations comparative statistics, available at http://data.un.org, demonstrate the point clearly. The U.N. data measure the number of abortions for women ages 15 to 44. They show that Canada, for example, has 15.2 abortions per 1,000 women; Denmark, 14.3; Germany, 7.8; Japan, 12.3; Britain, 17.0; and the United States, 20.8. When it comes to abortion rates in the developed world, we're No. 1.

No one could argue that Germans, Japanese, Brits or Canadians have more respect for life or deeper religious convictions than Americans do. So why do they have fewer abortions?

One key reason seems to be that all those countries provide health care for everybody at a reasonable cost. That has a profound effect on women contemplating what to do about an unwanted pregnancy.

The connection was explained to me by a wise and holy man, Cardinal Basil Hume. He was the senior Roman Catholic prelate of England and Wales when I lived in London; as a reporter and a Catholic, I got to know him.

In Britain, only 8 percent of the population is Catholic (compared with 25 percent in the United States). Abortion there is legal. Abortion is free. And yet British women have fewer abortions than Americans do. I asked Cardinal Hume why that is.

The cardinal said that there were several reasons but that one important explanation was Britain's universal health-care system. "If that frightened, unemployed 19-year-old knows that she and her child will have access to medical care whenever it's needed," Hume explained, "she's more likely to carry the baby to term. Isn't it obvious?"

A young woman I knew in Britain added another explanation. "If you're [sexually] active," she said, "the way to avoid abortion is to avoid pregnancy. Most of us do that with an IUD or a diaphragm. It means going to the doctor. But that's easy here, because anybody can go to the doctor free."

For various reasons, then, expanding health-care coverage reduces the rate of abortion. All the other industrialized democracies figured that out years ago. The failure to recognize this plain statistical truth may explain why American churches have played such a small role in our national debate on health care. Searching for ways to limit abortions, our faith leaders have managed to overlook a proven approach that's on offer now: expanding health-care coverage.

When I studied health-care systems overseas in research for a book, I asked health ministers, doctors, economists and others in all the rich countries why their nations decided to provide health care for everybody. The answers were medical (universal care saves lives), economic (universal care is cheaper), political (the voters like it), religious (it's what Christ commanded) and moral (it's the right thing to do). And in every country, people told me that universal health-care coverage is desirable because it reduces the rate of abortion.

It's only in the United States that opponents of abortion are fighting against expanded health-care coverage -- a policy step that has been proved around the world to limit abortions.

T.R. Reid, a longtime correspondent for The Post, is the author of "The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care."

Establishment and State Action

Many MOJ readers may want to read pages 1278-1290 of the March issue of the Harvard Law Review:  "The State Action Doctrine and the Establishment Clause" ... which is part of a long Developments Note:  "Developments in the Law--State Action and the Public/Private Distinction," 123 HLR 1248 (2010).

"Obvious"?

Michael agrees (I gather) with the following statement of Cardinal Hume:

“If that frightened, unemployed 19-year-old knows that she and her child will have access to medical care whenever it’s needed, she’s more likely to carry the baby to term. Isn’t it obvious?”

Is the suggestion that, because this observation is "obvious", that the current health-insurance-reform proposal(s) will / might / could reduce abortions and -- putting aside non-abortion-related doubts about the wisdom / efficiency / costs of these proposal(s) -- should / may / must therefore be supported s about the wisdom of the bill?

I agree with Michael that "the facts matter" -- in this and all other debates -- and so I would love to know the answers to questions like, for example, "How does the marginal increase in the number of 'frightened, unemployed 19-year-old(s)' who do not at present have "access to medical care", who know that (several years from now, under the current proposals) '[they] and [their] child[ren] will have access to medical care', and who therefore might choose not to abort their children compare to the marginal increase in the number of women who will abort their children -- and who otherwise might not -- if those abortions are (directly or indirectly) subsidized?"  I do not know the answer to this question.

What would Jesus do?

Not, I think, what Archbishop Chaput is doing.  But decide for yourself:  read this article.