Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, December 20, 2009

How to Assess Abortion-Affecting (as Distinguished from '-Effecting') Legislation? A Request for Guidance from Rick

Hello again, All,

I'd like to request -- quite sincerely, with no intended irony -- a bit of guidance from Rick in connection with his post yesterday on the Senate's health insurance reform compromise. 

To situate what I wish more specifically to ask -- as well as to convince you that my query put to Rick is meant entirely without irony -- let me first say that I'm genuinely a bit on the fence about the legislation as it's now shaping up.  With the so-called 'public option' now ruled out of court, and with Medicare- or Medicaid-expansion as possible fallbacks also ruled out, I had grown rather less sympathetic to the cause even prior to yesterday's developments.  

Then came the deal cut with Senator Nelson yesterday.  That deal, I regret to have to say, leaves me in several respects not only more disappointed still, but downright disgusted:  Here I allude not simply to the special favors grabbed for Nebraska -- that sort of thing is alas more or less par for the course in our legislative process -- but the decision no longer to include language in the bill removing the exemption that insurance companies enjoy from antitrust legislation. 

So, as I say, I am now much less favorably disposed to this legislation than I was before.  That in turn means that I'm very near on the fence about it now.  For, as I have mentioned in previous posts, I'd found the proposed legislation disappointingly unambitious (particularly owing to single-payer's not being so much as considered) even before this past ugly week.  And it is the fact that I find much less good in this bill now than I'd once hoped to find which, in conjunction with a proposed mode of legislation-assessment that I'll propose below, invites my questions to Rick.

First, then, my questions, then a bit more about the mode of legislation-assessment pursuant to which they acquire their relevance.  What I am hoping to hear from Rick are responses to these two queries:  

1) First, what is it about the current Senate bill, with the concessions made to Senator Nelson, that moves it (in your words) 'dramatically in the wrong direction when it comes to protecting unborn children in law and even when it comes to the (different) goal of reducing the number of abortions?'  That is (I think), what is it about (again in your words) 'the Senate's proposal [that] will certainly increase "access" to abortion and so increase the number of abortions?'  And do you mean 'increase the number of abortions' relative to the number of abortions that occur now?

2) Second, if the new version of the legislation -- which 'pro-choice' types already are (not surprisingly) howling about -- does indeed increase access to abortion or the likely number of abortions, does that of itself suffice to underwrite a justifiable hope that the legislation not pass?  If so, why?  How, more generally speaking, should we articulate the standard pursuant to which a proposed bill's impact upon the incidence of abortion ought affect our decisions to oppose or support the bill?

Here is the best I can manage at the moment in answering the questions for myself.  Doubtless the muddle that is about to follow will illustrate why it is I am seeking Rick's guidance:

With respect to (1), my understanding is that the compromise that has been reached on abortion is that while those who receive federal aid in the purchase of health insurance may purchase what ever comprehensive health insurance policies are already on offer by private insurers, they will have to pay separately for what ever portion of any such policy covers abortion.  One payment would go into that portion of any insurance pool sequestered for abortions, and the other would go into the remainder of the insurance pool.  'One policy, two cheques' might accordingly be an apt slogan with which to describe the agreed regime. 

If this is correct, then there is an obvious sense in which the Nelson 'compromise' is mainly (if not solely) symbolic in character, at least if we ignore the 'transaction cost' introduced by the required additional transaction.  For money is of course fungible.  (As we are regularly -- and I think unhelpfully --told by Establishment Clause advocates who oppose school vouchers that can be redeemed at parochial schools.)  

I'm not sure, however, that this alone -- the confinement, in the main, to symbolic effect -- should render the Nelson compromise unacceptable to Rick.  For, to begin with, my impression is that Rick views the expressive function of the law as one of its more important roles, and the stigmatizing character of segregation in respect of funds and transactions surely expresses something important about the public status of abortion. 

And then, secondly -- and now rather more than symbolically alone -- the separate transactions requirement would seem likely to induce accounting-segregation within insurance companies where there was none before, a development that advocates for the unborn might find salutary in any event.  For that would facilitate better tracking of insurance company receipts for and expenditures on abortion, which information would presumably be of interest to pro-lifers in formulating future legislative efforts and strategies.  

With respect to my question (2), I cannot think Rick has in mind, as the appropriate standard of legislation-assessment, that any legislation which might increase the 'accessibility' of abortion is, by dint of that fact irrespective of any others, to be opposed.  For, after all, Eisenhower's proposed interstate highway system did that as well.  So, for that matter, do public roads, public electrical facilities, and all other public utilities.  Ditto, perhaps, the existence of police forces which render moving about our cities safer, and so on.  And I feel quite safe in presuming that Rick would not oppose public measures as benign as those I've just adduced simply by dint of their facilitating individual citizens' actions taken not only on innocent or honorable intentions, but also on less innocent or less honorable ones. 

How, then, should we articulate the principle on which to decide whether legislation that might cause there to be fewer or more abortions should be opposed or supported, if the causing of fewer or more abortions is not itself to be the sole basis upon which to decide?  If a proposed bill would cause there to be 10% fewer abortions undertaken at the choice of individuals who are not us, but also cause a rise of 50% in the number of people unable to find work owing to no fault of their own, would it be one that we should support?  If a proposed bill would wreak the contrary effects (10% more abortions chosen by people not us, 50% fewer people unable to find work through no fault of their own), would it be one we should oppose?  Same results if we dropped the 10% figures to 1%, and raised the 50% figures to 90%?  Why or why not?  

I've a couple of brief thoughts by way of provisional reply to my own queries, which I hope Rick might consider in framing his reply, and other MoJ'ers in framing any of their own:

The first thing I note is that the 'what standard?' query I'm raising here is reminiscent of that raised by the matters of 'proximate' and 'intervening' causation in tort.  We all know that my action's constituting a 'cause in fact' of another's harm cannot suffice to underwrite liability in tort, because there are just too many innocent causes in fact to render such a standard either just or workable.  Hence we require some more refined criterion or set of criteria if we are to select the subset of legally relevant causes from the full set of physical causes that jointly yield a harm. 

Perhaps the modes of thought in which we lawyers -- Catholic and otherwise -- engage by way of carrying out the task of determining 'proximate' causation, then, will be of help here.  So, symmetrically, might our thoughts in respect of 'intervening' causation in tort.  For of course none of us here at MoJ ever are speaking about actually procuring or refraining from procuring abortions ourselves, but rather are speaking about our and the law's effects upon others' procuring or refraining from procuring abortions.  And those others' decisions, it seems to me, might very well count as 'intervening' causes in the relevant sense when we ask by what criteria we should be judged in deciding to frame or support or oppose legislation. 

(I might add, while at it here, that the relevance of tort categories to our query here is likely no accident, given the Thomistic natural law antecedents of much of our commonlaw doctrinal tradition as explicated by such as the wonderful Professor Gordley, late of Boalt Hall and now of Tulane.)    

The second thing I note in connection with the 'by what standard?' query is that, if I may take up a suggestion made by our friend Steve Shiffrin in an earlier post, something akin to the Doctrine of Double Effect (DDE) might also be of assistance.  Here's how: 

First note again that, as suggested above, the 'we' of concern in the present inquiry are presumably to put ourselves in the shoes, not of somebody contemplating whether to procure an abortion (who presumably introduces an 'intervening cause' of the relevant harm, as mentioned above), but of somebody contemplating whether to draft, propose, support or oppose a piece of prospective legislation.  And what 'we,' in those shoes, will be prohibited under the DDE from intending will presumably be just the causing of abortions.  Hence if we do not draft, propose, or support legislation with the intention of causing, or in order to cause, abortions, then we pass the first, 'intending' limb of the DDE standard. 

If I have my DDE right, then passing that first limb will take us to a second:  Now we are to ask whether the good that a piece of prospective legislation can reasonably be expected to yield is 'proportional' to any ancillary ('ancillary' because unintended) harm it can reasonably be expected to wreak.  And if the ethical intuition that underwrites the 'intervening' and 'proximate' causation ideas in tort is not out of place here, then the fact that it will be individuals with wills of their own who procure or provide, or refrain from procuring or providing abortions, rather than 'us' as legislators or supporters of legislation which bears more effects than just abortion effects, will partly diminish the weight on the 'harm' side of the scales.  (The legislation will not 'directly,' or 'proximately,' wreak the harm that is abortion; only the procurers and providers do that.) 

What might this rough attempt at a standard of legislation-assessment yield by way of assessing the current rendition of the Senate bill?  I'll attempt an analysis along those lines in a second installment tomorrow, at least if the standard as thus proposed does not turn out, under criticism from Rick or other MoJ'ers, to be radically misguided or wildly implausible.  But first I want to see what Rick and the rest of you think of this DDE-as-inflected-by-tort-doctrine standard.  Is it sound?  If so, might it nonetheless be improved?  If not, is there something better that might be proposed? 

If my proposal is more or less sound, then I think what I'll have to do in my second installment is first say a bit about the (alas, rapidly dwindling) set of goods that the current health insurance reform legislation looks apt to yield, the importance of those goods, and the apparent likelihood of the legislation's actually yielding them if passed.  I'll then have to say a bit about such harms as the legislation looks apt to wreak, the importance of those harms, and the apparent likelihood of the legislation's actually wreaking them. 

In that latter connection I could especially use the help of Rick.  For as mentioned above, Rick seems pretty sure that the bill as it now stands is going to cause dramatically more abortions to be performed, and I will do well to learn why he thinks that before attempting to say with any confidence how heavy I think the harms side of the scale is apt to be.

Thanks again to Rick for his post, and to all for listening, and more tomorrow,



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