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.

Tuesday, December 22, 2009

Still Hoping for Guidance

Hello again, All,

Many thanks to Rick for taking notice of my earlier request, and of course it's altogether understandable that it might take a while to reply fully: 'Christmas-and-kids-stuff' is surely the best and most apt stuff right now!

For when there is more time, though, let me shorten and clarify my request for guidance from Rick. 


I really am seeking Rick's guidance -- and as I said before, I don't mean this ironically.  I'm genuinely trying to work out a workable mode of ethical assessment, suitable for conscientious Catholic lawyers and indeed citizens more generally, of proposed legislation that bears effects upon the incidence and what might be called 'public meaning' of abortion even while directed at ends that have nothing to do with abortion.  I am hoping for guidance from Rick because I take him to have such a mode of assessment, either well developed or partly developed or inchoate, while also being possessed of a clear head and a clean heart (probably clearer and cleaner than mine), and hence truly believe that I (and of course others) will benefit from his thoughts on this matter.  I take Rick to have such a mode of assessment, in turn, because he has opined about the pending health insurance reform legislation in part on the ground of what he suggests to be its effects upon the incidence and public meaning of abortion.  The problem for me, thus far, is that I do not yet know precisely what Rick's mode of assessment here is, and I hope to learn it in order that it might inform -- if not indeed even become -- my own. 


In his most recent post, I take Rick to be providing at least a hint of what his mode of assessment is when he says, 'focusing (for now) only on the question whether or not the proposal facilitates and entrenches the unjustified exclusion of unborn children from the protection and solicitude of the law -- it seems to me that the answer to this question is "yes", and I'm comfortable holding the view that this answer provides a sufficient reason to hope the bill does not pass.'  The problem for me is that this hint thus far still remains too open-ended for me to ascertain what Rick's method of assessment is.  And that is partly because I am still unsure of the sense in which Rick believes the current Senate bill 'facilitates and entrenches the unjustified exclusion of unborn children from the protection and solicitude of the law.'  I promise I am not trying to be coy or cute or ironic or anything of the sort when I say the I just do not know by virtue of what feature or features of the bill Rick thinks it to do these things. 

This is perhaps also the best place at which to offer a similar observation in response to Rick's reply to my first query in Sunday's post.  Rick says, 'Does Bob disagree with my view that the Senate proposal moves "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?"  How is my (initial and revisable) diagnosis mistaken?'  I must not have been clear in my post Sunday, for, truly, I did not mean to suggest that I find Rick's diagnosis mistaken.  I wanted to know, rather, on what basis Rick thought this.  I do not have an opinion yet as to whether Rick's diagnosis might be mistaken, or spot on, or partly right while nevertheless in need of some refinement, or [choose any number of predicate terms or phrases].  And that is because I do not yet know the diagnosis.  Without a 'how' or a 'which direction' here, I'm just not able to form an opinion about the 'wrong direction' claim, let alone about a 'dramatically' wrong direction claim. 

So I am still hoping, genuinely, that Rick will supply these details when there's time.  And there certainly will be time in which reaching the truth here still can be useful, given that the Senate bill, assuming it passes this Thursday, will still have to be reconciled to the much different House bill.


Finally, back now to the 'hint' that I mentioned in the first paragraph under (2) above, there seems to me at least a suggestion in Rick's words that a bill's effect on the abortion regime in the US might of itself be a sufficient criterion on which to favor or oppose it, irrespective of what else the bill would effectuate.  In other words, there is a hint that the abortion effect of any proposed piece of legislation might be lexicographically prior to any other effect of that piece of legislation when it comes to assessing it with a view to whether it ought to be supported or opposed. 

But there are of course certain extreme understandings of lexicographical ordering in this context that I would presume -- correctly? -- Rick would not wish to endorse.  To recur to an example I mentioned Sunday, for instance, if it turned out that, circa 1952, we could predict with great confidence that significantly more abortions would be procured by various individuals thanks to the construction of an interstate highway system that enabled people in abortion-prohibiting states more readily to cross into abortion-permitting states, would that fact alone provide sufficient reason to hope that a bill providing for an interstate highway system not pass?  How about electricity?  Etc. Etc. Etc. 

Now as I say, I doubt that Rick would embrace such results as those, and so my question is, again, what should our mode of assessment be?  I proposed one on Sunday which seems to me at least a good start, and I'm still eager to hear from Rick and others whether they think it workable, improvable, misguided, or what ever.


Let me close with two final points:

First I will quickly interpret, under the rubric of my proposed mode of assessing legislation that bears effects upon the abortion regime and the incidence of abortion in the US, the words of Rick I have quoted above:  Rick suggests, recall, that the Senate bill currently 'facilitates and entrenches the unjustified exclusion of unborn children from the protection and solicitude of the law.' 

If by 'facilitates and entrenches' Rick means that people who propose, draft, or support the legislation are aiming at excluding unborn children from the protection and solicitude of the law, then such people would fail the first limb of the DDE-inspired 'test' I've proposed, and our question would then be the empirical one of whether Rick is correct in the claim that he makes of these people.  And as I noted above, I for my part still have to ascertain the sense in which Rick thinks supporters of the bill are aiming to do that facilitating and entrenching.  So far as I can tell thus far, the aim of those supporting the current Senate legislation -- including, notably, Senators Casey and Nelson -- is to get health insurance coverage to 30 million of the 46 million now lacking it, and to begin to get a grip on still skyrocketing health care and health insurance costs, in a manner that is as unlikely as possible to cause more people than presently seek abortions to seek abortions. 

If I am right about this innocent intention, then the next question is whether the likelihood of the bill's attaining the aforemetioned aims is sufficiently high, and the aims themselves sufficiently laudable, as to trump the possible harm that might be more abortions procured by newly insured persons whose individual decisions would amount in effect to morally relevant intervening causes of those abortions.  As I mentioned Sunday, I'll attempt a preliminary calculation along these lines later if I'm not in the interrum convinced that this DDE-inflected approach to the question is misguided.

Second let me briefly reply to Rick's final paragraph: Rick there asks, 'Why does it seem to matter so much to the Democrats in Congress that abortion-funding increase?'  Two things to say to this. 

The first is that, were the premise of the question correct, then it would suggest that these Democrats Rick mentions fail of the first limb of the DDE-style inquiry I propose.  The second, however, is that I don't know that this premise is correct.  The question strikes me at this point as being uncomfortably reminiscent of the old 'is it true you've stopped beating your spouse?' question. 

Rick of course knows that Stupak, Casey, Nelson, and many other Dems in Congress are actually quite eager to see abortion itself outlawed, let alone unfunded.  But even in the case of non-pro-life Democrats, I think it assumes much too much of an uncharitable character to claim that they are seeking to increase abortion-funding.  I think we owe it to most if not all of them to take them at their word when they say they seek not to increase abortion-funding, but to increase insurance-funding. 

If that latter as an incident yields more abortion-funding, it seems to me there's an excellent way short of Stupak to prevent that, and thus retain abortion-neutrality of the sort required to enable us to pass badly needed reform without having to attempt to reargue Roe or Hyde or any of the other historically fraught abortion-related controversies in the present inapposite venue.  It is the way I proposed a week ago this past Friday:  Simply require that all insurance companies offer a counterpart abortion-excluding plan to any comprehensive abortion-including plan that they offer. 

Put the onus, in other words, on the insurance companies rather than the poor, whose insurability is otherwise held hostage by the abortion-covering insurers themselves.  Why is it that neither the Republicans nor the Democrats are suggesting this obvious solution to the 'abortion-neutrality' problem afflicting the health insurance reform debate?

Thanks again and more soon,



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