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.

Saturday, March 13, 2010

Addendum: Another Thought on Rick and 'Intervening' Decisions

Hello once more, All,

Another thought occurred to me en route home a while ago and so of course I've come back to post it.  Here goes:

One additional, if nevertheless related, concern that I harbor about distinguishing the two cases, as Rick does in his post, by reference to the good or bad of the ultimate consequences themselves is that this perhaps elides the very point of the 'intervening choice' consideration.  The intervening choice argument, as I understand it, carries (at least) a threefold significance.  First, it treats as 'bracketed' a question that we as a polity have at least for the present stalemated on, but must nevertheless maintain a peaceful modus vivendi in respect of, and hence wish a state that purports to speak in the name of all of us to maintain silence about.  Second and relatedly, it highlights an important sense in which the state can indeed be viewed as maintaining that silence -- namely, the fact that it is the 'intervening decider' who does the relevant 'speaking' about the subject when public funds are not intentionally directed (in the double effect step one sense) toward the end-state that the recipient spends those funds to bring about.  Finally third and again relatedly, it highlights an important sense in which the state can be viewed as not having relevantly -- or 'proximately' -- caused (now in the commonlaw causation sense) the end-state in question.  To attend to the good or bad of this end state on the merits, it seems to me, simply sidesteps all three of those functions discharged by the 'intervening choice' argument.

By way of 'application' of these considerations: 

In the school voucher example, that which the polity as a whole does not agree upon is the role that a faith tradition should play in an education, and, of course, more generally still, on the role that any particular faith tradition ought to play in any person's life.  Hence we treat the state as in effect blind to sectarian distinction rather in the way that some nonhuman animals are said to be blind to some colors.  And the intervening choices of voucher recipients to spend their vouchers on sectarian schools is viewed as observing that form of neutrality by dint of the intervening choice of the user.  That decision by the user severs both any proximately causal and any expressive nexus between state disbursement of funds and end-states that users of those funds bring about -- provided, of course, that those end-states comport with the remainder of the law, which includes various educational standards. 

In the abortion example, it looks to me as though things might be on a par in the relevant sense.  That which the polity as a whole does not agree upon is when legally cognizable and protectable personhood comes to characterize an unborn human being, hence when the state can legitimately step in to protect unborn human beings from others, hence whether and under what circumstances abortions should be legally permitted or prohibited.  Since the state cannot speak in the name of all of us on this very deep question, any more than it can on the related question of what role a faith should play in an earthly human life, we effectively 'blind' the state to this matter for the time being.  The intervening decisions of those who receive assistance with the purchase of already available health insurance policies (not to mention the choices of those private insurers themselves -- who ironically oppose reform along with, I take it, Rick) -- all of which appear already, for better or worse, to cover abortion 'services' -- then maintain that form of state neutrality which already characterizes the status quo ante.  Just as in the school voucher case, then, so here 'the decision by the user severs both any proximately causal and any expressive nexus between state disbursement of funds on the one hand, and end-states that users of those funds bring about on the other hand' -- provided, of course, that those end-states comport with the remainder of the law, which includes various regulations (albeit pretty minimal ones) in re abortion and related procedures already.

I am once again drawn, then, at least provisionally to conclude that there is not a relevant distinction to be drawn between the two cases at least where the significance of the 'intervening choice' argument applicable to both school vouchers and health insurance assistance is concerned.  But I once again wish to emphasize that 'provisionally.'  I'm far from settled or dogmatic on this, and welcome -- nay request -- further reflections from Rick and all others who are interested.

Thanks again,



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I think your analysis misses a crucial distinction between the parochial school case and the abortion case. You are taking a standard (intervening choice) used to decide the constitutionality of government funds which affect parochial schools and trying to use that standard to make a policy decision in the abortion case.

The intervening choice test was designed to avoid a specific "evil" in the parochial school case. The evil would be government subsidization of parochial schools, not the existence of parochial schools per se. Though there may be people who think parochial schools should not exist at all, the intervening choice test is not an answer to them, it is only an answer to the First Amendment Establishment challenge.

For opponents of abortion, the "evil" to be avoided would be, I assume, abortion itself. State sponsorship of abortion is not an issue, except insofar as it increases the occurrences of abortions overall. Since the issue is not whether the state is sponsoring abortions but instead whether abortions will increase, the intervening choice standard isn't really applicable.

I agree with your contention that the cost/benefit analysis of the health reform bill in terms of increasing or decreasing the rate of abortions is not clear. It could do either. However, I think you'll find that the intervening choice argument will fail to convince people who oppose abortion on policy grounds.

Posted by: Andrew MacKie-Mason | Mar 14, 2010 12:32:20 AM

Thanks for your helpful thoughts, Andrew. I'm with you in the first two paragraphs, but have a different impression of facts on the ground from that you express in your third paragraph. My impression is that a sizable number of abortion-proponents oppose health insurance reform because they think the subsidy portion of what's now before Congress will violate Hyde and in some sense morally implicate government in abortion. Some oppose the legislation simply because they vaguely suppose it might increase the number of abortions, but few who think seriously about the question can oppose it on this ground because (a) all sorts of government disbursements of funds -- e.g., for the interstate highway system, for medical education, etc. etc. can have that effect -- and (b) insurance subsidies are actually more likely to *decrease,* not increase, the incidence of abortion owing to the correlation between poverty and abortion. The only serious abortion-related objections to health insurance reform, then, stem from what I think to be a misguided sense that the government is in some sense 'endorsing' abortion by assisting the poor in purchasing insurance policies from private insurers, all of whom happen to offer policies that cover abortion. And I'm simply arguing that the intervening choice severs any such 'expressive' link.

Thanks so much again for your thoughts,

Posted by: Robert Hockett | Mar 15, 2010 4:06:27 PM