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.

Wednesday, July 21, 2010

My Take on the Healthcare/Abortion Issue

I've been sufficiently consumed in associate-dean duties that I haven't blogged for months about anything,  including the debate over the health-care law and abortion.  I have, however, written a memorandum posted on the Democrats for Life of America website, arguing that the pro-life Democrats who voted for the bill acted quite reasonably in doing so.  Here's part of the summary:

This memorandum has three purposes.  First, it provides a brief reminder that PPACA contains many provisions reflecting pro-life values and having pro-life effects.  Second, it assesses the two major criticisms of PPACA concerning abortion raised by the U.S. Conference of Catholic Bishops (USCCB).  Although the USCCB has been the most detailed and thoughtful critic of the statute on abortion-related matters, this memorandum concludes that there are convincing answers to the USCCB’s criticisms and thus it was eminently reasonable for pro-life legislators to support PPACA. 

Finally, the memorandum concludes that it also makes perfect sense for a pro-life legislator to support further efforts to clarify restrictions on abortion funding and protections of religious conscience in the context of a stand-alone bill.  Unlike the context of the PPACA vote, enactment of stand-alone clarifications will not destroy health-reform legislation and its many positive pro-life features and effects.  But support for such further clarification should in no way be seized on as an admission that PPACA’s provisions against abortion funding were inadequate. 

In particular, as the memo indicates, I think that the USCCB's criticism of the community-health-center funding overlooks that the statute's language most sensibly is read to say that the funding is to go through HHS accounts that are already subject to the Hyde Amendment and accompanying regulations (the provision refers to "accounts within HHS" and to "increas[ing] funding"); and the commingling of funds there solidifies the proposition that these funding increases cannot be used by CHCs for abortion.

In the Alvare/Jost debate, Professor Jost cites my memorandum, and my argument is indeed an expansion of a couple of the arguments he's made over the last few months.  He does misidentify me as a Catholic, whereas MOJ readers (at least those who've read for a while) will know that I've been a kind of Protestant observer welcomed at this site (maybe because I'm deeply drawn to Catholic social doctrine, maybe on the thought that I'll see the ecclesial light someday).  Jost and I have corresponded, and I imagine there will be some sort of correction at dotCommonweal.  The misidentification doesn't hurt his legal argument (nor would my being a Catholic bolster mine or his).



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