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.

Thursday, August 6, 2009

"What's Love Got to Do with It?"

By Rick Garnett

I'm a big fan of (which is not to say I always agree with the writers at) the blog "Front Porch Republic" ("Places.  Limits.  Liberty."  Catchy.)  Check out this recent post there, "Benedict on Business:  What's Love Got to Do with It."  Provocative stuff.

Another quick response to Rick ...

By Michael Perry

... but not from me.  Rather, from the same friend of MOJ whose comments I posted immediately below.  The reader is responding to Rick's most recent post (i.e., to Rick's "quick response to Michael").

Even here, I’m inclined to split some differences.  A thoughtful person could take the idea of a positive right to health care, as against the government, to provide much of the normative foundation, and some degree of guidance, for the more policy oriented debate about how best to address health care policy issues.

But I also think we can all agree that at some unspecified level of policy detail, focusing too intently on the idea of a right becomes preemptive and, on balance, unhelpful.  Unless one seriously wants to argue that someone’s right to health care itself takes some very precise form, and not some other slightly different form, under all the circumstances, including aggregate wealth, technological development, etc., that Rick mentions.  But it’s hard to believe that any such highly specified vision of the implementation or “cashing out” of the right really underlies the most genuinely moving and inspiring discussions of the right in question.

More on health care ... and "rights"

By Michael Perry

A friend of MOJ writes:

A quick thought or two, if that, on health care as a right and obligation, in connection with your MOJ exchange with Rick Garnett:

First, the positive versus negative right distinction is admittedly ambiguous at this point, but I think all agree that anything like an affirmative, directly costly provision, at least partly by a government, of something like a physical examination, an x-ray, a kidney, or a surgery would count, if a right at all, as a positive right.  I.e., the asserted right is clearly not just a matter of a government’s refraining from interfering with the health care-related choices and actions of the public.

Second, and more importantly, the right versus obligation (or duty—sometimes, people use ‘obligation’ to emphasize a “taken-on” character) distinction seems to me a bit tricky here.  There’s not always what we might call a “super-symmetry” between right and obligation, in the sense that, as noted early on by Hart, we can each have a moral and legal right to pick up a lost dollar bill we simultaneously notice on the sidewalk, but neither of us has a legal right that the other defer to us and allow us to pick it up—and for that matter probably no moral right that the other so defer.  Neither of us has a legal or moral duty or obligation to so defer.

But as you’ve both noticed, in the case of a standard welfare state-type health care system, rights and obligations do seem to entail one another.

The point I would want to emphasize, though, if only for my own clarity of thought, is that both you and Rick could be correct in what you say about the relationships between rights and obligations in this context.  Your point could be restated in terms of health care rights and obligations (on someone’s part) being two sides of the same coin.  Or the same relationship, between obligor and obligee, viewed from different perspectives.  But Rick’s point could be valid as well, in the sense (by very loose analogy, really) that two sides of the same coin can be significantly different for some practical purposes (such as a coin toss on the middle of the football field).  A head differs in some respects from a tail.

The latter idea takes on less trivial import when we appreciate that it could matter very much, psychologically, or culturally, or whatever, whether we choose to emphasize health care as a right or as an obligation.  It might at least be possible, as some might argue, that emphasizing rights rather than obligations could tend more to perhaps unintentionally foster an unfortunate “entitlement mentality.”  But then, another person might argue that emphasizing rights as distinct from obligations would tend to emphasize, valuably, the infinite and incommensurable worth or dignity of each individual person.  Perhaps focusing on the obligation more than the right distinctively promotes—or not; this seems a cultural/empirical question—a sense of responsibility (collectively, if not individually).  My point here is of course not to explore which of these takes is more nearly correct on the merits.  It’s instead that emphasizing the one rather than the other—as we clearly might do—takes us down one cultural path rather than another.

I’m trying to think of a clearer example.  I guess we could say that the fact that The Morning Star and The Evening Star both refer unequivocally to the same object, Venus, does not mean that we can accomplish the same purposes exactly as well by using either term.

As you may by now have realized, I’m not good with examples.


A quick response to Michael

By Rick Garnett

Michael's invitation is a tempting one:  I love San Diego, running along the beach with Michael sounds fun, and -- of course -- I am always eager to have things "explained" to me.  

Like Michael, I am a fan of the work of our friend Nicholas Wolterstorff (I reviewed his recent book, "Justice", here) and, like Michael, I am perfectly happy to agree with Nick that the idea of "rights" (not just "the right") has an important role in our thinking about justice.  "The modern language of rights," John Finnis wrote, "provides . . . a supple and potentially precise instrument or sorting out and expressing the demands of justice."  If it were in fact the case that, generally speaking, "an argument in support of a human-rights-claim against government just *is* an argument in support of a claimed 'moral obligation [of a certain sort] of a political community to its members'", then, I suppose, my reservations about rights-talk in this context would (conveniently) dissipate, or at least lessen.  But, it does not seem to me that, generally speaking, this is the case.  Rights talk is complicated; people employ it in different ways, meaning different things.  It is, Finnis observed, "often . . . , though not inevitably or irremediably, a hindrance to clear thought when the question is:  What are the demands of justice?"

The health-care debate is about the distribution of scare resources, about trade-offs, about second-bests, etc.  My reservations about rights-talk in this context are not theoretical, they are, I think, more practical.  It distorts the debate, it seems to me, to suggest, or imagine, that what is going on in the current debate is that some people are invoking a right against the government; what they are doing, instead, is asking the government to raise money, in a variety of ways and from a variety of people, and allocate it in a different way, a way that (proponents claim) will better secure for many people access to health care.  I have a human right to religious freedom -- because I am a human person, no government ought to coerce me to practice a faith I do not profess.  The better way to think about the current health-care debate, though, is to say that "given all the givens -- e.g., because we are a prosperous nation -- our government ought to modify its policies in the following ways, and thereby better secure access to basic health care for many who currently lack it."  I worry that "rights talk", in this context, can be used to obscure the necessarily pragmatic balancing -- the trade-offs, etc. -- that goes on in the crafting of policy.

Another reader's thoughts on a right to health care

By Rick Garnett

This from an MOJ reader, in response to the "health care as a right" question:

My first thought is a criticism of those who claim that health care is a right.  It seems that the argument for health-care (which would be significantly subsidized, somehow, by the state) is based upon the contingencies of history rather than on a universalizing principle of human-ness.   In this regard, I think I bypass the argument as to whether it is a positive or negative right (and possibly a legal or moral right) because certain historical and economic characteristics have to be in place for this discussion to even make sense.  For example, two hundred years ago, I have not heard of any person argue for a right to health care, precisely because the materialistic conditions for it to be a possibility were not in evidence.

However, there were discussions about rights in religion, speech, conscience etc. I believe that these rights discussions were about how we define ourselves as human, while health care, while an undeniable good, is not fundamental to our ontology.  Health care, or the lack thereof, does not detract from us as humans.  Furthermore, these fundamental rights appear to be able to be universal, appealing across time and space to our consciences.  Yet, discussing the right of (say) Nigerians to healthcare seems somewhat backwards when their basic, fundamental rights of religion and conscience is not defended by the state.  Additionally, they do not have the economic nor technological skill to have the same level of health care as we enjoy in North America.  Essentially, the material conditions have to be met before universal health care can be even concieved of, while the more foundational liberties do not.

Relatedly, as a Canadian, I wonder at the distortion of the meaning of health care when we celebrate our wealth by the wholesale slaughter of our children through embryonic stem cell research and abortion.  Is the entrenchment of these practices and state support for them something that we, as Catholics, can support?  Is the greater evil having universal coverage if these profound injustices persist under our medical plans and in our names? 

The reader's observations about historical contingencies and material conditions confirm, in my view, my sense that it is better to think about the health-care debate in terms of the moral obligations of (and practical challenges that confront) a political community than in terms of "rights."  I take it (and I am confident that Michael P. agrees) that, given all the current givens, political communities (in the developed West) ought to take the steps necessary (and prudent) to secure access to cost-effective, reasonably high-quality, basic health care.  This is the smart, and right, thing to do, but the *reason* it is the right thing to do might not be because there is a human right, possessed by individuals, invokable against governments, to such health care.  The moral case for policies that secure the kind of access just described, and the moral responsibility of a decent political community to pursue them, does not depend, it seems to me, on their being a "right" to that access.

Incentives or management?

By Rick Garnett

A reader asks, in response to some recent MOJ posts about health care, its status as a right, and the regulation of abortion:

Pro-life apologists for Obama are now arguing that there is a right to healthcare which entails a concrete response from the government to intervene and directly provide an outcome (namely, access to healthcare).  Those conservatives who argue that market-based efforts to shape conduct and create incentives for broader coverage and access are [seen as] misguided or worse.

 

But, [they contend], it's perfectly fine for the right-to-life to be vindicated through market-based, demand-side management of incentives for killing.  In that context, justice does not require the government to step in directly to impose an outcome (namely, the protection of innocents from private violence).

 

Do I have that right?

Wednesday, August 5, 2009

A quick reponse to Rick ...

By Michael Perry

Rick, you write, in the post immediately below, that you are "inclined to think that claims about 'rights' to health care are not as helpful as arguments about the moral obligations of a political community to its members."  Oh my!  Please come to the University of San Diego this fall, where I'm teaching a course on human rights both to law students and to graduate students in peace studies.  One of the first things I'll explain to my students--in the course of disaggregating human-rights-talk into its two main kinds:  moral and legal, not to be confused with one another!--is that an argument in support of a human-rights-claim against government just *is* an argument in support of a claimed "moral obligation [of a certain sort] of a political community to its members..." -- and perhaps, depending on the claim, not just to its members, but to all human beings.

We can go running together--if you're willing to slow down--along the ocean!   

Health care as a "right": a response to Michael P.

By Rick Garnett

A few days ago, Michael P. asked (here), among other things, "is there a human right to (basic) health care?"  I am inclined to think that claims about "rights" to health care are not as helpful as arguments about the moral obligations of a political community to its members.  We are all familiar with the debates about "negative" and "positive" rights, and there's probably no need to re-work them here.  In my view, Yuval Levin, borrowing from Edmund Burke, is helpful, here:

Edmund Burke offered a reflection on this question in 1790:

What is the use of discussing a man's abstract right to food or to medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician, rather than the professor of metaphysics.

It seems to me that’s still basically the right response to the question of health care as a right. All sides in the contemporary debate are trying to find a way to provide health insurance to more people more efficiently and cheaply. They are not divided about any fundamental ethical question. People on the left are not saying we should provide unlimited medical care to all without thinking about the cost because health care is a right: They’re arguing their approach would cost less and work better for more people. People on the right are not saying we should forget about the poor because health care is just a privilege: They’re arguing their approach would cost less and work better for more people. Which of them is right is an important question, but it’s not fundamentally an ethical question, and whether health care is a right or not does not seem particularly relevant to finding the answer to that question.

With respect to Michael's "reductio ad non-Brown" argument:  That a proposal is called a "health-care reform" proposal does not make it worthy of support.  To question "reform" proposals is not to question the responsibilities of a political community or to deny that (basic) health care is a human good and its (efficient) provision an aspect of the common good.  To worry about the costs, externalities, and unintended consequences of the Democrats' current proposals is not to call for the abolition of public assistance in the securing of health care.  To worry about exploding deficits, or declining standards of care, or loss of patient-choice, or the effects of excessive litigation on health-care costs, or the incentives for doctors, etc., etc., is not to give up on Medicare.  And, indeed, to be open to the possibility that programs like Medicaid and Medicare are operating as (to say the least) imperfect means of fulfilling our obligations and promoting the common good is not to deny the existence of those obligations or the importance of that common good.

It seems worth noting again -- I thought of this when, in my home parish, we were urged, in the Prayers of the Faithful, to listen to the "prophets" of today who are pushing the current "reform" proposals -- that there are serious reasons for pro-life citizens (Democrats and Republicans alike) to be wary of these proposals' treatment of abortion-funding.  Those who think Catholic health-care facilities are important institutions have additional reasons to worry, the Wall Street Journal reports:

But what if an overhaul expands access to abortion, subsidizes it with tax money -- or, as in Massachusetts, requires Catholic hospitals to offer referrals if they hope to be included in government-run insurance plans?

Catholics want to "extend health care to as many people as possible...but you can't call it health care if it includes a type of killing. It's as simple as that," says Cathleen Kaveny, a professor of law and theology at the University of Notre Dame.

Tuesday, August 4, 2009

Correcting Rick G.'s reading of my argument

By Michael Perry

In my book, I specifcally declined to argue that a state's refusal to call same-sex unions "marriages" violates the Constitution.  (This is an issue that has divided some state courts--state courts that have ruled that a state's refusal to extend the benefit of law to same-sex unions violates the state constitution.)  I argued only that a state's refusal to extend the benefit of law to same-sex unions violates the Constitution.  (Whether SCOTUS should so rule is another matter.)

BTW, Proposition 8 spoke only to the "naming" issue:  In California, well before the state court decision that gave rise to Proposition 8, the state legislature extended the benefit of law to same-sex unions.

Now, over at The Immanent Frame, there is an interesting collection of comments that may be of interest to MOJ readers--comments on the conflict over homosexuality in the Anglican communion (and beyond).  Here's the list of those commenting:

Mary Anne Case, Arnold I. Shure Professor of Law, University of Chicago Law School

Eric Fassin, Professeur agrégé, Ecole normale supérieure (Paris)

Siobhán Garrigan, Associate Professor of Liturgical Studies and Associate Dean for Chapel; Yale Divinity School

Jimmy Casas Klausen, Assistant Professor of Political Science, University of Wisconsin at Madison

Mary-Jane Rubenstein, Assistant Professor, Wesleyan University

Emilie M. Townes, Andrew W. Mellon Professor of African American Religion and Theology, Yale Divinity School

Here is what Mary Ann Case has to say:

<br />Mary Anne Case, Arnold I. Shure Professor of Law, University of Chicago Law School

I fear those who support equal rights and equal rites for gay couples and individuals, whether in faith communities or in law, tend to underestimate the extent to which a commitment to traditional sex roles rooted in the subordination of women motivates the opposition.  Among Baptists, a division that began with two views of Negro slavery has continued to this day with two views of women’s role in the leadership of the Church and the family.  In the Anglican Communion, many of those who now oppose the ordination of gay people in committed relationships also opposed the ordination of women.  A bishop’s miter remains for some among those things “which pertaineth unto a man” and should be forbidden to a woman, whatever her sexual orientation.

Rowan Williams tells Anglicans to take “due account…of the teachings of ecumenical partners” in formulating answers to questions of homosexuality.  The head of one of those partners, Pope Benedict XVI, has been quite clear and direct in linking his Church’s recent teachings on homosexuality, on the ordination of women, and on heterosexual marriage in a theological anthropology of essential sex and gender differences.  Benedict analogized what he saw as the growing disregard for the essential “nature of the human being as man and woman” to the destruction of the rainforest in his December 22, 2008 address to the members of the Roman Curia.  Given the historical exclusion of women from decision-making in the Church, Rowan Williams’s invocation of the “venerable principle” that “what affects the communion of all should be decided by all” (”Quod Omnes Tangit”) as a brake on change in the direction of freedom and equality in matters of sex and gender is, as one of Boccaccio’s heroines suggested on Day Six of the Decameron, deeply problematic.

To read the other comments, click here.

George on marriage, courts, and the culture wars

By Rick Garnett

If the Supreme Court imposes same-sex marriage, it will exacerbate, not heal, "culture wars" and divisions, writes Robert George in The Wall Street Journal:

We are in the midst of a showdown over the legal definition of marriage. Though some state courts have interfered, the battle is mainly being fought in referenda around the country, where “same-sex marriage” has uniformly been rejected, and in legislatures, where some states have adopted it. It’s a raucous battle, but democracy is working.

Now the fight may head to the U.S. Supreme Court. Following California’s Proposition 8, which restored the historic definition of marriage in that state as the union of husband and wife, a federal lawsuit has been filed to invalidate traditional marriage laws.

It would be disastrous for the justices to do so. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights. . .

As it happens, our own Michael Perry has argued in a new book that, while federal judges usually should defer to political actors' judgments on the subjects of moral controversy, they should, in the case of same-sex marriage, rule that it is unconstitutional to refuse to recognize same-sex marriage. 

Michael, do you have any reactions to Prof. George's WSJ piece?

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