I thank Michael Scaperlanda, Rick Garnett, and Bob Hockett for their thoughtful contributions on a number of important issues such as school vouchers and abortion, both of which may involve subsidies to citizens through legislative initiatives or judicial decisions. Today, I shall concentrate my remarks on the subject of abortion. In particular, I have been weighing what Bob said in this regard: “Since the state cannot speak in the name of all of us on this very deep question [abortion], 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.” More recently in his last posting that I saw while composing this one, Bob concludes Michael S. to be saying that there is “no room for disagreement as to whether unborn human beings from conception onward are legally cognizable persons whom the polity is duty-bound to protect from abortions sought by their mothers” or, for that matter, anyone else. Bob then argues that this claim he attributes to Michael “that there is no room for disagreement... strikes me as simply false.”
Bob elsewhere thoughtfully expresses his concern about the term “abortion subsidies” in the discussion about the current health-care insurance debate before the Congress and then goes on to state that this phrase “is ambiguous as between intended financing of abortion on the one hand, and collateral effects on the disposable income of people who might seek abortion on the other—precisely the distinction that step one of a double effect inquiry aims to keep clear.” His reason for making this point is to ensure that his readers understand that his “question is aimed at what significance ‘intervening choice’ ought to have in the ‘proportionality’ thinking of a legislator who has reached step two of a double effect inquiry—that is, a legislator who already, by hypothesis, does not intend to push funds toward abortion but is now thinking about collateral effects.” He then goes on to say that, in his opinion, “the likely collateral abortion effects of health insurance reform legislation remain at this stage uncertain, particularly because [they are] subject to countervailing tendencies.” One illustration of these tendencies he offers is abortion-seeking on the one hand and poverty on the other.
I think Bob is correct when he argues that the state does not have the authority to assert what role faith has on earthly human life. Such matters are beyond the temporal competence of the state whose role and authority are strong but still limited as Catholic social teaching and other perspectives contend. However, he also opines that “the state cannot speak in the name of all of us on this very deep question” on abortion.
In a way, I tend to agree insofar as the state addresses many issues on which many citizens have diverse views; however, this does not arrest the state from taking action. The fact that it cannot speak in the name of all does not mean that it cannot act on behalf of all even though it must be acknowledged that there often is not unanimous agreement on most temporal issues that the state is addressing. But there is something missing from Bob’s careful reflections, and for me, there remains the vital question of the moral evaluation of what the state does knowing that it has the competence to act on matters where the state does not “speak in the name of all” but nevertheless acts on behalf of all through its making and enforcing of civil law.
Catholic legal theory has something to offer this discussion—both to the citizen and law maker who are Catholic and to the citizen and law maker who are not. Here Bob and I likely part company on some of the points he has made in his several postings over the past couple of days. I first address the Catholic citizen and law maker. Both are “citizens” of two cities—God’s and this earthly dwelling place that we inhabit with the rest of humanity. On matters dealing with abortion, I suggest that, as Catholics, we are asked to be of one view, a view that we freely choose because of our self-identification as Catholics that reflects our being the branches on Christ’s vine.
Bob notes on a several occasions the fact that some in our legal culture agree that the unborn child is not a person; however, I hasten to add, others do. For the Catholic, citizen or law maker, the position should be clear: the unborn is a person whose integrity and dignity are to be protected. Why? As branches of the vine of Christ, this is what we as Catholics freely believe following the instruction that Christ’s vicar, in union with the episcopal college (the ordinary universal Magisterium), has taught and continues to teach. This teaching we freely adopt as the moral compass that guides our evaluation of what is good and what is not in the civil law; what is true and what is not; what is to be done and what is not. If the state permits (through its provision for payment—direct or indirect) for abortion, it is effectuating a grave moral wrong. One may argue double effect, proportionality, or some other rationalization for the state’s action, but the wrong remains clear and obvious. The Catholic citizen and law maker are obliged to oppose this because enabling of the death of an unborn child, who is a person in Catholic teaching, is wrong and violates the dignity of every human being regardless of his or her stage in human development because everyone, in his or her lifetime, was that unborn child. If the taking of one innocent person’s life can be justified by the civil law, the lives of all others may well be compromised under the same legal regime pursuing double effect, proportionality, or some other justification. The task for the Catholic, then, is to begin to reign in both the cultural attitude and the legal regime that allow “collateral issues” to camouflage the reality of what is happening—a grievous offense against God and humanity (a crime) as the Second Vatican Council concluded.
But the citizen and law maker who is not Catholic may hold and offer a different view. It is true that these individuals may not accept the same teachings of our Church on this central issue based on how they exercise their freedom, but this does not mean that they are excused from a careful and critical moral evaluation that centers on the common good or, as our Constitution states, “the general welfare.” The non-Catholic is also obliged, through his or her citizenship or oath of office, to participate in the operation of the state that was founded to “establish justice, insure domestic tranquility, provide for the common defense, promoted the general welfare, and secure the blessings of liberty to ourselves and our posterity.” The fact that what was once illegal may now be legal (i.e., abortion) does not, in fact, make it right or moral.
While some issues involving private morality may not necessarily be subject of the law, those dealing with public morality are or ought to be the subject of the law. And abortion deals with public, not private morality. That which threatens the common good is a part of the enterprise of our civil law and the state which makes and enforces it. One who is not a Catholic may not concede, as the Catholic must, that the unborn child is a person on the ground that this is a “religious” view which he or she does not share; however, he or she must realize (1) that the threat to any human is a threat to all future generations who one day will be in their earliest stages of development and (2) that abortion terminates the life of another human being—regardless of whether there is consensus that he or she bears the title “person.” Everyone and anyone should be able to identify with the unborn human because, regardless of one’s view on personhood of the unborn, everyone shared the same state in his or her early life. May I suggest, then, that the threat to one is a threat to all. The peril to one is a menace to the common good—the general welfare—because when one is threatened, the rights of the integrity and dignity of all may be called into question and compromised. So, those interested in the “the general welfare” and in “our posterity” may find themselves necessarily drawn to the same conclusion of the Catholic that what threatens the life of one inevitably can threaten the lives of all. We know that not all in our polity believe this—some do not believe it because they view abortion as a right, human or otherwise. But such a view opposes the common good, something which right reason should lead anyone to conclude, regardless of whether he or she is Catholic or not.
My sincere thanks to the other interlocutors who may wish to respond to what I have said.
And many thanks to Michael for his thoughtful intervention. I don't have much to add in response, I fear, save to observe that Michael appears to reject my premises, in which case there does not seem to be much room left for fruitful discussion of the merits of my argument itself.
I take Michael to be saying, first, that there is no room for disagreement as to whether unborn human beings from conception onward are legally cognizable persons whom the polity is duty-bound to protect from abortions sought by their mothers. The merits of the embedded claim -- the 'when protection-worthy personhood commences' claim -- of course I do not wish to contest, but the claim that there is no room for disagreement here strikes me as simply false. At the very least it is false in the empirical and legal senses that (a) the polity (along with many a faith tradition) is in fact deeply divided on this, and (b) the courts have for the time being at least accordingly 'bracketed' the subject from state cognizance, leaving the matter to citizens in their individual capacities. Michael and others, I am sure, do not accept the legitimacy of this decision on the part of the courts, or of the opposing sides on the merits. And I admit to deep discomfort with that myself, being no fan of Roe. But I am not willing to go so far as to say that we are presently amidst a civil war, akin to the religious wars of 16th and 17th century Europe, that is simply being waged by covert or otherwise eccentric means, which is what the claim that there is no legitimate room for disagreement or political 'settlement' on this right now seems to me to commit Michael to. And that is the reason that I asked in my post that we suppose the question 'bracketed' for now as far as the state's cognizance is concerned, in order to consider the possible significance of intervening choice or causation arguments.
With respect to the other case of 'bracketing' -- that of state cognizance of sectarian difference -- here too Michael seems to me simply to be rejecting my premise, and here I feel less hesitancy about simply registering my flat rejection of his counter-premise. I am well aware of our nation's past and present history of 'soft theism,' and I admit to finding it sweet and fuzzy; but I regard it nonetheless as in large part a simple compromise of principle which comes at a very high cost both to our fellow citizens who do not share the faith traditions that receive adulterated expression in 'soft theism,' and to our faith traditions themselves. I for one am revolted by the adulteration in question, and would much rather my state regard faith as beyond its competence or ken. Moreover, I believe that the state's 'soft theism' actually foments hostility to faith traditions by playing to the understandable suspicions of many who suspect that adherents of faiths are trying to exercise their wills over them. And so again I find the strategy of bracketing to be the best, if not the only workable one here, just as in the abortion case. And against that backdrop it seems to me that intervening decisions 'intervene' in a truly important way, in both cases.
But again, I know I might be wrong. Am muddling my way through here just as, I suspect, many of us are doing.
Bob provisionally suggests an equivalency between the intervening decision of a user of a school voucher and a user of government assistance to purchase abortion coverage arguing in both cases that we effectively "blind" the state in these matters for the time being because of deep disagreement among the populace over the role of faith in one's education and the moral status of the unborn respectively.
I would argue that the two cases are not equivalent for the following reasons. As a People, I hope that we are in agreement that the intentional taking of innocent human life is wrong. What we disagree about is the application of this principle to the facts in the abortoin context. But, the facts are not really in doubt. Biologically, the unborn child is a human being at an early stage of development. Those who would deny this, deny it out of innocent or willfull ignorance. Those who do not deny the science but nevertheless insist that abortion should remain a choice with the mother (the Roe court's term for the pregnant woman) disagree with the principle that the intentional taking of innocent human life is wrong. To the extent that the Court will let them, I don't think the political branches must blind themselves to either the principle or the very clear scientific facts.
With respect to the role of religion in one's life and education, our country has a long history of what I might call soft public theism. The Declaration of Independence, Madison's Memorial and Remonstrance ("Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe"), Washington's Farewell Address, Thanksgiving proclamations, Lincoln's Second Inaugural, etc. all testify to this. We also have a strong tradition that religion can't be compelled or imposed. Madison said "The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate." Vouchers then are in one sense a way to honor and support what we as a Nation do agree upon.
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.
This Book Review from the current issue of The Tablet may be of interest. An excerpt:
Through copious quotations from the archbishop’s sermons and letters,
it becomes clear that, as Wright says: “These three themes – the
dignity of the human person, the salvation of people in history and the
transcendent dimension of liberation – form the heart of Romero’s
spirituality, and they may be found in almost every homily that he
preached as archbishop of San Salvador.”
Oscar Romero was
steeped in the social teaching of the Church, as well as in the
Scriptures and the lives of the poor. He prepared his homilies
meticulously. As archbishop, he would meet weekly with advisers to
explore what to say. He would often spend the time from 10 p.m. on
Saturday evening until 4 a.m. on Sunday preparing what he would say,
sleep for a couple of hours and then arrive at the cathedral at 8 a.m.
to prepare to celebrate Mass. “The glory of God”, he would say, “is the
living, poor person.”
He fully appreciated that his life was
drawing to a close: the end came as he lifted the chalice at the
offertory during an evening Mass in the hospital chapel where he lived.
Just a few days before he was murdered, he offered these words of faith
and affirmation: “My life has been threatened many times. I have to
confess that as a Christian, I don’t believe in death without
resurrection. If they kill me, I will rise again in the Salvadorean
people.” Romero died loving his enemies. “You can tell people, if they
succeed in killing me, that I forgive and bless those who do it.
Hopefully they will realise that they are wasting their time. A bishop
will die, but the Church of God, which is the people, will go on.”
By SR. CAROL KEEHAN, DC CHA president and chief executive officer
As I watched our president present his plan to pass the health
reform legislation, it was clear this is an historic opportunity to
make great improvements in the lives of so many Americans. Is it
perfect? No. Does it cover everyone? No. But is it a major first step?
Yes.
The insurance reforms will make the lives of millions more secure,
and their coverage more affordable. The reforms will eventually make
affordable health insurance available to 31 million of the 47 million
Americans currently without coverage.
CHA has a major concern on life issues. We said there could not be
any federal funding for abortions and there had to be strong funding
for maternity care, especially for vulnerable women. The bill now being
considered allows people buying insurance through an exchange to use
federal dollars in the form of tax credits and their own dollars to buy
a policy that covers their health care. If they choose a policy with
abortion coverage, then they must write a separate personal check for
the cost of that coverage.
There is a requirement that the insurance companies be audited
annually to assure that the payment for abortion coverage fully covers
the administrative and clinical costs, that the payment is held in a
separate account from other premiums, and that there are no federal
dollars used.
In addition, there is a wonderful provision in the bill that
provides $250 million over 10 years to pay for counseling, education,
job training and housing for vulnerable women who are pregnant or
parenting. Another provision provides a substantial increase in the
adoption tax credit and funding for adoption assistance programs.
We expect to see charges and counter charges about what is in the
bill and how it will work. We need to carefully review its provisions,
its safeguards and its implementation schedule and help everyone
understand what the actual proposal is. We are especially called to
share our expertise in the health care marketplace to help people
understand this bill. So many people depend on our continuing to
advocate for quality health reform for everyone.
[UPDATED: An article about Sr. Keehan's letter, and the controversy it has predictably provoked in the Catholic community, here.]
Many thanks to Rick for taking up my question with characteristic thoughtfulness. I'm on the fly at the moment, so just three quick observations in response:
The first is that I am a little hesitant about the title of Rick's post. For the phrase 'abortion subsidies' that occurs therein is ambiguous as between intended financing of abortion on the one hand, and collateral effects on the disposable income of people who might seek abortion on the other -- precisely the distinction that step one of a double effect inquiry aims to keep clear. (That is in view of the decisiveness, for purposes of moral evaluation, of intentions in individuating morally evaluable actions -- including those actions which are votes on legislation.) I want, then, to make sure that all readers know that my question is aimed at what significance 'intervening choice' ought to have in the the 'proportionality' thinking of a legislator who has reached step two of a double effect inquiry -- that is, a legislator who already, by hypothesis, does not intend to push funds toward abortion but is now thinking about collateral effects.
The second is that I do want to emphasize once more that it seems to me that the likely collateral abortion effects of health insurance reform legislation remain at this stage uncertain, particularly because subject to counterveiling tendencies. In one corner we have what I believe to be well documented correlations between abortion-seeking on the one hand, and poverty on the other. (Of course that's not to say wealthy folk don't seek abortions. It's just to advert to a statistical predominance of nonwealthy folk among those who seek them.) In the other corner we have the obvious fact that any federal expenditure that enhances disposable incomes also enhances the affordability of purchasable 'services,' including abortion 'services.' I want, then, to ensure that nobody takes the present colloquy for implying that health insurance reform legislation now before Congress is apt to increase the incidence of abortion; it could very well do the contrary. And so my question concerns how a legislator ought to factor intervening choices into the inherently probablistic 'cost benefit analysis' that is a double effect stage 2 inquiry.
Finally, the third is that I am of course sympathetic to the distinction that Rick highlights -- namely, between intervening-choice-mediated collateral effects that would be good ones on the one hand, and intervening-choice-mediated collateral that would be bad ones on the other hand. It is probably here that the form of 'schizophrenia' which any member of a classically liberal polity is apt to experience will be most poignant. For, in our roles as citizens, we are on some understandings of liberalism required to abstain from considering legally-cognizably bad that which our courts have determined to be permissible and many of our fellow citizens have determined not to be unambiguously bad. And of course counterpart observations hold of the 'good' of the 'parochial' element of parochial education. On the other hand, in our roles as fully situated, faith- and culture-identified human beings, we cannot ignore the 'bad' and the 'good' in what, per our own and our traditions' conceptions of the good, are arguabley bads and goods. But if Messr. Hobbes and Locke, and Messrs. Rawls and Sandel, never reached agreement on how to thread this particular post-religious-wars needle, I suppose I shall be excused for not knowing precisely how to do so at present. Am working on it, though! (And the answer, one naturally suspects, will have to be found in some plausible understanding of 'the natural law.')
I agree with Rick in the immediately preceding post. "Under God" is one thing; "Under Christ", another. The Ninth Circuit would surely not have permitted "Under Christ" to stand. Steve Shiffrin and I have both argued, in separate pieces, that the doctrinally problematic position is one according to which there may be no government affirmation of any religious premise whatsoever, even an ecumenical monotheistic premise. But the end of that position, if/when it comes, will not be the the end of "no endorsement". Rather, as Rick indicates, it will be the narrowing of the set of religious premises government may not endorse.
