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.

Monday, November 26, 2007

More on Contraception Subsidies at Colleges

In response to RIck's question:  I think that opposition to contraception subsidies for college students because of the message they send has to be based on the argument that they endorse or encourage nonmarital sex (or contraception itself if one argues that it's inherently undesirable).  I don't think one can avoid joining that issue by interpreting subsidies as sending the message that "[i]t is an understandable, and even an appropriate, decision for college students facing unplanned pregnancies to have abortions."

More precisely, defending contraception subsidies as a means of reducing abortions probably sends a version of the first message: that abortion in the context of an unplanned pregnancy is "understandable" in the sense that one can sympathize with college students in that difficult situation and understand why they might feel pressure from circumstances to have an abortion.  But I don't see how it sends the second message: that abortion in such situations is "appropriate."  If that were the case, then no one could ever argue for a program, however morally neutral or admirable in itself, on the ground that it would reduce incentives for people to do immoral things.  One could not defend after-school basketball programs on the ground that "they'll keep kids from hanging out on the streets and getting into crime and drugs," because that would assertedly send the message that it is "appropriate" for kids to get into crime and drugs if such programs don't exist.  Nor could one defend programs of support for pregnant women (child care, crisis pregnancy centers) on the ground that they reduce abortions, because that would assertedly send the message that it's appropriate to have an abortion if such supports don't exist.  In each case the inference of such a message is implausible.  Programs that seek to avoid or change conditions that create incentives for immoral behavior reflect a recognition that we are embodied, world-occupying beings, not abstractly rational ones -- and that, contrary to a hyper-Kantian account in which incentives and empirical conditions must be entirely disregarded in assessing morality (i.e. that only the pure will to do right is morally admirable), empirical factors and incentives will have an affect on whether people will do what is objectively the right thing.

This is a modest point; I'm not arguing for contraception subsidies at colleges.  I'm just saying that the debate over them has to be waged on the more familiar issues: whether contraception in this context is undesirable because it encourages nonmarital sex (or is inherently undesirable), to what extent contraception reduces abortions, and whether the government should respect the moral objections of a percentage of taxpayers by denying subsidies.

Tom

Thursday, November 15, 2007

Equal Voucherization?

Rick, I'd be happy to move to "universal ... voucher-ization of education funding, with government schools being one co-equal option among many other (reasonably regulated) options."  But why should that voucher-ization be "equal" among different income levels, and not just (as I agree it should be) equal among different educational options?  Why not still recognize that the wealthy have a greater capacity to contribute to their children's education, and that low- and modest-income families will have a limited choice of schools beyond the voucher amount (unless you require all schools to accept the voucher as full payment), and therefore that we could still achieve greater choice in real-world terms by making the size of the voucher greater for lower income levels?  I grant that in a fully voucherized system with no free public-school baseline, you'd need more in voucher aid for high-income levels, since the voucher is replacing the free public school.  But still the graduated voucher seems to me more attuned both to the economic realities of choice and to the emphasis on empowering the poor.  I guess another way of saying this is that the current system of simply giving everyone a free education in public schools, regardless of family income, is non-progressive in its structure, as well as non-pluralistic in its favoritism of government schools.  Why not seek more progressivity in the benefit structure as well as pluralism in options, as a matter of principle (even though this approach is probably even less politically viable than the others we've been discussing)?

Tom

The Theologian Dean

Rob, I take all of Howard Dean's claims about religion that you posted, except for one, to be civil claims about how the government or the society should behave concerning religion or toward people of different religions.  The obvious theological claim -- obviously taking a position on religious truth claims -- is that "there are no bars to heaven for anybody."  Yes, that's a First Amendment howler: it reflects, as Mike McConnell once nicely put it, not the disestablishment of religion, but the establishment of Unitarian-Universalism.  But were you thinking that some of Dean's other claims were inappropriately theological too?  I can see reading the claim "everybody in this room ought to be comfortable being an American Jew, not just an American" as a theological claim that Judaism should be in harmony with Americanism, but in context it seems to me best read as simply a claim that no one should be disfavored in civil status or civil settings because s/he is a Jew.  Certainly some of the other claims, even if they are about civil status or governmental settings, could well be wrong (for example, individually initiated prayers at a football game may in many contexts be protected even if they make someone "cringe"); but can any of them be fairly characterized as (inappropriately) theological rather than (appropriately even if erroneously) civil?

Tom

More on Utah and Voucher Funding Structures

I agree with Rick that "the case for educational choice [is] not only about competition, and not only about assisting the poor, but also about religious freedom and value-pluralism."  But I think that religious freedom and value pluralism also support skewing funding for school choice toward low- and modest-income families, or at least away from high-income families.  After all, the real-world argument for vouchers is, as Rick put it earlier, that the wealthy already are "able to exercise 'choice'" -- that is, to pursue their religious and other values through education -- "by . . .  paying for private schools," while low- and modest-income families "cannot afford [such] alternatives."  If voucher amounts are limited, modest-income families will have only limited choices among private schools -- and given limited available funding, every voucher dollar given to a high-income family is one less voucher dollar to make the religious and value choices of modest-income families possible in practice.  Put differently, all families have a right to religious freedom and educational choice, but some families have much more need than others of government assistance to pursue that right in practice, and prudent allocation of limited funds will take account of that fact.  So my inclination is to have the per-student voucher graduated according to income (as Utah's proposal did) and eliminate it above a certain income level (which Utah's proposal did not).

I don't know if Rick and I disagree in principle on this, since his argument is for providing assistance not to high-income families, but to "families who are not, strictly speaking, 'poor,' and whose public schools are not awful, and who would prefer to form their children (as is their duty) through an education that integrates faith into the process."  I agree that the interest in choice extends beyond families in failing public-school systems, and extends also to middle-class families who otherwise would find it hard to pay for choices in education.  Rick, would you in turn agree that even the interests in "religious freedom and value-pluralism" can support graduating the voucher amount by income (perhaps cutting it off above a certain level)?

Tom

Sunday, November 11, 2007

What the Utah Voucher Defeat Does and Doesn't Mean

The article about the defeat of vouchers in Utah is quite mistaken to say that voucher programs have always failed at the polls.  School choice has regularly been adopted as a remedy for failing public-school systems: for example, in Wisconsin (Milwaukee), Ohio (Cleveland), the District of Columbia, and Florida (failing districts statewide).  It has mostly failed -- for example in California and Utah -- when the scope of the program is universal, covering even middle-class to wealthy parents in decent or better school districts.  While there are arguments of justice even for universal vouchers, the claim is significantly  stronger when the program is targeted at those who have no hope of affording private schools -- as Rick suggests by his references to "vulnerable children [trapped in] badly-performing schools" versus "wealthy families [who] are able to exercise 'choice.'"  The Utah program was somewhat targeted, giving $3,000 per child to the poorest families and $500 to the wealthiest, but it could have been more so (it didn't need to include the higher-income levels).  Targeting those in need allows the program to get closer to funding fully their tuition at private schools, even good ones, and thus not to require the school to kick in a lot more.  So again, while a universal school-choice program still has several things to be said for it -- and I would have voted for this program -- a real emphasis on empowering the poor calls for the program to be targeted at modest incomes.  The subsidiarity-based strategy of school choice should act in the service of a more progressive (i.e. modest-income-focused) allocation of government spending on education.  Do you agree, Rick?

Politcally speaking, Utah was in many ways an unlikely place for universal school choice to succeed; so I wouldn't draw broad conclusions from last week's result.  The state has relatively few Catholics and Catholic schools, and although the bishop of Utah endorsed the proposal, the Catholic Church did not throw a lot of weight behind it (or have much weight to throw).  The Church in Utah, the Mormon Church, for the most part does not operate its own general K-12 schools (there are "seminaries" for religious training but not general education).  Mormons, although conservative, are not alienated from public schools to anywhere near the same extent as many other religious conservatives -- especially since, because the LDS Church dominates culturally in most of Utah, the ethos of the public schools is usually relatively sympathetic to Mormon values.  Although Utah's public schools have their problems, particularly in serving minority and low-income children, they are not in any kind of statewide meltdown comparable to those in Cleveland, Milwaukee, and some Florida districts.  Before the referendum, there was talk that if the program failed, proponents might come back with a proposal targeted at low-income families, with respect to whom there are serious problems in the Utah public schools.  From what I gathered while in Utah last month speaking on the issue, it remains a distinct possibility that such a proposal would pass.

I also agree with Rick that it's rich for opponents of school choice to crow about how "the voters have spoken," when every time the voters enact a choice program the opponents fight tooth and nail in court to get it wiped out.

Tom B.

Tuesday, November 6, 2007

Congratulations to Mary Ann Glendon ...

... on the announcement of her forthcoming nomination as U.S. ambassador to the Vatican.  See also here.  This is one confirmation that can go forward by acclamation! 

Thursday, November 1, 2007

Mike Gerson, Liberals' Libertarianism Problem, and the GOP's Own Version of It

Former Bush speechwriter Michael Gerson's recent Washington Post op-ed "The Eugenics Temptation" (to which Rick linked) on liberals' tension between their commitments to equality and their embrace of unfettered science drew this comment from Frank Pasquale, Seton Hall lawprof, over at Concurring Opinions.  Prof. Pasquale agrees that liberals have the problem but adds:

However, Gerson ought to also admit the "right"'s partial responsibility for driving the appeal of such arms races [i.e. toward "designer babies" and such]. Libertarianism is as much an aspect of the Republican as the Democratic party, and its tendency to reject all arguments for regulation is probably a stronger political force than the left's alleged rejection of a "necessarily transcendent basis of human equality." The "left" itself is diverse, and one need only read the work of Michael Perry, or basic documents in Catholic social thought, to see a robust program of social solidarity wedded to an ideal of equality grounded in natural law.

Well ... in fact, Gerson's most recent Post op-ed, and apparently his new book Heroic Conservatism, focus on the Republican Party's internal divide between the vision of libertarianism and the vision of empowering the poor -- the latter of which Gerson identifies with Catholic social thought.  (HT: Jim Wallis at God's Politics Blog)  From a Post story yesterday about the book:

For Michael Gerson, the pattern became discouragingly familiar. A proposal to help the poor or sick would be presented at a White House meeting, but Vice President Cheney's office or the budget team or some other skeptical officials would shoot it down. Too expensive. Wrong priority.

By the time he left the White House as President Bush's senior adviser last year, Gerson by his own account had grown weary of the battle, becoming an irritable colleague disillusioned by the conventions of a political party and a government that seemed indifferent to the plight of the downtrodden.

(I suppose there are reasons to be skeptical if Gerson portrays himself as the white knight in all of this (see here) ... but the criticisms he raises nevertheless seems important and true, and he's not the first "compassionate conservative" to raise them (see the list in para. 3 of this post).)

In today's Post column, Gerson contrasts libertarianism and Catholic social thought as they compete in the Republican Party:

The difference between these visions is considerable. Various forms of libertarianism and anti-government conservatism share a belief that justice is defined by the imposition of impartial rules - free markets and the rule of law. If everyone is treated fairly and equally, the state has done its job. But Catholic social thought takes a large step beyond that view. While it affirms the principle of limited government - asserting the existence of a world of families, congregations and community institutions where government should rarely tread - it also asserts that the justice of society is measured by its treatment of the helpless and poor. And this creates a positive obligation to order society in a way that protects and benefits the powerless and suffering.

Tom B.

More on School Choice in Utah

Thanks to Rick for posting about the Utah school-choice referendum next Tuesday.  I spoke last week at a very interesting conference, sponsored by the International Center for Law and Religion Studies at Brigham Young University, about the legal and policy aspects of the Utah program, which if it survives the referendum would be the nation's first universal voucher program -- i.e. aimed statewide rather than at failing public-school districts.  Although this feature makes the program less focused on the neediest families, it remains oriented toward the neediest, with the voucher amount graduated from $3,000 down to $500 as the family's income rises.  Ideally I would prefer a program focused even more on the poor, but this proposal still would do a lot for them and for the causes of religious and educational freedom.  The conference featured a great set of exchanges among political scientists on the empirical evidence concerning school choice's effect on educational performance (positive on a number of  indicators although no effect on some), parental satisfaction (unquestionably positive), and civic involvement (likely to be good given the overall good record of private schools on such factors).

Opponents of the program argued among other things that the $3,000 maximum would not nearly cover the tuition at many private schools, including several of the major Catholic schools (there are relatively few Catholic schools in Utah).  But the issue is always marginal effect, especially given the Church's proven willingness to subsidize the education of needy children.  And a friend who I saw on the visit, who teaches at one of the Catholic schools with a tuition around $7,000, noted that a number of modest-income kids already attend that school largely on scholarship aid and that more could be accepted if the state kicked in $3,000 per kid.

In my own presentation, I argued that although a universal school-choice program might be less compelling than one aimed at failing schools as a policy matter -- although I think both are still justified -- it actually should be even less subject to Establishment Clause challenge.  The Supreme Court's theory in approving vouchers in Zelman v. Simmons-Harris (2002) was that if benefits are available to families on neutral terms, their use at a religious school is the family's own free choice, as long as there are "genuine secular alternatives."  In Zelman there was some dispute about the existence of genuine alternatives, given the horrible performance of the regular Cleveland public schools -- although the Court (rightly, I've argued) found more than sufficient alternatives in charter and magnet schools and public-school tutoring programs along with secular private schools.  Thus even in Zelman it was ultiamtely unpersuasive to claim that parents were pushed into religious schools (ones they might otherwise oppose) by the combination of vouchers and a failing public school system, since there were reforms in the public schools.  But any such claim of steering into religious schools is even weaker in the large majority of applications of a universal school-choice program, not limited to failing public-school districts -- since in most applications the regular public schools will be adequate and will unquestionably constitute genuine alternatives.

Tom B.

Saturday, October 20, 2007

Reply to Ryan Anderson re. SCHIP

Thanks to Ryan Anderson for his thoughtful response on SCHIP and pro-life positions.

Let me reiterate from my previous post that the SCHIP debate involved matters of judgment not litmus tests for Christian faithfulness.  My objections to Ryan were, first, that people should not misstate the facts about what the vetoed bill would have done.  SCHIP would not become (as Ryan claimed in his Weekly Standard article) a "welfare program for the middle class"; it would still largely benefit families with very modest incomes (with 70 percent of the recipients still in families below the line of $41,300 for a family of four, according to the Urban Institute, and a good portion of the others not far above that -- which is not much income given the costs of health care and health-insurance premiums).  The bill would not "do nothing" (as Ryan suggested) to get currently eligible but uninsured children covered; by increasing funding and incentives for states to enroll families, it would (according to Congressional Budget Office estimates) mean that 84 percent of the newly enrolled children would be previously eligible for SCHIP or Medicaid (and about 70 percent of the new SCHIP enrollees would be those already eligible for SCHIP -- about 1.5 million versus 600,000 newly eligible). The bill would not involve "nationalized care" as Ryan (like other opponents) claimed; the large majority of its beneficiaries receive and would continue to receive their health care through private managed-care plans (see, e.g., this Kaiser Foundation report, pp. 2-3).  A helpful post on these and other SCHIP "myths" is at Vox Nova.

Second, I objected to President Bush criticizing the SCHIP proposal for not focusing on covering the poor when the administration's own proposal for increasing coverage, which relies on tax deductions, would unquestionably deliver a much higher proportion of its benefits to those who are better off.  I asked, "Where is the administration proposal that focuses on expanded [insurance] coverage for the modest-income family?," and I still don't see an answer -- from Ryan or others.  (The President's other proposal, for health savings accounts, also plainly would not focus on the poor, for reasons that Susan Stabile, among others, has detailed in her article "Poor Coverage," posted to the right.)  In that context, I asked whether in this debate, the administration can really be said to have focused on helping those in the most need. 

I mean that as a question about what the administration has/hasn't done on this issue, not as a question about people's intentions overall.  I agree with Ryan's point that questioning people's hearts is often unhelpful and unfair.  For the record, I certainly believe that people across the political spectrum have a concern for those in need, for essentially the reasons he gives.  As someone who has written and litigated frequently in support of school vouchers and the faith-based initiative -- and typically worked for and with "conservative" groups in doing so -- I also give a lot of weight to solving problems through assisting subsidiary organizations.  Finally, I accept the judgment of those who credit the President personally with concern for the poor.  But that doesn't mean the administration has actually done a good job on this front.  For example, with respect to the faith-based initiative, the testimony of John diIulio (to whom Ryan refers) -- as well as of David Kuo, Republican congressional supporters of the initiative, and others -- shows that there's been a huge gap between the administration's professed commitment and its actual commitment.  As with covering modest-income children's health, the administration's "focus" should be judged by what it's done.

The important question here, it seems to me, is whether it's within the bounds of fair argument to present something like the SCHIP expansion as a "pro-life" policy and therefore to criticize an otherwise pro-life legislator for voting against it.  Yes, the Catholics United ad that Ryan lambasted in his Weekly Standard piece was quite simplistic.  But if a group believes (as that one does) that expansion of SCHIP responded to a pressing need to get more modest-income but non-Medicaid children covered, and that the alternative proposals wouldn't produce anywhere near the same coverage increase, then the mere fact that others come to a different judgment shouldn't stop the group from arguing that it's correct and the others are wrong.  I agree, however, that empirical evidence of that would be better than condemnatory rhetoric: it would be better to explain the arguments that expansion was needed and the alternative proposals were worse.  (That's true of many other political ads besides this one, no?)

But Ryan's objection in the Weekly Standard article is broader.  Even if there were no reasonable debate about whether SCHIP expansion was necessary to children's health, it appears he would still object to calling children's health a "pro-life" issue.  He said that the term should be limited to "opposition to legalized abortion coupled with support for mothers facing crisis pregnancies." (I assume he'd include euthanasia, embryonic stems cells, and other familiar issues.)  He said that those who try to expand "pro-life" to encompass "poverty-fighting" goals are "charg[ing] to eviscerate the term."  He accused the sponsors of this ad of "gross moral equivocation" and the "intentional hijacking of language" (which itself seems an attack on their motivations); I don't know that he would apply that charge to every case where someone argued for increased government funding of children's health as a "pro-life" policy, but the rhetoric seems plainly aimed at dissuading people from ever making such arguments. 

That's the issue I raised in my original post.  It seems to me that there is a quite reasonable position that the term "pro-life" should expand to encompass other policy priorities, such as children's health, which have a direct effect on whether vulnerable people live or die (even if the death is not from killing as in abortion, euthanasia, or more controversially the death penalty).  Such an expanded set of goals, it's true, runs the risk of diluting the focus on abortion and euthanasia by adding other issues on which people disagree.  But the expanded set also has potential advantages too that could be significant.  These other issues involve conditions that can affect women's decisions whether to abort (since some fear they cannot afford to raise a child); the conditions also affect whether some children will die, even if the death is not from killing; and expanding the focus to include these issues can, as I said before, "increase the credibility of the pro-life position among those not already committed to it."  The pro-life movement needs to do something to win more people in the middle toward greater legal protection for the unborn.  And the example of Western Europe suggests that a stronger safety net can help not only to reduce the number of abortions directly, but to make people -- even far less religious people like the Western Europeans -- comfortable with greater restrictions on abortion than we have here (or would have, even if Roe is overturned, in many states).

That debate over the best scope of a "pro-life" agenda should not be ruled out, as it seems to me Ryan's Weekly Standard article tries to do.  There should be tolerance for differing positions in that debate, just as Ryan argues there should be tolerance for differing positions on something like SCHIP.   

Tom B.

Wednesday, October 17, 2007

SCHIP, "Pro-Life," and "Prudence"

Thanks to Rick for posting Ryan Anderson's article on SCHIP.  I agree that whether to support the SCHIP expansion is a question with significant elements of prudence and should not be a litmus test for whether one is a "good Catholic" or a "good Christian."  But that doesn't mean there aren't moral and policy reasons why pro-lifers and Christians, among other citizens, should exercise their judgment in favor of this bill to make children's health care available to more modest-income families.  (Like Mr. Anderson, I'm not an expert on this; my comments are based on general knowledge and on learning from the nonpartisan website factcheck.org and links from it.)

First, Mr. Anderson's statement of the SCHIP issues largely reflects Republican characterizations, some of which are inaccurate or misleading and to which Factcheck has correctives that are worth reading.  Second, it's really too much to hear the President oppose the expansion on the ground that it may benefit some families with incomes up to $83,000 in one or two states, when his own coverage proposal -- a fixed income-tax deduction for a family at any income level who buys health insurance -- "would disproportionately increase coverage among higher income groups," according to the consulting-firm report that the administration itself quotes (see near the end of the Factcheck.org page).  According to that report (see Figure 3 at that link), the percentage increase in coverage among families making more than $100,000 a year (38.6 percent) will be double or greater the increase among families making less than $40,000 (19.1 percent for incomes in the 30s, less for lower incomes) -- yet the President criticizes the congressional bill for not "focus[ing] on serving children from families below" the $40,000 level!  As is usually the case, the choice of a tax deduction as the means to deliver benefits disproportionately helps those in higher tax brackets.  By contrast, under the congressional bill, according to the Urban Institute study quoted in Mr. Anderson's article, SCHIP will still preserve 70 percent of its benefits for children in families under $41,300 yearly income (figuring a four-person family) -- hardly "a welfare program for the middle class" as Mr. Anderson claims.  In the light of this contrast, I'm not so confident as Mr. Anderson that everyone in the debate is focused on helping the poor.  Where is the administration proposal that focuses on expanded coverage for the modest-income family?

Finally, Mr. Anderson raises a colorable concern that the term "pro-life" will be diluted if it is applied to more than just "opposition to legalized abortion coupled with support for mothers facing crisis pregnancies."  But there are of course colorable (at least colorable) arguments the other way, which he ignores: that expanding the range of policies in a "pro-life" agenda will recognize the various economic and social factors and conditions that affect women's decisions whether to abort, and that the broader view can increase the credibility of the pro-life position among those not already committed to it.  At the least, Mr. Anderson should not, in a post calling for tolerance of opposing viewpoints, accuse those who adopt the broader pro-life view of "charg[ing] to eviscerate" the term pro-life.

Tom