Mirror of Justice

As Bob Hockett carefully explains, it is -- in the Court's view, anyway -- relevant to the question whether school-choice programs "establish" religion whether or not "public" funds disbursed through such programs reach religious schools directly, or through the mechanism of an "intervening cause."  He then asks:

Can we not also view health insurance as a basic resource, like education, which we think ought to be more or less equally spread (as it is in literally every one of our peer nations)?  And can we not view health insurance reform legislation as fostering or 'endorsing' no more and no less than that, even if it happens that some beneficiaries procure abortions more readily than they could before now that they're comparatively less impoverished?  (And do please remember here that being less impoverished could also result in one's being *less* likely to seek an abortion.)  For vouchers, after all, could have been opposed by anti-Establishmentarians on the same ground -- as rendering parochial educations more widely available, and indeed chosen, via financial measures taken by the state. 

Ought we, then, view the decisions of health insurance beneficiaries as any less decisively intervening -- and hence severing of any 'endorsement' link -- between state support and individual decision-making as we view the decisions of voucher-wielding seekers of parochial education?  I for my part cannot at present see a difference.  But it could be that I've not yet sharpened my gaze adequately, and so I solicit assistance.

Let's put aside the important question whether "health insurance" is the best, or even a defensible, way to deliver quality health care efficiently to all in an efficient way.  (If you have not read David Goldhill's Atlantic essay, "How American Health Care Killed My Father," you should.)  Here are a few quick thoughts in response to Bob's question:

Now, at one level, I'd say that Bob is right, and that there is a similarity between the operations of the intervening causes in the two contexts.  That said, there are two (to me) relevant differences:  First, that which the government is funding indirectly in the school-choice context -- i.e., "quality education in a parochial-school context" -- is clearly a good and worthy thing.  (That the Court has concluded that the Constitution limits the ability of governments to fund this good and worthy thing directly does not mean -- except to the most partisan opponents of Catholic schools -- that the "thing" being funding is not, from the government's perspective, a good and worthy thing.)  That is, both the general purpose of a school-choice program (education) and the indirectly subsidized item under consideration (education in a parochial school) are good things.  Health-care services are a good thing, but abortion -- on the merits -- is not.

Second, and relatedly, there is no reason we (that is, assuming we are not anti-parochial-school partisans) should mind if a not-intended-but-possibly-forseen result of a general-school-funding program is that more children are educated in (qualifying) parochial schools.  The "good thing" that we are paying for (better education for more kids), we are still getting, and the "side effect" (that it happens in parochial schools) is not a bad thing.  But, we should mind if it turns out that a proposed health-insurance program results in more abortions.  That anti-abortion taxpayers or legislators who support the program in spite of this possibility are not (I assume) morally culpable for the increase in abortions does not change the fact (does it?) that the increase is a bad thing. (Now, it might be objected, "but, from the Establishment Clause perspective, public funding of education in religious schools is also a 'bad thing.'"  I'd say, "no, it was the government's support that was objectionable, not the thing, in itself, being supported.") 

I've said several times here at MOJ that, for me, the concern is not whether taxpayers, legislators, or the government are somehow culpable for any abortions that are indirectly subsidized through a health-insurance program.  My concern is that we, as a political community, (i) consciously take steps that result in fewer, not more abortions; (ii) do nothing that entrenches or endorses the idea that (elective) abortion -- i.e., the destruction of an unborn child -- is "health care"; and (iii) do nothing that further entrenches a legal / constitutional regime that requires (and not merely permits) the exclusion of one class of vulnerable persons from the law's otherwise generally available protections from lethal violence. 

Thoughts?  Bob?  (Comments are open.  Be charitable and constructive.)