Here,
here,
and here.
The second "here" is the new Commonweal editorial on the bill.
Tuesday, March 16, 2010
Healthcare reform and the Senate bill: more facts (because the facts matter)
Does Catholic Legal Theory have something to say about the legislative process?
I am one of those folks who thinks that the parliamentary process of legislation necessitates the deliberation of texts so that legislators and citizens can know, if they read it, what pending legislation says and what it does not say. This is a point I have been making in my legislation courses that I have taught over the past twenty-four years. I find it of great concern when legislators do not know on what they are voting regarding the content of the text. I realize that there are occasions, especially when legislative proposals are hundreds or thousands of pages long (such as the stimulus package of last year) that legislators’ familiarization with the text is difficult to master. But this is not a good pretext to excuse legislators from having the opportunity to know on what it is that they are committing the nation whom they represent. Texts and familiarization with what they contain are vital to law-making and to the democratic process to which we citizens entrust to our legislators.
So, I, for one, am concerned about the parliamentary process being considered by the Congress, the so-called “deem and pass” method, where a vote on a concrete text may be bypassed in favor of a parliamentary fiction that could nevertheless result in the passage of a law whose content is unknown at the time the legislators are committed to “passage”. Speaker of the House Nancy Pelosi recently was quoted as saying, “But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” [news clip Download Breitbart.tv » Nancy Pelosi We Need to Pass Health Care Bill to Find Out What’s In It] I may be in a minority, but I think it important to know what is in the bill prior to its passage rather than after its “adoption”. In my estimation, the Speaker’s approach intensifies rather than eliminates controversy and its fog.
Words in bills mean something; words in laws mean something. They are not fluff; they are substance with serious legal implications for the future.
As I understand the procedural matter, the House is gearing up for passage of a Senate “bill” which has not been finalized. I am putting aside Constitutional concerns of Article I for the time being and focusing on a parliamentary maneuver to adopt a future text that does not yet exist but whose “adoption” has sweeping and irreversible implications on the fact that Members of the House and citizens may be committed to a bill (and, therefore a law) whose language does not exist at the time of passage. [See March 16, 2010 Associated Press report here, which further states, “House Speaker Nancy Pelosi wants to shield lawmakers from having to vote directly on the Senate-passed health care bill because it’s unpopular with House Democrats. ‘Nobody wanted to vote for the Senate bill,’ Pelosi, D-Calif., explained...” I find this a poor excuse for passing a “bill” which may be unpopular, especially when its language is unknown because it does not yet exist.]
A further concern I have is that some elements of existing legislative proposals may well find their way into any future law regarding health care that the Congress may soon pass. I am sure we are all grateful to Michael Perry for his bringing to our attention the analysis of Professor Timothy Jost of the Washington and Lee School of Law countering the position of the United States Conference of Catholic Bishops. In his memo Professor Jost makes the claim that, “The Senate bill (1303(b)(1)(A)(i)), like the House bill (222(e)), provides that qualified health plans may not be required to provide abortion as an essential benefit.” But I find Professor Jost’s argument unpersuasive and discomforting.
True, the final language that may eventually be adopted may not “require” something, but that does not mean that it will not be “permitted.” Why do I suggest this? Again, my teaching legislation courses for almost a quarter of a century reminds me of what happened to Section 703(j) of Title VII of the 1964 Civil Rights Act that was at the heart of the legal controversy in Weber v. United Steelworkers (1979). The applicable legislative text (known by or at least available to the Congress at the time of the passage of this important legislation) stated that nothing contained in Title VII “shall be interpreted to require any employer...to grant preferential treatment...to any group because of the race...of such...group on account of” a de facto racial imbalance in the employer’s workforce. In writing for the majority, Justice Brennan went on to conclude that had Congress mean to prohibit all race-conscious affirmative action, it could have provided that Title VII would neither “require” nor “permit” racially preferential integration efforts. And so, I look at what Professor Jost has said and conclude: Congress may not be requiring “abortion as an essential benefit,” but, following Weber, it may very well permit “abortion as an essential benefit.”
Surely the matter of health-care legislation of the magnitude that Congress is considering demands a clear text known in advance of its deliberation and voting. If the Congress does not desire this, indisputably the American people deserve to know in advance how their elected legislators are making extraordinary laws without knowing what is in them. Perhaps some members of Congress see no need in putting the American people on notice of what may be expected and required of them, but I think the American people deserve to know this before it is too late.
RJA sj
Some more health-insurance-and-abortion thoughts in response to Bob
Thanks, as always, to Bob for the interesting conversation. A few quick (but, I hope, not too quick!) thoughts in response:
First, Bob asks:
Why would we ever think that assisting the poor in the purchase of what the non-poor already purchase -- comprehensive health insurance policies -- would entrench the constitutionally permissive abortion regime? If we're actually concerned with the entrenching effects that private-market-offered health insurance policies, most all of which cover abortion, have on the legal regime concerning abortion, why don't we call for regulation of those insurance companies, all of which currently enjoy statutory exemption from federal regulation, requiring them to offer policies that do not cover abortions in addition to what ever policies they offer that do cover abortions?
The second sentence raises (to me) interesting questions about the relevance of the fact that, under the proposed health-insurance proposals, people would be required to buy insurance. But Bob's main question, it seems to me, is in the first sentence: My thoughts (which might be mistaken, of course) are that we might very well think that increasing the extent to which the government helps to create expectations regarding the availability of (indirectly subsidized) abortions might well help to entrench the current legal regime. Additionally, I worry that the political experience of all this -- that is, the experience of seeing that the prospect of increased regulations of (or, reduced indirect subsidization of) abortion is so unacceptable to the Democratic leadership that many of them seem willing to risk losing the opportunity to enact the President's signature piece of legislation -- could, for many, result in a hardening of their attachment to the idea of constitutionally protected abortion rights. Is this a "speculative" concern? Absolutely. I'm not sure. But, I worry about it. (Some, of course -- Michael Sean Winters, over at America, for example -- think it will have the opposite effect. I hope he is right!).
With respect to his second point -- about the best terminology to use -- I guess it is not clear to me that "subsidy" necessary says anything about intent, but I don't have any objections to the terms he usees . . . so long as we do not forget that for many (most?) of the Democrats in Congress, it is a desired side-effect of this legislation that access will be increased to abortion-services. I understand, of course, that Bob and I are in the same place, and regret equally any such side-effects of health-insurance regulation.
Finally, I certainly hope that neither Bob nor anyone else "heard" me to be saying that the intent / double-effect questions are not interesting or important. Yes, absolutely, a conscientious legislator would need to engage these questions. My point is just that I am happy to assume, for the sake of discussion, that a pro-life, conscientious legislator could in good faith come to the conclusion that he or she is not culpable for any bad abortion-related side-effects of what he or she thinks is, on balance, a good piece of policy. That such a legislator could avoid culpability, though, would not mean -- it seems to me -- that there are not serious pro-life concerns about the enactment of the policy.
"New Hope" for school choice and Catholic schools in DC?
Perhaps, the Washington Post reports / editorializes:
THE D.C. Opportunity Scholarship Program may finally get the attention it is due on the floor of the Senate. Sen. Joseph I. Lieberman (I-Conn.) plans to offer an amendment to the Federal Aviation Administration reauthorization bill that would continue federally funded vouchers for low-income students attending private schools in Washington. This could well be the program's last chance, so it is time to separate fact from fiction about this important initiative.
Mr. Lieberman's proposal would provide for another five years and -- unlike the disappointing "compromise" touted by the Obama administration -- would permit the enrollment of new students. With a vote possible as early as Tuesday, opposition groups are stepping up their attacks. The National Education Association claims the program "has yielded no evidence of positive academic impact on the students the program was designed to assist." Americans United for Separation of Church and State says vouchers have "taken money away from the D.C. public schools." Others, including the American Civil Liberties Union, say it's improper to use taxpayer dollars to fund the religious education of children.
To those who claim that the program hasn't helped targeted students, we offer the results of the rigorous scientific study that Congress insisted on when the pilot program was launched in 2004. "The D.C. voucher program has proven to be the most effective education policy evaluated by the federal government's official education research arm so far," wrote Patrick J. Wolf, principal investigator for the Education Department's study. He went on to say: "in my opinion, the bottom line is that the OSP lottery paid off for those students who won it. On average, participating low-income students are performing better in reading because the federal government decided to launch an experimental school choice program in the nation's capital." . . .
With all the complaining about "partisan" gridlock, and the purported desire for "bipartisan" cooperation, one would think / hope that this could be an opportunity to do some good. Spread the word!
The Problem with 'Abortion Subsidies' & Other Intention-Suggestive Terms: And a 'Thank You' to Rick Garnett
Hello, All,
And many thanks to Rick for the clarification in his response to my earlier post yesterday. I had not realized that Rick is uninterested in double effect analysis of legislators' votes -- perhaps because I've only recently begun following and contributing to this weblog -- so apologies for any implication that Rick might be interested in something that he's not. I do nevertheless have three quick comments, while I am at it here, to add in response to Rick's helpful post yesterday:
1) I certainly agree with Rick that the factors he adduces are relevant to the second, 'proportionality' step of a double effect analysis. I also, however, think it quite 'speculative' and indeed indeterminate, pending careful empirical investigation or, failing that, consideration of widely observed causal relations of the sort implicit in Rick's suggestions here, to suppose that a health insurance reform bill that simply enables some 20 to 30 million more people than presently are able to purchase insurance from private insurers all of which seem to have been independently offering abortion coverage (even to most if not all of us here at MoJ, I suspect, as noted yesterday) for decades with no calls from conservatives that they be required also to offer non-abortion-covering policies, would somehow further solidify 'the current legal/constitutional regime' on abortion. Why would we ever think that assisting the poor in the purchase of what the non-poor already purchase -- comprehensive health insurance policies -- would entrench the constitutionally permissive abortion regime? If we're actually concerned with the entrenching effects that private-market-offered health insurance policies, most all of which cover abortion, have on the legal regime concerning abortion, why don't we call for regulation of those insurance companies, all of which currently enjoy statutory exemption from federal regulation, requiring them to offer policies that do not cover abortions in addition to what ever policies they offer that do cover abortions?
2) Insofar as any of us is uninterested in the motives of legislators, I do think it behooves us to avoid locutions like 'abortion subsidies' in our posts, which latter phrase strikes me as strongly suggesting, on at least one quite natural reading, the deliberate targeting of abortion itself as something to be subsidized. Much better to say something like 'abortion-affecting,' or 'possibly abortion-affecting' legislation, which keeps clear that we're speaking of collateral effects rather than intended effects. (That is of course why I keep using such phrases.) I think similar remarks hold for such phrases as 'implicit endorsement of the notion that (elective) abortion is health care,' which figures in the last line of Rick's post, and perhaps even of the phrase 'alleged health-care-reform measure,' which figures in the last two lines of that post. If it really is solely collateral effects that concern us, our descriptive lingo, it seems to me, ought scrupulously to reflect that fact. (I see no endorsement of abortion at all here, incidentally, any more than I see vouchers as implicit federal endorsements of 'Popery.')
3) Finally, a brief word on why I myself am interested in the first -- intention-concerned -- step of double effect analysis along with the second such step in this context: My aim is to think through the moral and legal significance of the proposed health insurance reform legislation now before Congress, from the point of view of the conscientious legislator. Were I such a legislator, and were I a Catholic one who took both the Church's social justice teachings and its abortion teachings seriously, could I vote in favor of the legislation now before Congress? It seems to me that in order to reach 'yes' here, I must first assure myself that I would not in thus voiting be intending to aid or abet abortion. Only after reaching confidence on that question could I then proceed to step two and conduct the inherently probablistic 'proportionality' sort of analysis. Why am I concerned with these questions? Easy: First, in hopes of contributing to a sort of public brainstorming together, as it were, with some legislators of conscience who might be reading MoJ and deliberating internally even now about how to vote. (Bart Stupak, are you out there?) And second, in hopes of doing the same with all other participants in our community, many of whom might themselves be wondering whether to support, oppose, or remain on the fence in respect of the current proposed legislation.
Thanks again to Rick and to all of you who are reading,
Bob
"Michigan: Trucker Guilty in Killings"
Get Religion notes that the trial and conviction of Harlan Drake, killer of anti-abortion protester James Pouillon, received curiously little media coverage.
So, what should we do about this?
NYT, 3/16/10
With Medicaid Cuts, Doctors and Patients Drop Out
By KEVIN SACK
With states squeezing payments to providers, patients are finding it increasingly difficult to locate doctors who will accept their coverage.
[Article here. An excerpt:]
FLINT, Mich. — Carol Y. Vliet’s cancer returned with a fury last summer, the tumors metastasizing to her brain, liver, kidneys and throat.
As she began a punishing regimen of chemotherapy and radiation, Mrs. Vliet found a measure of comfort in her monthly appointments with her primary care physician, Dr. Saed J. Sahouri, who had been monitoring her health for nearly two years.
She was devastated, therefore, when Dr. Sahouri informed her a few months later that he could no longer see her because, like a growing number of doctors, he had stopped taking patients with Medicaid.
Dr. Sahouri said that his reimbursements from Medicaid were so low — often no more than $25 per office visit — that he was losing money every time a patient walked in his exam room.
The final insult, he said, came when Michigan cut those payments by 8 percent last year to help close a gaping budget shortfall.
“My office manager was telling me to do this for a long time, and I resisted,” Dr. Sahouri said. “But after a while you realize that we’re really losing money on seeing those patients, not even breaking even. We were starting to lose more and more money, month after month.”
It has not taken long for communities like Flint to feel the downstream effects of a nationwide torrent of state cuts to Medicaid, the government insurance program for the poor and disabled. With states squeezing payments to providers even as the economy fuels explosive growth in enrollment, patients are finding it increasingly difficult to locate doctors and dentists who will accept their coverage. Inevitably, many defer care or wind up in hospital emergency rooms, which are required to take anyone in an urgent condition.
[Now, an excerpt from Tim Jost's response to the USCCB:]
[E]xpanding access to health care, particularly to those who cannot now afford it, is fundamentally pro-life. The statement of the Secretariat does not mention the fact that studies have shown that as many as 45,000 Americans die prematurely each year because of lack of access to health insurance, but this conclusion was reached recently by a Harvard School of Public Health School study extrapolating from earlier work done by the Institute of Medicine. The Catholic Bishops as well as other Christian denominations and people of faith, have long recognized that the fact that many people, currently almost 50 million, lack access to health insurance in a country as rich as ours is not only a very serious problem, but also one that challenges our commitment to the sanctity of life. These bills do not address this problem perfectly, but would extend health insurance to 30 million Americans, and to that extent they are fundamentally pro-life.
Monday, March 15, 2010
Dana Gioia wins Laetare Medal
I have to admit that, for me, Notre Dame's Laetare Medal won't shine quite as brighly as it should until Mary Ann Glendon accepts it. That said, I am pleased to report that Fr. John Jenkins has announced that "Dana Gioia, poet and former chairman of the National Endowment for the Arts, will receive the University of Notre Dame’s 2010 Laetare Medal."
“In his vocation as poet and avocation as arts administrator, Dana Gioia has given vivid witness to the mutual flourishing of faith and culture,” said Notre Dame’s president, Rev. John I. Jenkins, C.S.C. “By awarding him our University’s highest honor we hope both to celebrate and participate in that witness.”
A native of Hawthorne, Calif., Michael Dana Gioia was educated in Catholic elementary and secondary schools before, as he has joked, he “traded down” for Stanford University, from which he was graduated in 1973, and Harvard University, from which he earned a master’s degree in comparative literature in 1975, studying with the classical translator Robert Fitzgerald and the poet Elizabeth Bishop. He returned to Stanford to earn a master’s of business administration degree in 1977.
Even while pursuing a business career from 1977 to 1992 with the General Foods Corp. in New York, where he served as vice president of marketing, Gioia wrote and published widely. He also served as poetry and literary editor for numerous magazines and won recognition for his own poems, including the Frederick Bock Award for Poetry in 1986 and the 1992 Poet’s Prize. He left General Foods in 1992 to begin writing full time.
Gioia has published three full collections of poetry, including “Interrogations at Noon,” which won the 2002 American Book Award. He also has published eight smaller collections of poems, two opera libretti and numerous translations of Latin, Italian and German poetry. In addition to editing more than 20 literary anthologies, he also writes essays and reviews in such magazines as The New Yorker, the Atlantic, the Washington Post Book World, the New York Times Book Review and Slate. His 1992 volume “Can Poetry Matter?” – which was widely discussed in both the United States and abroad – often is credited with helping revitalize the place of poetry in American public life.
From 2003 to 2009, Gioia served for two terms as chairman of the National Endowment for the Arts. He is credited with revitalizing an agency through which he sought to strengthen bipartisan support for public funding of arts and arts education, to champion jazz as a uniquely American art form, to promote Shakespeare readings and performances nationwide, and to distribute NEA grants more widely.
In a lecture in 2000, Gioia argued that art and Catholicism mutually flourish because “the Catholic, literally from birth, when he or she is baptized, is raised in a culture that understands symbols and signs. And it also trains you in understanding the relationship between the visible and the invisible. Consequently, allegory finds its greatest realization in Catholic artists like Dante.”
A (late) response to Bob
In the ongoing conversation about the health-insurance-reform debate and abortion, Bob responds here to my post (here). Bob writes:
[T]he 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 had intended (but failed, obviously) to make it clear that I was not addressing the "intended financing of abortion." I have said -- enough times to bore regular MOJ readers to death, I fear -- that I am not particularly interested in the double-effect analysis of legislators votes. I assume that some legislators *want* to fund abortions, others don't care if they fund abortions or not, others are willing to fund them for the sake of achieving what they regard as another good, others really, really hope they are not indirectly funding them, etc., etc. Like Rob, I am "thinking about collateral effects." Like Rob, I think it makes sense to ask "how a legislator ought to factor intervening choices into the inherently probablistic 'cost benefit analysis' that is a double effect stage 2 inquiry." I would say, though, that this "inherently probabilistic 'cost benefit analysis'" must include, not only considerations relating to the number of abortions that are committed, but also the effect on the current legal / constitutional regime -- and on the public's support for such a regime -- of including, in an alleged health-care-reform measure, even indirect financial support for abortion, and even implicit endorsement of the notion that (elective) abortion is health care.
A bit more on Marty, Glen Beck, and Social Justice
So, I'm not a fan of Glen Beck, and I am a fan (most of the time) of Martin Marty. I would hope that all those who are outraged by Beck's recent (silly) statements regarding churches that preach "social justice" would also be outraged by the (much more common, in my experience) suggestions that Christians should abandon traditions, denominations, and churches whose commitment to an authentically Christian moral anthropology leads them to hold "traditional" views on matters of religious liberty, the role of the state, human sexuality, and the equal dignity of unborn children? After all -- for Catholics, anyway -- it all comes from the same place. No?
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