Mirror of Justice

Hello Again, All,

A quick legal-theoretic question for anyone here who might be willing to indulge me.  I pose it with no intent to be 'provocative' or anything like that.  I'm genuinely trying to get clear on the matter and wonder whether I've managed.

Here's the story:  I've been thinking again (with characteristic opacity) about how an abortion-opposing legislator ought to think about pending health insurance reform legislation that might or might not affect the number of abortions procured in the nation.  In particular, I am interested in how this legislator ought to regard the intervening choices of individual beneficiaries of health insurance reform.  In this connection, it seems to me that an analogous question arises in connection with 'school voucher' programs.  Hence I find myself wondering whether it's sound to resolve my question vis a vis health insurance reform in the same manner I used to do in earlier times vis a vis Establishment-implicating education finance. 

Here's a bit more context:  

I'll posit for present purposes a legislator who is inclined to vote for health insurance reform legislation, with the the following set of intentions: first, rendering insurance more widely available, at less expensive rates, to some tens of millions of fellow citizens; relatedly second, repealing the bizarre antitrust exemptions afforded to insurers by McCarran-Ferguson; and finally third, prohibiting certain unjust practices such as denials of coverage for preexisting conditions that insureds did not bring on themselves. 

Let us also assume for present purposes that this legislator opposes the practice of abortion, perhaps even the legality of abortion.  Finally, let us suppose that this legislator is wondering how to regard the possibility that the legislation she is inclining to vote for might bear some effect on the number of abortions that are procured after its passage.  The legislation might, on the one hand, lessen that number, perhaps by rendering (abortion-excluding) 'family planning' and child-rearing more affordable, or via some other set of mediating effects.  The legislation might, on the other hand, raise the number, perhaps by rendering all procedures provided by people with medical degrees, including abortions, more affordable. 

We'll assume for the moment that the question which of these families of unintended collateral effects -- those that might lessen the number of abortions, and those that might increase that number -- is apt to dominate remains fraught with uncertainty.  If that is the case, such that our legislator is effectively at step two of a doctrine of double effect sort of analysis and is accordingly now wondering about which way 'proportionality' cuts, might the concept of 'intervening cause' or 'intervening choice' be of legitimate assistance to her in deciding which way to vote?  That is my question.  My intuitive reaction is to think that the answer is yes, but I admit I'm unsure.

About 12 years ago, while I was in the spring term of my second year of law school, I sat a wonderful seminar course on the Religion Clauses of the First Amendment.  As in many seminars, so in this one the course grade rode upon class discussion and a substantial research paper.  I elected to write on the constitutionality of education and related social serice 'voucher' programs, largely because it seemed to me that the arguments I'd read against them were so silly.  (I distinguish these from policy arguments against many such programs, many though not all of which struck me as far more worthy of being taken seriously than the constitutional ones.)  The position I ultimately settled on at that point found expression in a cute little slogan that I coined and took foolish pleasure in:  Avoiding impermissible Establishment, I decided, was 'simply a matter of accounting.' 

What I meant by that is that public provision of education and other social services is designed to make certain basic resources available to all irrespective of luck in the birth lottery.  (Why should your birth to wealthy parents entitle you to much better education and life prospects than one of you sisters or brothers or fellow citizens born in different circumstances?)  In essence, all these public goods and the programs that supplied them were meant to effect redistribution in respect of certain resources -- including education -- that we have plausibly decided justice to require be made widely available to all.  But it would be absurd, I went on, to demand as the price of affording such justice an unjust requirement that people abandon such equally fundamental values (as fundamental as distributive justice) as their religious and related cultural identities.  And it would be just as absurd to pretend that such basic resources as education and other forms of 'social service' could be altogether disentangled from values so fundamental as those that find expression in the religious faiths of and services provided or received by providers and beneficiaries. 

In that light, I concluded, voucher programs constituted a brilliantly innovative and altogether legitimate means of having things both ways -- egalitarian distributions of certain basic resources without dilution of the faith element that often suffuses such resources themselves (e.g., education) and the provision thereof (e.g., 'social sevcices' provided by faith groups). 

But what about O'Connor style 'endorsement?,' some of my classmates objected.  If vouchers were used to pay tuition at parochial schools, didn't this amount to public endorsement of the religious missions of those schools?  'Not at all,' I would reply, at least so long as the denominational composition of voucher-use more or less tracked the denominational composition of the population of the users.  (This was where the 'accounting' quip came in.)  For there was no reason at all to view the provision of vouchers that are generally usable everywhere as reflective of state sanction of any particular religious tradition, or indeed even of 'religion' as distinguished from 'areligion' at all. 

The only 'endorsing' being done here, it seemed to me, was being done by the voucher users themselves via their unconstrained choices.  Choice of a parochial school by a voucher user was 'endorsement' of that school by the user.  (And of course might have been endorsement of the effective teaching or something else rather than the Catechism; but this indeterminacy of the meaning of the user's choice only strengthens the argument).  It was in no way reflective of any attitude at all on the part of 'the state' toward the tradition within which the school operated.  It reflected nothing more in the way of state endorsement than state endorsement of a more or less egalitarian distribution of that basic resource known as 'education.'

So to reiterate and further elaborate my prompting question:  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.

What think you?

All best and thanks,

Bob