. . . have just been released. Read them here. (Please read them before commenting on them.)
UPDATE: An encouraging opening paragraph in light of our earlier discussion: "Neither the [Bush] 2008 final rule, nor this Final Rule, alters the statutory protections for individuals and health care entities under the federal health care provider conscience protection statutes, including the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment. These federal statutory health care provider conscience protections remain in effect."
UPDATE #2: Forgive me for live-blogging my own reading of the regulations, but uh-oh, I think I see where we're headed: "The Department supports clear and strong conscience protections for health care providers who are opposed to performing abortions," but rescinds the portions of the 2008 final rule that were "unclear and potentially overbroad in scope."
UPDATE #3: Basically, the new regulations remove the certification requirements and leave enforcement of violations of existing federal statutory conscience protections up to the HHS Office for Civil Rights. Also, out of concern that the definitions contained in the Bush regs might lead to overbroad interpretations of the statutory protections, the new regs have deleted all definitions, offering the puzzling explanation that HHS "believes that individual investigations will provide the best means of answering questions about the application of the statutes in particular circumstances."
HHS acknowledges receiving many comments raising concerns about Catholic hospitals being forced to close absent conscience protection, and HHS responds that "Roman Catholic hospitals will still have the same statutory protections afforded to them as have been for decades." Elsewhere in the document, though, HHS acknowledges Connecticut's concern that the Bush rule "would prevent them from enforcing their state laws concerning access to contraception," and HHS responds that, "while there are no federal laws compelling hospitals to provide contraceptive services, the Medicaid Program does require that States provide contraceptive services to Medicaid beneficiaries," and HHS is "concerned that the breadth of the 2008 Final Rule may undermine the ability of patients to access these services, especially in areas where there are few health care providers for the patient to choose from." As such, HHS "partially rescinds the 2008 Final Rule based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services without a basis in federal conscience protection statutes."
My quick take is that the Obama regs provide a means of enforcement with the Office for Civil Rights, though it remains to be seen how interested the OCR will be in bringing actions against offending entities. The regs also remove any other substantive provision that interprets (or could potentially be read as expanding upon) the statutory protections. To the extent that there is uncertainty about the actual requirements of the relevant statutes, these regs disavow any attempt to lend greater clarity beyond the issue of abortion.
Thursday, February 17, 2011
Pro-choice Will Saletan on the Kermit Gosnell case in Philadelphia:
I'd like to think that in the months ahead, Pennsylvania's abortion providers and pro-choice groups will work with legislators and the governor to fix the regulatory problems that led to the Gosnell fiasco. But I worry that many of them won't. I've seen providers and their allies in the reproductive rights community circle their wagons before. I've seen them deny the significance of bad doctors, dirty clinics, and a woman's death. I've seen them resist inspections and dismiss abortion laws the way the NRA dismisses gun control.
Richard Beck thinks so; here's an excerpt of his argument:
The difference between Generations X and Y isn't in their views of the church. It's about those cellphones. It's about relationships and connectivity. Most Gen X'ers didn't have cell phones, text messaging or Facebook. These things were creeping in during their college years but the explosive onset of mobile devices and social computing had yet to truly take off.
So why has mobile social computing affected church attendance? Well, if church has always been kind of lame and irritating why did people go in the first place? Easy, social relationships. Church has always been about social affiliation. You met your friends, discussed your week, talked football, shared information about good schools, talked local politics, got the scoop, and made social plans ("Let's get together for dinner this week!"). Even if you hated church you could feel lonely without it. . . .
But Millennials are in a different social situation. They don't need physical locations for social affiliation. They can make dinner plans via text, cell phone call or Facebook. In short, the thing that kept young people going to church, despite their irritations, has been effectively replaced. You don't need to go to church to stay connected or in touch. You have an iPhone.
Sure, Millennials will report that the "reason" they are leaving the church is due to its perceived hypocrisy or shallowness. My argument is that while this might be the proximate cause the more distal cause is social computing. Already connected Millennials have the luxury to kick the church to the curb. This is the position of strength that other generations did not have. We fussed about the church but, at the end of the day, you went to stay connected. For us, church was Facebook!
To the extent that this argument has merit, I'm guessing it holds more truth for Protestants than for Catholics. In general, my experience of Protestant churches is that the churchgoing experience is more social, especially for young people, than the experience at most Catholic churches, where the experience is more centered on the individual, and where folks tend to flee as soon as Mass is finished (or sooner, in many cases). In any event, it's an intriguing thesis.
What is the Christian argument for a statewide ban on Sunday liquor sales?
Wednesday, February 16, 2011
We don't like putting a dollar figure on the value of a human life, especially ex ante, but when we're trying to evaluate the wisdom of regulation, it's an unavoidable inquiry, and federal agencies are currently revising their calculations. It still makes me squirm though, as I think it should. As I remind my Torts students, if we truly viewed human life as priceless beyond all measure, wouldn't we have prohibited car manufacturers from designing vehicles that go faster than 30 mph?
OK, so forgive my deliberately provocative headline, but in both Washington D.C. and my local state capitol (St. Paul), the battle lines have been drawn (once again) surrounding the annual budget debates. The lines seem, if anything, to be more calcified than ever between the "no tax increase" and the "no significant spending cut" crowds. I find plenty to quibble with in both camps, but I confess to finding the first camp more infuriating. When the preferred option is drastic cuts to programs that serve as lifelines to the most vulnerable among us (e.g. Head Start, prenatal health programs, etc.) -- particularly when those cuts appear to be a desperate attempt to reach a symbolic $100 billion campaign pledge -- I find the refusal to contemplate any increased taxes to be maddening. I know I've raised this before, but I still find any of three potential grounds for a "no new taxes ever!" approach to be problematic: 1) if a categorical opposition to increased taxes is based on a belief that they don't work to the extent that they'll depress levels of economic activity and thus actually reduce revenue, it seems that there would need to be more persuasive evidence to bolster that belief. 2) If opposition is based on the belief that the government is misusing the money and spending it imprudently, then logically the opposition would target specific programs rather than cap revenue in a way that hinders prudent and imprudent spending alike. 3) If the opposition is based on a more principled stance along the lines of "It's the people's money!," that's a viable position, though it seems to stand in some tension with Church teaching. (See, e.g., Compendium para. 355 (discussing "payment of taxes as part of the duty of solidarity.")
I generally find Paul Krugman to be insufferable, but his op-ed from a few days ago was difficult to ignore. Just as some on the left seem to pay no heed to the dangers of an ever-expanding profligate state, the alternative approach emerging from the awkward GOP/Tea Party marriage appears to be equally reckless. A person who takes Catholic social teaching seriously needs to reject both camps, doesn't she? Putting it more concretely -- and yes, I know this is usually consigned to the province of prudential judgment -- in our current fiscal circumstances, can a Catholic who accepts Church teaching on the role of the state in providing a safety net for the vulnerable prudently reject the very possibility of tax increases?
Thursday, February 10, 2011
Years ago, David Luban wrote an article about Martin Luther King, the legal system, and King's Letter from a Birmingham Jail. (87 Mich. L. Rev. 2152) This part really grabbed my attention:
[T]here is an important sense in which Socrates, like Paul and Amos and Shadrach and Luther and Bunyan, does not belong in the same political narrative as the Southern Christian Leadership Conference. The defining relationship of Socrates's public stance, like the figures in the biblical narratives, was a relationship with a divine voice. This relationship, to be sure, manifested itself in a politically significant action, but in the case of Socrates that was happenstance. . . . [U]nless we take Paul and Luther to be lying at the core of their being, their political acumen accrued to them (to speak scholastically) per accidens . . . [T]he theological narratives contained in King's Letter may actually suppress or displace an explicitly political self-understanding of political action by substituting relationships with the divinity for political relationships.
Luban here is expanding on Hannah Arendt's point that "conscience is unpolitical." Thoughts?
A spokesman for the Muslim Brotherhood explains (in the NYT) what his group seeks for Egypt:
As our nation heads toward liberty . . . we disagree with the claims that the only options in Egypt are a purely secular, liberal democracy or an authoritarian theocracy. Secular liberal democracy of the American and European variety, with its firm rejection of religion in public life, is not the exclusive model for a legitimate democracy.
In Egypt, religion continues to be an important part of our culture and heritage. Moving forward, we envision the establishment of a democratic, civil state that draws on universal measures of freedom and justice, which are central Islamic values. We embrace democracy not as a foreign concept that must be reconciled with tradition, but as a set of principles and objectives that are inherently compatible with and reinforce Islamic tenets.
Sounds fairly catholic, in a Catholic sort of way, no?
UPDATE: I hadn't read this WaPo op-ed from another member of the Brotherhood, which is a little less reassuring:
Because we are an Islamic movement and the vast majority of Egypt is Muslim, some will raise the issue of sharia law. While this is not on anyone's immediate agenda, it is instructive to note that the concept of governance based on sharia is not a theocracy for Sunnis since we have no centralized clergy in Islam. For us, Islam is a way of life adhered to by one-fifth of the world's population. Sharia is a means whereby justice is implemented, life is nurtured, the common welfare is provided for, and liberty and property are safeguarded. In any event, any transition to a sharia-based system will have to garner a consensus in Egyptian society.
