Healthcare Legislation and the Conflict of Interpretations
The long historical disagreement about how to interpret the plainly written U.S. Constitution, and the many conflicting interpretations of it that mark our national history, clearly show that certainty of meaning is not likely to be found in the actual practice of writing, interpreting and enforcing our nation’s laws. Those who write a law may intend one meaning, while those who apply it may understand its meaning differently. We can see these differences of interpretation in the recent debate over whether or not the newly passed healthcare legislation will fund abortions. My co-bloggers Morning’s Minion and MZ argue that the legislation is clearly written to prevent such funding, while others warn that “Obamacare” will undoubtedly fund abortion, pointing to how the legislation is being interpreted and applied in Pennsylvania and other states. We’ve seen still other positions and arguments, such as those from opponents to the legislation who point to how Planned Parenthood has interpreted it, asking if abortion isn’t going to be funded, why is the organization is so pleased with its passage.
At this stage, I cannot answer the abortion funding question with certainty because textual interpretation and speculation about how a text will be interpreted and applied do not allow for certainty. Even if a piece of legislation were to contain the most clear and unequivocal language establishing the most effective safeguards against abortion funding, still certainty would not be completely available. Debates such as the ones we’re having now might still exist.
The absence of certainty shouldn’t prevent us from interpreting, of course, but it should perhaps keep us ever-so-slightly doubtful and suspicious about our own interpretations. I may not know with certainty whether or not “Obamacare” will fund abortions, but I can still do the best I can to reasonably understand and speculate and, if having come a conclusion, act on it. However, and I want to stress this point, my interpretation and subsequent action are just that: mine. They are the result of my attempt to understand. They do not rise to the level of a certain standard by which I can judge all other interpretations and actions. I cannot say with certainty that the CHA was wrong to support the bill or that its many detractors were wrong to oppose it.
A day may come when we can see with concrete evidence how dollar X was used to pay for abortion Y. At that point we have left speculation and entered historical fact. Even at that point, though, certainty may well elude us, as I’m pretty sure that in such a case a debate would emerge over whether the use of dollar X to pay for abortion Y was the result of a proper interpretation or improper interpretation of “Obamacare.”
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“who write a law may intend one meaning, while those who apply it may understand its meaning differently.”
Which is exactly why small government conservatives are opposed to statist policies. Law itself is fungible, open to interpretation and time. This is why constant revisions need to be made, to plug the holes.
“I cannot say with certainty that the CHA was wrong to support the bill or that its many detractors were wrong to oppose it.”
Which is exactly the problem. If the law isn’t clear enough to have reasonable certianty about the direction and ultimate destination of funding, then we need to go back to the drawing board.
“A day may come when we can see with concrete evidence how dollar X was used to pay for abortion Y.”
An evil law is an evil law. Your statement is a different question. Does the law, positive or negative, have an immoral impact? Even a law that had every intention of doing good that does evil needs to be revised.
Laws that result in the expansion, intended or otherwise, of intrensically immoral evil are bad laws.
As far as the posts, M.Z. and MM have imputed immoral motives to their ideological opponents on nothing more than that the opponents hold opposion views. This is slander, and they owe the pro-life community an apology.
I don’t disagree that there are bad laws or evil laws, but I’d add that even the best of laws can be put to ill use. The possibility for evil use is always there, so at what point do you tolerate the law as is?
It would seem to me that, abortion being legal and also a medical procedure, the real constitutional issue is how a health care law involving the dispersal of public funds can be written so as to single out that particular medical procedure from coverage, based on a religious interpretation of the nature of that procedure.
Setting aside for a moment the difference in degree, how does the abortion issue differ in kind from the hypothetical argument: Not only are individual Muslims and Jews forbidden by their religion to eat pork, but they also assert that the eating of pork is an offense to the Almighty; and a society which allows the eating of pork is put in grave danger of divine retribution; therefore the sale and distribution of pork should be proscribed by law, and all federal subsidies to hog farmers should be deemed extra-legal and ended.
It seems to me that the debate here is not about how the healthcare law should (or will) ultimately be interpreted. Rather, it’s about whether or not the Obama administration can be trusted to keep its word. Simply put, the critics believe that no matter what the bill itself or the executive order actually say, the president will make every possible effort to fund abortion in order to please his pro-choice constituents. In regard to Pennsylvania and New Mexico, both NRLC and conservative commentators generally believe that the only reason the “high risk pools” in those states will not cover abortion is that the administration has retreated in the face of adverse publicity.
I don’t think we should get too carried away thinking the inevitable goal of Democrats is too fund abortion. Having abortion available for white middle class women’s daughters is relatively popular. Allowing poor non-white the same opportunity though government is not popular. This is a summary of Justice O’Connor’s opinions by the way, borrowed from a politics prof. In the House it was a group of about 30 members that were willing to tank health care reform because of the threat they thought the Stupak amendment would have had for abortion rights in private plans. I think we set the bar too low if we treat keeping funding away as a great accomplishment. Certainly, in some states it is a great issue, but House reps from Idaho to Ohio to Louisiana and back would have serious trouble in their districts if they made funding abortion their priority. (Obviously there are some exceptions there.)
As for Kyle’s post, I would add that many of the folks were willfully and proudly ignorant of the bill’s provisions. They openly stated it was impossible to read the bill’s 1200 pages, follow the day-to-day amendment process, etc. The truth is that people can inform themselves to a reasonable degree to allow reasonable moral judgments. Finally, if a person is putting forward a position that isn’t falsifiable, they are engaged in myth making and not argument. There is evidence that would prove my prognostications on the health care bill wrong. I am open to evidence as it develops. I do not believe I am entitled to my own reality.
“The possibility for evil use is always there, so at what point do you tolerate the law as is?”
This is a case by case basis. A few general principles apply.
1. Do no harm. Any law change/improvement must avoid intrinsic evil. Do not expand intrinsic evil. Do not allow for the possibility of expansion of intrinsic evil.
2. The good of the intention of the law must be weighted in the light of what actually is happening. Does the law actually perform the action desired? What are the effects? Is it causing more evil than good?
3. When evil is detected, what is the damage? Does the evil outweight the relative good? This is difficult to analyize given various factors. A good starting point though is the hierarchy of rights that belong to a human being. Life, basic necessities, then third tier like healthcare, education, etc.
I don’t interpret this article as making much sense… I interpret it as using the concept of interpretation to defend the indefensible!
What PMG describes as “indefensible” is indefensible only from a certain, up to now minority, perspective. Yet it is a political question. That being the case, PMG is the one “not making much sense,” since he is not addressing the issue according to its real terms, but only as he wishes those terms would be in a more perfect world.
“The absence of certainty shouldn’t prevent us from interpreting, of course, but it should perhaps keep us ever-so-slightly doubtful and suspicious about our own interpretations.”
The Stupak amendment made it certain that abortions would not be covered under Obama care. The Democrat party opposed Stupak. Stupak opposed Stupak. Now we have all this confusion.
jamesK writes:
…Obama care. The Democrat party…
I understand you perfectly.
There are certainly disputed legal interpretations. There are also several historical facts. One historical fact is that the PPACA-funded New Mexico high risk plan explicitly covered all elective abortions and was approved by HHS to do so, and retraction occured only because National Right to Life and other pro-lifers complained.
Another historical fact is that abortion advocates have actual, detailed descriptions for federally qualified Community Health Centers to perform abortions and to violate the consciences of medical personnel working there who object. http://www.reproductiveaccess.org/getting_started/faq.htm
Also historical is that the National Association of Community Health Centers wrote (along with with Planned Parenthood and NARAL and the ACLU and others) to the Department of Health and Human Services in opposition to a proposed regulation that would have done nothing but require them to actually comply with existing laws as written that already are supposed to prohibit them from violating the consciences of pro-life employees, arguing that CHCs must not be required to follow those laws if they are to provide all the services they desire to provide. http://www.nachc.org/client/documents/Provider%20Conscience%20Role%20Comments%209.25.08.pdf
And, as an historic matter, the Obama administration took the CHCs’ and the abortion providers’ advice and issued a notice to entirely rescind those conscience protecting regulations, and then in PPACA the administration turned around and said that it didn’t need to include conscience protections in PPACA because existing laws were good enough(sans the enforcement regulations they noticed for rescission).
1. The to-be federally funded NM plan that had yet to receive final federal approval. The plan has yet to receive first dollar from the federal government. Now the Right-to-Life original story was that this proved there was no legal authority to restrict abortion. After an intermediate period where they held the ridiculous position that the legal authority was not pre-existing but created by an HHS press release, they are now whining that after New Mexico published their plan for public comments, they actually had to comment.
During the Bush Administration, various federal and state regulations and policies were proposed, the NRLC would review them and if they found an objection (which they did not find in the Republican pro-abortion Medicare Advantage and FSA FEDS programs), they sent a letter from their General Counsel explaining the legal reasoning and that was it. What we have now is not an attempt to comment on regulations but to attack the President and attack health care for 32 million Americans.
2. That abortion advocates advocate abortion services is really not news. Their Q&A gives pretty good testimony that CHCs are highly restricted from using federal funds for abortion, even in indirect ways.
3. Regulations were already in place regarding abortion and sterilization. The proposed regulations had to do with declining to serve gay people, contraception, and other matters.
Kurt
You need to make this point here:
http://catholicvoteaction.org/blog/cva/index.php?p=1821
The reason why Matt Bowman consistently gets his comments deleted on my threads is 1) I warned him to stop giving false witness. He has not. He continues, in comments in my thread, to misrepresent me and what I have said (as he still does on that thread) — and such uncharitable behavior is not welcome. As an example… he tried to say this:
In other words, he continues with a campaign to misrepresent what I stand for and why I disagree with various people. He wants to present me as some supporter of President Obama (which I have told him many times I am not), as some liberal (just as an ad hominen to make sure there is no dialogue and misrepresent what I am, as I am sure, you know why that label fails for me), and his continuous insistence to do so has led to my deleting his comments, period.
And on the issue of Kenya, it has nothing to do with abortion — but the minds of people who hate Obama, everything is. It is that America is working for development of African Constitutions. Now, if the reform didn’t have abortion, I am sure the Constitution would still be supported — it is an accidental to the situation.
Indeed, according to this editorial, there is more:
http://allafrica.com/stories/201007200904.html
More about it:
http://allafrica.com/stories/201007221066.html
In other words, more lies, and just anyone who points out such hackery is denounced as “pro-abort” because, well.. we want the truth out?
Henry,
With Mr. Bowman, whom it seems is a member of the Bar in some state, what shocks me most are his offenses against his craft. I really am flabbergasted at some of the statements he makes about the law. I suppose if I were a better Catholic, I would be more concerned as to the offenses he makes against people rather than his profession.
In the aftermath of the Right-Wing assertions against Shirley Sherrod, I have learned not to believe anything they put out. But on the Kenyan matter, I have to guess is that there is National Endowment for Democracy funding for the process of writing their constitution. And I guess that Matt and the other nut-jobs twist that into abortion promotion, even though measuring by that rule, George H.W. Bush would be the most pro-abortion president in history with the aid given to the emerging democracies in Eastern Europe, all but one which have abortion rights in their legal code.
But I think we need to be nice to Matt Bowman. He and his kind are hurting puppies. They have lost favor with the libertarian Tea Party ascent on the Right and he and the NRLC are now being forced to defend themselves by those opposed to abortion but not in line with his political games.
I don’t think Matt and his friends will totally fail in their self-defense, but it at least it politically sidelines them as the in-fight continues, limiting the harm they can do elsewhere.
On conscience rights, Kurt says “Regulations were already in place regarding abortion and sterilization.”
Cite one regulation to support your claim. Just one.
“The proposed regulations had to do with declining to serve gay people, contraception, and other matters”
45 CFR Part 88 does nothing but quote statutes and tell entities they must promise to obey those statutes. Please quote one sentence of the mandate in 45 CFR Part 88 dealing with these other things.
Kurt and Henry have criticized me personally for taking a position based on law and for asking them to offer citations to support their positions. Recently the objective, neutral Congressional Research Service issued a legal opinion agreeing with my position on PPACA and Hyde and the executive order, and disagreeing with Kurt and Henry.
http://help.senate.gov/imo/media/doc/CRS%20Report%20for%20HELP%2007232010.pdf
This is a rational argument and I am interested to see if Kurt or Henry have a rational response.
Henry also contends, with accusations of lying, that Kenya’s constitution only has a life of the mother exception to abortion. As my link above shows, it also has a health exception, which exceptions are inherently broad. Is Henry willing to correct his facts and reassess his accusation of lying?
The Right to Life Movement went merrily on its way through 7 1/2 years of the Bush Presidency (including a 2004 endorsement of his re-election) without noting any need for these regulations. As you note, statutes already exist prohibiting the discrimination against those opposes to abortion and sterilization. Generally regulations are issued when the laws ask for regulations to implement the law. That was not the case in this law (the GOP generally insists the government should be retrained in issuing regulations, letting the plain language of the law stand for itself).
In December of 2008, the Bush Administration and NRTL suddenly found a need for these regulations that had not occurred to them for the first seven years and 11 months of the Bush Administration.
The Obama Administration resinded these regulation as part of a package of other last minute Bush Administration regulations.
I am agnostic if these regulations were needed or not, though I support the underlying law. In the rushed period when the Bush Administration and NRLC rammed these through, questions were raised if it exceeded the law and allowed health care providers to decline to serve lesbians and gay men if they claimed their religious belief required it of them (the NRLC refused to accept a clarifying statement on this) as well as questions that it gave health care professional more than the right to decline to participate in an objectionable procedure but the right to lecture a client about birth control or lifestyle choices free from any supervisor discipline.
Obviously, you don’t believe these regulations do these things, but others do.
The issue for me is not that I am certain I have any objection to these regulations. It is that a matter that was so unimportant that it was left unacted on by the Right to Life Movement until the last month of a 96 month presidency.
Bush got a pass on this issue for 95 months. It is another example of the RTL Movement being Republican first and anti-abortion second.
I take it your non-comment on the other issues I raised means they are settled.
So there were no other regulations you cite, and no basis you can cite to oppose the conscience protecting regulations. Thank you. As for other issues, the CRS memo refutes your position on those. How does it not?