What’s so important about the fight over healthcare and abortion? According to the editors of Commonweal magazine, the debate is a telltale sign of the bad motives of Republican congressmen and the hypocrisy of the “pro-life” groups that did their bidding. It is a barometer of Republican cynicism and pro-life hypocrisy, a weathervane turned by the ill wind of political religion. It is the shadow of the dark cloud of clericalism.
We take a simpler view. Our analysis of the bill has been concerned with protecting the unborn and guarding the consciences of those who bravely refuse to participate in their destruction. We have been guided by the conviction that it is our duty as citizens not only to extend healthcare but also to expand the circle of human care. Commonweal is free to flog whatever interests and flay whatever enemies it wishes, but those are distractions from the pressing task at hand.
The editors of Commonweal seem to have a bad case of miter envy. They think that we here at Public Discourse imagine ourselves wearing one, because we dared to publish a defense of the U.S. Conference of Catholic Bishops’ legal analysis of the Obama administration’s healthcare law, the Patient Protection and Affordable Care Act (PPACA). They charge that Public Discourse and Professor Helen Alvaré, author of “A Health Care Challenge to Commonweal and Timothy Jost,” have tried to turn a dispute over abortion funding in the health care law “into an ecclesial turf war.” With genuine or feigned high dudgeon, Commonweal instructs us that “it is possible for Mennonites—or Mormons or Zoroastrians—to construe a piece of legislation correctly and for Catholic bishops to misconstrue it.”
We readily admit as much. But who suggested otherwise? We agree with the bishops on this issue because they are right, not because they are bishops. Professor Alvaré does likewise. And she criticized Timothy Jost, Commonweal’s favorite health care expert, not because he isn’t a Catholic but because his legal arguments are lacking. Surely at Commonweal they have noticed that this conclusion might be applied to persons who call themselves Catholics—not just to those who call themselves Mennonites or Mormons or Zoroastrians.
In her initial piece for Public Discourse and a follow-up published today, Professor Helen Alvaré, chair of the Witherspoon Institute Task Force on Conscience Protection, has done a brilliant job of ignoring distractions and simply pointing to the actual words of the bill. Alvaré agrees with our analysis that unless the bill is revised or repealed, Americans face the risk of new, unprecedented, and direct taxpayer funding for abortions. We urge everyone to read these articles.
It has become standard practice for politicians and public figures of all stripes to present themselves as “pro-life” even when they oppose the basic goals of the pro-life movement. Despite this devaluing of the word, we are still inclined to take people at their word when they identify with the unborn. But we are troubled at the fact that when you actually look at the words of Jost, they are at best ambivalent, and at worst actually opposed to the cause of life.
Our concerns center on Jost’s public stance against the pro-life Stupak Amendment. Of course, there are many conceivable reasons why a pro-lifer might have opposed the Stupak Amendment, but Jost’s reasons were neither tactical nor prudential. Instead, they appear to be principled. For Jost’s opposition to the amendment was based on the premise that abortion—far from being the taking of innocent life—is a legitimate form of health care:
The intent of health care reform, as President Obama said from the outset, was to extend health insurance to Americans who do not now have it while not taking away coverage that Americans now enjoy. Reportedly, half or more of health insurance policies in the United States now cover abortion. To the extent that any Americans insured through such policies will receive affordability credits under the new legislation to purchase their health insurance, they will have less coverage after the bill goes into effect than they did before.
Jost decries the fact that citizens will lose their abortion coverage, but the pro-life movement’s stance all along has been precisely that the intent to harm has nothing to do with the call to heal. No pro-lifer could agree with Jost’s claim that a health plan that dropped their coverage for abortion would offer “less coverage after the bill goes into the effect than they did before.” Abortion is not health care.
In the same piece, in a surprising category error for a law professor, Jost worries about Catholic participation in the health care debate, and urges “Let us not become another Iran.” He remarks that the “separation of church and state” is somehow threatened if the Catholic bishops succeed in persuading the Congress of a point in moral reasoning that has no recourse to revealed truths of the Catholic faith. We know that one or two major figures in the law have been careless enough to make this kind of argument—Justice John Paul Stevens comes to mind—but it does not recommend Jost to us as a legal thinker. By this line of thinking, no legislation grounded in any moral judgment could survive constitutional scrutiny if it happened to coincide with the moral tenets of any identifiable religious sect. That is not remotely plausible as a reading of the First Amendment, and it is not what one would normally expect from a legal scholar who bills himself as a pro-life Christian.
What remains most confusing about Jost’s case is the fact that he previously expressed rank hostility for the Stupak Amendment but now claims (approvingly) that the new law prevents everything the Stupak Amendment was intended to prevent. If that is indeed the case, his strong opposition to Stupak and love of the current bill today seems baffling.
Jost professes to be shocked that Alvaré has, in his words, “essentially written a brief that could be used by an abortionist claiming that community health centers must cover abortions.” This, he intones gravely, “is a very strange argument for a pro-life advocate to be making.” But if Alvaré is right about the law, as we believe she is, then there’s nothing the least bit strange about it. Abortionists hardly need assistance in making this case, while allies of President Obama with dubious claims to pro-life credentials can be expected to say—as Commonweal and Jost have consistently done—“nothing to see here, move along, folks.”
Jost’s revealing slips and naked partisanship come as little surprise at this point in the debate. Pro-life groups have tried in vain to correct the errors promoted by Jost and Commonweal. Nonetheless, Jost continues to cite irrelevant statutes and ignore the relevant precedents on the issue of the funding of Community Health Centers. He has also refused to acknowledge the threats the bill poses to conscience protection. Commonweal, for its part, has been a broken record playing a bad song. They have constantly reiterated the claim that “new funding [under PPACA] was already implicitly covered by the [Hyde] amendment.” But, as we have stated before, there’s no reason to think this. In previous cases the court has mandated that agencies spend money on abortion when there is not statutory language stating otherwise.
We’re hardly happy with our assessment of the new health care law’s treatment of abortion. It would indeed be nice if the claims advanced by Commonweal and Jost were true and the position held by Alvaré and every major pro-life group was false. But the law speaks for itself. There is nothing we can do except change it. One way to do so would be through the Protect Life Act, which was recently introduced into Congress. Here, surely, is a place where the pro-life movement can stand together. If Commonweal and Jost take protecting life as seriously as they took the imperative to pass the health care bill, they will stop sniping from the sideline and join us in the effort to restore the protections they helped destroy.