Abortion and Health Insurance Reform

Hello All,

Once again it is looking as though health insurance reform might soon be had, and so of course once again certain concerns raised by abortion opponents in and out of Congress are receiving a hearing.  I don't object in any sense to these concerns' being raised or heard, of course, but I do think that they can be easily answered in a manner that abortion opponents themselves -- especially Catholic ones, particularly those with a grounding in Catholic moral tradition and/or the common law of torts -- should find compelling.  So I thought that I might attempt to supply a rendition of that answer here. 

By way of stage-setting, let me first say that I'm going to appeal here to the venerable 'Doctrine of Double Effect' (DDE) familiar to Catholic moral theology -- and to moral philosophy more generally -- on the one hand, and to the doctrines of 'proximate' and 'intervening' causation familiar to the law of tort on the other.  And I am going to suggest that, insofar as one finds either or, especially, both of these two doctrines compelling, then she will readily come to see that there is no sound reason to object to the proposed health insurance reform legislation now under consideration in Congress.

First, then, the DDE:  As many of our readers might know, the DDE suggests that we undertake a two-step inquiry when it comes to assessing the permissibility of actions that might result in harms (think of it as traditional moral philosophy's form of cost-benefit analysis):  One first queries whether any particular harm that might be wrought by the contemplated action is internal to -- aka constitutive of -- the intention thus to act.  That is, one asks whether the harm is itself intended, or is instead simply a collateral by-product of the action that might happen to bring the harm about.  If the harm itself is indeed internal to the intention that issues in the action, then the action and intention are wrongful, and must be eschewed.  (In this respect, the DDE carries a 'deontological' flavor -- it categorically prohibits intentions to harm, or perhaps what Kantians would call 'an ill will.')  If, on the other hand, the harm is indeed simply an unintended (even though possibley foreseeable) by-product of the action, one proceeds to a second inquiry: 

Pursuant to the DDE's second inquiry, one queries whether the collateral harm that might be occasioned by the action is in a certain sense 'outweighed' by the good that one intends to bring about through the action.  One inquires, in other words, into the 'proportionality' of the action, including the harms that it occasions, to the good that the action is meant to bring about.  (In this respect, the DDE carries a more 'consequentialist' flavor -- it treats goods and ills as at least roughly comparable, and contemplates the occasioning of costs in exchange for certain weightier benefits.  In this connection, it might be worth noting also that, although the DDE originates in a time prior to the introduction of probablistic modes of decision-making and -theorizing, this second step in the DDE inquiry seems to me to lend itself to updating in a manner incorporating such modes.  In such case one would compare probability-weighted contemplated goods and ills apt to be wrought by the contemplated action.)

Now of course all manner of difficulty can attend certain 'borderline' cases concerning the circumstances under which a particular harm is indeed internal to an intention, or is instead merely collateral.  And of course difficulties also can attend the proportionality inquiry enjoined by step 2 if and when one reaches it.  But it turns out that the health insurance reform legislation now before Congress does not occasion such difficulties, so I'll leave them to one side for present purposes.

Next the doctrines of proximate and intervening causation:  It is a familiar fact of tort and criminal law that not all 'but for' causes are legally relevant causes.  The development of the Bessemer process might constitute a 'but for' cause in the chain of causation that ends in Sweeny Todd's harming somebody with a steel object.  It is not, however, a 'proximate' cause where the law fixing legal responsibility for that harm is concerned.  Sweeny in this case represents a legally relevant 'intervening' cause in the chain linking Bessemer to victim.  And lest you think this is simply a quirk of the law, I suggest that in fact it is simply a case where the law reflects 'common sense,' and a quite Aristotelian style of common sense at that.  (No accident, this, as much common law doctrine takes a cue from English chancellors of ages past, most of whom were educated in the Aristotelian moral tradition pursuant to their roles as clerics.) 

Now of course all manner of difficulty can attend 'borderline' cases of morally or legally relevant proximate causation just as can happen at both stages of a DDE inquiry.  The supplier of Mr. Todd's blades, for example, if she's got a good inkling of what Mr. Todd does with them, presumably bears more responsibility than does Mr. Bessemer, even if just a bit less than does Mr. Todd.  But again, such borderline matters do not really come up in connection with the health insurance reform legislation, so I leave them to one side.

On then to that legislation itself, and to how it should look to an abortion opponent by DDE and proximate causation lights.

First let us ask what any legislator who votes in favor of the legislation might plausibly intend in thus voting:  This seems to me an easy question.  If you think it a good idea to extend health insurance tens of millions of your fellow citizens who cannot currently afford it, it seems to me that you vote for the current legislation on that basis and intend nothing more in thus voting than to get that coverage extended.  The same can be said in respect of all other benefits that the legislation is calculated, and well apt, to bring about -- including the prohibition of coverage denials on the basis of preexisting conditions, the affording of more competition between insurers via the instituting of 'exchanges' on which standardized policies can be meaningfully compared, the withdrawal of the anti-trust exemption that insurance companies have perversely enjoyed sinc McCarran-Ferguson's passage in the mid-1940s, and so on and so forth.  (For a complete discussion of the benefits of the legislation, as well as the respects in which the legislation is too damn modest, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1484768 .)  And of course the same can be said of the full set of these benefits, or any subset thereof.  The real punchline here is that any member of Congress who votes for the legislation, and does not do so with the intention that it bring more abortions about, passes step 1 of the DDE inquiry, and that it's easy to see how any member of Congress could indeed vote for the legislation -- enthusiastically, in fact -- without having any intention what ever of render abortion more common.  Move on, then, to step two.

Step two, you'll recall, is the proportionality inquiry.  The question now becomes whether all of the good recited above that the legislation appears apt to do might in any sense be 'outweighed' by some increase in the number of abortions that it might facilitate.  In addressing this question, it seems to me worth noting that the interstate highway system first adovcated by President Eisenhower has to have increased the number of abortions by facilitating travel from states that prohibited it in the 1950s to states that permitted it.  Presumably telephonic and other electronic means of communication bore a similar abortion-facilitating effect.  So, of course, did the development of more efficient means of travelling between nations, and the waging of the second world war -- which increased economic growth, hence incomes, hence the affordability of abortions.  And so on and so forth.  You see where this is going:  At some point the 'abortion effect' potentially wrought by any particular piece of legislation is apt to look pretty miniscule in comparison to the other effects that are generally what's actually intended.  And the fact that the abortions ultimately are chosen by the people who seek them for its part constitutes a not inconsiderable 'intervening' cause in these cases as well.  It is ultimately much more the chooser of the abortion than it is President Eisenhower or the people who lay the asphalt for the new interstate who 'proximately' causes that which abortion opponents identify as the salient harm here -- abortion.  

Does the proposed health insurance reform legislation look like the interstate highway system for present purposes, then, and do legislators who vote for it look like those who voted to fund the interstate highway system?  Does the good apt to be wrought by the proposed legislation dwarf what ever abortion effects it might collaterally cause?  And are those who seek abortions with insurance the purchase of which might come to be partly subsidized relevantly 'intervening causes' here between the legislation and the abortions themselves? 

It seems to me pretty clear that the answers to all of these questions must be yes.  With respect to proportionality, for example, I am prepared to be corrected on this if somebody can make a good argument, but as things stand I can't imagine that abortions are apt to spike hugely in numbers in response to health insurance's becoming more affordable.  And they'd have to spike just enormously, it seems to me, before anyone could plausibly claim this effect to be even remotely comparable to the good done by the legislation.  Furthermore, in view of the well documented correlation between unwanted pregnancies and poverty, it seems to me at least as likely that health insurance reform will lessen the number of abortions as that it will increase that number.  (How many people do we suppose really carry pregnancies to term because they cannot afford abortions?  It seems to me at least as likely that more people abort because they fear they are too impoverished to raise children, or because they have lacked access to education and hope of the sort that encourage them to avoid unplanned pregnancies.  But I'm open to stats here.) 

With respect now not only to proportionality now, but also to intervening causation, consider this:  If there is no way to render insurance more affordable that does not also happen to render abortion more affordable -- and what, short of locking everyone into income stasis, would not render abortion and everything else under the sun more affordable? -- would abortion opponents actually wish to argue that insurance ought not be rendered more affordable?  Would not that be a grossly disproportionate harm to accept in the name simply of preventing some people from paying less for abortions that they themselves, not pro-insurance-reform legislators, sought?  Relatedly, if legislators are not intending or aiming to make abortions more common in adopting legislation well adapted to addressing an obviously urgent national problem, surely it is only the intentions of those who seek abortions that ought to interest abortion opponents.  Those opponents' arguments, in other words, should surely be made to the would-be aborters, rather than to legislators concerned with an altogether distinct, and again urgent, national problem.

I tentatively conclude, then, that abortion opponents ought to favor the current health insurance reform legislation just as should anyone else.  Unless and until there is (a) some substantial evidence showing that abortions would shoot through the roof in consequence of health insurance reform legislation's passage, along with (b) a good argument for why that would 'outweigh' the extension of comprehensive and affordable health insurance coverage to tens of millions more Americans, accompanied by (c) a good argument showing why the intervening choices of abortion-seekers did not sever any putative nexus of responsibility linking insurance-reform-legislators with abortions, I can see no reason for abortion opponents to oppose health insurance reform.  Absent any one, let alone all, of (a) through (c), they ought to sign on.

Thanks for listening,

Bob    

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