Jost Jousts

Last week Public Discourse, an online journal sponsored by the Witherspoon Institute, posted a piece by Helen Alvaré titled "A Health Care Challenge to Commonweal and Timothy Jost." Alvaré, who is an associate professor at George Mason University School of Law, criticized us and Professor Jost for daring to disagree with the United States Conference of Catholic Bishops about the Patient Protection and Affordable Care Act. Alvaré complained that "Commonweal's editors just don't seem to trust the USCCB's legal or policy analyses of the PPACA insofar as freedom of conscience or abortion are concerned." Instead, she claimed,Commonweal had naively deferred to the judgments of its "apparent legal advisor," Professor Jost, who, according to Alvaré, has "no record of cooperation with Catholic moral and policy interests along the consistent ethic of life." (Take that, you Mennonite.)

Professor Jost doesn't need us to defend him. Indeed, he has responded to Alvaré's criticisms quite ably in a piece now available on our website. It's true that we have found Jost's analysis of the Affordable Care Act more convincing than that of the USCCB and some leading prolife organizations that opposed the health-care reform bill. This is not because Professor Jost is our "legal advisor" (he's not), or because we were predisposed to distrust the USCCB's prolife office, or because we were so eager to support the president's health-care reform that we were willing to bless "whatever the House majority decided to offer pro-life Americans while in the throes of desperate, last-minute negotiations" (to quote again from Alvaré's complaint).

In fact, it was not a question of trust. It was a question of judgment. We took the USCCB's interpretation of the Affordable Care Act very seriously -- and, after reading the relevant sections of the Act itself andthe analysis of various experts, judged that interpretation to be incorrect. Alvaré thinks our disagreement with the bishops conferences hows us to be"both arrogant and naive," but as Richard R. Gaillardetz has pointed out, neither the bishops nor their lay advisers have an exclusive claim to competence when it comes to the technical evaluation of public policy. Nor can the bishops conference, despite its consistent and often heroic efforts on behalf of the unborn, fairly claim ownership of prolife principles. Professor Jost does not have less credibility as a prolifer because he is not a Catholic, or because he sometimes disagrees with the bishops conference about other issues. It is unbecoming of Alvaré and the editors of Public Discourse, a nonsectarian outfit, to try to turn this dispute into an ecclesial turf war. It is possible for Mennonites -- or Mormons or Zoroastrians -- to construe a piece of legislation correctly and for Catholic bishops to misconstrue it.

Alvaré wonders why we don't just endorse a clear statutory ban on funding for elective abortions at community health centers rather than relying on a dubious executive order signed by a prochoice president. Here she is pushing against an open door. We hope that the Hyde Amendment will be expanded so that it explicitly includes all the money the Department of Heath and Human Services spends on community health centers, including the money appropriated by the Affordable Care Act. (There is no reason to doubt that the Hyde Amendment will pass the next time it comes up for a vote, and there is no point inpassing it if HHS is allowed to use some other source of funding to pay for elective abortions.) Because the Affordable Care Act does not provide for an administrative mechanism that would segregate the money it appropriates for community health centers from HHS funds that are covered by the Hyde Amendment, we and Professor Jost have argued that the new funding was already implicitly covered by the amendment. President Obama's executive order only confirmed this understanding. But Alvaré insists that only a statutory ban will have any real effect; that, on their own, the new law and the executive order will simply not be enough to keep the government from funding elective abortion. She rebukes us for the "growing implausibility" of our claim to the contrary. She doesn't say how exactly that implausibility has grown, and it isn't clear to us how it could grow without evidence that because of health-care reform the federal government has actually started funding abortions it didn't fund before.

Alvaré's description of the new legislation implies a verifiable prediction. So does ours. If she and the bishops conference have read the Affordable Care Act correctly, the courts will soon force community health centers to perform elective abortions paid for by the federal government. If we have read the act correctly, this won't happen. As long as everyone remembers the conflicting predictions, the dispute should be easy enough to settle. If it turns outthat we were wrong, we'll acknowledge our error, and not pretend it was a small one. (No doubt our friends at the bishops conference and Public Discourse will be happy to help us acknowledge it.) But what will it take for them to acknowledge that they were wrong? If community health centers still haven't performed taxpayer-funded elective abortions in five years' time, what will prolife opponents of the Affordable Care Act say? "Just you wait -- give it another five years"? Or "Maybe it didn't happen, but the law itself gave us every right to expect it would. And, besides, you can never be too safe." We'd like to think they'll just say, "Oops. The Mennonite was right after all." But it's harder to say oops when you're wearing a miter, which is why we hope the folks at Public Discourse will take off theirs.

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