Uncertainty Principle

The Bishops, Health Care & Prudence

My auto mechanic, Maynard, has a lesson to teach us about the unfortunate dispute between the U.S. bishops and the Catholic organizations that support the health-care law enacted last March.

The lesson applies not to the substance of the bishops’ negative conclusion on the health-care bill, but to the level of certainty the bishops have claimed for their judgment. It is this latter issue that has been most divisive. Certain bishops, completely confident of their position, have punished Catholic individuals and organizations that reached a different conclusion about what the Affordable Care Act allows and how it will be interpreted by the courts. Some observers, such as Richard Gaillardetz (see “The Limits of Authority,” August 13, 2010), have raised important questions pertaining to the authority of bishops and the role of prudence in any episcopal intervention in public life.

Meanwhile, many of us professional theologians have wondered how a man as intelligent and well educated as Cardinal Francis George, president of the United States Conference of Catholic Bishops and spokesman for the conference when the health-care bill was passed, could fail to recognize the unavoidable role of prudence in the bishops’ negative judgment of the final bill.

Cardinal George explained his position in his presidential address at the November 2010 USCCB meeting. He said the bishops had faced an “empirical” question concerning whether the legislation permitted “the funding of abortions beyond the restrictions imposed by the Hyde amendment.” He added that “laypeople who carefully analyzed the contents of the legislation…freed us, the bishops, to make the necessary moral judgments.” Their moral judgment was that, since the USCCB’s lay experts found that the legislation allowed abortion funding not already permitted by the Hyde Amendment, the bishops should oppose it. But the bishops conference went further than this, insisting that all Catholics must agree with them: there could be no responsible Catholic endorsement of the final bill.

Cardinal George spoke of people who “protested that the legislation is complicated and we therefore shouldn’t pretend to judge it.” (I know of no one in the Catholic debate who argued that the bishops should not judge such legislation.) The cardinal continued, “If you will excuse my saying so, this implies either that no one can understand or judge complicated pieces of legislation, in which case it is immoral to act until sufficient clarity is obtained, or it is to say that only bishops are too dense to understand complicated pieces of legislation.”

In Cardinal George’s view, there are two distinct judgments that had to be made. The first was legal, the second moral; and the second was based on the first. The moral conclusion could not be certain unless its legal premise was also certain. If there was any room for disagreement about the USCCB lawyers’ legal opinion, there must also be room for disagreement about the bishops’ moral judgment—and, of course, a number of legal scholars have disagreed with the USCCB lawyers.

Cardinal George’s argument was later supplemented by a statement written by USCCB staff theologian Fr. Thomas Weinandy. Titled “The Bishops and the Right Exercise of Authority,” this statement responded to Gaillardetz’s Commonweal article and defended the bishops’ final position on the Affordable Care Act. Weinandy argued that the bishops conference acted within its authority when it insisted “that all Catholics and organizations that reside under the Catholic umbrella must agree with its analysis.”

Cardinal George’s description of the legal question as “empirical” may explain why he could erroneously consider such an analysis certain. One might believe, mistakenly, that because a judgment is empirical, it must also be certain. In this view, all empirical issues are like those faced by the scientist explaining everyday events. How does an internal combustion engine work? The scientist can explain with great precision the conditions under which a vapor of gasoline and oxygen will explode inside a cylinder with sufficient force to push the piston away, thus propelling a drive train that carries this power to the wheels of the car. Since this type of empirical issue can be mastered by intelligence and study, and certainty is available even to a nonspecialist, this seems to be the sort of empirical issue Cardinal George has in mind. But what about the judgment of the USCCB’s legal counsel, which the bishops apparently take to be certain? Law-school students may learn many precise definitions, but an attorney is more like an auto mechanic than a scientist.

This is where my mechanic, Maynard, enters the picture. When I take my car into the shop because there is a knocking in the engine, my concern is indeed empirical: What’s wrong and what’s needed to fix it? Maynard and I must make a decision based on a preliminary judgment about the cause of the knocking. He knows that there are several potential causes of engine knock, some of them simple and cheap to fix, others more complicated and quite expensive. My hope, of course, is to fix a simple problem. But I recognize that I would be wasting my money to fix a nonexistent simple problem if I will eventually need to pay for the more complicated solution. That’s where Maynard’s wisdom comes in. I trust him.

The fact that Maynard’s judgment is superior to mine is not evidence of any lack of intelligence on my part. My ability to understand engines is nearly irrelevant. I would guess that both Cardinal George and I would defer to the mechanic’s judgment about where to start, even though the mechanic, too, will have to guess about which of the possible problems is actually causing the knock. No guess is certain, but his will be better than ours. I could spend the next two months studying gasoline engines and still wisely decide to defer to Maynard’s judgment, which is based on years of experience. But even his well-informed judgment carries no assurance of certainty.

The same thing happens when we to turn to an attorney. When we have to appear in court, the question we want answered usually won’t be “What is a tort?” or “What’s the difference between a covenant and an easement?” or even “What does this piece of legislation ‘say’?” These are things we could learn if we invested enough time. Most often what we want is far more complicated than that. We want someone with years of experience, who not only knows what the various parts of the law say but also has a highly educated judgment about how the courts will resolve the inevitably conflicting messages presented by competing laws interacting with a unique set of facts. This judgment is necessarily uncertain, which is why we call the attorney’s conclusion a “legal opinion.” We know that different attorneys may come to different conclusions about how a case ought to be decided—or how it is likely to be decided.

To remind ourselves of the complexity of such matters, we need only recall the Equal Rights Amendment, approved by Congress in 1972, which simply said, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” This Constitutional amendment was never ratified by the states in large part because of unsettled debate about how those twenty-four words would be interpreted by federal courts. If legal experts cannot agree on the meaning and implications of twenty-four words, how likely are they to agree about all of the 400,000 words in the Affordable Care Act?

Thus Cardinal George’s empirical question of what the law entails would seem to be far more like the auto mechanic’s challenge than the scientist’s. Because human beings are more complicated than auto parts, it is far more difficult for even an experienced attorney to predict the outcomes of court cases (for that is what’s really at stake in the debate about the new law) than for Maynard to diagnose the problem within my engine.

One test of how certain the USCCB is about its legal position will come when it eventually decides whether its legal staff should even bother to submit a friend-of-the-court brief to oppose a suit by prochoice advocates trying to expand the health-care law’s federal funding of abortion beyond what is allowed by the Hyde Amendment. My guess is that the bishops’ attorneys will find grounds for resistance within the new law, and this will demonstrate, at a minimum, that a reasonable debate on the implications of the law is possible.

Cardinal George speech implies—Fr. Weinandy’s statement explicitly claims—that prudence was not involved in the bishops’ decision. Fr. Weinandy writes that “with regard to the issue of direct abortion, there is not a variety of legitimate prudential judgments. This is a matter of absolute moral prohibition.” This despite the fact that the bishops were willing to endorse the bill if its abortion-funding restrictions had been the same as those found in the Hyde Amendment, which also allow the federal government to “pay for gravely immoral actions, such as abortions” in cases of rape, incest, or to save the life of the mother. In short, the difference between the health-care bill the bishops rejected and the one they were willing to endorse was not that one funded abortions and the other didn’t. Because both allowed funding for abortion, the decisive consideration for the bishops could not have been the “absolute moral prohibition” against direct abortions.

Fr. Weinandy argues that prudence is required for a choice among “a variety of justifiable approaches.” But since the bill was judged unjustifiable, Weinandy writes, “it is no longer a question of making a prudential judgment concerning any number of possibly good actions. Now it is a judgment of whether an immoral action is being permitted and fostered.” Thus, the certainty of the bishops’ judgment depends on its being based solely on principle, without the kind of complications that prudence engages. But, again, wasn’t the line between the acceptable abortion funding permitted by Hyde and the unacceptable funding the bishops saw in the Affordable Care Act drawn with the ink of prudence?

I intend no criticism of the substance of the bishops’ conclusion. One can make a good case in Catholic moral theology for their decision to endorse a bill with federal funding for some abortions while rejecting a bill that (they believe) funds other kinds of abortion.

Because the basic moral principle that abortion is immoral cannot by itself provide a warrant for the bishops’ support of a Hyde-restricted bill, something more is needed. That something more is what Catholic moral theology calls “prudence.” Prudence, according to Thomas Aquinas, “is not about the ends, but about the means” and “applies universal principles to the particular conclusions of practical matters.” The judgment that a piece of legislation falls within the range of morally justifiable options is a practical judgment, and therefore requires prudence. And if it requires prudence to decide that a particular piece of legislation is justifiable, it also requires prudence to decide that similar legislation is unjustifiable.

Those who take a more sectarian position might have refused to endorse the compromise embodied in the Hyde restrictions out of a false sense of moral purity. But ours is a church, not a sect. The Catholic Church engages the secular world and works to transform it; it does not simply judge the world sinful and walk away. This feature of our tradition carries a price—namely, that we can’t always be certain of our judgments about complex political issues.

Judge Learned Hand once said, “Life is made up of a series of judgments on insufficient data, and if we waited to run down all our doubts, it would flow past us.” The bishops are quite responsible in refusing to let life flow past them. Unfortunately, they have been unwilling to acknowledge the uncertainties this very Catholic refusal entails. They rightly oppose abortion, and did not abuse their authority in making a practical judgment about the health-care bill. But their unwarranted claim to certainty is causing ongoing damage to the church and its mission.


Related: Devil's Advocates and Episcopal Oversight, by Timothy Stoltzfus Jost
The Limits of Authority, by Richard Gaillardetz
Catholic Unity and Crying Wolf, by the Editors

From the blog: Jost Jousts

Topics: 

Comments

Commenting Guidelines

The UCCB lawyers could have come to the conclusions they did  because they knew beforehand what the 'bosses' wanted to hear. To go with your mechanic analogy. would you still trust Maynard the mechanic if you knew his boss had a pre-meeting telling him  'let's not have any more cheap fixes, new rings and values cost more but we are not cheating anyone. they are getting more reliable parts. Give him a rebuild the engine job'

.. doing what the bosses want...happens all the time..

I am not entirely sure what your complaint is. The bishops cannot be expected to support federal funding of abortion -- it simply is a matter of basic church teaching. You are right that their argument does not really hold up  because they were willing to support another bill that allowed funding in cases of incest, rape, etc.. But I would argue that their willingness to support these is an example of compassion trumping doctrine and should be applauded by all - not sneared at.

In New York City Archbishop Dolan tamed the abortion rhetoric recently by saying we should work to "reduce" the number of abortions. This seems to me something to also be cheered.  I have only been reading Commonweal for a little less than a year. I am liberal in most things -- but I cannot understand its position on abortion.  I am pro-choice in terms of my vote because it seems, sadly, to be a necessary evil at this stage in our civilization. But it is an evil. In the same way that state executions are. Why does abortion so often seem to get a pass in Commonweal? Seriously, can someone explain the thinking here?

 

 

Suzanne, he's not giving abortion a "pass," and he's not sneering at the bishops. Finn's critique is simply that the bishops (as a body), in condemning the health care bill, won't acknowledge that they made a prudential judgment, and that it is legitimate for other Catholics to make a different prudential judgment while upholding the same moral value (i.e., the sanctity life). Instead, Cardinal George and others condemn all Catholics who supported the health care bill (like the Catholic Health Association and the Leadership Conference of Women Religious) as false or dissident Catholics who are neglecting the sanctity of life, implying that there is only one legitimate way to put the sanctity of life into practice. Finn argues that this contradicts the Catholic teaching on practical wisdom's role in exercising moral values in the real world, and that while it's acceptable for the bishops to exercise their judgment on these practical matters, they shouldn't hold up their practical judgment as absolute.

Kari - Thanks for clarifying that. It was quite  helpful.

I work in medical claims insurance and I know that women with insurance have less abortions than those who don't, but what is the morality of letting approxiately 40,000 people a year die because they have no insurance?  Cardinal George doesn't have to worry about having health insurance.  I have a problem with Cardinal George because of his violation of the child abuse charter.  He said he took responsiblity, but it appears there were no consequences.  He just got elected to a very important post right after that.  He never talks about those who don't have insurance.  I don't believe he is very sincere.

Certitude in the face of human uncertainty, about which Learned Hand and the Uncertainty Principle both teach, seems to be enough of a recurring problem to raise questions about the intelligence at work in men selected for higher Church office in recent times.    

 

-   Archbishop Dolan announced on his November election to lead the USCCB:  “It’s not like we’re in crisis; it’s not like all of a sudden we need some daring new initiatives. Thank God for the leadership of Cardinal Francis George, things are going well.”  Empirical evidence?

http://www.nytimes.com/2010/11/17/us/17bishops.html

 

-   In Philadelphia, just 4 years after the 2005 scandal and 7 years after Dallas, it was apparently considered prudent to ignore the high probability of getting caught again for mishandling child abusers on behalf of the diocese and to issue obviously vacuous prepared statements like Cardinal Rigali's.    

Five charged in church sex scandal | Philadelphia Inquirer | 02 ...

 

-   The prepared public statement of Bishop Olmsted in Phoenix on Dec 21, 2010 declared "In this case, the baby was healthy and there were no problems with the pregnancy;…."   In fact, the sole, entire life support of the fetus was collapsing.  The statement about the pregnancy is inexplicable in light of what was known about why the woman was in St. Joseph's and the well-known fact that pregnancy is a whole-body condition.  (Ask any mother.) 

 

It would seem imprudent, to say the least, to trust such perceptive, prudential members of the USCCB on one's car, much less on more important matters such as US health care.  The linkage Finn shows between moral and "empirical" considerations deserves far more understanding, including recognition of the roles of inevitable uncertainty.  

You make a good point concerning the uncertainty of the legal opinion of the USCCB attorneys, relying upon general principles related to the subject matter of this particular opinion.  I would add another perspective, based on my own reading of the USCCB legal opinion.  I was prompted to review the opinion when my local bishop relied upon it in an article in the diocesan newspaper. 

I have been a practicing attorney for over forty years.  From time to time attorneys are called upon by clients to render opinions.  Clients are of all kinds, and service to clients takes the clients as they are.  In some circumstances the client has decided upon a course of action and wants the best legal justification that can be given.  In other circumstances, the client may prefer a particular course of action but wants the opinion to explore other alternatives.  In yet other circumstances, the client has not decided or does not know what to do, and seeks an opinion that explores the range of alternatives, presenting each alternative in a manner that enables the client to make an informed choice.

After studying the opinion written by the USCCB lawyers I concluded that the opinion was of the first kind.  This is no reflection upon the competence of the opinion.  Lawyers take clients as they are.  The point is that legal opinions are written for clients, and are not independent of the circumstances of the client and the instructions provided by the client.

It is possible, of course, that the USCCB lawyers were simply asked for their own opinion and provided it.  However, the controversial character of the subject matter in this case was sufficiently obvious that an opinion of the second or third types would then have been appropriate and duly provided.  Since an opinion of the first type was, in fact, provided, the logical conclusion is that it was requested, either explicitly or implicitly.

 

A couple thoughts.  First, there was at least one "Maynard" in this story, namely Rep. Bart Stupak, a pro-llife Democrat with an excellent record (from the bishops' standpoint) on the abortion issue.  And "Maynard" told them, from the inside, that they had nothing to worry about.  His thanks: They hung him out to dry. 

Also, the bishops need to "get" that we live in a multicultural society, and that in our society there are multiple moral traditions, not all of which always reach the same moral conclusions as our own tradition.  The 'natural law' concept only goes so far.  Some of these traditions assert a positive duty to abortion in certain limited circumstances, for example.  While we (and our tradition) may and should dispute this, the fact remains that in our polity these other traditions may have just as much right as we to assert their interpretations; and in most cases, in our system, the government may be required to be neutral toward all such conflicting theories or claims.  In our secular polity, we Catholics have only the power of persuasion, if we are sufficiently able to make a cogent case. 

     Given that, it is hard to square the bishops' opposition to the law with the broader concerns of Catholic moral teaching regarding the right to access to health care.  Which brings us back to the question of their certainty about things uncertain.  Do European health care systems not pay for abortions?  Are European bishops' conferences claiming that such systems should be abolished?  Clearly, our shepherds have overstepped. 

Share

About the Author

Daniel K. Finn teaches economics and theology at the College of St. Benedict and St. John’s University. His most recent book is The Moral Dynamics of Economic Life: An Extension and Critique of Caritas in veritate (Oxford, 2012).