Cardinal George claims authority on legal technicalities

Posted on November 16th, 2010 by TimH

People who know me will tell you I'm generally a pretty calm guy. But when I read that, yesterday, Cardinal George made even more explicit the claim that bishops have the authority to pronounce the truth on technical legal matters, I lost my cool.

The debates about nuns vs. bishops are a distraction from the real issue here.

The outrageous statement is here: “As teachers of the faith,” it was the bishop’s moral call “to judge whether the means passed moral muster, whether or not the proposed legislation used public funds to kill those living in their mother’s womb.”

Is it really a moral question "whether or not the proposed legislation" contains such and such a provision? No! It's a moral question whether it is right to use "public funds to kill those living in their mother's womb," and I passionately agree with the bishops' powerful teaching on this moral question.

What I disagree with is whether the legislation in question does such a thing. I'm not a trained lawyer, so I do not claim any special competance to make the call on that. (That is, I'm in the same position as the bishops.) I've read Prof. Jost's arguments against the USCCB's claim that the bill funds abortion, and it seems to me that Jost has it right. He has responded point-by-point to every statement coming from the USCCB, but they have not responded in kind, despite his professional, respectful tone.

The bishops, as a whole, have come to the opposite conclusion: they trust their in-house legal analysts. Ok, fine, but how exactly does it make me a bad Catholic that I have reached a different conclusion from the bishops on the particulars of this law? Isn't making particular judgments about the technical meaning of legislation a prototypical example of the role of laity? This is absolutely outrageous!

And I suspect Cardinal George knows he's on shaky ground here. It's interesting how he says, "The bishops ... speak for the church in matters of faith and in moral issues and the laws surrounding them." Let's see, which of those three, faith, moral issues, and laws, doesn't belong with the others?

Nor is this just the personal opinion of Cardinal George. Back in May, three other bishops, the heads of their respective USCCB policy committees, issued a statement in which they clearly stated that they "disagree that the divergence between the [USCCB] and Catholic organizations, including the Catholic Health Association, represents merely a difference of analysis ... Rather, for whatever good will was intended, it represented a fundamental disagreement..." The context implied that the CHA disagrees with the bishops on some moral teaching, but that is manifestly not the case - they unequivocally oppose abortion and government funding for abortion. It was indeed a difference of analysis, and I don't see how you can interpret it any other way.

Indeed, it is instructive to imagine an alternative history in which the CHA and the bishops agreed on the analysis of the bill - for instance, suppose they agreed that there was some limited chance (say, 5%) that new funding for elective abortion might result from the bill. In that case, it would indeed be the bishops' role to make the moral judgment that even a 5% outside chance of increased federal abortion funding is enough to reject the whole bill, which was the only opportunity for substantial health care reform in the foreseeable future. Then, if the CHA went ahead and said, "No, we disagree with your moral judgment and we are going to support the bill anyway," that would be an inappropriate disobedience to legitimate teaching authority.

But that is not what happened. The bishops and the CHA did not agree on interpretation of the bill, and the USCCB did not respond adequately to the arguments against abortion funding being in the bill. I think the reality is that there is an outside chance (maybe 5%) that loopholes in the bill will be used to fund elective abortions, but I don't know whether the bishops would recommend abandoning the bill for such a reason because they never acknowledged that reality.

Instead they made misleading claims like Cardinal George's outrageous duplicity in his March 23rd statement. In that statement, he first points out that the law "provides federal subsidies for health plans covering elective abortions." That is technically true but misleading - the law requires that all insurance payments for abortions must come from a separate pool of funds kept strictly separate from federal money. Amazingly, Cardinal George goes on to criticize this part of the bill segregating federal funds from abortion: "Stranger still, the statute forces all those who choose federally subsidized plans that cover abortion to pay for other peoples’ abortions with their own funds." Um, is it really strange that the insurance premiums of those who choose a plan covering abortion would then go towards paying for said abortions? Under his bizarre interpretation, the law is bad both because it allows federal money to pay for abortions and because it doesn't. Out of respect for the bishops' teaching authority, let's just say that it's hard to come up with an interpretation of Cardinal George's statement in which he is trying to present the truth about the law clearly and in good faith.

I fearfully await hearing of today's developments on "a proposal to reassess levels of authority of church statements." Is this reassessment going to conclude that bishops may issue authoritative statements on technical matters outside of their expertise, which Catholics are then bound by faith to accept? Usually, I would say that's crazy - the Church knows how to make these subtle distinctions about the nature of apostolic authority - but now I really don't know what to think.

Please do not get caught up in the tired arguments about the USCCB and "liberal" nuns and miss this huge issue!

p.s. I just found out that this debate has already occured in detail in the pages of America Magazine. The editors' very fair assessment of the bishops' position was answered with a defensive response from the bishops' General Counsel Anthony Picarello. Picarello mentions that the USCCB released its most extensive analysis of the law, which was several pages longer than any previous public USCCB analysis, "about a month" ago. Then he goes on to criticize the editors' complaint that "the bishops’ reasons for drawing their conclusion were not available for others to probe during the debate on the bill.," calling it a misstatement and implying it was made in bad faith. But remember that "extensive analysis of the law" he just mentioned a minute ago? It was published the day after Congress's final vote on the bill! This offense against truth makes me sick to my stomach.