Legal Commentary

Further to my post last week on subsidiarity and the implications of Catholic Social Thought for responses to the economic crisis and the policy proposals of the new administration, I want to comment on a post by Rob Vischer (whose work I enjoy and admire) over at the most excellent Mirror of Justice, Rob reflects on the comments of Sioux City Bishop R. Walker Nickless:

[T]he Catholic Church does not teach that government should directly provide health care.  Unlike a prudential concern like national defense, for which government monopolization is objectively good ? it both limits violence overall and prevents the obvious abuses to which private armies are susceptible ? health care should not be subject to federal monopolization.  Preserving patient choice (through a flourishing private sector) is the only way to prevent a health care monopoly from denying care arbitrarily, as we learned from HMOs in the recent past.  While a government monopoly would not be motivated by profit, it would be motivated by such bureaucratic standards as quotas and defined ?best procedures,? which are equally beyond the influence of most citizens.  The proper role of the government is to regulate the private sector, in order to foster healthy competition and to curtail abuses.  Therefore any legislation that undermines the viability of the private sector is suspect.

Rob asks whether Catholic Social Thought actually claims that "a flourishing private sector" is the predominant concern when it comes to a society's provision of health care? "

If the question is put in that way, the answer is "no.' It is not the "predominant concern" although, in fairness to Bishop Nickless, I am not sure that he claimed it to be. He did say that it was the only way to prevent a "top down" rationing of care and CST does suggest that we be skeptical of that type of decision making. This, I think, is what may cause him to say that any bill that undermines the viability of the private sector is suspect.

As I suggested last week, subsidiarity is premised, at least in part, on the subjectivity of individuals and the associations that they form. The state is to empower and facilitate - rather than stifle - human agency and creativity. While this is cannot be read as an uncritical endorsement of markets or a rejection of the need for state regulation and even intervention in their operation (there is much criticism of unbridled markets in CST and robust support for assistance to the poor and to the weak), flourishing private markets are a way in which human creativity is expressed. There are, it seems to me, an almost infinite numbers of ways to control costs and to socialize (or insure) the cost of care. Choosing among them will almost certainly affect incentives to innovate. The notions that the state can choose the "best" form of insurance (mandating coverages and setting limits) or specify the conditions for optimal innovation seem rather dubious and, beyond that, restrict the subjectivity that is at the heart of subsidiarity (and, I would argue, solidarity).

This doesn't mean that the Obama health care plan (whatever it turns out to be) is inconsistent with CST or that current arrangements are not, by its lights, in need of reform. Large numbers of uninsured rests very uneasily with the premises of the Church's social encyclicals. But I think it does suggest why a "flourishing private market" is, if not the predominant concern, an important one.

Of course, Rob is right that the application of CST by Bishop Nickless and others is likely to reflect their own cultural or political views. It can't be otherwise; the objective is to allow those insights derived from CST to guide those views. And, I think, they can be guided in the direction of an emphasis on markets.