Governing Morality Issues through Procedural Policies

Authors


Abstract

Abstract:  Morality issues such as the death penalty, drug consumption, gambling, and same-sex-marriage often constitute intractable policy controversies. Classical “morality politics” scholars predict two types of governmental responses to such public problems: either a substantive policy design if there is a broad consensus among electoral constituencies or a non-decision if there is a fundamental clash of values. We argue that the adoption of a procedural policy design represents a third option. Providing empirical evidence on the plausibility of this hypothesis, we compare the Swiss regulation of four morality issues in the medical field: reproductive medicine and embryo-related research; abortion; euthanasia; and organ transplant. In fact, “moral values” frames are not always dominant, as the multi-dimensionality of each morality issue allows for concurrent policy frames promoted by various policy actors.

1. Introduction1

There is a growing interest among public policy scholars in the development of a special group of policy issues called morality issues, such as abortion, medical biotechnology, organ transplant, euthanasia, and the death penalty. Morality issues have garnered a good deal of political importance across Western countries and have contributed to the increase of political conflicts based on moral and social values. In contrast to classical policy conflict over economic issues, morality issues address fundamental social and moral values, as they are often concerned with broader questions such as the beginning and the end of life, religious beliefs, and personal orientations and behavior (Banchoff, 2005; Mooney, 2001; Tatalovich and Daynes, 1988; Mooney and Lee, 2002; Mooney and Schuldt 2008; Studlar 2001). Because morality issues address such core values, they naturally tend to capture the attention of a large audience and to become highly salient in daily politics.

Several important morality issues have emerged in the medical field since the 1970s such as abortion, human biotechnology, organ transplant and euthanasia. While abortion and euthanasia have been on the policy agenda for a long time, the rapid and substantial development of biotechnology has launched a new set of values-driven issues related to the development of reproductive technology, genetic screening and, more recently, embryo-related research and human cloning. These important innovations shed political light on the field of biotechnology as a whole. In spite of their complex technical character, these issues capture public attention because they address questions related to the beginning and the end of life, a subject upon which polarised opinions can easily form.

Morality issues in the medical field constitute a paradigmatic case of intractable policy controversies (Hisschemöller and Hoppe 1995). Hence, there is no certainty on the policy means that have to be developed as well as no a priori consensus on the moral and social values that the policy should promote. Confronted with such heated controversies, how do political elites govern? Governments are in fact facing a series of complex political decisions. Two successive policy choices must be carried out. First, public authorities must evaluate the feasibility and acceptability of a political decision in terms of costs and benefits. A non-decision (i.e. the decision not to decide or even to exclude the issue from the political agenda) yields a considerable advantage in avoiding the alienation of a portion of the electoral constituency. However, a non-decision can harm a government’s credibility in the eyes of the public, which expects an official position on such fundamental controversies. In the case of a formal policy decision, the situation is even more complex, as it then becomes necessary to determine the content of the decision (e.g. its more procedural or more substantive nature), and at the same time to determine the concrete redistribution of moral values.

The literature on morality politics insists on the difficulty of reaching a consensus on which public decision can be based (Mooney 2001). As argued in the literature, discussion of moral values and social norms occurs within the context of high politics that appeal to a broad audience and, thereby, leads to a conflict of absolutes (Tribe 1990). Such a polarisation hinders the elaboration of a strong compromise supported by a large majority. Morality policy scholars predict two policy responses to this kind of intractable policy controversy (Money and Lee, 2002): either a majoritarian policy if there is a broad consensus among electoral constituents on the dominant values to be promoted or a non-decision in the case of a fundamental clash of values within the constituency. In other words, either no conflict on the moral issues at stake exists and the government will carry on with everyday politics or a strong moral polarisation exists and the government will simply not intervene in the field of biotechnology.

We argue that there is a third way to regulate morality issues: by the means of a procedural policy decision. In situations where values clash, a procedural decision represents an appealing policy response option for governments. Procedural policy design allows governments to formulate a policy response on fundamental controversies for which public opinion expects a response but that does not risk re-distributing values, which might result into the alienation of part of their electorate. In this article, we show that so-called morality issues are in fact multi-dimensional and that policy-makers can successfully resolve the dilemma induced by the clash of values by de-moralising the issues at stake and formulating procedural responses that will allow them to avoid the traps laid by heated controversies.

In the following sections, we will first discuss the main arguments presented in the morality politics literature (section 2) and show that such issues are multi-dimensional and can be strategically framed as “de-moralised” (section 3). We will then conceptualise three main forms of policy responses to morality issues: non-decision leading to the absence of a formal policy design (encompassing both “no agenda access” and “decision failure”); substantive policy design; and procedural policy design (section 4). We then formulate four hypotheses on when and how these policy responses are successfully implemented. These hypotheses articulate the impact of two independent variables: the level of values conflict and the level of de-moralisation of a morality issue (section 5). In the subsequent section, we proceed to a preliminary test of our hypotheses with empirical illustrations drawn from policies on euthanasia (no agenda access), abortion (decision failure), assisted reproductive technologies and embryonic stem cell research (substantive policy design), and organ transplant (procedural policy design) in Switzerland (section 6). Finally, we conclude by suggesting future research possibilities, which should aim at improving the theoretical framework and consolidating the empirical evidence for the study of morality politics (section 7).

2. The politics of morality issues: a contentious deadlock?

Scholars of morality politics identify three key features of morality issues, which, as they address fundamental values, are framed in moral terms and thus appear technically simple and become points of focus for the public (Meier 1994; Haider-Markel and Meier, 1996; Mooney and Lee, 2002; Studlar 2001). First, morality issues are usually highly salient to the public. Morality politics address issues with which a broader part of the public is directly confronted, such as the beginning and the end of life. Second, morality issues are technically simple or at least their level of complexity may by lowered with the use of symbols such as the “sinful gambler”, the “mad scientist” or the “irresponsible smoker”. Such policy images are used to frame both the policy problem to be solved and its solution (Pierce and Miller 1999). For instance, the scientific complexity of stem cell research is difficult to grasp, but people generally know where they stand on the issue of protecting the beginning of life. Third, and most important feature is the way in which morality issues address the fundamental moral and social values on which compromise is usually not possible. The literature argues that morality policies are re-distributive in the sense that when one set of new or contentious values wins by getting the official State’s stamp of approval (Gusfield 1963 in Haider-Markel and Meier 1996:333), the old set of values loses. According to Mooney, moral policies are not less than the legal sanction of what is right and wrong, the validation of a particular set of fundamental values” (1999: 675). Once a morality policy is formally adopted, some values and behaviors are validated as legitimate while others are rejected and sanctioned by the state. As most of these fundamental moral and social values are not divisible, they are dichotomized as being either right or wrong. In a situation where a clash of values is present, policy bargaining therefore becomes irrelevant and as a consequence, policy compromise is difficult if at all possible.

According to morality politics scholars, the conjunction of these three features leads to the public debate of moral values and to lively political conflict. Policy-makers are exhorted to take into account the distribution of values among citizens, and to be responsive to their constituents in particular and to public opinion in general. Re-election calculus is a powerful motive for elected politicians to legitimate a morality policy that is in agreement with the predominant moral values of their constituency. As such, the core assumption developed in morality politics studies states that the level of values consensus among the constituents determines a government’s response to morality issues (Money and Lee 2002). The impact of the distribution of values among citizens is then mediated by the competitiveness of political parties (e.g. religious vs. secular parties) (Haider-Markel and Meier, 1996). As a result, morality policy scholars predict two policy responses to these kinds of intractable policy controversies (Money and Lee, 2002): either a majoritarian policy in a situation when a values consensus exists or a policy non-decision in a situation when values are contentious. In the first situation, political ideology is the main explanatory factor for the content of the policy. The broad support among public opinion in favor of a policy decision constitutes a strong incentive for politicians to regulate the issue at stake without taking any electoral risks. In the second situation, the division of public opinion no longer represents an incentive for state intervention. Non-decision is therefore often the most attractive option because broad support for any policy solution is lacking, and politicians would prefer it to avoid electoral loss (Mooney and Lee, 1995).

The theoretical importance of focusing on values has found strong empirical support in different policy sectors across countries and time. Beyond the classical case studies presented by morality policy scholars (e.g. Haider-Markel and Meier 1996 on gay and lesbian rights; Pierce and Miller 1999 on gambling; Mooney and Lee 1995 on abortion and 2002 on death penalty), Fink (2008) demonstrates that religion still has a major impact on the degree of strictness in embryo research law. His times-series cross-sectional analysis comparing this morality policy in 21 OECD countries shows that societies with a high percentage of Catholics adopt more restrictive embryo research laws than more secular ones. Furthermore, the Catholic Church per se appears to be an extremely homogeneous and influential actor in the decision-making process. In their study on the impact of the Catholicism-Secularism cleavage in Belgium and Italy on the regulation of Assisted Reproductive Technology (ART) (e.g. in vitro fertilisation or pre-implantation diagnosis) and stem cell research, Schiffino et al. (2009) also conclude that Catholic values and the Church doctrine are highly relevant factors in explaining the substantive content of morality policies. In a slightly different vein, Banchoff (2005) shows that the regulatory regime of stem cell research in the United Kingdom and Germany has been, to a certain extent, determined by previous policy decisions as a new kind of path-dependency effect shaped by values legacy. He argues that in the case of heated controversy on values-driven issues, values legacy offers to the defenders of the status quo a rhetorical advantage for blocking policy change.

3. De-moralising as a way out

While the potential for a clash of values are convincingly underlined in the literature, the classical explanation of morality issues and policies gives an inflated importance to public opinion on the policy-making process and fails to take enough account of the multi-dimensional feature of morality issues. In this section, we contend that the multi-dimensionality of morality issues allows policy actors to successfully neutralize the dilemma induced by a clash of values. It allows for the development of strategies for de-moralising the issues at stake and formulating procedural responses that will allow them to escape the traps fostered by heated controversies.

The classical explanation of morality politics considers the three dimensions of morality issues (high saliency, low complexity and clear re-distribution of values) as pertaining to the issue itself. However, the design of any policy should not be perceived as the simple resolution of a given problem defined on the basis of its intrinsic characteristics (Derry 1984; Cobb and Elder 1983). The elaboration of public policies always involves the constitution and definition of the public problem to be solved, the designation of the target groups and the identification of the values and goals to be promoted. The point is not to deny the objective conditions of a problematic situation (e.g. patients at end of life, women’s health problems induced by clandestine abortions, sexual crimes perpetuated by pedophiles, etc.), but to stress that these established facts, and their interpretation in terms of values, only represent one of the dimensions – even if it proves to be a fundamental one in some cases – which constitute a social problem. In other words, we do not contest the claim that morality issues have a strong potential for conflict, for they address fundamental social and political questions such as the beginning of life. However, we argue that morality issues are not moral per se, and thus, should not necessarily be discussed on the political scene in a context that is limited within a moral framework.

As with any type of policy issue, morality issues are multidimensional. They may be constructed as being moral, but they can also be perceived as addressing a much broader range of issues, such as economics, rights, health, medicine, science, etc. ART techniques and stem cell research, for example, may be framed regarding the protection of the embryo and the preservation of the beginning of life versus scientific development, but they also can be seen as constituting medical innovation that results in cures for genetic diseases and sterility. As Gottweis (2002) shows, stem cell research was framed under the Clinton administration as an issue regarding international economic competition between pharmaceutical firms, but it was perceived as a moral issue under the Bush administration that followed. Priest (1994) convincingly demonstrates that the newspaper coverage of bioengineering (the active manipulation of the genetic structure of particular species for agricultural or medical purposes) in the US was “dominated by institutional interests speaking of economic trade-offs and benefits. That is, we believe that narrow media coverage of biotechnology may be framing it in a way that limits the range of discussion of related issues” (1994:176).

Because morality issues are multi-dimensional, this allows some room for maneuver that could be used to neutralise values contention and to overcome policy deadlock (Häusermann 2010). Although they lead to a clash of values in public opinion, morality issues also contain a framing potential to neutralise and pacify moral conflict and to facilitate the public decision-making process. In their systematic analysis of the framing of the death penalty in the United States, Baumgartner et al. (2008) demonstrated that it is not a major shift in public opinion that explains change in the implementation of the death penalty in some states. Even if the death penalty still represents a strong clash of values in public opinion, the emergence of a new frame focusing on the risk of judicial errors (“discovery of innocence”) had major impact on state governments’ responses. This multi-dimensionality results in loosely delimited boundaries on morality issues. As a consequence, policies can be designed in various ways and governments can determine, to a certain extent, in which terms morality issues are defined and the set of actors who are entitled to participate in the policy-making process (Engeli and Häusermann 2009). In order to overcome policy deadlock induced by values contention among public opinion, morality issues can be de-moralised and framed as being non-salient, highly complex but negotiable policy issues (Mooney and Lee 1995).

Such a de-moralising frame allows for classical policy bargaining among a limited number of policy actors such as experts, public administration and cohesive interest groups. This type of politics occurring within a closed “policy community” may result in various types of policy decisions according to the set of actors present. The clash of values in public opinion does not have a stronger impact on the government’s response to morality issues than the set of framing strategies mobilised by actors in order to promote their policy interests. In contrast to what morality politics scholars predict (i.e. a majoritarian decision or a policy deadlock in the context of values contention), we will show in the following section that the multi-dimensionality of morality issues allows for a third way of regulation: by means of procedural policy design.

4. The variety of policy responses to morality issues

Our dependent variable is the type of policy decisions and the corresponding policy designs (Schneider and Ingram 1997) adopted to regulate morality issues. A policy design enters into force at the end of the decision-making process with the adoption of laws, regulations and/or court decisions (i.e., authoritative decisions). Policy design comprises at least three complementary elements that include policy objectives, instrument and implementation arrangements. We shall now discuss each of these elements in succession (see Knoepfel et al. 2007 for an in-depth presentation of these dimensions).

First, policy design includes objectives for the desired social status in a field of action once the problem addressed by the public policy has been resolved. At the level of legislation, the objectives are very abstractly defined. For example, the protection of human dignity may be the explicitly stated goal of a law on biotechnology. In contrast, more concrete, quantified and measurable target values (the protection of leftover embryos, for example) are found at the regulatory acts level (regulations, circulars or administrative directives). Second, policy instruments define the detailed forms of state intervention or measures planned to fulfill the policy objectives. Without a doubt, they best characterise policy design because instruments define the target groups of the policy (i.e. physicians or researchers) and the level of state intervention. Regulatory instruments aim at directly impacting the behavior of target groups while incentive and persuasive instruments exert more indirect impact. Regulatory instruments cover the general prohibition of an activity (e.g. the derivation of stem cell research), the lifting of a ban by granting of a permit or special authorization (e.g., on a case by case basis to use left-over embryos for research purposes). They also include the general authorisation of an activity (e.g., the right to practice new reproductive technologies in public healthcare structures). Finally, they may also take the form of a general obligation (e.g., to request the informed consent of patients entering an IVF cycle) with a sanction (a fine) imposed in the case of non-compliance. On the contrary, the incentive mode works on the basis of the ‘price signal’, which may be of a negative (tax, incentive levy) or positive nature (public funding of stem cell research in keeping with ethics guidelines or financial support from the social security system for in vitro fertilization patients). Finally, the persuasive mode uses an information strategy to convince target groups of the proposed objectives such as an information campaign for organ donation.

Third, the implementation arrangement refers to the distribution of competencies within a policy. For many policies, the creation of competency structures simply consists of attributing new tasks to existing services (for example, to the ministry of public health) and the granting of resources (finance, personnel and others). On the other hand, certain policy designs contain specific finance clauses or establish an entire network of new services (for example, the creation of a national consultative ethics committee) that are responsible for the implementation of the (new) public policy.

Taking into account these three constitutive elements of a policy design allows us to distinguish between two initial types of formal policy design. (1) A substantive policy design means that all dimensions (objectives, all three categories of instruments, and implementation arrangements and resources) are clearly defined. On the contrary, (2) a mere procedural policy design requires only the specification of low constraining instruments (i.e., persuasive mode) and the assignment of implementing agents. In that case, the concrete definition of policy objectives and the choice of regulatory and incentive instruments are delegated to the actors taking part in the implementing arrangement. In other words, procedural design delegates the concrete regulation to the implementation agents and lifts off the political dilemma of establishing goals that might divide public opinion. Of course, both types of policy design (substantive and procedural) presuppose that formal authoritative decisions were made during the policy-making process.

Table 1.   Policy responses to morality issues
Morality issueNo formal policy designNo agenda access at all
Agenda access, but decision failure
Formal policy designProcedural policy design
Substantive policy design

Two additional situations, which are characterised by missing authoritative decisions during the policy-making process and thus have no formal policy design, also have to be taken into account. Contrary to the pluralistic vision of democracy, which assumes that every actor can access the decision-making arena to gain attention for a particular problem, Bachrach and Baratz (1970) assert that a specific form of public power consists precisely in the possibility of keeping certain social problems off the political agenda. Described as ‘non-decisions’, these institutional blocks force the social actors concerned by a problem either to find other points of access, or to manage the resolution of the problem themselves: “Non-decision making is a means by which demands for change in the existing allocation of benefits and privileges in the community can be suffocated before they are even voiced; or kept covert; or killed to gain access to the relevant decision-making arena” (Bachrach and Baratz 1970: 7). On the basis of this seminal argument about non-decisions, we distinguish two other situations that lead to the absence of a concrete and explicit policy design. In the former situation, (3) there is no agenda setting at all as the morality issue does not even reach the political agenda. The latter situation can be characterised as (4) a decision failure. The morality issue is put on the political agenda but fails to result into a policy decision.

In the next section, we look at the independent variables and research hypotheses explaining the type of policy design eventually adopted and implemented by the government.

5. Research hypotheses on issue framing

Drawing on the classic theory of problem definition, agenda-setting and issue framing (Dery 1984, Cobb and Elder 1983, etc.) as well as on the recent and innovative Baumgartner et al.’s study of the death penalty (2008), we systematically assess the impact of framing dimensions and strategies of argumentation on morality politics and policies. The latter authors inductively constructed an exhaustive list of 65 possible arguments regarding the death penalty, which were then classified according to seven framing dimensions: efficacy of the death penalty; cost; morality; constitutionality; fairness; mode of execution; international issues. The empirical evidence of this study shows that several framing categories of the death penalty debate in the USA, which is identified as an ideal-typical case of morality issues, do not concern moral issues.

As stated before, it is also the underlying assumption of our approach that morality issues are not moral per se and will not necessarily be discussed within a restrictive moral frame. Morality issues are by essence multidimensional, as are any type of policy issue. Not all dimensions are necessarily mobilised at the same time, with the same intensity or by the same type of policy actors. There is room for maneuver and de-moralising strategies may be fostered in order to pacify and neutralise potential conflicts of fundamental values. Indeed, the so-called “morality issues” can be framed along various dimensions such as economics, health, science, and international competition. An issue may be framed as a question of individual rights, as in cases questioning the right to die or women’s reproductive freedom. The frame may also address strategic economic concerns such as biotechnology development, commercial applications, patents and intellectual property rights, competition among firms/hospitals, or the administrative burdening of public intervention. In addition, several arguments can be formulated within one frame. Furthermore, each argument can be used by policy actors advocating opposing policy positions (i.e. pro- anti- and neutral tone of the argument). Thus, the empirical analysis of the issue framing should provide answers to the three following questions: Is there a dominant frame (e.g., moral values), two conflicting frames (e.g., health and medicine versus international competition) or multiple frames (e.g., moral values, international competition, and health and medicine)? Within each frame, are policy actors mobilising the same argument(s) (e.g., the beginning of life) or different arguments (e.g., the beginning of life versus eugenics)? Last but not least, are opponents and proponents promoting similar or opposing policy directions for one specific argument (e.g., the beginning of life starts with conception, at the birth of a child, or at an undetermined juncture)?

In a nutshell, it is quite obvious from this list of concurrent frames, arguments and related policy positions, that the framing of an issue as a clash of moral values (i.e., diverging policy positions and/or arguments within a moral frame) is just one argumentative strategy among others. So, contrary to the general assumption made by classical morality scholars, we argue that the “moral values” frame should not definitively be the hegemonic frame leading either to a substantive policy design or to a non-decision.

In order to explain policy designs on morality issues, we propose combining two main dimensions: on one hand, we assess the values distribution among citizens for the specific policy issue; on the other hand, we assess the level of de-moralisation of the issue at stake by analysing the arguments and policy positions within moral or non moral frames (i.e., individual rights, economic and technology development, health and medicine, science, and international competition). By combining these two conditions in a matrix (see table 2), we formulate four research hypotheses. Both hypothesis 1 (predicting a substantive policy design) and hypothesis 2 (predicting a decision failure), refer directly to the theoretical assumptions of the classical morality issues scholars, while hypothesis 3 (predicting a procedural policy design) and hypothesis 4 (predicting no agenda access), apply to cases not addressed and, respectively, not expected by this theoretical approach. We shall now turn to the rationales underlying these hypotheses.

Table 2.   Values distribution, issue framing and policy designs
Characteristics of morality issues and related (hypothesised) types of policy designsIssue framing by policy actors
Moralised issueNon/De-moralised issue
(hegemonic “moral frame”)(competing “non moral frames”)
Values Distribution among citizensOne dominant valueH1: Substantive policy designH4: No agenda access, resp. decision  not to intervene
No redistribution (majoritarian morality policy  reflecting dominant value) (status quo or self-regulation in  shadow of hierarchy)
Pluralism of valuesH2: Agenda access, but decision failureH3: Procedural policy design
Redistribution (clash of the absolutes: no policy) (compromise on procedure, as no  agreement on substantive content)

Hypothesis 1:  Majoritarian Politics lead to a substantive policy design

The first hypothesis states that a hegemonic “moral values” frame and a political consensus on moral values lead to a substantive policy design. This “majoritarian politics” hypothesis is quite obvious. If political parties in power (e.g., within a Christian-Democratic government) agree on fundamental values (e.g., the beginning of life being at conception and the status of the embryo as a potential person), then they will dedicate more attention to the policy issue and frame it according to their own moral position (e.g., to forbid abortion, embryo research and embryonic stem cell research). In accordance with the dominant moral values of their constituency, they quickly adopt a substantive policy design that shows their policy responsiveness and, thereby, contributes to their re-election. In such a context of pure “party politics”, the influence of interest groups, public administration and independent experts is moderate or low. As a matter of fact, the government receives the passive or active support of interest groups promoting similar values (e.g., the Catholic Church) and asks experts on a consistent basis to legitimise their policy proposal with expert judgments. The public administration stays neutral and perfectly subordinated to the elected officials, as depicted in the traditional Weberian model.

Hypothesis 2:  Clash of moral absolutes leads to a decision failure

The second hypothesis postulates that a hegemonic “moral values” frame and a conflict on moral values lead to a decision failure. This “clash of absolutes” hypothesis is also well known and accepted by classical “morality policies” scholars. If there is a strong disagreement on moral values between political parties forming the governmental coalition (e.g., opposition between Christian-Democrats and secular parties) or even within one political party (e.g., risk of internal split within a governmental party), then the government has no (electoral) interest to decide on the policy issue, as the inherent redistribution of values would inevitably translate into a zero-sum or even a negative-sum game. The interest groups and experts may well mobilise strongly (even upon the request of political parties in some cases) and exercise constant pressure on the government by advocating opposing policy designs, but their impact on the decision-making process remains nevertheless low. It is also quite obvious that the administration will not engage in the battle, fearing a potential policy defeat and, thus, a reduction of their resources and power if the policy design eventually adopted is contrary to its policy position. Even if the various public administrations concerned by the issue at stake import the social and political values conflict inside the state bureaucracy (e.g., an internal conflict between the Ministry of Health versus the Ministry of Justice), they will be neutralised by high politics. In a nutshell, this “pat situation” translates into a decision failure despite the high saliency of the policy issue at stake.

Hypothesis 3:  De-moralisation leads to a procedural policy design

The third hypothesis states that competing “non-moral frames” and a pluralism of values lead to a procedural policy design. This “live and let live” hypothesis represents the ideal-typical case of de-moralising a morality issue. Political parties strongly disagree on moral values, but they nevertheless negotiate a pragmatic compromise. The way out of the political conflict consists of adopting a minimal policy design, which focuses only on procedural elements (e.g., non-binding instruments, implementation arrangement and administrative rules). In other words, political parties do not re-distribute values by establishing clear policy objectives (or ends), but rely on the definition of operating procedures (or means). They do not use “expressive” arguments, which typically refer to cherished moral values, but rely instead on “instrumental” arguments, which focus on the deliberate course of action to be implemented (according to the famous distinction proposed by Rochefort and Cobb, 1993:67). Policy opponents decide to cooperate on secondary (or even symbolic) policy aspects despite their deep values antagonism as long as the final policy design allows each party to live in accordance with its owns values. In order to conceive and to legitimate such a procedural policy design, political parties accept the need to recognize the pluralism of values, to re-frame the morality issue in de-moralised terms, and to reduce its saliency by delegating the policy formulation to interest groups, public administration and experts. These actors focus on the definition of acceptable procedural rules. Most of the time, both, public administration and experts fulfill a “policy broker” function (according to the Advocacy Coalition Framework developed by Sabatier et. al.; see in particular Ingold and Varone, forthcoming): they maintain the conflict at an intermediate level, provide technical information to advocacy interest groups and elaborate on a compromise solution that can then be formally endorsed by political parties.

Hypothesis 4:  Non-moralization hinders agenda setting

The fourth hypothesis postulates that a “non-moral” framing and a consensus on values lead to non-agenda setting, or to the decision not to intervene and to rely on self-regulation. This “Don’t bother” hypothesis reflects a de facto non-moralisation of a morality issue. In such a situation, political parties implicitly agree on moral values, but without perceiving a need to put the issue on the governmental agenda and/or to intervene through a new policy design. This passivity is due to the discrete or even silent action of interest groups. Defending their own often particular and short term interests (instead of advocating fundamental values), these actors, who are very well organised and benefit from networks of influence, seek direct access to the decision-making arenas while deliberately avoiding media coverage and the politicisation of the policy design that they would like to either maintain, introduce or avoid at all costs. As suggested by several theories on neo-corporatist arrangements and ‘clientelistic’ relationships between public administrations and actors, these interest groups move first by self-regulating the policy issue at stake. This self-regulation offers an attractive alternative to a new policy design for politicians and the public administration (on the impact of self-regulation on policy design, see Rothmayr 2003).

A systematic test of these four hypotheses including an in-depth presentation of causal links between policy actors, issues framing and institutional venues, lies far beyond the scope of this paper. However, the next section presents some empirical illustrations to show their plausibility.

6. Empirical illustrations: four contrasted morality policies in Switzerland

The following preliminary evidence is to be considered as illustrational rather than as a robust and definitive test of the four hypotheses in the proposed theoretical framework. They are based on in-depth case studies conducted by the authors of this article (e.g. Engeli forthcoming, Engeli 2010, Engeli 2009; Varone et al. 2006; Rothmayr and Varone 2009) as well as on secondary literature (Rothmayr 1999, 2007; Flückiger 2010). The four case studies concern the (non) regulation of morality issues in Switzerland in the two last decades. All concern medical practices and, more precisely, the beginning and the end of life: assisted reproductive technologies and embryonic stem cell research; abortion; organ transplant; and euthanasia.

Five main reasons legitimate such an empirical research design. First, by considering only Swiss agenda-setting and decision-making processes, all relevant institutional venues and rules are kept constant. Thus, the differences observed between the four policy designs eventually adopted cannot be explained by the variance of institutional settings, but only by the strategic “venues shopping” of the various policy actors (i.e., most similar systems with different outcomes). Second, this research strategy also controls for the potential policy transfers or path-dependency between various morality issues (e.g., links between abortion, assisted reproductive technology and embryonic stem cell research). Third, by focusing on recent policy decisions, the level of technological development as well as the infrastructures and practices within the medical field can also be considered as similar if not perfectly constant. Fourth, the religious and cultural cleavages are very important for Swiss society and for the Swiss political system and its historical development. We may thus expect that morality issues potentially lead to strong political conflicts between secular and religious segments as well as between linguistic groups. Fifth, the impact of public opinion on political decisions should be very high and direct in Switzerland, as a relatively small number of citizens who disagree with one specific policy design may launch either a popular initiative (leading to a compulsory referendum to introduce a constitutional amendment) or a facultative referendum (potentially overturning a parliamentary law) to promote their own policy position. In a nutshell, Switzerland represents an ideal country for testing the relevance of the hypotheses formulated by the classical morality issues scholars (H1 and H2) and, at the same time, the two competing hypotheses developed above (H3 and H4).

(1) Assisted Reproductive Technologies and Stem Cell Research (H1)

The invention of in vitro fertilization (IVF) in 1978 opened up a new field of medical research regarding fertility treatments by allowing the early-stage development of the human embryo to occur outside of the woman’s body. While IVF has been largely diffused across Europe and North America, concern about the possible misuse of this biotechnological innovation already entered the Swiss public arena in the 1980s and the politicisation of the assisted reproductive technologies (ART) issue was triggered by an initiative that was sponsored by a popular Swiss magazine, der Beobachter, in 1987. The initiative specifically addressed the potential misuse of technical innovation in the field of human reproduction and aimed at banning most ART applications. Political parties and the government showed strong political responsiveness to the issue and quickly launched the elaboration of a constitutional bill to counter the initiative that was eventually introduced in 1992, and made into law in 2000.

At the end of the 1990s, further technological breakthroughs regarding embryonic stem cell research (ESCR) put the ART issue back on the agenda. While ESCR represents a promising field of medical innovation and may lead to future treatment for life-threatening diseases such as diabetes or Huntington’s disease, it also implies the destruction of the embryo, which has raised strong concerns amongst the public. The issue appeared on the political agenda in 2001 when the Swiss Science Foundation decided to fund a research project on imported embryonic stem cells. In reaction, the government quickly announced its willingness to allow ESCR under strict conditions and Parliament voted for the embryonic stem cell research law in 2002. The resulting regulation on ART and embryo-related research is one of the most restrictive in Europe as it bans a range of important techniques, such as gamete donation and cryopreservation, embryo donation and surrogacy, and allows for ESCR only under very restrictive conditions (Rothmayr 2007).

The Swiss regulation on ART is an emblematic case of a substantive policy design. As postulated by our first hypothesis, the restrictive content of the regulation can be explained by a hegemonic moralised frame, which is supported by a strong political consensus on the moral values to be favored. The 1987 popular initiative decisively set the frame of the political debate on ART and embryo-related research in Switzerland: the protection of human beings from technological and medical abuses. Most political parties supported the restrictive orientation of the political debate and the government was able to rely on this broad consensus to elaborate a restrictive regulation. According to the government, “it is a matter of fact that current and future ART techniques represent serious legal and ethical problems and it is legitimate to elaborate an efficient regulation to prevent misuses (…) The adoption of a constitutional mandate would allow for a public consensus about which way to engage in regarding ART and genetic engineering”.2

A large majority of Swiss citizens expressed in several popular votes serious concerns regarding biotechnologies in general and public support towards a restrictive regulation has been maintained over time: in 1992, 73.8% of Swiss voters approved the constitutional article on ART and the law on embryonic stem cell research was accepted by 66.4% of the voters in 2005. In this context of shared values and beliefs, only some disagreements emerged regarding the degree of the restriction imposed on ART practices between the moderate right parties along with the Swiss medical association in favor of allowing a large range of techniques under strict conditions and the Social Democrats, Christian Democrats and women’s groups who pleaded in favor of banning several techniques.

(2) Abortion (H2)

Abortion is often considered as the paradigmatic case of a value-driven issue that leads to irreconcilable moral conflict. The issue of abortion addresses the discussion of moral values (e.g., the beginning of life) and social norms (e.g., gender roles), which appeal to a broad audience. Therefore, it could lead to a conflict of absolutes (Tribe 1990): as irreconcilable standpoints are competing, no policy compromise can be reached. Whereas most countries in Western Europe liberalised abortion in the 1960s and in the 1970s, it did not occur until 2002 in Switzerland. For three decades, the abortion issue was frequently on the political agenda, but failed to reach any policy decision. It was only after five failed decision-making processes that abortion was eventually legalised with the 2002 revision of the Penal code which now allows for abortion upon a woman’s request during the first 12 weeks of pregnancy.

The question of whether to liberalise abortion sparked an extremely heated public controversy at the beginning of the 1970s in Switzerland, along with most other Western countries. In 1971, a small group of individuals launched a popular initiative calling for the legalisation of abortion. The debate quickly heated up when feminist groups, the medical community and religious actors got involved, supporting sharply contrasting policy positions. Feminists emphasised women’s right to reproductive freedom, while religious actors stood for the protection of life from the moment of conception and thus appealed for an abortion ban. Physicians, standing in the middle of the argument, were mostly concerned with securing their corporate interest and maintaining their medical authority over abortion. Faced with such conflicting frames, political parties were at first reluctant to give any attention to resolving the abortion issue. However, as the issue reached the political agenda through direct democracy, they were nevertheless forced to discuss it several times in Parliament. During the 1970s and the 1980s, no less than five decision-making processes going through different political channels failed (Engeli 2009, 2010).

In the 1970s, a popular initiative, which was strongly supported by the feminist movement, proposing to legalise abortion at a woman’s request during the first trimester of pregnancy was rejected in a popular vote in 1977, while a cantonal initiative with a similar proposal was rejected in the Federal Parliament. A year later, a more moderate law initiated by the Federal government, with the full approval of the medical community, also failed to convince the Swiss population. In 1986, one individual parliamentary bill proposing full autonomy for the Swiss cantons to regulate abortion was also rejected in Parliament and, in 1988, another popular initiative proposing to ban abortion, which was sponsored by the pro-life movement, also failed to achieve popular support. It was not until the end of the 1990s that an individual parliamentary bill proposal finally led to a successful policy decision.

As our second hypothesis states, the abortion issue resulted in heavy political conflict within the government coalition as well as within political parties themselves. As permanent members of the governmental coalition, the Christian-Democrats strongly opposed any liberalising reform while the Social-Democrats were rather reluctant to risk electoral loss. The diffusion of institutional powers and direct democracy amplified the political conflict even more by giving both the pros and the cons access to the decision-making process and allowing them to diffuse competing framing amongst public opinion. Pro-life and Pro-choice groups emerged during the 1970s and are still active to this day. Even if their size in terms of membership is insignificant, they all tend to have a strong mobilisation capacity for specific events (with the support of the Christian Democrats and women’s groups). Arguments against abortion were mostly religious or linked to religious concerns such as the beginning of life. Opponents of abortion were strongly against any liberalisation of the law and either supported the status quo or a total ban on abortion. According to pro-life groups, “the attempts to liberalize abortion are part of a broader plan aiming to the subversion of moral values that are at the very basis of the Christian and Western civilization […]”.3 In sharp contrast, feminist groups argued in favor a law establishing women’s right to choose and acknowledging the evolution of women’s status in society and in the family with political slogans such as “Our belly, their law! […] Because we are fed up with the male-dominated society: we are in favor of free and legal abortion. The struggle for women’s liberalization starts with the control over our own body”.4

The strong mobilisation of pro-choice and pro-life movements nevertheless failed in their attempt to pressure policy action and gain the support of public opinion. During the 1970s and 1980s, public opinion on abortion reflected deep social and economic divisions across Swiss regions. At the end of the 1970s, if 51% of the voters pronounced themselves in favor of the liberalisation of abortion, 18 cantons rejected it, consisting notably of the small agrarian Swiss German cantons and most of the cantons with a majority of Catholics. This deep division in public opinion not only blocked the process of reform but also provided political parties with strong incentives to not pay political attention to the issue to avoid electoral loss.

(3) Organ transplant (H3)

In 2008, 62 patients died in Switzerland due to the fact that no organs were available at the time for transplant. In comparison, 57 people died in 2007 from AIDS. Furthermore, Switzerland has a ratio of 11.8 donors of organs per one million inhabitants; this ratio is clearly under the European average ratio of 20 donors/million inhabitants. These two facts indicate that organ donation still constitutes a major policy problem in Switzerland. One would thus expect that the Federal government would set this issue on the political agenda and formulate a policy design that would actively promote organ donation.

However, this is not the case. In February 1999, an amendment to the Swiss Constitution (article 119a) was adopted in a popular vote by a large majority of the voters. This constitutional article maintains that:

“the Confederation shall legislate in the field of organ, tissue and cell transplants. In doing so, it shall ensure the protection of human dignity, privacy and health. It shall in particular lay down criteria for the fair allocation of organs. Any donation of human organs, tissue and cells must be free of charge. The trade in human organs is prohibited”.

In October 2004, this constitutional provision was implemented in a law that established three principles addressing the issue of equity in organ allocation: medical urgency; probability of successful transplant; and patients’ priority order on the waiting list. These criteria were already applied by the medical community and, thus, were not conflicting at all. Since then, Swisstransplant, the national private agency in charge of allocating organs to recipients, manages organ allocation by means of a system that computes the priorities of the registered recipients in compliance with the regulation.

A major problem nevertheless remains: the lack of organ donation. In this respect, the aim of the law is “to contribute to the availability of human organs, tissues and cells for transplantation” (cf. article 1, al. 2). However, the transplant law does not allow the government to launch any information campaigns promoting organ donation. In a word, the State has to be neutral and official information can only cover “explanation of the ways in which an individual can express his or her wishes concerning the donation of his or her organs” (cf. article 61 al.2 let. a). This legal provision has been the most debated issue in both the pre-parliamentary and parliamentary debates. The government initially proposed a proactive information strategy encouraging potential donors to give their explicit consent for the removal of their organs if they die. However, the Social Democrats and the Christian Democrats were joined by some interest groups in contesting this policy solution. Facing such strong resistance, the government dramatically changed its argument and policy position, and adopted what was considered a more neutral position in order to avoid imposing moral values on the personal choice to donate organs:

“Regarding organ donation, the State should not engage into proselytizing. The State should respect individual freedom to choose. In this respect, it would be improper for the State to promote organ donation. In doing so, the State would pass implicitly a value judgement on citizens according to whether they are inclined to give their organ away or not.5

Thus, the organ transplant law constitutes a typical case of procedural policy design. The State does not give “an official stamp of approval” on what is right (i.e., to give one’s extended consent for organ donation) or wrong (i.e., not to give one’s consent). It does not validate a particular set of values such as solidarity with patients registered on the waiting list. It stays neutral and lets each citizen decide on his/her own on the basis of objective (State) information. This neutrality of the State with regards to transplant medicine sharply contrasts with several other public health campaigns (e.g., on tobacco, alcohol or drugs) and, therefore, has been criticised by both politicians and academic scholars.

(4) Euthanasia (H4)

The regulation of assisted suicide and other forms of euthanasia in Switzerland is characterised by a wide legal void. For more than 30 years, no serious attempt has been made to fill it. Euthanasia is mostly regulated by a single article from the 1948 Federal Penal code covering only the ban on voluntary euthanasia, i.e., the act of killing someone at his/her request. The others forms of euthanasia such as euthanasia by omission (withdrawing life-support equipment or withholding medical treatment) and assisted suicide (providing lethal medication that the patient takes on his/her own) are mostly left to medical self-regulation.

This de facto permissive assisted suicide policy is well supported by the majority of Swiss residents and even attracts foreign patients seeking to end their lives with the help of associations specialised in providing assistance for suicide. Several interest groups emerged during the 1980s to provide assisted suicide, Exit in 1982 and Dignitas in 1988 being the most well known organisations. With some differences in their practices, they both provide private location, lethal medication and emotional support. For a long time, the fact that Switzerland showed the highest number of assisted suicide cases in Europe did not launch any strong moral controversy amongst the public and political parties.

Since the 1970s, several individual parliamentary interventions have been submitted to build up more comprehensive regulation for euthanasia. The interventions covered a broad range of policy solutions from banning any form of euthanasia to allowing physicians to practice euthanasia upon a patient’s request. According to the government, “in these circumstances, determining which policy to implement (was) not as easy task”.6 Indeed, these parliamentary interventions have all resulted in non-decisions: either they have not been treated on time or they were rejected. Until the mid-1990s, both the Parliament and the Federal government systematically refused to consider the option to extend legislation to cover assisted suicide and euthanasia by omission, as well as the associations providing assistance. Staying within a legal framing, they argued that it was fruitless to elaborate abstract legal norms that would not fit the complex and diverse reality presented by requests for assisted suicide. To this end, medical self-regulation constituted a more efficient tool. Their position was supported by political parties and most interest groups that did not push for any regulation in this field.

In 2000, the issue of euthanasia came up on the parliamentary agenda again through an individual parliamentary initiative on withholding the ban on voluntary euthanasia. Later that year, the government announced its will to regulate euthanasia in a more comprehensive way. In 2003, the Lower Chamber pushed the government to finally resolve the issue for good. However, in 2006, based on a report of an independent commission of experts, the Federal Council returned to its previous position stressing the inefficacy of a legal solution and thus opted once again for non-intervention on deciding whether euthanasia is socially or morally acceptable. The government again stated that medical self-regulation constituted a more appropriate regulatory instrument. Indeed, since the 1970s, the Swiss medical association has developed guidelines covering various forms of euthanasia. Until 2004, the medical association was in favor of indirect euthanasia and certain forms of euthanasia by omission only. Since then, assistance for suicide is considered acceptable under strict conditions and under the personal decision of the physician concerned.

Recently, a steady increase in the number of foreigners accessing assisted suicide in Switzerland and some affairs regarding the provision of assistance for suicide for residents in elderly care institutions have reestablished the debate in Switzerland. The Federal Council decided in 2009 to launch a public consultation on the specific regulation of the provision of assistance for suicide such as rules regarding patients’ consent and information. In its report, the government highlighted the necessity to weigh up equal interests and stated that “each time to legislate in a domain regarding human life, it is essential to take into account several values, such as the interest of the person who is dying, the personal responsibility of the physician and the obligation for the collectivity to ensure the protection of life”.7 Accordingly, the government stated once again that the aim of the consultation was not to regulate the overall issue of euthanasia as whole, but to only cover technical issues in the provision of assistance for suicide.

7. Conclusion

Since the 1970s, scientific developments and new therapeutic applications in the medical sector have faced the government with a complex situation. Often, biomedical issues constitute paradigmatic examples of heated controversies addressing moral questions such as the beginning and the end of life. The literature on “morality politics” insists on the difficulty of finding a consensus on which political decision could be based and predicts two policy responses to this kind of intractable policy problem: either a majoritarian policy if there is a broad consensus on the dominant values to be promoted or a non-decision in the situation of a fundamental clash of values. Our case studies have demonstrated that such policy processes and outcomes do indeed occur (i.e., substantive regulation of ART and ESCR; non-decisions related to abortion and euthanasia).

At the same time, we claim that there is a third way of regulating morality issues, which is very appealing for government: by the means of procedural policy decision. We first uncovered empirical evidence of such a situation in the regulation of organ transplant in Switzerland. Other cases of procedural policy designs were already documented by studies on policies regulating biomedicine in political systems that are very different from the Swiss democracy (i.e. the ART policy implemented in the Belgian parliamentary system; see Varone and Schiffino 2004). While we do not contest the importance given to the moral and social values at stake in the classical literature, we show, nevertheless, that the so-called morality issues are in fact multi-dimensional and that the dilemma induced by the clash of values may be successfully resolved by de-moralising the issues at stake and formulating procedural responses that allow for a way out of the trap laid by heated controversies.

The literatures on agenda-setting (Baumgartner and Jones 1993, 2002) as well as on morality issues (Tatalovich and Daynes, 1988; Mooney and Lee, 2002; Mooney 2001; Studlar 2001) frequently suggest focusing empirical analysis on phenomena such as issue expansion, conflict escalation, or punctuation in issue attention. Our theoretical framework suggests that it is as wise to study the opposing processes of issue limitation or conflict reduction and pacification, as it is to study the de-moralising framing strategies of policy actors in the medical field in Switzerland. The theoretical challenge is thus to combine both dynamics within one theoretical framework in order to explain both decisions and non-decisions, and, furthermore, to distinguish between substantive and procedural decisions. While focusing on issue framings as the main explanatory factor of the final policy design, it is essential to consider the role that various policy actors play during the agenda-setting and decision-making processes. To trace the different stages of the policy-making process and, in particular, the competition between issues framings and their influence on the final policy design, we have to identify the main categories of policy actors, as well as the resources and institutional arenas or venues they mobilise to promote their frames, arguments and policy positions (see Hilgartner and Bosk 1988 as precursors of such an approach, as they suggest analysing “operatives” and “public arenas”). This should identify the level of attention that policy actors dedicate to a specific issue (i.e., issue saliency), and to understand how a specific morality issue (frame) criss-crosses the different decision-making arenas.

Our four illustrative case studies have not allowed (so far) for a systematic demonstration of our main argument. As mentioned explicitly, our ambition was not to provide a multi-cases and rigorous test of our policy designs’ typology and research hypotheses. However we are quite confident that such a test is feasible, by applying a methodological design based on most different (political) systems with similar (policy) outcomes. In particular, it would be interesting to compare the Swiss cases investigated here with the policy designs adopted by conservative majorities in the UK and in the US. This should allow assessing if the de-moralizing hypothesis is idiosyncratic of the Swiss power-sharing system or if it is also relevant for more majoritarian systems. In order to do so, four additional steps are required. (1) To apply a “process tracing” methodology in order to systematically identify the links between the types of frames arguments and policy positions, the categories of policy actors, the venues mobilised and rules-in-use and, finally, the policy designs adopted and implemented. (2) To formulate precise hypotheses on the role of the respective policy actors and on the importance of various institutional venues (e.g., direct-democracy, governmental cabinet, judicial courts, etc.), depending upon the political system. (3) To capture the whole trajectory (over time) of the morality issue wherein the whole policy-making process should be scrutinised and explained. Regulation (i.e., the successive types of policy design in force) evolves over time and we have thus far focused on only one isolated policy decision; in the same vein, the potential policy transfers between morality issues should be analysed. (4) Last but not least, a comparison over time across morality issues with or without a technological and medical component (e.g., ART versus same-sex marriage, gambling, drugs consumption etc.) and across countries (with diverging institutional venues and veto points) is required to test the hypotheses in an exhaustive way and to convincingly identify under which conditions a morality issue is de-moralised and leads to a procedural policy design.

Footnotes

  • 1

     This paper is an output of the project Agenda Setting in Switzerland funded by the Swiss National Science Foundation (ref. 105511-119245/1). We gratefully acknowledge Christoffer Green-Pedersen, Donley Studlar and two anonymous reviewers for their helpful comments and suggestions.

  • 2

     Message du Conseil fédéral relatif à l’initiative populaire “pour la protection de l’être humain contre les techniques de reproduction artificielle” et à la loi fédérale sur la procréation médicalement assistée, 26 juin 2006, p. 212. This translation and the followings are the authors’ own translations.

  • 3

     Position of the pro-life group “Oui à la vie” sent to the consultation procedure on the abortion issue in 1973. Office fédéral de la justice (1974). Résultats de la procédure de consultation des gouvernements cantonaux, des partis politiques et des organisations intéressées sur l’interruption non punissable de la grossesse, p. 10.

  • 4

     Mouvement de libération de femmes Genève (1973). Contraception, Avortement.

  • 5

     Message du Conseil fédéral concernant la loi fédérale sur la transplantation d’organes, de tissus et de cellules, 12 septembre 2001, p. 130.

  • 6

     Département fédéral de justice et police, Assistance au décès et médecine palliative: la Confédération doit-elle légiférer?, avant-projet du 31 janvier 2006, p. 11.

  • 7

     Rapport explicatif du Conseil fédéral relatif à la modification du code pénal et du code pénal militaire relative à l’assistance organisée au suicide, October 2009, pp. 18–19.

Isabelle Engeli is Assistant Professor at the University of Ottawa. Her main areas of expertise are comparative public policies, agenda setting and policy change, as well as political representation and gender. Address for correspondence: Graduate School of Public and International Affairs, Faculty of Social Sciences, 55 Laurier Avenue East, Desmarais Building, Ottawa, Ontario, Canada K1N 6N5; Email:isabelle.engeli@uottawa.ca

Frédéric Varone is professor of political science at the University of Geneva. His current research interests include comparative public policy, program evaluation and public sector reforms. Address for correspondence: Department of Political Science, University of Geneva, 40 bvd du Pont d’Arves, Genève 4, 1211 Switzerland; Email: frederic.varone@unige.ch

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