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February 08, 2012

The HHS mandate and religious freedom: A short response to Eduardo

MOJ-alum-and-friend Eduardo Penalver is, I think, right to observe that religious exemptions from otherwise-valid, generally applicable laws raise many tricky questions:  For example, should "religious" objections to compliance with such laws be treated differently than "non-religious-but-deeply-felt" objections?  (I think the answer here is often-but not always-"yes," but the question is certainly disputed.)  If so, how do we define "religion" so as to distinguish religion-based objections from (merely) conscientious objections?  (As Eduardo notes, he wrote an important article on this subject.)  And, given (as I think it is given) that even a just and well-ordered political community cannot and should not accommodate all requests by religious believers and institutions for exemptions from general laws, how should we go about identifying those situations when it should?

I think, if I read his post correctly, that Eduardo and I agree that, whatever the result should be in some other cases, in this case, an accommodation would have been, and is, appropriate.  As I see it, (a) the burden is significant and (b) accommodation would not excessively hamstring the government's ability to achieve what it regards as the important interest served by the preventative-services-coverage mandate.  (I happen to think it is bad policy to mandate coverage of abortion-causing drugs and sterilization, period, but that is a separate issue.)  And so, whatever the merits of a constitutional challenge under current doctrine, the merits of the RFRA argument are, I think, quite strong.

With respect to the "politics" of the decision, I am confident that the Administration determined that its political interests were better served by risking alienating some Catholics who had supported him than by alienating those in his base who lobbied strongly for the mandate.  (The recent goings-on with Komen certainly illustrate this part of the base's influence.)  And, I suspect he was advised that the alienation of many Catholics from their bishops, coupled with the fact that most Catholics do not accept the Church's teachings when it comes to contraception, could be safely relied on to reduce the extent of any Catholic defection from his body of supporters. 

What's next?  I wish I knew.  Unlike some, who persist in the confidence that this Administration isn't really insensitive to religious-liberty concerns, I think it's hard to avoid the conclusion that is.  Still, I hope the Administration re-considers, and does not find itself in the position of imposing crushing penalties on those institutions that refuse to comply with the (unjust) mandate. 

UPDATE:  According to this piece, in the Washington Post, some in the Administration think the mandate is a political opportunity, not a liability.

Finally, I have to say that I think Eduardo is wrong to dismiss "the mostly fatuous 'religious freedom' line of attack that religious conservatives have strategically adopted as their new all-purpose refrain in the culture wars."  If religious freedom is increasingly at stake in "culture wars" battles, it seems to me that it is not because of a "strategic" decision by "religious conservatives," but instead because one side in those "wars" increasingly sees religious freedom and pluralism as obstacles -- though vulnerable ones -- to its efforts.  Sure, some religious-liberty claims are losers but, at present, I think what Eduardo calls a "line of attack" is looking more and more like a very necessary defense.

Posted by Rick Garnett on February 8, 2012 at 01:19 PM in Garnett, Rick | Permalink

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Thank you for engaging with this side of the issue. All to often it seems like people think asserting "religious freedom" ought to be enough to get them an exemption from any law -- except when they think it's too much, and oppose someone else's request for accommodation -- without even an attempt to form a coherent philosophy.

My only quibble would be with your suggestion that religious freedom is getting more play now because liberals are more opposed to it. It seems to me that the shift has occured as religious groups have both become more heterogenous and lost political power. As that happens, they're less able to impose their norms through the normal political process and have to resort more to religious freedom claims. That is, a good theory of religious accommodation isn't necessary when those who would normally be able to get the accommodation are politically powerful.

Posted by: Andrew MacKie-Mason | Feb 8, 2012 2:13:22 PM

In an earlier post on Mirror of Justice, Eric Bugyis stated that: "We agreed that in the case of, say, Jehovah’s Witnesses denying life-saving blood transfusions to non-JW patients or coverage to non-JW employees, the government would have a supervening interest to protect the life/health of its citizens by mandating that JWs either provide these services or get out of a business in which they would be expected to provide them or, perhaps, be fined so that the government could provide them."

I am interested in hearing more about what differentiates the Jehovah's Witness/blood transfusion scenario from the Catholic Church/birth control one. As I understand it, a blood transfusion has far more serious repercussions for a Jehovah's Witness than using contraception has for a Catholic. Despite this, Rick and Eric seem to agree that the Jehovah's Witness employer has no right to withhold coverage for blood transfusions for employees who do not share the belief prohibiting transfusions, while the Catholic employer should have the right to withhold coverage of contraception from employees who do not share the belief that contraception is wrong.

How are these scenarios different in a way that justifies a different result?

Posted by: Ellen Wertheimer | Feb 8, 2012 6:58:13 PM

I would like to offer some thoughts with regards to Ellen Wertheimer's questions. It might be good to take a step back and remember why we are having this discussion at all. It began back in July when HHS declared that contraception, sterilization, and abortifacients (morning after pill) constituted preventive medicine. As a physician, I maintain this is a stretch. Preventive medicine prevents disease and maintains health. The above interventions take a perfectly healthy reproductive system and render it sterile. I argued this in more detail here. http://tiny.cc/idkr7 The use of contraception, sterilization, and abortifacients are lifestyle choices. They are elective medicine. Therefore, forcing a religious institution to violate its tenets of faith and morals to accommodate elective and medically unnecessary medicine is inappropriate. (And before anyone brings it up, I am not including the use of the hormonal components of contraceptives for the treatment of pathological medical conditions as elective medical therapy) Blood transfusion, on the other hand, are matters of medical necessity and are often life-saving interventions. I believe the medically essential nature of blood transfusions gives them a different ethical status than the purely elective birth control options.

Posted by: Denise J. Hunnell | Feb 8, 2012 7:57:26 PM

Denise, that's fine. But the argument you're making goes past the bounds of most of the rhetoric emanating from the anti-mandate side of things. Most of them have been arguing from the assumption that a mandate for non-religious employers is appropriate, and not questioning (at least openly) the value of the services rendered. They've been staying (supposedly) wholely within the realm of religious freedom. Your argument seems to rely much more on prudential judgments about the societal value of the mandate.

Posted by: Andrew MacKie-Mason | Feb 11, 2012 9:23:41 PM

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