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Wednesday, March 28, 2012

Notre Dame panel on the HHS mandate

Last night, I participated in a panel discussion, sponsored by the Notre Dame Right to Life student group, on the HHS preventive-services mandate.  My focus was on the religious-freedom dimensions of the debate.  Here is a story about the panel from the campus newspaper.  And, here are the notes from my talk:

Because I am a lawyer, I cannot resist splitting hairs.  And so, I want to distinguish my question – the “religious freedom” question – from three others.

First, I am not talking about whether we think the “Affordable Care Act” is good policy, or whether the insurance-coverage mandate is constitutional, or whether we prefer the Democrats' health-care-related propossals to the Republicans'.  These are perfectly good questions, but they are different from the question whether religious employers should be exempt from the preventive-services mandate.  This question is not – it should not be – a “liberal” or a “conservative” issue.  Democrats and Republicans agree – liberals and conservatives agree – that America’s commitment to religious freedom is foundational, and fundamental.

Second, I am not talking about the merits of the Church’s teachings on sexual ethics, or about the social and other effects of contraception.  These are also – obviously – important questions, and others can speak more usefully about them than I can.  My point is, it should not matter, for purposes of the religious-freedom question, whether or not you are a Catholic, or whether or not you embrace the Church’s vision of human sexuality.  Remember:  It is always the case, in religious-freedom cases, that we are talking about the protection of minority views.  The whole point of constitutional protections for religious freedom, and of “accommodations” and “exceptions,” is to protect and respect minority and unpopular views.  After all, the views of the majority, and popular views, do not need special protection.

Third, I am not talking about the important, technical questions about whether it would constitute “cooperation with evil” for Notre Dame or other religious employers to comply with the mandate.  Smart people disagree about this question.  But, this question is different from the religious-freedom question.  The “religious freedom” of institutions like Notre Dame is not just the freedom to avoid being coerced into doing wrong.  It also includes the freedom of Catholic institutions to bear witness to the truth of the Faith, to act with integrity, and to act coherently, in accord with their Catholic character.

So, all that said, I want to (very briefly) mention three aspects of my question, the “religious freedom” question.

First, is the mandate unconstitutional?  Does it violate the First Amendment?  My answer to this question is . . . possibly.  [Explain.]

Second, is the mandate illegal?  That is, does it violate a federal statute, the Religious Freedom Restoration Act?  I say . . . probably [Explain.]

Third, is the mandate inconsistent with our traditions, and with our longstanding commitment to pluralism and religious freedom?  Here, I say . . . yes.  Even if we assume that the mandate is constitutional under current doctrine, and that it does not violate RFRA, this does not mean that it respects religious liberty, or that it is consistent with our traditions of accommodating minority views and valuing pluralism.  Sometimes, a democracy like ours, with ideals like ours, accommodates religious freedom even when it does not have to.  In this case, the better policy – the policy that better implements our commitments – is to provide a broader religious-liberty exemption to the preventive-services mandate. . . .

http://mirrorofjustice.blogs.com/mirrorofjustice/2012/03/notre-dame-panel-on-the-hhs-mandate-.html

Garnett, Rick | Permalink

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Sometimes I've heard the "religious freedom" objection posed this way: the HHS mandate would force some Catholics to do what their religion forbids them from doing. I've yet to hear a precise and principled explanation of what the point of conflict is supposed to be. Your thoughts?

Posted by: Ancius | Mar 30, 2012 10:30:01 AM

Ancius -- that particular objection, I think, goes something like this: (a) a Catholic may not (culpably) cooperate with others' wrongdoing; (b) neither may a Catholic institution; (c) it would constitute (culpable) cooperation with evil for a Catholic employer to provide insurance coverage that pays for abortion-causing drugs and contraception; and (d) the preventive-services mandate requires Catholic institutions to engage in culpable cooperation-with-evil. As I see it, (c) is the most contested part of the argument.

Posted by: Rick Garnett | Mar 30, 2012 10:47:48 AM

Rick Garnett, I like the way you've put that, but I would have thought that (b) and (d) might be distinct and independent of (a) and (c) (and that it would be good to separate these arguments as distinct).

Also, I think that your answer to the third aspect of your "religious freedom question" would need to address the fact that our longstanding commitments to pluralism and religious freedom aren't the only important ideals to which we have deep commitments. Since our commitment to one of our important ideals should often be sensitive to our other important ideals (e.g., to fair equality of opportunity to individuals), I don't think we can say that the mandate is inconsistent with our commitments to our ideals of religious freedom/pluralism without a thoughtful balancing of the other important ideals at stake--especially since any actual compromise to individual religious freedom is so unclear.

Posted by: Ancius | Mar 30, 2012 11:33:12 AM

Ancius, I'm not sure I am "getting" your point about "distinct and separate." Are you saying that the "don't culpably cooperate with evil" rule applies differently to Catholic institution-employers than it does to Catholic individuals? On your second point, I guess I'd need to hear more about the "other important ideals" that you think are at stake in *this* context. (As a general matter, certainly, we have lots of commitments, and sometimes there are tradeoffs and tricky balancing exercises.) In this case, though, I've struggled to understand what's the competing commitment, given that accommodating the employers' religious objections need not undermine the stated purposes of the ACA (or even of the preventive-services mandate) at all.

Posted by: Rick Garnett | Mar 30, 2012 11:42:14 AM

In that first point I'm suggesting that the claims about individuals (particular Catholic men and women) neither entail nor are entailed by the claims about collective entities (Catholic institutions). Moreover, it isn't obvious that one kind of claim is as significant, or as significant in the same ways, as the other kind of claim.

One other important ideal in this context is the idea of leveling the playing field (or, fair equality of opportunity), with particular concern for those starting out on the low ground (e.g., lower income women, including those working at nonexempt institutions affiliated with the Church). But it is not just about these women. The ideal of fair equality of opportunity is also furthered by promoting health care coverage, of the best feasible kind, for everyone. The means to that end is to lower overall health care costs, which is one of the stated reasons for the mandate.

Section III ("Overview of the Final Regulations") is helpful on these points:

https://www.federalregister.gov/articles/2012/02/15/2012-3547/rin-1545-bj60

Posted by: Ancius | Mar 30, 2012 12:22:21 PM

Ancius, with respect to "leveling the playing field" and "fair equality of opportunity", I guess my view is that this mandate is not actually necessary to the project of lowering health-care costs (putting aside doubts we might have about the justice or scientific accuracy of thinking that the public should pay for contraception), and because it isn't, the burdens it impose on religious freedom seem really just gratuitous. (The government could -- it shouldn't, but it could -- just say, "look, we want everyone to have as much access to contraception as possible, and so we will pay for it, for all.").

Posted by: Rick Garnett | Mar 30, 2012 12:35:39 PM

What about the lower income women working for these nonexempt institutions?

We have a pro tanto reason to use every feasible means to lower health care costs, given that cost reductions are a necessary means to enabling better care for those who are already disadvantaged. While there are other ways to lower overall healthcare costs, this particular mandate deals with costs that can't feasibly be reduced in any better way (at least not obviously). You seem to acknowledge that it wouldn't be any better, by your scorekeeping, for the government to simply make contraception free (through, e.g., general tax payer supported subsidies).

Posted by: Ancius | Mar 30, 2012 12:52:51 PM

No, it *would* be better (because it would not burden religious freedom) for the government to pay.

Posted by: Rick Garnett | Mar 30, 2012 1:15:35 PM

It is not the role of Government to provide free contraception for all and thus engage in the promotion of promiscuity.

Posted by: N.D. | Mar 30, 2012 2:15:50 PM

So, then, by your lights this would be a Pareto improvement on the current mandate: let the federal government, instead of health insurers and employers, subsidize the cost of the contraception for anyone. (Notice, by the way, that Catholics and Catholic employers will still have to pay for that subsidy in their taxes. Can you honestly see the USCCB agreeing that this would be a Pareto improvement, that it would not also "burden religious freedom"?)

Posted by: Ancius | Mar 30, 2012 2:26:25 PM

Well, I only say things "honestly." And, in my view, taxpayers' have no real basis *in conscience* for objecting to the government's expenditures of funds raised through general taxation so, yes, it would be a "Pareto improvement." (It would still be bad policy, because contraception is not, generally speaking, well regarded as "health care", and because it is wrong for the government to pay for abortion-causing drugs, because abortion is wrong.)

Posted by: Rick Garnett | Mar 30, 2012 2:34:35 PM

If you think that taxpayers can have no real basis "in conscience" for objecting to such expenditures, then I expect you'll have a difficult time articulating any basis for grounding an objection to the current healthcare mandate on behalf of the consciences of any Catholic employer.

Posted by: Ancius | Mar 30, 2012 2:54:19 PM

No, I suspect I wouldn't, and already have. But, in any event, I think the religious-freedom shortcomings of the preventive-services mandate *with respect to religious institutions* primarily have to do, as I said before, with institutional witness and integrity, scandal, etc.

Posted by: Rick Garnett | Mar 30, 2012 2:59:10 PM

So if a Catholic employer is forced to subsidize the free contraception through federal taxes, then they can "have no basis in conscience" for objecting. If, however, a Catholic employer is forced to subsidize free contraception by having to pay for health care coverage which includes contraception, then they do have a basis in conscience for objecting. At least on its face, yours sounds like a quirky position. Once made explicit, I wonder how your distinction can itself maintain "a basis in conscience".

Why doesn't the first form of forced subsidy not also compromise their "institutional witness" or "integrity"?

Posted by: Ancius | Mar 30, 2012 3:19:19 PM