Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, August 26, 2011

More analysis, and critique, of the contraception-coverage mandate's exemption

Chris Haley has a very good essay, "Creating a Catholic Ghetto," at the First Things blog, in which he focuses nicely -- in a way that complements the Alvare essay to which I linked in an earlier post -- on the marginalizing (and, therefore, socially and otherwise undesirable) effect that the mandate (with its at-present very narrow exemption) would have on Catholic institutions . . . and not only, it should be emphasized, on Catholic hospitals:

The actions of the administration are in keeping with the prevailing secularist ideology: religious beliefs, practices, and institutions are seen as essentially private matters, best kept out of public discourse and away from the public sphere. While I have focused here on the Catholic Church, this mandate would affect not only the Catholic Church, but every church, every religious community, every individual believer. It must be opposed.

And, as it happens, it is being opposed, and also by Catholics who otherwise have been supportive of President Obama's election and Administration.  As Michael Sean Winters reports, here,  a number of "prominent Catholics [including many who had supported Sebelius's nomination and many who signed a letter, a while back, criticizing Speaker Boehner for, in the signers' view, not adhering closely enogh to Catholic Social Teaching] released a letter to Health & Human Services Secretary Kathleen Sebelius recommending that she amend the proposed rule on mandated health care coverage to provide for more expansive conscience protections for religious organizations."  The letter says, in part:

Catholic charities and Catholic hospitals do not fit the rule’s definition of religious organization. Catholic schools, colleges, and universities also might not fit the current definition. In light of the First Amendment’s protection of religious practice and of the 1964 Civil Rights Act’s forbidding of discrimination for religious belief and insistence on accommodation of religion in the workplace, we propose expanding the definition of religious organization in the final rule to extend conscience protection to religious charities, religious hospitals, and religious schools in regards to mandated health insurance coverage. . . .

Kudos to Prof. Schneck for organizing the letter, and to the signers for signing it.  I hope Sec. Sebelius listens.  I confess, though, to not being very optimistic.  She is, after all, almost certainly also receiving letters (or has received letters) and lobbying to the effect that exemptions for religious organizations and believers from generally applicable mandates -- think, for example, of non-discrimination mandates -- are inappropriate, even pernicious.  Unless one believes that religious freedom is a positive good, and not merely a concession one makes, when not too inconvenient, one is not likely to see why an otherwise good law (which the Secretary believes, I assume, the contraception-coverage mandate is) should yield to the preferences or prejudices of those who don't like it.

https://mirrorofjustice.blogs.com/mirrorofjustice/2011/08/more-analysis-and-critique-of-the-contraception-coverage-mandates-exemption.html

Garnett, Rick | Permalink

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In the United States, 50% of pregnancies are unintended, 22% end in abortion, and 42% of births are out of wedlock. Estimates of how many married Catholic couples of childbearing age use contraceptives are consistently above 90%. And yet a small minority of Catholics continue to wage campaigns against contraception not just for Catholics, but for everyone. I wonder how many of those who get their insurance coverage from a religious employer themselves object to contraception. If permitted to make their own decisions, I wonder how many Catholic institutions would feel strongly about excluding coverage for contraception from the insurance they provide. Contraception is so widely accepted by everyone, including Catholics who actually must make a practical choice whether to employ it or not, that taking a stand against providing insurance coverage for it seems at best quaint, if one ignores the kinds of statistics I quote above, and if one truly cares about unwanted pregnancy, out of wedlock birth, and abortion, it is inexplicable.

Posted by: David Nickol | Aug 27, 2011 12:05:57 PM

David, those are interesting statistics. But Rick is not arguing about what people in fact do, but whether the government ought to in fact coerce the institutions and citizens whose consciences cannot acquiesce to what you claim is the dominant understanding. The fact that something is widely accepted does not mean that those who dissent should be stripped of their religious liberty. In fact, it's not clear how you can move from your statistics to a normative judgment whatsoever. It may be, for example, that 95% of all Americans think that wars can be just. Does that mean that conscripting conscientious objectors is now a good thing?

Posted by: Francis Beckwith | Aug 27, 2011 3:50:25 PM

David, those are interesting statistics. But Rick is not arguing about what people in fact do, but whether the government ought to in fact coerce the institutions and citizens whose consciences cannot acquiesce to what you claim is the dominant understanding. The fact that something is widely accepted does not mean that those who dissent should be stripped of their religious liberty. In fact, it's not clear how you can move from your statistics to a normative judgment whatsoever. It may be, for example, that 95% of all Americans think that wars can be just. Does that mean that conscripting conscientious objectors is now a good thing?

Posted by: Francis Beckwith | Aug 27, 2011 3:50:25 PM

Professor Beckwith,

Conscientious objection to military service does not seem to me a good analogy to conscientious objection to providing coverage of contraception in medical insurance plans. Objecting to providing insurance coverage for contraception seems more along the lines of objecting to paying taxes during wartime than objecting to serve in the military during wartime.

You say, "The fact that something is widely accepted does not mean that those who dissent should be stripped of their religious liberty." But religious liberty is not unlimited. At present (although it is under challenge) no state in the union allows polygamy to be practiced as a matter of religious liberty. As I understand Employment Division v. Smith, the Supreme Court "held that the First Amendment's protection of the 'free exercise' of religion does not allow a person to use a religious motivation as a reason not to obey . . . generally applicable laws. 'To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.' Thus, the Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes." (My degree is from the Wikipedia School of Law.)

I think it would be abhorrent to force a doctor or nurse to participate directly in something like abortion or sterilization if it goes against the dictates of their conscience. But I don't see providing medical insurance covering contraception as forcing that kind of direct participation in an allegedly immoral act. Also there does come a point when individuals who oppose something on the grounds of conscience have to find their own way of acting according to their conscience rather than requiring government or an employer to give them exemptions. I understand, for example, that supermarkets who have Muslim employees try to accommodate those who do not wish to handle pork or alcohol. But Muslims who sought work in a meat-packing plant or a distillery ought not to expect accommodation. (There does not seem to be much sympathy at all in our legal system for Muslim cab drivers who want to refuse to allow dogs in their cabs, even though dogs are ritually unclean to Muslims the way pigs seem to have been for Jews in the New Testament.)

I have not read anything along these lines, but perhaps employers need to come up with their own creative solutions if they do not wish to provide insurance that covers contraception. No employer is forced to provide insurance coverage. Could employers, instead of providing coverage, not provide some kind of allowance to employees to purchase their own insurance?

I suppose at least in part that the underlying objection is that Catholics don't like to see the idea of objecting to contraception relegated to the same category of religious belief as that of Muslims holding that dogs are ritually unclean. The message seems to be, in both cases, that it is not society's responsibility to accommodate certain beliefs and objections, but rather the burden is on the individuals with those beliefs and objections to find their own ways of following their consciences.

Posted by: David Nickol | Aug 27, 2011 7:20:07 PM

Professor Garnett,
Do you regularly pray for the President and for Secretary Sebelius?

Letters are important but not enough. The President and his top advisers need your prayers.

I hope Secretary Sebelius listens too. "My hope is in what the eye has never seen. Therefore, let me not trust in visible rewards. My hope is in what the heart cannot feel. Therefore let me not trust in the feelings of my heart. My hope is in what the hand has never touched. Do not let me trust what I can grasp between my fingers."

Posted by: Mark | Aug 29, 2011 8:44:22 AM