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.

Tuesday, November 29, 2011

"Bad Samaritans"?

At the Commonweal web site, Eric Bugyis lodges what strikes me as a number of misplaced objections to the Catholic bishops' religious-freedom-grounded case for an exemption from the proposed contraception mandate.  (I set out my own views about the religious-freedom problems with the mandate in USA Today yesterday.)

Mr. Bugyis writes:  "First of all, the issue is not over how and to whom religiously affiliated institutions minister, but it is about who is doing the ministering."  In fact, though, the proposed religious-employer exemption in the interim-final-rule mandate does make it relevant "how and to whom religiously affiliated institutions minister."

He writes:  "If non-Catholics are being employed to teach or doctor in a religiously affiliated institution, why should they be denied coverage for services that have been deemed medically necessary by a board of medical experts for all citizens?"  Let's put aside, for present purposes, the doubts one might well have about whether "preventative services," as defined in the interim rule, are actually "medically necessary" (notwithstanding their having been declared so by a "board of medical experts"); the definition of "preventative services", and the content of the mandate, are (at least) as much the product of ideology and politics as of medical expertise.  Why should it be the case that a religious employer loses the right -- or just the ability -- to act in accord with religious teaching simply by virtue of hiring some non-co-religionsts (who, presumably, accept the position voluntarily and with knowledge of the employer's religious character)?

He then asks, "If the bishops are so scared of being defined out of their 'religion' by the state, maybe they should divest themselves of 'secular' ministry completely."  I'm not sure if this is meant to be a serious point, or just a snarky one.  Why shouldn't the bishops prefer resisting government efforts to impose religious-character-burdening conditions on their agencies "secular" ministries to abandoning those ministries?

Finally, he says, "It is the bishops who are asking for the right to walk by those in need, if they have deemed that their needs are not really needs at all. It is the bishops who are the 'bad' Samaritans in this parable by opting out of their obligations as members of a pluralistic society."  This is also unfair (and, I think, a distortion of the "Good Samaritan" story).  How is it that the bishops are asking to "walk by those in need"?  And what exactly is the "obligation" of "members of a pluralistic society" that the bishops are seeking to evade?

I understand, of course, that reasonable people disagree over the question whether or not complying with the mandate as it stands would actually violate Church teaching or involve culpable cooperation with wrong (and also, obviously, that many people do not think that we are talking about a "wrong" here at all).  Still, it strikes me that Mr. Bugyis's post is more in tension with "pluralistic society" than are the bishops' concerns.   


Garnett, Rick | Permalink

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Your critique is right on the money, Rick. The author's analysis reflects one of the dangers of relying on an exemption approach to conscience, in my view. I know that the need for at least some exemptions is inescapable, but they feed into a conception of conscience as essentially a personal or institutional hang-up that precludes compliance with the professional standard of care that would otherwise apply. What if instead we saw conscience as a set of commitments that gives rise to a different understanding of the standard of care? Instead of seeing a Catholic hospital saying, “We shouldn’t have to follow the law on this issue,” what if we saw the hospital saying, “We have a different vision of what the ends of medicine are, and we need the freedom to bear witness to that vision?”

Posted by: rob vischer | Nov 29, 2011 3:18:29 PM

Professor Vischer, perhaps you should include that our vision of medicine reflects a vision that is Life-Sustaining.

Posted by: Nancy D. | Nov 29, 2011 3:36:30 PM

Mr. Garnett,

Thank you for what I take to be questions of clarification with regard to my recent post over at Commonweal. I welcome the engagement on what I'm sure we both agree is an important matter.

First, to the extent that we are talking about the Affordable Care Act, which has to do with providing health insurance to employees, I take the question of "religious identity" to involve the employees to whom health benefits are being given and not those who are being served. Of course, these two issues often come together, but I think a distinction should be made between the provision of access to healthcare, which individuals are able to take advantage of at the advice of a doctor and under the guidance of conscience, and the mandate to provide direct services. The healthcare legislation is merely asking that employers respect the freedom of individuals in the former case. It is not forcing anyone to do anything as the latter would suggest. But, I suspect we would have different views with regard to mediate and immediate cooperation with immoral actions.

Second, I think that it is a stretch to say that the determination of preventative measures is "as much the product of ideology and politics as it is of medical expertise." Where does this end? If medical recommendations are equal parts ideology and expertise, then who should we trust? If my doctor tells me a therapy is medically necessary to avoid certain risks, should I always assume that it could just as easily be the case that he has some malevolent agenda. Of course, it is the case that medical findings can be manipulated by economic and political interests, but this must be the exception rather then the rule. Otherwise, we would treat the potentially conflicting advice of oncologists and shamans as basically a wash as far as curing cancer is concerned.

Speaking of reductio, you are right to detect a wink and a nod in my suggestion that bishops get out of the business of "secular" ministry all together. Of course, I don't think this is what they should do. Rather, I was trying to suggest the the rhetoric of some bishops (and some Catholics, for that matter) seems to slant in the direction of paranoia. As if giving people the freedom to come to the faith on their own terms rather than coercing them into following its precepts before they really believe in Christ is some how a betrayal of the mission of evangelization. Even St. Paul would rather eat with the unclean in the spirit of the New Law of love than return to the rigid letter of the Old Law. This is all to say that "secular" ministry is necessarily going to have to leave behind the foundationalist view that the bishops' privileging of institutional piety over individual conversion perpetuates.

Lastly, if you accept that there are some objective criteria for judging what is "medically necessary" (which I realize is a big "if"), then the bishops are asking for permission to deny access to medical treatment to those in need who, as non-Catholics, have no theological reason to assume that it is not necessary. And, that is not even the main pluralistic obligation that the bishops are avoiding. Rather, it is their failure to actually make the public moral argument, divorced from privileged theological claims, that contraception is immoral (if that's what they think) and to instead hide behind the veil of religious conviction that constitutes the must fundamental refusal to engage in any kind of "secular" mission. To this end, I found it interesting that in your USA Today article, you ultimately moved to neutralize the contraception issue as moot given that most insurance plans already cover it. Doesn't this mean that most Catholic employers are already acting against the consciences that they are so vigorously fighting to protect?

Posted by: Eric Bugyis | Nov 29, 2011 5:37:30 PM

Eric -- again, I think it is quite misplaced to suggest that what the bishops are objecting to is "giving people the freedom to come to the faith on their own terms rather than coercing them" etc., etc. This strikes me as a straw man. The bishops are objecting to government efforts to coerce *the Church (and its ministries)* into following "[the government's] precepts, and to the government's presumption that it should be able to condition the exercise of "secular" ministries on the Church's willingness to do what (it thinks) it ought not to do. Nor is it the case that the bishops -- by seeking an exemption from the mandate -- are seeking to "deny access" to anything, for anyone. And, with respect to your final sentence, my point is that there is no compelling government reason for the government to impose this mandate on religious employers that do object, given that most do not (object). So, the "gain" from the mandate is not much, and the cost seems (to me) high. You seem to be suggesting that my (or the bishops') argument is somehow undermined by the fact that most employers (including many Catholic employers) have no objection to subsidizing contraception (though it is important to remember that we are talking about drug-induced abortion, too), but it isn't.

Posted by: Rick Garnett | Nov 29, 2011 5:53:19 PM

Rick, I think our disagreement goes to the first point I made, which is that minimum mandates for insurance coverage are meant to insure access (via the removal of financial burden) to necessary medical care. Insofar as the bishops want to opt out of one or more of these minimums, they are denying access. Unless you think that the provision of insurance is a kind of participation in the services which it underwrites (and it seems that at least the bishops do), I don't see how the government is telling Catholic institutions that they must directly do anything. Even in the case of denying funding to Catholic Charities et al., the government is not forcing hospitals and clinics to provide certain services in order to be accredited, and it is not barring anyone from performing or obligating anyone to perform any legal ministry one feels called or not called to offer. It is merely saying that those organizations who do not provide all of the the services deemed necessary by a medical board appointed by a democratically elected government will not qualify for funds specifically earmarked to ensure that all of those services are made available. What Catholic is being coerced to do anything?

Posted by: Eric Bugyis | Nov 29, 2011 6:13:35 PM

Eric, with all due respect, how is denying coverage of contraception, medicine that is not Life-Sustaining, denying necessary medical care?

Posted by: Nancy D. | Nov 29, 2011 6:37:39 PM

I think we are missing the elephant in the room. When an insurance plan covers a particular service, e.g. contraception or abortion, the premiums go to pay for those services whether or not the insured individual actually chooses to use contraception have an abortion etc. The individuals non-use of the services "subsidizes" the use of the services. This is how insurance works. Like car insurance, I pay premiums even though I have not crashed my car and may never crash my car. I am paying (in part) for repair of cars that I have not crashed.

In employer sponsored plans, the employer pays part of the premium, so the employer is paying for whatever the plan covers. So, if a plan must cover abortion and contraception, then the employer is paying for these services. This raises serious cooperation with evil problems.

Forcing Catholic institutions to cover contraception forces these institutions to cooperate in evil.

Posted by: AML | Nov 29, 2011 7:27:32 PM

Nancy, would you consider contraception medically necessary in the case of a woman for whom pregnancy would present a potentially lethal health risk?

AML, by your logic, or that of any remote financial participation in evil argument, anytime I give money to anyone, including paying taxes, I am potentially participating in evil given that I don't know what the recipient is using my money to fund...abortions, bombs, illicit sex, etc?

Posted by: Eric Bugyis | Nov 29, 2011 7:39:06 PM

Eric, you are right that the mandate is intended to make it easier for employees to purchase so-called preventative services. It does so by making someone else -- i.e., the employer -- subsidize that purchase. But, this statement about the aim of the mandate is, it seems to me, not really relevant to the discussion. It is certainly not the case- - I do not believe that you believe it is the case -- that a Catholic-institution-employer is, in any morally meaningful sense, "denying access" to anything, to anyone. (You do not believe that I am "denying access" to Chipotle burritos by failing to show up at your door with a bag of them.) You have several times made reference the asserted fact that the contents of the "preventive services" mandate are the product of a "democratically elected government", but it's not clear to me that this asserted fact should or can do very much work. I'm sure you don't believe that the mere fact that a regulatory mandate is the product of a majoritarian political process insulates it from criticism or guarantees its consonance with religious freedom. (And, I suspect you don't think that the legislative outputs of our Congress are necessarily, in a morally meaningful way, the products of "democratically elected governments.")

Your statements about the denial-of-funding situation with Catholic Charities is true-ish, but inapposite. Yes, in those cases, the government is (unwisely) attaching conditions to funding, and religious institutions are free to turn them down. (I am surprised that you seem unbothered by the government's decision to attach symbolic restrictions to the contracts and thereby risking a reduction of foster-care and adoption-related services to needy youth. But, again, that's a different issue.)

The issue you *should*, in my view, address is the efforts in some jurisdictions to attach conditions to the *licensing* of activities (like foster-care and adoption placement and soon, I expect, education) that religious institions were doing long before governments were. Again, I suppose you could describe the situation as not involving "coercion" . . . but should that make people who care about religious freedom, pluralism, civil society, etc., feel any better?

Posted by: Rick Garnett | Nov 29, 2011 8:12:07 PM

Eric, is your argument that the Obama administration's mandate that contraception be covered is justified because pregnancy is a potentially lethal health risk?

Posted by: Nancy D. | Nov 29, 2011 11:18:30 PM

Rick, It seems we have some fundamental disagreements. I do think that the denial of insurance constitutes the prevention of access in a meaningful way. The difference between Chipotle and preventative medicine, is that burritos, while delicious, don't save lives, and thus, could not be part of a discussion about the degree of basic medical care to which every citizen is entitled, which, I take it, is what the Affordable Care Act is aimed at protecting. If researchers discovered that burritos were and effective treatment for heart disease, then I assume they would be on the list of minimum health rights.

Of course, as you say, I do not think that a majority decision can produce an unassailable moral judgment, and of course, no one is suggesting that the bishops cannot continue to voice their disagreement with certain public policies. I do believe, however, that the democratic process is predicated on the real and plausible expectation that rational public deliberation can enable us to arrive a conclusions that are accessible to all citizens, regardless of faith, about how best to conduct our affairs. And yes, I do believe that Congress is one of the bodies that attempts to engage, however imperfectly, in such deliberation on behalf of the people whom it represents. In order for us to actually have any "faith" in government, we have to believe that corruption and ideology is the exception and not the rule. Otherwise, we should simply prepare to mount a revolution, which I am, of course, not against doing if there is cause. So, just as with "medical expertise" so to with the "legal process," just as with science so to with politics, the legitimacy of the enterprise is founded on the belief that there is some truth that is being discovered, or at least aimed at, in and through the community that gathers to play the game in good faith. Will there be quacks and charlatans? Sure. But, the burden of proof is on the accusers to make their case.

But, this brings us to a serious question that lies behind much of the rhetoric of the bishops as well as your last paragraph. It seems to me that there is a fundamental suspicion at work both with regard to the validity of medical science as it makes its way into the public sphere as well as the legitimacy, moral or otherwise, of democratically elected secular government. As you suggest, the conviction seems to be that religious groups have been practicing medicine and educating people long before the American and French Revolutions, so why should we expect that governments (of which we, as democratic citizens, are a part) born of a moment in time could do a better job than seemingly timeless tradition? This is, at least at one level, a quasi-empirical and publicly debatable claim. Has the freedom of scientific research given us more dramatic, life-saving advances in medicine in the last two-hundred years than in the preceding eighteen-hundred? Have more people been educated and has that education extend to a wider and more diverse socio-economic, ethnic, and (non)creed-confessing population? Most importantly, is belief in God, let alone the Catholic confession, relevant and/or necessary to the proper practice of medicine or education and/or the advances in the quality of either?

If you want the government to offer "special treatment" for religious organizations, as you say in your USA Today piece, you are going to have to make the strong, universal, public argument that religious organizations offer something more owing to their faith that is directly relevant to the services they are being asked by society to provide than their non-religious counterparts. Otherwise, I don't see why any non-believer should have any investment whatsoever in protecting the religious affiliation of their hospital or school at the expense of its opting out of certain services that he or she thinks it should provide. This is, of course, not to say that their couldn't still be Catholic hospitals or schools, but it just means that the government, and the non-Catholic polity, would have no prima facie investment in making sure there is a "Catholic" hospital or school.

I'm not saying that such an argument couldn't be made, I'm just saying that it must be made by engaging in public deliberation and respecting its conclusions, however provisional and contested they may be, and not claiming exemption from such dialogue and its expectations. All voices have a right to be heard, but none have a right to be heeded without having first won the argument.

Posted by: Eric Bugyis | Nov 30, 2011 12:05:37 AM

Nancy, No.

Posted by: Eric Bugyis | Nov 30, 2011 12:09:41 AM

Irrespective of the morality or medical necessity, wouldn't Congressional history of providing exemptions to religious organizations convey strong rationale upon which the Administration can rely in expanding the religious exception, at least to a certain extent?

Congress has long granted exemptions to religious institutions and their adherents. These include areas normally regulated by the government such as bypassing licensing processes and zoning laws, providing tax and procedural breaks for social services provided by the institutions, and allowing discriminatory practices based on race, sex, sexual orientation, etc. Nevertheless, these discriminatory exceptions do not include religious organizations who (1) participate in interstate commerce, AND (2)exceed a statutorily delineated number of employees.

The religious exemption proposed by the Administration only covers a sliver what a normal exception would. If it was extended to mimic the above discriminatory exemption, it would fall in line with legislative precedent while alleviating the pressure on religious organizations who would not normally find themselves outside the exception.

Posted by: WIT | Nov 30, 2011 12:26:57 AM

Eric, your (and the ACA's) declaration that contraceptive services "save lives" and are so part of the "basic medical care to which every citizen is entitled" does not tell us anything about who is obligated to provide those services. If X is not obligated (apart from a declaration by the political authority that X is obligated) to provide those services, then X's desire not to pay for / provide / subsidize those services is not, in any important sense, a "denial of access" to those services. All the middle sections of your comment are uncontroversial, I would think, but I continue not to understand why you would think that the political community's decision to impose this mandate somehow, by itself, answers the religious-freedom-based objection to that mandate.

You say that you don't see why "any non-believer should have any investment in protecting the religious affiliation of their ['their'?] hospital or school at the expense of its opting out of certain services . . . ." I would have thought that non-believers, like believers, understand that fundamental human rights (like religious freedom) are worthy of respect, and that the community-wide enterprise of respecting them sometimes imposes costs. In any event, I don't see why the asserted inability of a "non-believer" to have an investment in the Church's religious freedom means that the Church's religious freedom should not be protected. At the end of the day, we -- the entire political community -- have constrained ourselves with a constitutional commitment to religious freedom.

My sense is that you think (a) the mandate is good policy and therefore it follows that (b) the Church's religious-freedom objection to it are unfounded or (c) can, in any event, be overridden, because the Church lost in the political process. Even if I agreed with you about (a), I would think that (b) and (c) require more.

"All voices have a right to be heard, but none have a right to be heeded without having first won the argument" is nicely written, but it's not a claim that sits easily with our long constitutional tradition of accommodating religious objectors -- who, by definition, have lost the argument -- even when they object to policies that we like.

Posted by: Rick Garnett | Nov 30, 2011 8:06:27 AM

Rick, Your first paragraph seems to take issue with any mandates placed on employers to pay for/provide/subsidize anything, but, of course, no one is saying that they have to provide insurance as part of the compensation they offer their employees. Since the ACA is aimed at ensuring access to healthcare as a right, employers who don't provide insurance will, as I understand it, have to pay a tax so that the government itself can offer insurance subsidy to those who don't have it. But, this takes the insurance issue out of the employers hands, and since I do agree that access to healthcare is a right, I think this is a workable compromise.

Thank for your grammatical query, I should have said "his or her." As the above comments should indicate, I don't think anyone's religious freedom is being compromised. No one is be unduly coerced into doing anything against his or her conscience, at least anymore than paying one's taxes might constitute remote, nonconsensual participation in evil. So, I don't see that there is a grave violation of human rights occurring here that should concern anyone who doesn't have an immediate interest in wanting the government to privilege "Catholic" participation in the public sphere.

Posted by: Eric Bugyis | Nov 30, 2011 8:51:06 AM

Second paragraph should read "Thank you"...

Posted by: Eric Bugyis | Nov 30, 2011 8:52:37 AM


This is why Thoreau refused to pay taxes and ended up in jail.

I would say, however, that the cooperation in evil in this instance is more proximate than that. With insurance plans, you choose what coverage you want. If I don't want contraception or abortion covered than I am not paying for those services and may even see a small discount in my plan because I am electing not to have coverage for those services. If I want collision coverage for my car, my car insurance is more expensive. So, when I elect for my plan to cover certain services, I am paying for those services whether I use them or not. You seem to be misunderstanding how insurance works.

When I pay my workers' salary I am not cooperating in any evil for which they may be using their money. I am not choosing for them to pay for a prostitute, have an abortion, etc. I am paying them wages for work that they have done for me. That is completely different from an insurance plan.

Posted by: AML | Nov 30, 2011 8:59:24 AM

I'm taken aback by Mr. Bugyis's scurrilous attack on those arguing that the Administration should expand the religious exemption to the contraceptive coverage mandate by implying that they are somehow calling into doubt the "validity of medical science" or the legitimacy of "democratically elected secular government."

But I primarily want to point out what I think is a deep and persistent confusion in Mr. Bugyis's initial post at Commonweal and his comments here, namely his failure to specify "coercion" in a way that avoids begging the question. Mr. Bugyis states that "[n]o one is be unduly coerced into doing anything against his or her conscience" and asks rhetorically, "What Catholic is being coerced to do anything?" But coercion always entails some expected baseline (to distinguish a coercive threat from a mere offer). Mr. Bugyis asserts that mandating coverage for certain services in an employer-provided health insurance plan ("access," as he keeps telling us) isn't coercion, while mandating "direct services" (again, his term) would be. For that to be a sound argument, though, it would require Mr. Bugyis to tell us how mandating that a religious employer cover services to which the religious employer has a sincere moral objection does not leave religious institutions worse off than their expected, status quo ante baseline. But the proposed requirement does just that--Catholic institutions that today are not required to include coverage for services to which they have a sincere moral objection will, unless the religious exemption is expanded, be required to do so. (Or exercise the unattractive option of casting their employees out into the health insurance exchange, and the presentation of such unattractive options is precisely what coercion is.) Now, Mr. Bugyis might think this is *justified* coercion (like paying one’s taxes for national defense) of those religious institutions because he thinks it's extremely important that everyone have free (because subsidized by their employers) contraceptives and abortifacients regardless of whether they work for AT&T or Notre Dame, but that would be a different (and, given what I take to be Mr. Bugyis's views, oddly illiberal) argument than the question-begging claim that there's no coercion to worry about here in the first place.

Posted by: Michael Moreland | Nov 30, 2011 9:36:11 AM

No doubt, no one should be coerced into providing contraception services when contraception services are not Life-Sustaining, to begin with.

Posted by: Nancy D. | Nov 30, 2011 11:14:41 AM

In terms of the medical science issue, let's not forget how then White House counsel Elena Kagan encouraged the American College of Obstetricians and Gynecologists to change their language on the medical necessity of Partial Birth Abortion from ACOG “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman” to the procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Various federal courts then relied on ACOG's "scientific" findings to strike down partial birth abortion bans.

I'm not saying that something similar has happened here, but merely to suggest that "non-partisan" and "scientific" organizations often act for partisan and non-scientific reasons.

See: http://www.nationalreview.com/articles/243362/kagans-abortion-distortion-shannen-w-coffin

Posted by: AML | Nov 30, 2011 1:43:56 PM