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.

Thursday, January 26, 2012

Confusion about "conscience"

Eric Bugyis and I share a respect for Stanley Hauerwas.  HIs reaction to the HHS contraception-mandate decision, though, is very different from mine.  "Obama defends conscience," he writes, by which it appears he means that the President, unlike the Catholic Church, respects the consciences of those who believe that it is not immoral to use contraceptives, including early-abortion-causing drugs.  He writes:

This is, of course, a victory for all those who care about the religious liberty of individuals and the freedom of individual conscience, which by definition is meant to be protected from the unwelcome coercion by institutions to do things (or not do things) that are not relevant to the performance of one’s explicit duties to them, including one’s employer. The Obama administration did offer one gratuitous concession to those religious institutions.

It is, "of course," not a victory for those who care about the religious liberty of individuals, and it is, in my view, Bugyis's thinking, and not the Bishops', whose thinking on this matter is regrettably "muddled."  (I am afraid that his suggestion that Archbishop Dolan would do well to take the year which the Administration has given him to prepare for the mandate's imposition to "reflect on what the concept of 'conscience' actually means" goes beyond mistake-making into unattractive and unworthy snark.)  The notion that the refusal of a religious institution to subsidize an another's activity to which the institution objects on moral grounds is meaningfully analogous to a legal, punishment-backed requirement that such an institution subsidize such activity is, again, confused.  The "coercion" involved in the mandate saga is the coercion by the government of religious objectors; the employers who do not want to pay for (even indirectly) their employees' contraception are not "coercing" those employees to do anything.  Bugyis thinks the Church fails to respect the consciences of those who reject the the Church's teaching on contraception but the Church is not fining such people for their unbelief.  (The claim of some that, because the government has declared that contraception-coverage is now -- because the government has declared it so -- a baseline entitlement, and so a refusal to subsidize is equivalent to a fine is cute, but unpersuasive.)   

Yes, a meaningful exemption could mean that employees of Catholic institutions who want to purchase and use contraception have to pay more, but policies which raise slightly the cost of an activity are not helpfully or even plausibly regarded as forbidding that activity or as coercing people to forbear from engaging in it.  (Never mind the fact that the government, if it wanted to, could easily subsidize the activity itself; but why bother when you can make religious employers do it?)  Yes, in a democracy, in a political community in which people disagree, it will sometimes be the case that some people and institutions will be required to comply with legal directives to which they object.  That's life.  But in a political community that cares about religious freedom (as ours does), we make efforts to specially accommodate religion-based objections, especially in cases where (as here) it is easy to do so.

Bugyis writes, "[a]s it stands, the bishops and other religious leaders seem intent on protecting their prerogative to coerce rather than counsel, and this is a slap in the faces of the faithful, who have already endured and forgiven so much loss of moral credibility among their clergy."  Again, the bishops are not "coercing" anyone, and the question whether the Church's teaching on contraception has been persuasive (to most people, obviously, it has not), should be entirely irrelevant to the question (I understand that it is relevant to the Administration's political calculations) whether a government that is constitutionally and culturally committed to religious freedom should make Catholic institutions subsidize employees' contraception.  At the end of the day, it seems to me that Bugyis welcomes the mandate out of something like spite, as a kind of justified punishment, or come-uppance, of the Church for its failure to confess error and reform in the direction he would like.  Very disappointing.


Garnett, Rick | Permalink

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"At the end of the day, it seems to me that Bugyis welcomes the mandate out of something like spite, as a kind of justified punishment, or come-uppance, of the Church for its failure to confess error and reform in the direction he would like. Very disappointing."

Thank you for your thoughtful replies. It seems as though some Catholics are of the persuasion that if Bishop X is for it, I'm definitely against it, full stop. I was heartened to see his fellow Commonwealer, David Gibson, call him out. Now for your colleague Prof. Kaveny.

And I suggest you don't read National Catholic Reporter - which has certainly made a joke of the "Catholic" and "Reporter" names.

Posted by: Josh | Jan 26, 2012 11:57:35 AM

Josh, I was pleased (but not surprised) to see that Mr. Gibson was on the case. As for NCR, don't be too quick: How could any Catholic news-junkie live without John Allen?

Posted by: Rick Garnett | Jan 26, 2012 12:02:58 PM

Ironic that Hauerwas is siding with the "telephone company" against Holy Mother Church in the name of the "individual." Hauerwas is a Protestant though, so that might explain it.

I'm really interested to see if Michael Baxter has a counter to Hauerwas on this issue.

And John Allen rocks.

Posted by: CK | Jan 26, 2012 1:51:12 PM

Oops, I misattributed what you said about Bugyis' thought above to Hauerwas. Sorry.

Posted by: CK | Jan 26, 2012 1:55:08 PM

I suspect that this entire fight is a brilliant, deliberate strategy to wedge the Catholic hierarchy away from Catholic voters, and also to set the stage for mandatory abortion coverage. Some history is in order, to understand the abortion-contraception links and distinctions, and to understand the links and distinctions regarding "mandates" and "funding."

The Notre Dame speech and all of the other feints show that Obama knows darn well that there are enough Catholic swing voters who are still uncomfortable supporting legal abortion at all, let alone funding it with tax dollars or mandating funding through insurance. He was able to finesse that in 2008, and the health care battle came down, in the final days and the final few votes, to abortion as a stumbling-block. Many Congress members lost their seats over that sole issue.

The bishops, let's face it, got burned. Had they not backed the health care bill so heavily all along, with hopes of blocking "just the abortion aaspects," it might never have passed. Many observers seem to forget how much mendacity went on in summer 2009, long before the Stupak amendment took center stage in fall to spring. The President personally suggested, without saying so directly, that the Hyde Amendment -- "a tradition in this town" -- already covered excluded abortion coverage, so adding anything like Stupak was a "distraction." There was much discussion over whether a restriction was needed, because, said the bill's defenders, the act had no "funding" anyway.

Here's where the "mandate" and "funding" issues are critical. Early on, in summer 2009, the Church and other abortion opponents properly focused on what they called the "abortion mandate" in the bill's early versions. That was especially heightened when Mikulski added language about policies having "all appropriate care for women's health" or some such thing, leaving it to HHS regs.

But opponents got rope-a-doped into the "taxpayer funding" battle instead of the "mandate" concept, and while they were still right, it was much more complicated. The USCCB and National Right-to-Life found themselves putting out complicated legal memos that tracked the dollars through the byzantine funding schemes to show that federal money did go to abortion. Focus was shifted to how the exchanges and premiums worked, and whether a "side premium" for abortion coverage solved it all. Was money ever truly "federal money" if collected from premiums and set aside, etc. Then there was a side debate about funding for community clinics. Then the president's executive order "covered" the funding issues, and voila, all was well.

On this site, very smart people on both sides of the issue debated those very funding issues, and whether Hyde "principles" were violated or not by the final legislation.

With due respect to all those smart people, I believe that the "taxpayer funding" issue was a giant red herring. The true principle of Hyde, I believe, is not "no federal tax money for abortion," but "don't make me pay for someone else's abortion, period." Suppose there were no comprehensive health care bill, but just a stand-alone effort to mandate that all insurance policies in America cover abortion. (That, after all, was common in the 1990s -- mandate coverage of mammograms, mandate covering post-birth hospital stays of at least 2 days, etc.) That, in my view, would violate Hyde's spirit and violate conscience. It would not matter that no "tax money" was involved. But the debate was framed otherwise.

The current battle now simultaneouosly serves a key re-election purpose and moves the ball for the next steps in the next term.

First, it is a perfect wedge to weaken the institutional Church's voice. If the Church goes all out on this issue, it will, sadly, not bring many people around to the Church's view, but will alienate them instead. The issue will not be framed aas conscience or instituional independence, because those abstracts are too complicated for most people. The concrete is "the Church is still against the Pill." Add to that the average person's health-cost concerns, and "the Church is like the big bad HMOs, demanding higher co-pays."

After playing into the caricature of "anti-sex out of touch old men," the bishops will find themselves stymied in trying to talk about the importance of abortion in voting decisions. Catholics were already torn on whether abortion was a "trump issue" in voting, but a good chunk of swing voters did vote for GW Bush or other Republicans solely on that basis. I don't mean to debate whether they were right or wrong to do so, but only to describe what happened. Obama can't afford to lose those voters, and shifting the focus from abortion to contraception does that quite nicely. Instead of the usual Catholic back-and-forth about "abortion vs. social welfare," he reaches into the "sexual morality" basket itself and breaks it down. (He also loses the war/tortue/Guantanamo appeal to Catholic social teaching voters, because it's not 2008, and because he's unleashed his inner Cheney anyway.)

Second, beyond this electoral wedge, this battle sets the stage for the coming abortion mandates. Sure, many Catholics and Americans see abortion much differently from contraception, but that's not the point. All of the themes in this debate apply equally to abortion, even if the ultimate acts of contracepting and aborting are miles away. The claim is that this isn't even a mandate for Church employers to "pay for contraception," because after all, it's a step removed. The Church employer pays premiums; the non-Catholic insurance company pays the benefits. In Church-speak, it's "remote material cooperation," see?

If that is true, then it's no less true for mandating abortion coverage. Please correct me if I'm wrong on this, but I know of no theory of remote material cooperation that uses a formula multiplying the degree of directness by the weight of the moral evil to reach a result. Either the chain is direct or not. That's the precedent to establish here.

None of this is hidden or complicated. It's not that the law says "cover routine standard care PLUS contraception," with the proponents now arguing that contraception is "like" standard care. No, the statute is written in terms of "standard" care, and the regulatory fill-in is defining what constitutes "standard" care.

That's the same game with abortion -- defining it as "standard" care, not an outlier. The pro-abortion forces -- and yes, there are those who are pro-abortion, not merely pro-choice -- have never liked the uneasy "compromise" of the last 40 years. To pro-lifers, the Roe regime has been a total victory for the other side, with our side making only marginal chipaways with parental consent, etc. But to the other side, legal was not enough, because abortion has still been socially shunned in many quarters; defenders preach for "rare" along with safe and legal. They want it normalized; standardized; no different from any procedure, period.

Please forgive the length of this, and the lack of editing (for lack of time). But please consider where all this is headed, and it's not about a $20 co-pay. It's about securing another term, securing the Supreme Court appointments that will put us back in 7-2 rather than 5-4 territory and pushing back Roe-reversal dreams a few more decades, and about normalizing abortion. The $20 copay is not the game.

Posted by: joe reader | Jan 26, 2012 2:10:04 PM

joe reader says: "Please correct me if I'm wrong on this, but I know of no theory of remote material cooperation that uses a formula multiplying the degree of directness by the weight of the moral evil to reach a result."

If I am understanding this, it does need to be corrected. There is no *mathematical* formula, but both the weight of the evil and the degree of proximity or remoteness are factors. If one could actually quantify remoteness, then being only 5 degrees remote from someone being murdered would be a more serious evil than being only five degrees remote from someone getting punched in the gut.

Posted by: David Nickol | Jan 26, 2012 2:36:41 PM

John Allen has certainly earned his salvation for sticking there so long!

Posted by: Josh | Jan 26, 2012 2:46:31 PM

David Nickol, thanks for the response, and I'll have to research more on remote material cooperation (RMC) to see how it accounts for the "weight of evil" factor. However that turns out, though, it seems to me that weight would make the difference in close cases. If the insurance-premium-etc. chain is considered too remote for anything, then the argument does apply to abortion, too, does it not?

Separately, I want to distinguish between the conscience issue and the RMC issue; while they are related, they are not the same. It seems to me an undeniable point that however broad our narrow one's view of conscience rights it, or however broad or narrow one's view of RMC/avoiding evil is, the former must be broader than the latter. That is, the Church's right to institutional autonomy, or any group's or individual's right to free exercise, must be broad enough to pursue its affirmative mission without "undue" interference (again, wherever you draw the "undue" line), not just to avoid evil.

Therefore, even if compliance with the mandate does not amount to improper material cooperation, that alone would not conclude the matter against opposing the mandate as a matter of conscience.

On another angle, what does RMC say about duress, whether legal, physical, etc.? If the government makes me do it, did I willingly do it? If the government fines me heavily for lack of cooperation, must I face the fine rather than cooperate? If they imprison me? How far must I go in resisting?

Finally, do you agree or disagree that the abortion mandates are coming?

Posted by: joe reader | Jan 26, 2012 4:01:35 PM

joe reader,

I think it is not necessary to prove that something like the contraceptive mandate requires you to do evil in order to make a case that you have an objection of conscience that should exempt you. Obviously you would have a stronger case if you could demonstrate convincingly that the mandate forced you to do something evil. The fact that many Catholic institutions already provide insurance coverage for contraception puts those who argue against it in an awkward position, in my opinion, since if they argue that providing such coverage is actually evil, they are accusing Fordham University, Georgetown University, and DePaul University, among others, of being evildoers.

I don't think there will ever be abortion mandates. Regarding contraception, very few people oppose it. By every account I have read, even Catholics use contraceptives at about the same level (95%) as every other group. In opposing the contraceptive mandate on conscience grounds, I wonder how many people the bishops are actually speaking for besides themselves. Abortion is another story entirely.

I do not think the Obama administration is fighting a war against religion in general or the Catholic Church in particular.

Posted by: David Nickol | Jan 27, 2012 9:42:56 AM

David -- what do you think of this thought: A good way to think about the issue -- about what's at stake -- with regard to the mandate is not "will the mandate require Catholic institutions to do something that is, in fact, culpable cooperation with evil" or even "will the mandate require Catholic institutions to do something that their leaders sincerely believe is culpable cooperation with eveil" but instead "does the mandate undermine the integrity of at least some religious institutions' understanding of their religious mission and witness?" Again, I'm wondering if this is a helpful way to describe what the "burden" on religious freedom is. Then, the question is whether the burden is justified by mandate's policy's benefits, or whether the policy's (alleged) benefits could be accomplished without imposing it. Thoughts?

Posted by: Rick Garnett | Jan 27, 2012 9:50:15 AM


I think everyone's interests would be best served by finding a compromise or a work-around, and although I admittedly don't have any particular knowledge of the legalities involved, I find it difficult to imagine there is not some way out of this conflict that doesn't involve one side caving. It is difficult to look at this as purely a matter of religious liberty, because I suspect the bishops are mainly speaking for themselves and for a fairly small number of Catholic employers. If it were about anything other than contraception, things would be so much more straightforward. Elsewhere I made this very brief comment: "Humanae Vitae, the gift that keeps on giving." Everyone knows that the vast majority of Catholics do not accept the Church's teachings on contraception, so it is very difficult to focus objectively on the issue of religious liberty rather than look at this as the bishops battling the Obama administration over a matter they can't even convince their own flocks to take seriously. If I were a "non-Catholic" woman doing a nonreligious job for a Catholic employer and didn't get contraceptive coverage because of a religious exemption, I am sure I would say, "Why do *I* have to lose out because of Catholic teachings that the Church can't even get Catholics to accept?"

If I were the USCCB, I would confer with lawyers and experts in this kind of thing and look for a work-around that achieves the goals of the policy but puts some further distance between the employer and the payment for contraception. If I were the Obama administration, I would work with the bishops to find that work-around. Then, as a bishop again, I would see to it that all the Catholic organizations that took advantage of this work-around provided as part of their insurance the most excellent NFP resources imaginable. My understanding from what I have read is that people who practice NFP often don't get the kind of information or help they need. The bishops ought to take this as an opportunity not just to get some distance between themselves and "artificial" contraception, but to strongly promote their own alternative.

The big question in my mind is how integral a part of a pluralistic society with a secular government is it reasonable to expect to be and claim exemption from its laws. I think I am repeating myself from another message I wrote on MOJ recently, but how comfortable should Catholics (and Christians in general) feel in contemporary America? Are "Americanism" and Catholicism so totally compatible that Catholics should never have to say, "We have to opt out here"? I wonder if Catholics aren't, and don't expect to be, too American for their own good.

I rarely feel this way, and even more rarely admit it, but if this all had to be sorted out by a jury, and I was called to jury duty, I would have to ask to be excused, because I am not sure I could be impartial.

Posted by: David Nickol | Jan 27, 2012 1:09:12 PM

David, I really do think that it should be entirely irrelevant that most Catholics say that they do not embrace (I suspect many have never actually been taught, but that's a different issue) the Church's teachings on contraception. After all, it is almost *always* the case that religious-liberty claimants are grounding their claims in religious beliefs that most people don't accept.

Posted by: Rick Garnett | Jan 27, 2012 2:05:42 PM


Maybe it *should* be irrelevant, but I think the burden is on those arguing for an exemption to demonstrate that it is irrelevant, if only because it is inevitably going to be brought up, and it makes a kind of "emotional sense" even if it ought not to.

The problem is that it seems to many people (including me) that the religious-liberty claimants here may very well not speak for most of the people who will be affected by the mandate. The bishops are defending Catholic teachings, but not (many) Catholics. Bishops do not own and run Catholic hospitals, for example, or Catholic universities. The hierarchy and the Catholic laity were in conflict over Humanae Vitae, and the laity for all practical purposes prevailed. Now the hierarchy is doing battle with the government over the same issue.

A few days ago, Cathy Kaveny wrote this as a post on dotCommonweal:

A harbinger of things to come? One of the largest Catholic health care systems in the country has relinquished its formal Catholic identity. I’ve talked to many people who think that the bishops can “make” a hospital be Catholic -or close them. But that’s not the legal reality, at least in most cases. What will happen, in most cases, is some type of disaffiliation–the hospital will continue, in some form, although not an official “Catholic” facility. It doesn’t affect tax exempt status, which most hospitals get through their not-for-profit charitable nature, not through their religious nature.

If a smaller, purer Church is a worthy goal (and of course who am I to say that it is not?), then I think this is a good battle for the bishops to wage.

Posted by: David Nickol | Jan 27, 2012 3:22:38 PM

Here is my evolving opinion as of 4:21 p.m. For the sake of religious liberty, the Obama administration and the representatives of religious organizations should have worked out a compromise instead of both digging in their heels. Even though most Catholics do not agree with the Church's teachings on birth control (or sexuality in general), it still is the official position of the Church. I do not think that the mandate requires anyone to do anything that is directly evil, but I agree that religious freedom can be broader than just the right not to do something you consider immoral. It may, however, have been unwise for the bishops to be so adamant about this issue. As the old saying goes, "Pick your battles." I personally think that many people are reading more into Hosannah-Tabor and now this than is actually warranted, and I don't think Obama is intent on waging a "war on religion." Those who think that in the United States we have, or are headed toward, religious persecution should look around the world and take note of what *real* religious persecution looks like.

It is interesting that Cardinal Dolan and others who are so outraged by the one-year reprieve seem to assume that when time's up, Obama will still be president.

Posted by: David Nickol | Jan 27, 2012 4:38:21 PM

David, I think you've made several illuminating points, and interestingly, some of the points you make in partial defense of the mandate help to illustrate why some of us are more incensed about it.

First, your focus on the particular of contraception, and your distinction of abortion, suggests that the content of the decision matters most. But for me, it is about who decides, not what is decided. If the government can define what procedures are covered, without religious exemptions, then I see no principled reasons -- constitutional or policy -- why an abortion mandate isn't equally valid. The only difference would be that it's not politically possible -- yet.

Second, it goes even deeper than "who decides," in the Church vs. State sense, but implicates Hosanna Tabor because it goes to who decides WITHIN the Church. I did not fully appreciate this deeper point until you illuminated it for me. You noted, as most observers have, the accurate distinction the views of the hierarchy and the rank-and-file contracepting Catholics:

"The problem is that it seems to many people (including me) that the religious-liberty claimants here may very well not speak for most of the people who will be affected by the mandate. The bishops are defending Catholic teachings, but not (many) Catholics. Bishops do not own and run Catholic hospitals, for example, or Catholic universities. The hierarchy and the Catholic laity were in conflict over Humanae Vitae, and the laity for all practical purposes prevailed. Now the hierarchy is doing battle with the government over the same issue."

In other words, the government isn't really infringing on "the Church," just on the bishops; the "real Church membership" is fine with this. That is, it would be a bigger infringement on conscience if, say, only 10% of Catholics contracepted or dissented. In other words, government action is being legitimated not merely by a "need to force compliance, even against a unified Church," or a Smith-style argument against exemptions. Instead, the argument openly appeals to the notion that the government has more room to mandate Church action when the the government is siding with the Catholic populace against its hierarchs. It's parallel to the notion that an invasion is less of an intrusion on another nation's sovereignty when the masses invite the liberation from an undemocratic government. That makes it precisely a Hosanna issue, because the Church's internal affairs -- who speaks for the Church and decides doctrine -- are at issue. It's worse than Hosanna, because the State is, like Constantine at Nicea, stepping in to support a side over an internal debate.

That, I suspect, is why the bishops are fighting so hard, especially when, as you and others have noted, many or even most hospitals and schools already gave contraceptive coverage. It's not just the result, nor even the principle that the government can mandate Church action, but specifically the pernicious suggestion that government power waxes based on this internal-affairs argument. That is worse than a "war on the Church;" it's the State taking sides on a civil war within the Church. As you put it, "The hierarchy and the Catholic laity were in conflict over Humanae Vitae, and the laity for all practical purposes prevailed. Now the hierarchy is doing battle with the government over the same issue." In other words, the State is shoring up the laity against the hierarchy.

I know that's a strong charge, but again, I can't see any way to avoid that conclusion as resulting from your premise. If the degree of intrusiveness, and thus the propriety of the mandate, is in any way affected by the opinions or practices of the Catholic rank-and-file -- as opposed to just reading the Catechism and stopping there -- then how is that not implicating the internal affairs issue?

Posted by: joe reader | Jan 27, 2012 7:02:07 PM