Eric Bugyis responds to Rick Garnett on conscience and the mandate

Here is Eric Bugyis's response to my earlier post, "Confusion about Conscience":

Rick, Thanks for your reply. It’s always fun to go back and forth with you on this (and I am being sincere!). In the long avalanche of commentary on the various posts that went up at Commonweal (including Grant Gallicho’s reiteration of Commonweal’s editorial position, which is different from my own, David Gibson’s, which seems similar to Grant’s, and Lusa Fullam’s commentary on David DeCosse’s NCR piece, both of which, I think, support my own view), some of us came to some slight agreement on the situation. 

Grant boiled down the issue to this: “The nature of the dispute is the problem raised by the government’s decision to force religious institutions to act in a way that violates their moral teaching.” 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. So, the question seems to be: When does the interest of the State to protect the rights of its citizens supervene on the freedom of religion of those who would conscientiously object to providing the services to which their patrons or employees are entitled? 

This determination has absolutely nothing to do with the conscientious objection itself or the specific religious reasons for it. In the case of JWs, it is not within the competence of the government to consider JW theology in deciding that a non-JW individual’s access to blood transfusions is important enough to supervene on the religious views of a JW doctor or employer. Mutatis mutandis, the Catholic Church’s moral teaching on contraception and the consciences of Catholic employers have nothing to do with determining the minimum healthcare provisions that will be included in an employee’s right to coverage.

The only consideration is whether contraception (or, indeed, any medical service) meets the criteria for inclusion, which includes some combination of weighing health risks versus benefits, the financial burden and relief involved, the impact on long-term health and quality of life, etc. 

You argue that “we make efforts to specially accommodate religion-based objections,” but I’m not sure that this is or should be an expectation placed on a government that explicitly claims to refrain from adjudicating which religion-based objections can and cannot be accommodated, which would involve concluding that some religious-reasons are better or worse, at least in the eyes of the State. In the case under consideration, this would mean that although blood transfusions and contraception have both been deemed “medically necessary” as part of the basic right to healthcare, the government would be deciding that Catholics have better religious reasons than JWs to claim exemption. Now, you can argue that contraception is not “medically necessary” and blood transfusions are, but this is a properly “public” argument that does not require any recourse to religious premises. 

So, the Bishops are clouding the issue when they claim a right to exemption based on conscience, which in a pluralist democracy is a question of an individual’s ability not to be directly and unduly coerced to personally engage in activities that challenge his or her moral convictions, or religious freedom, which protects the direct exercise of religious belief and practice by groups of like-minded individuals. The Obama Administration has already made the necessary provisions by allowing that any group of explicitly confessing like-minded individuals engaged in religiously-informed work with and for co-religionists can choose to have an insurance plan that does not cover the services to which they ALL object, and, of course, any individual can deny any medical service to which he or she personally objects. However, if one is going to serve and employ non-co-religionists, it is in the direct interest of a representative democratic government, which has determined that access to minimum “medically necessary” care is a right, to make sure that all of its citizens have the opportunity to exercise that right, via the mechanisms put in place to enable it. You can object to the right itself, the criteria governing “medical necessity,” or the method by which healthcare is being distributed, but none of these objections have anything to do with religion, and they certainly have nothing to do with the Bishops.

In my view, Eric's closing statement that the objections have "nothing to do with religion" is wrong.  One of the key reasons why, say, the Bishops, or Fr. Jenkins, or Sr. Carol, object to the mandate is because they believe compliance with the mandate would compromise the integral Catholic character of (at least some) Catholic institutions.  So, the mandate burdens their religious freedom, because religious freedom at least presumptively includes the freedom to construct and operate such institutions.  The question is whether the burden is justified -- is it necessary to secure public order, for example? -- or whether, given our traditions, the better course is to accommodate them.  Accommodations of religion always involve compromising, to some extent, the policy choices made by the majority in a diverse, pluralistic, etc., society.  The point is, a society that is constitutionally committed to religious liberty is willing to pay some "costs" for accommodating religious objections, because religious liberty is valued (it's worth "paying for").  And here, the cost, all things considered, is low; it would not be (that) hard to accommodate the objections while still achieving the state's public-policy goal.  Because it would not be (that) hard, the refusal to accommodate -- when so many accommodations are being granted to those who object to other burdensome provisions of the mandate -- is revealed, I think, as what it is:  A cynical imposition that transfers the cost of the government's policy goal (one that Congress did not vote on) to (primarily) Catholic institutions, in a way that will please the President's political base (and others who enjoy, for various reasons, seeing the Bishops lose).   

Eric says the question is "[w]hen does the interest of the State to protect the rights of its citizens supervene on the freedom of religion of those who would conscientiously object to providing the services to which their patrons or employees are entitled?"  True, this is often the question, and it's often a difficult one, and I agree that not all -- not even most, probably -- religious objections to legislative decisions can accommodated.  It's not possible, or desirable.

But, it's not the question here.  The merits matter.  Children do have a right -- one that is not the product of a (controversial, passed-by-narrow-margin) statute and an expansive administrative interpretation of that statute -- to be protected from violence and neglect.  Employees do not have a right -- again, except in an unhelpful "they do, because the statute, as remade by the agency, says they do" -- to have the government make their employers pay for their contraceptives.