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

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. 


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I am admittedly opposed to the mandate on multiple grounds, but putting much of that aside, I have particular trouble with understanding the idea that merely SERVING non-religionists triggers the duty to provide coverage to EMPLOYEES. As Bugyis puts it,
"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."

In Column A, I can understand (though disagreeing with) the notion that if I employ a single non-Catholic, I must now provide to all staff, even the Catholics. In Column B, I can understand (though disagreeing with) the idea that if I allow a single non-Catholic into my hospital, I must now provide her with all possible services, including abortion, etc. In both Columns, set aside that the person consented by going to work for, or checking into, a Catholic shop. Fine.

But suppose I employ solely monks and nuns, or solely those who have memorized and pledged devotion to Humanae Vitae, and after years of qualifying for the exemption by restricting services to "our people," we start to serve non-Catholics as patients, students, etc. How does the presence of the customer trigger the government's interest in the employment relationship? We were fine before; the employees' claim to benefits has not changed. The customer's own services are not at risk by our in-group practices as to employee benefits.

I have yet to see anyone justify this leap, other than as a transparent effort to have a paper "exemption" available. What is the justification?

Posted by: joe reader | Jan 26, 2012 6:23:50 PM

There is no justification because it defies logic to suggest that a Religious Institution would hire an employee who does not support the mission of that particular Institution, even if that employee was not a member of that particular Faith Community.

Posted by: N.D. | Jan 26, 2012 8:08:19 PM

Rick, Thanks again for posting my reply and for your generous response. Determining the Catholic identity of an institution is notoriously difficult. Trying to figure out what exactly is entailed by the adjective "Catholic" in "Catholic hospital" or "Catholic school" is hard for may lay and ordained Catholics to even figure out. Does it include strict ecclesial obedience, as some argued in the Notre Dame Obama affair? Does it involve strict doctrinal orthodoxy, as some might argue in the case of Elizabeth Johnson? The important thing here, though, is that these are properly theological questions about the necessary and sufficient conditions of being "Catholic," and as such, they are again outside the purview of the government.

All the government cares about is the noun, "hospital" or "school." To go back to our test case, would a Jehovah's Witness "hospital" that doesn't provide blood transfusions still be a hospital? Would a Pentecostal "hospital" that only offers faith healing be a "hospital"? Such cases I think challenge the claim that freedom of religion includes the right to "construct and operate such institutions." In any case the integrity of the institution comes first, and then religious groups and individuals are free to run those institutions in any way that does not compromise the institution itself. Now, again, you may object to those services and duties that regulate the operation of such institutions, but that is not a religious objection.

Similarly, your last two claims about the rights of children and the rights of employees are not "religious" objections. These are objections involving the legal definition of personhood and healthcare minimums, and they can be properly debated without necessary reference to any religious tradition or theological expertise.

Posted by: Eric Bugyis | Jan 26, 2012 8:20:59 PM

I think Bugyis is missing two important considerations.

First, the situation is not analogous to situations like protecting the children of JWs because in that case the government is not demanding that the parent pay for the transfusion or pay a penalty for not doing so. (The hospital may, but that is not relevant here.) In the case of the HHS rule, Catholic entities must pay for the coverage or pay penalty. It is not merely a requirement to allow employees to have access to contraception. It is government coercing cooperation with the objected act.

Second, the rule amounts to a market exclusion based on conscience. Catholic health entities would be prohibited from offering insurance products, such as an HMO, because of the rules. The rule excludes them from the health insurance market and, consequently, hinders their ability to continue their health care ministries in an environment that increasingly favors connecting payers and providers. Certainly, there are times when the government's interest can and should override opposition to providing services, such as housing discrimination based on race. But there is no history of animus in this case to justify excluding a large segment of health care providers from the market because of refusal to cover contraception. Also, unlike most civil rights laws, this rule extends to what has long been considered a religious ministry, not a commercial enterprise.

Posted by: ctd | Jan 27, 2012 9:47:27 AM

Bugyis and his Commonweal allies are absurd to compare a child's receipt of blood over his JW parent's objection, to an autonomous adult employee's receipt of free contraception, abortifacients and sterilization from their employer. He is equally bizarre to say an employer who doesn't hand out abortifacients like candy is analogous to a hospital that doesn't transfuse blood. You aren't really an *employer* if you dont kill embryos and bow to the altar of fruitless intercourse? Unless he thinks contraception IS life blood, which tells us more about liberal faith in the sexual revolution than it does about this controversy. But even so, he would also have to think no one is entitled to disagree. Then he essentially says that the govt decision to mandate contraception in healthcare is an inherent trump of religion, or we should not be surprised it is. Fascinating. That's just what faithful Catholics said Obamacare would mean, and what liberal Catholics denied. Bait and switch. The mere fact that the government could, if political will existed, give this stuff away for free ITSELF but chose to force religious employers instead renders Bugyis' and Gallico's entire hand-wringing argument about this being a "compelling interest" judgment call that reasonable people can differ on merely a thin cover for simply approving of contraception itself and being glad the church will finally be forced to participate, heedless of the religious freedom results. RFRA is law, the HHS mandate is a lawless regulation, and Bugyis has chosen sides.

Posted by: Matt Bowman | Jan 27, 2012 11:39:04 PM

Buygis is being bizarrely essentialist about the referents of nouns like "hospital" and "school." It just begs the question against the tradition Garnett is talking about, because by making this move Buygis just assumes that there is one thing, and only one thing, that can be meant by "hospital" or "school," and that the government, from on high, sees that Platonic essence in all its purity. That's implausible: these are categories with some gray areas and different subspecies and varieties. It is conveniently naive of him to think that it is just a matter of expert knowledge of the term "health care" that leads the government agency to declare contraception part of it. That's a high degree of faith in the way administration works! You just identify a noun and then have the noun-meaning experts come in and tell you what counts and what doesn't! Convenient.

Even if one doesn't think it implausible on the face of it, the examples adduced in its support are insufficient: a school that doesn't teach any biology or mathematics isn't meeting the minimum standards a reasonable society should endorse and enforce. But is it really so obvious that contraception coverage stands to a minimally adequate form of health insurance in this way? Buygis replies that this is no longer a religious question, but he can only say that if he ignores Garnett's point: our political tradition (rightly) recognizes some value in having religiously-constituted institutions serving the public, and there must be some burden of proof on the state if it wants to curtail a religion from running such institutions.

Posted by: Joe | Feb 7, 2012 1:53:02 AM

Fr. Komonchak has devastated Bugyis' radical secularist "Catholic" views in the comments to this post:

Posted by: Matt Bowman | Feb 7, 2012 2:50:36 PM