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, March 8, 2012

Debating the HHS Mandate on Contraception and Not Using Your Brain: Faculty from “The Jesuit University in Cleveland” – Part 1

What is it about contraception that seems to cause some people to think with . . . well, a part of their anatomy other than their brain?

Witness this gem (here) from several faculty members at John Carroll University.  (N.B. I had read this letter before Rev. Bob Araujo’s discussion of the same above, which I recommend, but the more the merrier!).  John Carroll advertises itself as a “Jesuit Catholic university” that seeks to inspire “individuals to excel in learning, leadership, and service” (here).  Rather than learning, the letter only excels in demagoguery.  It demonstrates how naked ideological assertions can take the place of careful thinking.  The letter is in fact an unlearned exercise in disservice to the community at John Carroll University and elsewhere.

Although short, the letter is full of claims in need of response.  As a litigator it was my experience that some lawyers would just throw something up on the wall and hoped that some of it stuck.  Responding to a brief or motion of this sort was often more difficult (or at least more tedious) than responding to a well-crafted piece of advocacy in that it was easy for an opponent to make a false contention appear to be plausible in a few paragraphs, whereas it took several pages of careful exposition and argument to unpack, explain and refute such erroneous claims.  The same holds true here.  Thus, I apologize in advance for the length of this post.  To make it a bit more manageable for the reader I have divided it into two parts.

First, the authors state that they “believe that access to contraception is central to the health and well being of women and children.”  Now this belief has been repeated again and again over the last several weeks in response to the Church’s opposition to the HHS contraception mandate.  It is a mantra that the high priests and priestesses of family planning intone with religious fervor in the choirs of infertility: “birth control is an essential part of health care” (here).

We are asked to take it on faith that contraception and “health” are intimately connected – joined at the hip, as it were.  Still, this secular dogma has hardly gone unchallenged.  Given that John Carroll says that one of the University’s “core values” is a “rigorous approach to scholarship” (here) this critique is surprisingly absent from the faculty letter.  Then again, given that John Carroll is a university “in the Jesuit tradition” (here) perhaps this omission is not so surprising.

The critique against the secular dogma of contraception as essential to healthcare is not religious or normative but conceptual.  “Health” is a scientific term that refers to the proper functioning of the human body and mind, and “healthcare” refers to the use of the medical arts to heal, cure or alleviate the effects of some disease, pathology, or physiological malady that impairs the health of the individual. 

The letter simply assumes that contraception constitutes “healthcare” without showing this to be the case.  For this assumption to be valid, however, one must regard pregnancy as a disease that should be prevented or “cured” once this condition ensues – a “cure” addressed by the abortifacient drugs also prescribed by the mandate.  The proponents of contraceptive coverage have been unwilling to make this claim explicitly.  Such reticence is understandable since to do so would expose the absurdity of their position for what it is.  People intuitively understand that conceiving a child is the natural end that often follows from the conjugal act.  Indeed, people recognize, as the U.S. bishops have noted (here), that “[c]ontraception is an elective intervention that stops the healthy functioning of healthy women's reproductive systems. Medically it is infertility, not fertility, that is generally considered a disorder to be treated.”

Thus, when HHS Secretary Kathleen Sebelius asserted (here) that not covering contraception "would be like not covering flu shots," a lot more needed to be said.  The analogy is incomplete on its face given that no one disputes that the flu is a kind of illness and that the health of a person who suffers from it is impaired and in need of some kind of medical treatment.  The same simply cannot be said of contraception.  It doesn’t cure a disease, a pathology or physiological malady.  Rather, contraception impairs – it disables – the natural functioning of the human body.

Rather than a flu shot that prevents a person from contracting some viral illness, a more apt analogy would be a pill that induces nausea and vomiting for a bulimic.  That is, just as the natural end – the telos – of the conjugal act is conception, so the natural end of consuming and digesting food is nutrition.  The hypothetical pill that would be marketed to bulimics frustrates the natural operation and the effect of eating food, leaving only the pleasure of dining.  In the same way oral contraceptives frustrate the physiological end – and the authentically human meaning – of the conjugal act, leaving only the pleasure of sex.  Yet neither could properly be described as “healthcare” even if a physician were to write the prescription.

Second, the letter signers are at least candid in sharing that some of their number “did not think the Obama administration needed to revise the HHS guidelines on mandated insurance coverage for contraception.”  (This says a lot about the composition of the John Carroll faculty given that there was nearly unanimous condemnation of the original policy among Catholic commentators.  It is a rare feat to be able to bring together the likes of Pat Buchannan and E.J. Dionne on a matter of public policy, but President Obama managed to accomplish this with the gross overreaching of his original mandate).  The letter signatories then go on to criticize the U.S. Catholic bishops for having “chosen a path of continued confrontation” in responding to the revised mandate.

The problem with this portrayal of the bishops as happy culture warriors itching for a fight is that it simply doesn’t fit the facts.  The bishops have long been supporters of universal healthcare, and they continue to be – but not at all costs (see here).  It is far more accurate to see this confrontation not as something that the bishops sought out but as something brought to their doorstep – something forced upon them by an administration that made a political calculation: in light of the Catholic Church’s fractured state as a “block” of the electorate and the weakened condition of the episcopacy in the wake of the clerical abuse scandals, the administration thought that they could not only achieve their immediate ends with respect to contraception but establish a precedent effectively neutralizing the bishops’ role in public affairs in the future.  It is stunning but sadly predictable to see the U.S. bishops characterized as aggressors when all they have done is defend the cherished American value and time-honored constitutional principle of religious freedom.

Third, the letter refers to the administration’s revised policy as an “accommodation” that the bishops wrongfully “rejected,” however the letter doesn’t even attempt to explain how the newly articulated policy constitutes a genuine accommodation.  They merely make this naked, rhetorical assertion.

Given all the withering critique to which the revised policy has been subjected – not only by the bishops but by others – one would think that John Carroll’s faculty – members of a university that defines itself as a community that “engag[es] the world as searchers of truth, teachers of justice, and mentors for peace” (see here) – would at least go to the trouble of engaging those with whom they disagree.  But no.

Confident in the unassailability of their own position, the authors of the letter wonder aloud “what motivates their [i.e. the bishops’] continued resistance” to the administration’s policy.

Here I would hazard to say that this is only feigned ignorance.  To anyone who teaches at a Catholic university – indeed to any educated member of the public – the bishops’ twofold motivation should be obvious.

First, the bishops stand in opposition to contraception as a practice that diminishes the dignity of men and women and contradicts the love they ostensibly share (see here, here and here).  This is true even of faithful married couples to say nothing of the one-night hook-ups and fleeting sexual encounters that take the place of romance and dating on college campuses today including Jesuit campuses like John Carroll.  (A similar motivation lies behind the bishops’ opposition to the abortifacient drugs and sterilization procedures that are also part of the mandate).  Many people disagree with this normative point of view, but this has been the teaching of the Catholic Church down through the centuries and as now taught by the Church’s ordinary magisterium.

Second, the bishops’ overarching motivation is a fervent desire to protect the right to religious liberty and the exercise of this right by the Catholic Church.  In this instance that freedom means preserving the integrity of the Christian faith.  It is, as Francis Cardinal George has said (here), the freedom of the Church to be the Church, to profess “the Catholic and apostolic faith.”

Of course these matters may not be at issue if the administration’s revised policy is in fact a genuine “accommodation.”  In Part 2 of this post I will offer some reasons why this is not the case. 

https://mirrorofjustice.blogs.com/mirrorofjustice/2012/03/debating-the-hhs-mandate-on-contraception-and-not-using-your-brain-faculty-from-the-jesuit-university-in-cleveland.html

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When a religious institution employs cerebral prophylactics, it is practicing safe sects. :-)

Posted by: Francis J. Beckwith | Mar 9, 2012 3:12:39 PM

I'd like to nitpick a few things in this post, if I may. You write:

"The letter simply assumes that contraception constitutes “healthcare” without showing this to be the case. For this assumption to be valid, however, one must regard pregnancy as a disease that should be prevented or “cured” once this condition ensues – a “cure” addressed by the abortifacient drugs also prescribed by the mandate."

This is somewhat accurate if we accept the implicitly teleological claim in your description: "“Health” is a scientific term that refers to the proper functioning of the human body and mind..." I don't think that claim is correct, though, and I think many people would agree. Health isn't about bringing everyone up to some objective universal standard of "proper functioning." It contains a highly subjective element of what each person sees as the proper functioning of their own body as an integral aspect of their self. This is a large part of the reason why we provide so much leeway for patient choice in health decisions (and, indeed, why religious claims are so often adhered to in health matters).

Once this is acknowledged, it's clear that one need not "regard pregnancy as a disease," or at least not pregnancy qua pregnancy. In point of fact, it's *unwanted* pregnancy that's seen as a health problem: that is, someone's body (an integral part of the self) operating in a way which they do not want.

***

You also claim:

"It is far more accurate to see this confrontation not as something that the bishops sought out but as something brought to their doorstep – something forced upon them by an administration that made a political calculation: in light of the Catholic Church’s fractured state as a “block” of the electorate and the weakened condition of the episcopacy in the wake of the clerical abuse scandals, the administration thought that they could not only achieve their immediate ends with respect to contraception but establish a precedent effectively neutralizing the bishops’ role in public affairs in the future."

I've seen this claim (that the Obama Administration is, in a calculated fashion, trying to drive the laity away from the Church with a 'wedge issue') multiple times, but I've never seen any satisfactory evidence. Do you have any evidence of it, or are you simply guessing at the motives of an administration you disagree with?

Posted by: Andrew MacKie-Mason | Mar 10, 2012 12:09:29 PM

Andrew thinks health is subjective. Then stop calling it health. Call it desire insurance.

Posted by: Matt Bowman | Mar 10, 2012 7:41:26 PM

I don't see why some fuzzy teleological objectivism gets to claim the word 'health.' Health care, it seems to me, is fundamentally subjective. Consider vaccines: they don't fix any problem in the body. They don't cure a disease or disorder, to use the language of the original post. Instead, they serve to give the body an ability it didn't have before. In other words, they "fix" a problem with the body only in the sense that the body isn't serving all of the purposes the person wants it to. Especially when vaccines involved more risk and side-effects, it would make perfect sense for someone to weigh whether the lack of functionality in their body was worth the risk/side-effects. Vaccines for willing patients are clearly health care, vaccines for unwilling patients clearly aren't. How do you explain that, other than through subjectivity?

Posted by: Andrew MacKie-Mason | Mar 10, 2012 9:56:32 PM

Matt Bowman says: "Andrew thinks health is subjective. Then stop calling it health. Call it desire insurance."

It is certainly true that what we call health insurance does not fit Wikipedia's definition of insurance: "Insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment." People arguing against contraceptive coverage in health insurance often point out how different health insurance is from car insurance. But do the American people really want health insurance modeled after car insurance? Certainly pure car-insurance-like health insurance would not cover the cost of hospital delivery for babies. There is no disease or accident involved. Childbirth is perfectly natural. It doesn't involve healing. Having a child is elective, not a matter of contingent, uncertain loss.

The fact of the matter is that health care insurance has evolved to be something other than pure insurance because that is the product that people want from insurance companies. And it has been that way for decades. To suddenly decide health insurance is not "really" insurance just because you oppose the contraceptive mandate comes rather late in the game. Those who think health insurance should be "pure" insurance, like car insurance, should have begun protesting long ago.

Posted by: David Nickol | Mar 12, 2012 12:02:23 PM

Andrew: I plan to post a reply to your comments on MOJ. Thanks for reading the post and taking what I have to say seriously. John

Posted by: John Breen | Mar 12, 2012 12:42:11 PM