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.

Wednesday, May 23, 2012

A quick response to Prof. Cafardi

Over at America, Prof. Nicholas Cafardi, whose work is probably familiar to many MOJ readers, has a post that is critical of the decision by Catholic institutions' to file lawsuits challenging the preventive-services mandate.

Prof. Cafardi writes, "what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control."

With all due respect, this charge misses the mark. These lawsuits do not, in any way, limit the ability of employees to purchase or use contraceptives, nor do they, in any way, limit the ability of Congress or the Administration to employ another way -- besides making objecting religious employers bear the cost -- of subsidizing contraceptives for women who work at such institutions. The imposition here is coming not from the plaintiffs, but from the Administration.

Prof. Cafardi also writes: "HHS has already, at the direction of President Obama, backtracked significantly, with new regulations that clearly exempt some of the organizations who have filed these lawsuits, like Catholic universities and social service agencies. Besides that, the regulations they object to don't even go into effect until next year. There was still time for more negotiations. So why are they suing now?" But, the President has not backtracked at all; the original mandate is in effect, is operative now, and the possible changes to that mandate remain unclear and, in any event, not yet operative.

As for the "why now?", question, Fr. John Jenkins's statement explained clearly why, with regret, he thought the case needed to proceed. It is entirely reasonable for these institutions -- who are subject to costly obligations *now* to prepare to comply with the current mandate -- to try to resolve the question of these obligations' legality now, rather than waiting to see if the regulatory landscape changes in some way, down the road.  And, in any event, even the floated changes do nothing about the troublingly narrow religious-employer exemption contained in the current mandate.

https://mirrorofjustice.blogs.com/mirrorofjustice/2012/05/a-quick-response-to-prof-cafardi.html

Garnett, Rick | Permalink

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With all due respect to Professor Cafardi, how exactly does one choose a Health Care Plan that is consistent with The Gospel of Life, and thus Life-affirming and Life -sustaining, if the mandate now requires that every Insurance Company must provide free contraception coverage for all?

Posted by: N.D. | May 23, 2012 3:12:31 PM

Prof. Cafardi writes, "what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control."

And what is wrong with attempting to "impose" the Church's teaching on its employees? And I guess religious liberty is now merely defined as being free from religion.

Posted by: CK | May 23, 2012 5:01:27 PM

It seems to me that any employee who works for a Catholic institution should, out of respect, not ask the federal government to impose on the Church a mandate that requires that it pay for things the employee wants for himself but the Church believes it is forbidden to materially provide. As a Catholic at a Baptist institution, I am not put out by the fact that Baylor will not reimburse my alcohol purchases when I attend an academic conference. I have too much respect for my employer and its theological tradition to arrogantly suggest otherwise.

The HHS mandate is a real test case for liberals. Do they really believe in celebrating diversity, that religious traditions, like differing cultures, all contribute something to the great tapestry of American culture? Or do they believe that the differences should remain cosmetic but the underlying institutions should all look alike?

Posted by: Francis J. Beckwith | May 23, 2012 9:23:46 PM

Professor Garnett, it is my understanding that the new rule requiring that every Insurance Company provide contraception coverage goes into effect in August of 2012. Does anyone know if this requirement has changed?

Posted by: N.D. | May 24, 2012 10:53:15 AM

I have found that I rarely agree with anyone who uses the word "impose" more than once a year.

Posted by: MarkP | May 24, 2012 12:42:21 PM

The "why now" question was laid out in precise detail in ND's complaint. Prof. Cafardi's canon-law work is invaluable to English-language students, but it seems like he didn't even bother to read the papers.

Posted by: Titus | May 24, 2012 5:26:54 PM