Wednesday, February 8, 2012

And just one more thing (still contraceptives)

The key question about whether Catholics are harmed by the contraceptive mandate is whether they are being asked to do something immoral.  I don't think they are.  The key questions about whether religious freedom is harmed by the contraceptive mandate are:
1. Is the mandate objectionable to some on the grounds of faith?
2. Is there a legitimate federal interest in overriding these objections (as in prohibitions on human sacrifice or (perhaps less legitimately) polygamy)?

It's clear that the answer to 1 is yes, but it's not clear that the answer to 2 is no.  The federal government heavily subsidizes employer provided healthcare, so one might reasonably think that if you take the subsidies you have to take the strings that come with them.  Furthermore, it seems possible that there's a legitimate federal interest in reducing healthcare costs, and perhaps even a right to reproductive freedom to be protected.  More below the fold.

Previously I had been thinking about this problem primarily from a moral perspective.  My hypothesis was that any law not requiring a religious person or entity to commit a sinful act would not impinge religious freedom.  I'm fairly convinced that from this perspective the new mandate doesn't introduce any new problems.  The problem with that is that my arguments in support of this are basically theological arguments, founded on principles within Catholicism regarding moral culpability &c.  That means that according to my hypothesis, it is the government's obligation to engage in faith specific theological exercises in order to ascertain whether a given law violates freedom of religion.  That makes me feel vaguely uncomfortable.  Here's how I see the situation from a "good government" perspective.

The government has an interest in protecting pluralism, that is to say its natural impulse should be to prevent the beliefs of religious entities from being imposed on people who don't share those beliefs.  I think that's the essence of the "no established religion" part of the first amendment.

But just as the state has the obligation to take no sides in religious freedom, it must also make sure to respect the beliefs of each if there is to be true freedom of religion.  That tension is embodied in the "free exercise thereof" part of the first amendment.

So what does this mean for the state?

It seems to me that the dual ends of the state ("no imposition of religion" & "no imposition on religion") are best served by 1) preventing religious groups from imposing their beliefs on non-members, and 2) preventing non-members from imposing their beliefs on religious groups.

This is easy, so long as we are only talking about negative rights.  You can't force a Jew to eat ham.  And Jews can't be allowed to prevent you from eating ham.

 It is harder when the state demands action to which the conscience objects.  Conscientious objectors are one brand of this, and we tend to handle it by giving them special exemptions.  Indeed, when it comes to individual practitioners of faith it seems like we have little choice in this if we want to respect freedom.  No person may be obliged to act against their faith (unless that person's acts of faith impinge on another's basic rights - think human sacrifice).

It seems less clear cut when we talk about organizations, and I think that's really at the core of the question with the contraceptive mandate.  Are organizations valid possessors of religious freedom, or is that a right reserved to human people?  For me, the question obfuscates the key fact that religious organizations are populated and run by people.  I think that all rights must be granted solely to human people, and that organizations derive what rights they have from the collective rights of the individuals. I think though that the whole is exactly the sum of its parts.  If no individual person must act against his or her conscience in order to conform to the law, then no harm is done to religious freedom.

So the two questions are as follows:
1. Does a law require any religious person to act against their conscience? (by their evaluation)
2. If so, is that act against conscience necessary in order to protect another's basic rights against impingement by religious authority?

If the answer to 1 is no, then the law doesn't harm religious freedom. If the answer to 2 is no, then the law clearly does harm religious freedom.  If the answer to 1 and 2 are both yes, then it seems we are in a difficult situation, where the rights of someone must be impinged upon.  In this case, the magnitude of the violation of conscience and the importance of the impinged right must be compared.  Tricky.

So how does the contraceptive mandate fit into this question?
1. Does the law require any religious person to act against their conscience?
I don't think so, but others disagree, and I think that from the "good government" perspective, it is necessary to give the conscientious objectors the benefit of the doubt.
2. Is that act against conscience necessary in order to protect another's basic rights against impingement by religious authority?
The "right" in question is the right to free-at-the-point-of-delivery access to contraceptive and sterilization services.  At that narrow level, it seems pretty iffy that this is a basic or fundamental right, so I think the government case is pretty weak here.  At a broader level, the "right" in question is reproductive choice, which is a widely recognized human right, but to my knowledge has no basis in U.S. law or in the constitution.  The degree to which this right is recognized in existing US law seems to me to be the degree to which it is reasonable to mandate contraceptive access under the auspices of health insurance provided by Catholic employers.

I might add that there's an additional relevant distinction in this particular debate.  Catholic Employers (all employers, really) receive significant subsidies to provide healthcare (in the form of large tax benefits for health insurance compensation as opposed to monetary compensation).  To the extent that the institution benefits from those subsidies, it seems like they don't have a leg to stand on.  If you take the government's money, you have to play by their rules.  It might be that a reasonable compromise would be to limit the fines on institutions unwilling to play by the rules to the size of the healthcare subsidy (in effect, you take away the government subsidy, since they wont play by the governments rules).  It might be that that is in fact already the size of the fines in question in which case the compromise is already reasonable.


  1. "At a broader level, the "right" in question is reproductive choice, which is a widely recognized human right, but to my knowledge has no basis in U.S. law or in the constitution."

    Actually there is a basis in U.S. law. With Griswold v. Connecticut (1965) the Supreme Court ruled that the 14th amendment protected your right to privacy which included a right to marital privacy which meant you had the right to make your own reproductive choices, including using contraceptives. This set the precedent for later Supreme Court ruling Eisenstadt v. Baird (1972) which ruled that a woman's marital status had no bearing on her right to contraceptives.

    Therefore since 1972 reproductive choice has been a legal right for every woman.

    1. Thanks for the assist! That makes the legal position of the religious institutions in this question seem pretty shaky.