Notre Dame is suing the government on the HHS mandate... and that's fine by me

The Catholic Church's displeasure with the HHS contraceptive mandate is common knowledge, so it is no surprise that the University of Notre Dame--"where the Catholic Church does its thinking"--is filing a lawsuit opposing it.  Regular readers of this blog might be expecting me to get huffy at this point and start arguing about how wrong the whole thing is, but, readers, prepare to be surprised.  I am totally okay with the lawsuit, and the reason is simple: the lawsuit is against the finalized January rule, which includes none of the compromises I think make the HHS mandate acceptable.  The compromise rules are still in the "open to public comment" phase through June, and, as Jenkins stated in his email to ND:

Although I do not question the good intentions and sincerity of all involved in these discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution.   Moreover, the process laid out in this announcement will last months, making it impossible for us to plan for and implement any changes to our health plans by the government-mandated deadlines

Okay, so I do take issue with the notion that there's little in the way of a specific substantive proposal in the March 16th public comment document.  I've read it, and it is tediously specific.  It isn't the full exemption I suspect the University is gunning for, but I think it represents a morally valid compromise because it incorporates all the stuff I've talked about in my billion other posts on the subject.  Since the University only has a year to comply, and there's no sure reason to believe that the accommodations will be finalized by that time, it is in the best interests of the University and of religious freedom writ large to sue and at least obtain a stay until accommodations can be implemented.

Also, I think that the lawsuit could clear up some interesting muddles in the area of religious freedom.  I rather suspect that in this case the right of people to privacy regarding their sex lives will trump the rights of religious organizations to force their agenda on non-conforming individuals if this makes it to a high court.

HHS contraceptive mandate debate: summarized

I just got asked for a summary of the HHS contraceptive mandate debate.  I've written quite a bit on the topic previously, but since the situation (and my understanding of it) evolved over time, I thought it would be worthwhile to pull together my previous posts and some final commentary.  It's worth noting that while the Obama Administration and USCCB seem committed to their final stances, the rules are open for public comment through June, and will only be finalized in August.

The mandate

As part of the Affordable Care Act, all health insurance plans are required to cover preventative care without co-pay, but the definition of such care was left to the executive branch.  On the recommendation of the National Academy of Sciences, the Obama Administration included birth control--in particular female birth control, like the pill--in preventative care.  This means that all insurers must cover contraceptives without co-pay. The full text of the most up-to-date proposal for the mandate can be found here: https://www.federalregister.gov/articles/2012/03/21/2012-6689/certain-preventive-services-under-the-affordable-care-act

The objection

Catholic institutions objected on the grounds that contraception is against the teachings of the Catholic Church.  They felt it a breach of religious freedom that they were required to pay for products the primary use of which they considered to be immoral.  As the Obama Administration has responded to this objection the complaints have changed.  The most recent statements by the USCCB can be found here: http://www.usccb.org/issues-and-action/religious-liberty/conscience-protection/

The response

The administration, gradually, made the following adjustments/clarifications to address the conscientious objections:

1. The mandate only applies to non-Church organizations, such as Hospitals, Charities, and Schools.  Parishes and other institutions who primarily hire and serve Catholics (or people of other objecting faiths) are exempt.
2. Insurance organizations must not charge the insuring institution for additional contraceptive coverage.
3. For self-insured institutions (most large catholic organizations), the cost of the contraceptive coverage would be born in full by an external entity, rather than by the institution itself.
4. (A clarification) The cost of insurance plans with full contraceptive coverage is actually lower than the cost of insurance plans without full contraceptive coverage.

Some links to articles on the subject

The status of similar mandates already imposed by individual states.

A pretty up-to-date summary of the issues by a news source.

And another article

And some more coverage

Statement by the USCCB (Catholic Bishops)

The most up to date formal proposal (a difficult read)

My thoughts

Since no Catholic institution will have to pay for contraceptive coverage (free from insurers, and free from insurance managers for self-insured institutions), there is no violation of conscience.  Since US law recognizes rights of reproductive freedom and privacy, allowing institutions to inspect employees' sexual practices in the provisioning of healthcare (for instance to cover the pill for ovarian cyst treatment but not contraception) is arguably a violation of employee rights.  And since I conceive religious freedom as essentially individual rather than institutional and no individual is coerced by this law, I can find no valid religious-freedom argument against it.  The case is further undermined by the governments subsidy of health insurance: taking the government's subsidy means taking the strings attached too.  I do think that it might be reasonable to fine non-compliant institutions the exact amount of government subsidy as another means of exemption, but even that butts up against employee rights in an uncomfortable way.

My previous thoughts (in chronological order)

These kind of shift around as the situation and my view of it shifts, but the in series they follow all the important points of argument, and the comments often include useful insights or counter-arguments.

1. My initial take

2. Clarifications and a look at some more nuanced objections

3. Some commentary from a philosophy of government/legal perspective

4. A little summary of how things looked after the Obama administration made response 3 

Church & State

It seems like freedom of religion has been roiling about a bit more than usual in the national consciousness, so I thought I'd take a poke at what I think is important in this idea and what it means for good governance.  Basically, this is about a natural tension between the desire for people of faith to exercise their political will in accordance with their personal beliefs, and the need for government to permit, value and tolerate the beliefs of those outside the majority-faith.

Now, this is a real contradiction.  People of faith should certainly be allowed to vote for policies in keeping with their beliefs, but those who don't share those beliefs shouldn't be prevented from practicing appropriately because of those policies.  Tricky widget.

The tools that we bring to this challenge on behalf of people of faith are freedom of speech (& expression, & religion, & to assemble peaceably) and the idea of conscientious objection.  But, in a nod to diversity, we constrain these freedoms in both scope and context.  These constraints are the subject of much bickering--as they should be--so I kind of want to lay out the ones that I see and what I think of them.

1.  People of faith cannot justify impeding the safety or freedom of others by citing religious practice. 
 This principle allows limiting or outlawing animal sacrifice, curbing faith sanctioned abuse and murder, and applying the fire code to religious buildings. Creationists can't squash the teaching of evolutionary fact (though boy do they love to try).

2. Conscientious objection is legal only when it is demonstrably non-opportunistic, and only exempts the objector from direct participation in the objectionable act.
This is clearly the case in wartime, where pacifists a) still pay taxes that support the war effort and b) often end up as medics or otherwise indirectly involved participants in the conflict.

3. Public institutions, offices, and officers acting in their official capacities are severely constrained in their ability to proselytize, endorse particular religions, or adopt explicitly sectarian practices.  This seems primarily to be true of un-elected officials.
We're not always super successful at applying this rule, but it is certainly a general principal at work in our country.

Basically, I think that what's going on here is that we as a society recognize that the rights of others constrain our own rights, and observe a moral distinction between personal life and public service.

Some interesting general distinctions arise:

1. That the practice of faith can be properly limited to the personal, or limited to the community of the faithful.

2. That the right of the faithful to object is limited to the eschewing of direct action contrary to faith and the peaceful--read here as non-disruptive, as opposed to non-violent--protest of such actions (and of course the right to vote according to belief).

3. That the faith rights of individuals do not extend to the public institutions in which they serve, and the official capacities in which they act.  When acting on behalf of the public, they must respect the constitutional constraints of church and faith.

Degeneration of debate on the HHS contraceptive mandate

Okay, so I never thought there was much principled debate going on, at least in the public sphere, but at some point I did reach the conclusion that the religious institutions had one meaningful objection--that self-insured Catholic institutions would be directly purchasing contraceptives contrary to conscience.  However, the Obama administration recently announced that self-insured employers wouldn't have to pay for contraceptives.  Instead, the managers of those plans, or separate insurers, would provide contraceptive access at no cost.  This clearly addresses the last viable concern.  In a reasoning world, objections would now cease, but of course they haven't.  I'm lucky enough to be at Notre Dame, which has a good law school and is hugely Catholic, so I get exposed to what one would imagine is the pinnacle of public debate on the issue.  And it is just SO unimpressive right now.  Look at some choice quotes from a recent forum (poached from an Observer article):

“The religious freedom of … communities like Notre Dame is not just the freedom to avoid being coerced into doing evil … [but] to bear witness of the truth of the faith and to act with integrity and to act coherently in accord with their Catholic character as they understand it,”


This is pretty clearly an admission that Catholic institutions don't have a leg to stand on anymore.  If you're not being coerced to do bad things the religious objection is done and over.


“Sometimes a democracy like ours, with ideals like ours, accommodates religious freedom even when it doesn’t have to,” Garnett said. “In this case, it seems to me, the better policy … would be to provide a broader religious freedom exemption to the preventative services mandate.”


And, indeed, there is a direct concession here that the Government has done all it has to do, but they want mega-special-extra-above-and-beyond-treatment because it's really important to allow religious institutions to impose their beliefs on their non-religious employees.  That's how America should work! Ridiculous.


“The conviction of those currently in power that contraception, sterilization and abortion-inducing drugs constitute essential preventive services that enhance the health of women … in the administration’s mind … trumps any right that religious employers might have to refuse to pay for such essential services,” she said.


So, as a matter of law, it's probably true that the rights of women to reproductive freedom are greater than the rights of religious institutions to not buy contraceptives, but the administration has decided not to test that boundary.  Instead, they set up a system where religious employers don't have to pay for contraceptives AND women still get free access to them.  This is a delightfully misleading statement.


“To have that narrow exemption codified in our regulatory apparatus, it’s like leaving a loaded gun around for a kid to pick up,


I just think this is an adorable metaphor.  In what conceivable way are those scenarios equivalent?

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.

Clarifications on contraception

The contraceptive arguments in the comments have been sort of muddied by terminology, and I think it's worth clearing some of it up in a new post.

Whose religious freedom is most validly conceived as being at risk?
The employer's.  If this impinged on the conscience of the employees, then Catholics would be obliged not to work for secular employers providing the objectionable coverage.  I have never heard anyone make that claim for the entirely natural reason that it is a crazy claim.  Furthermore, the mandate is upon employers, not employees.  It seems clear that that is the natural scope of the argument.

What sort of harm might be done to the employer?
Let's enumerate the ways in which the employer certainly will not be harmed (any of these harms would clearly be a severe violation of religious freedom):

1. They will not be obligated to purchase contraceptives. (They are obligated to provide employees with compensation usable for the purchase of contraceptives, which is not the same thing.)
2. They will not be obligated to provide contraceptives.
3. They will not be obligated to use contraceptives. (for completeness sake. It's hard to imagine a Catholic institution with a systematic need to use contraceptives professionally)

Here is a sort of harm that would not be introduced by the mandate, but might conceivably be an existing harm:

1. The funds of a Catholic institution might be used by a third party to purchase an objectionable service (true before and after the changes thanks to the broad utility of money and the inability of non-church Catholic institutions to to fire people for sinning)

I addressed the above in my last post and in the comments.  But since then I've had some conversations that brought up additional concerns.  Here are some conditions under which others have convinced me there might be potential for new harm:

1. The Catholic institution might be forced to enter into a contract for an objectionable service 
2. The Catholic institution might compensate a sinning employee more than his otherwise identical but non-sinning counterpart. This would be objectionable from both a direct standpoint, and also from the standpoint of systematically encouraging sinful acts.

I don't think either of these harms occur, but I do think it's worth considering the conditions that prevent these harms from occurring.

The first important clarification that needs to be made is the nature of the relationship between the employer, the health insurance, and the employee.  The employer provides the employee with a compensation package.  This compensation package includes direct monetary compensation, but also includes a variety of other things like access to a company car or other equipment, travel budgets, journal subscriptions, and health insurance.  Health insurance is a contract between an insurance company and the insured, in which the insured purchase access to a wide variety of services at the amortized cost of the likelihood of all service use over time over all people insured by the company.  The employer serves two important roles in this kind of compensation: as a negotiator, and as a source of funds.  The employer is in a much better negotiation position than an individual is, so it can get better prices, and it can make sure that the policy stays up to date by paying the cost of the service directly to the insurer instead of giving it to the employee as money and hoping that the employee remembers to pay the insurer.  

The point of all this is that the insurance company doesn't provide the employer with any services at all. The contract is between the insurer and the insured (quite explicitly, you have to sign a form and everything, it's your name on the policy &c).  This means that potential harm 1, about the Catholic institution being required to enter into a contract for objectionable services, is avoided. 

Potential harm 2 is a little trickier in this context, because it rests on some subtle distinctions.  The important one is the distinction between an item's value and cost.  The cost of the employer providing health insurance is the same for two equivalently risky people (and maybe for all people if the employer is a good enough negotiator).  That is the compensation provided by the employer.  The value of that compensation is subjective with respect to the employee.  A perfectly healthy employee might receive literally zero value from the employer health-insurance compensation, but that employee was none-the-less identically compensated.  A diabetic, a habitual drunk, a cancer patient, a recreational boxer or part-time thug might derive greater value from their health insurance compensation than the perfectly healthy employee, but they are likewise identically compensated.  If the value of compensation is the moral issue then Catholic employers already systematically over-compensated the habitually violent over the peaceful and healthy.  But it seems wrongheaded to claim that that's the case, so I think that we can safely put potential harm 2 aside.  The compensation of all employees remains the same, regardless of sinning status, but the value of the compensation varies systematically with respect to the sinfulness of the employee.  This is already the case (consider sexually transmitted diseases for instance) and so no new harm is done.  The already existing harm of the institution providing more value to more sinful employees seems to me to be of the same kind as the other pre-existing harm, and could only be remedied by the same mechanism (allowing Catholic institutions to fire people for sinning).

Incidentally, as I've mentioned before in comments, I think this whole issue is moot because the purchase of contraceptives is not in and of itself sinful.  The only sinful thing about contraceptives is using them to prevent pregnancy, an act for which culpability cannot be transferred.  More fundamentally, I don't think that it's possible to sin without doing something sinful.  Religious institutions are obligated to avoid doing sinful things, and to condemn sinful actions, and so long as they are allowed to do so no freedom is violated.

Injecting principled Reasoning into the Contraceptive Mandate Shouting Match

Recently, there has been a bunch of noise about Catholic Institutions being required to provide deductible-free access to contraceptives in the health insurance plans they provide their employees.  Angry diatribes and weirdly neutral negative opinion pieces have been written on the subject.  They are angry (or bizarrely bland), so it's understandable that they don't clearly understand what they're talking about.  Let me clear things up for everyone involved (that means you Catholic Bishops).

See the difference? Me neither.

The objections in this debate are essentially of the form "We object to you forcing us to recognize that the people we employ use the money we give them to buy contraceptives."  That is dumb.


Kinds of thing that would infringe on religious freedom:

1. Requiring Catholic hospitals to provide abortions
2. Requiring Catholic doctors to prescribe the pill
3. Requiring Catholic pharmacies (do these exist?) to sell the pill or condoms or what-have-you.

Kinds of thing that would NOT infringe on religious freedom:

1. Requiring that health insurance benefits provided by Catholic institutions include deductible-free access to contraceptives
2. Requiring that Catholic institutions pay their full-time employees (Note: 2 is equivalent to 1)

Reasoning in word form below the fold:

Gay Marriage

I just saw this letter from the american catholic bishops .  Generally, I'm a fan of Catholic policy, and this statement rings right for me the majority of the time, but I can't help but feel that they're misstating (in line with this blog's policy of assuming that people when wrong are making mistakes and not being purposefully malicious) the case for state recognized marriage.  Here's what they say

  In close connection with our defense of all human life and particularly the most vulnerable among us, we stand firm in our support for marriage which is and can only be a faithful, exclusive, lifelong union of one man and one woman.  There is good reason why the law has always recognized this, and why it should continue to do so.  In a manner unlike any other relationship, marriage makes a unique and irreplaceable contribution to the common good of society, especially through the procreation and education of children.  Children need, deserve and yearn for a mother and a father.  All human societies in every era of history, differing greatly among themselves in many other ways, have understood this simple wisdom.  No other kinds of personal relationships can be justly made equivalent or analogous to the commitment of a husband and a wife in marriage, because no other relationship can connect children to the two people who brought them into the world.  For this reason, we will continue to vigorously support the Defense of Marriage Act (DOMA) and strongly oppose legislative or executive measures that seek to redefine or erode the meaning of marriage.  We suggest Congressional oversight of executive actions that have the effect of undermining DOMA, such as the expansion of spousal benefits to two persons of the same sex, and the weak defense of DOMA in court against constitutional challenge.  We will seek to reflect respect for the family in every policy and program, to protect the rights of children, and to uphold the rights and responsibilities of mothers and fathers to care for their children.  We will also continue to monitor legislation and federal regulations that protect our children and families from the destructive repercussions of pornography, which degrades human sexuality and marital commitment.

So first of all, out of spite, let's talk about the factual inaccuracies.  Historically, in fact biblically, marriage was recognized as being neither exclusive nor lifelong, and certainly not between one man and one woman.  Old Testament marriage  traditionally recognized polygamous marriages as valid, and allowed for divorce pretty much any time.  Now, Christ reorganized a lot of the thinking about that with statements in the New Testament, but it's certainly untrue that "human societies in every era of history [...] have understood this simple wisdom".  The status of homosexual relationships in society has also varied greatly from time to time and culture to culture.  The bishops make a fair point regarding a possible unique benefit of marriage, but by no means do all marriages possess these characteristics.  It looks like America's divorce rate is roughly half of its marriage rate, which certainly aces the whole both parents with their children idea.  Anyway, if the states interest in marriage is exclusively with regards to stable child rearing, then it seems we should only provide marital benefits to families where both parents and their biological child are present.  I don't think the bishops want this, but if they admit it they might have to admit that they don't have a point.

Basically, I think people are worried about gay marriage because they feel like it imposes upon their concept of sacramental marriage.  Frankly, this is stupid.  Law historically recognized marriage for the purpose of simplifying family oriented legal issues, like inheritance and the divvying up of property following divorce.  Gay couples encounter the same problems, and should be given the same help working out those issues.  This state provided legal aid has nothing to do with sacramental marriage and shouldn't be considered along side it.  Personally, I vote that we abolish marriage as a legal concept, replace it uniformly with civil union, and permit any people entering into voluntary, permanent co-dependence and cohabitation to benefit from it.