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.

Politics and fundamental values

I think this is an important point.  Your political views don't just represent your judgments on key policy debates; they also reflect deep valuations of fundamental principles. This site does a very interesting job of showing how things break down (edit: You'll want the very first survey on the list).

Green is me, red is Republican, blue is Democrat.

Basically, liberals care a lot about leveling the playing field and avoiding harmful consequences.  Conservatives care about those things too, but they put a lot more emphasis on loyalty, authority, and purity.  Challenge for my conservative readers: why should we build public policy around these things?

Democrats V. Republicans

I've been thinking about what divides the Republican and Democratic parties and here's basically my take on it.

The general goal of the Republican party is to enact a set of laws which codify their party's shared values.  They want a flat tax because they think it is fair or just.  They want to end welfare because it allows people who don't work to benefit from the labor of those who do.  They want to make gay marriage illegal because they think it's wrong for people with the same combination of sex chromosomes to sex each other.  By contrast, it seems that the Democratic party generally attempts to enact legislation in order to achieve explicit goals, such as reducing the negative effects of poverty, providing people with healthcare, &c.

This naturally throws up an obstacle to useful political discourse.  Republicans tend to look bad when asked what their programs will do because they didn't come to their policy ideas based on studies, but rather came to the studies based on their policy ideas (informed by evaluations of those policies with respect to the moral code they want to enact).  Democrats look bad when asked to justify the moral legitimacy of their policies because, well, they were too busy thinking about what they wanted to do.

I think that both parties are being stupid.  In order to have a meaningful discussion you need shared assumptions.  In this case we need to have candid political discussions about what our shared values are, and the nature of our disagreements.  Some values might be hard and non-negotiable.  Differences in the abortion debate spring to mind.  Others might be more flexible.  Many people are willing to budge on completely equal treatment in order to get more equal results, even if they value both kinds of equality.  Many are willing to sacrifice some freedoms for increased security.

Issues controlled by hard values need to be decided by the voters and when it comes down to it that means that the most important thing is to recognize the value judgment, describe it accurately, and have both sides of the issue make their arguments to the people.  It might even be most appropriate for such issues to be decided by referendum.  For just about everything else, we should be agreeing on goals for the nation (informed by our values) and then asking experts for the most effective means towards achieving those goals.  We should then recognize what values might be impacted by the most effective means and weigh those values explicitly against the values we were pursuing when considering the end goal of the law.  But the most important thing to remember in those sorts of debates is that the process started with agreement that the end goal of the law was worth pursuing.  If one particular method looks to infringe too deeply on some values, other methods need to be considered.

I'd like to mention that this is basically a rehashing of my constitutional anarchy ideas within the context of our current political situation.  I'd love to add a clause to the constitution that requires a nationwide referendum on any law codifying a value.