off the cuff:

The contraception mandate

posted by The Editors

In what is latest in a series of conflicts between the Obama administration and the Roman Catholic Church, a recent regulation announced by the Department of Health and Human Services mandating that all employers—including religiously affiliated institutions such as Catholic universities and hospitals—provide health care that covers the cost of contraception has provoked widespread outcry from religious leaders, both Catholic and Protestant, as well as from many politicians, both Republican and Democrat. President Obama has outlined a compromise whereby employees at religious organizations would be given access to free contraception directly from health insurers themselves, yet this has done little to quell criticism and ongoing debate.

We’ve invited a small handful of scholars to comment on how the debate highlights enduring and nascent issues involving claims to multiple rights made in the context of American public life.

Our respondents are:

Finbarr Curtis, Instructor of Religious Studies, University of Alabama

Mark Hulsether, Professor and Director of American Studies Program, University of Tennessee

Derek E. Karchner, Attorney at Law, The Catholic University of America, Columbus School of Law

Daniel Maguire, Professor of Theology, Marquette University

Kathleen Sands, Associate Professor of American Studies, University of Hawaii at Manoa

Kevin M. Schultz, Assistant Professor of History and Catholic Studies, University of Illinois at Chicago

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Finbarr Curtis, Instructor of Religious Studies, University of Alabama

The Catholic Church’s rhetoric in the recent contraception controversy pits public health policy against private constitutional rights. But what is unclear is exactly whose rights are violated. No Catholics would be forced to take contraception. Rather, the Church’s claim is that its liberty is violated if it has to affirm the religious liberty of its employees, who may be Catholics as well as people with no religious affiliation or with different religious affiliations. In other words, “religious liberty” does not protect individual freedom (whatever that may be) but allows organizations to police the religious convictions of their employees. What is remarkable, at least politically, is that employees could include many conservative Evangelicals for whom contraception within marriage is fine. This means that, say, a married Southern Baptist who takes a job at a Catholic university would have her healthcare choices influenced by Papal teachings with which she does not agree. For much of American history, this kind of ecclesiastical assertiveness would have ignited anti-Catholic fury. But drawing historical parallels is tricky here because the Church now insists that it has jurisdiction over the consciences of non-Catholics, which is a long way from earlier defenses of American Catholic freedom. Yet many conservative Protestant groups have come to the defense of the Church in a way that demonstrates a shared investment in expanding the power of private institutions. This vision of religious freedom confirms Winnifred Sullivan’s post on the Hosanna-Tabor decision, in which a “church” has first amendment rights. One could note an analogy between this language of religious freedom and the Citizens United ruling that grants corporate entities the rights of persons. In both cases, the rhetoric of freedom works to expand the power of private institutions acting beyond the scope of democratic deliberation and accountability.

In this rhetoric, religious freedom is realized as long as government interference is minimized. To take the example of the Baptist working in a Catholic college, the response of the Church (and its Baptist apologists) would be that her religious freedom is not violated because she took the job knowing that it did not provide contraceptive benefits and she is free to pay for them herself or to seek other employment. In other words, the market will provide whatever freedom she needs. In practice, then, the rhetoric of private freedom that draws its persuasive force from its claims to protect individual liberty actually works to empower corporate entities that are free to do whatever they want without having to consider competing visions of public goods.

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Mark Hulsether, Professor and Director of American Studies Program, University of Tennessee

Jurisprudence on religion—and by extension public discourse about religions, social policies, and cultural norms—clearly involves rights in conflict. For example, everyone agrees that a right to “freely exercise” a religious calling to murder is trumped by the right not to be murdered. We also agree that many religious practices should be freely practiced without discrimination unless there is a compelling public counterargument. Conflicts wind up in court and on television when there are gray areas, and the resulting common sense about what counts as religious anarchy versus discrimination has varied widely over time.

Since I have little to add to current wrangles about paying for contraceptives, I will address two background issues. One gray area concerns the standing of theological convictions when deciding where to set a legal threshold for the “murder” of embryos. Everyone agrees that late-term abortions are over this line unless the mother is in grave danger. What about early miscarriages or the use of morning after pills by rape victims? Should every such event trigger a full-scale funeral for the unfortunate zygote, plus a criminal investigation to see whether the mother’s behavior rose to a level of “negligent homicide”? Even extreme pro-lifers rarely go this far. In other words, virtually everyone presupposes that “life” or “full human rights” is not a simple “on-off switch” at the moment of conception—no matter how loudly some deny this. Of course where the threshold is set has immense consequences, especially for women.

Suppose we posit that abortion is an evil but sometimes a tragic lesser evil (with pregnant women, not the state, in the best position to judge this matter). If so, one major reason for access to contraceptives is precisely to minimize abortions. We can acknowledge that Catholic bishops posit a different logic about contraception—and that they have a right to believe it—while still denying that their logic is persuasive, especially as public policy. Doesn’t their thinking seem muddled and hypocritical? Aren’t their background assumptions more about controlling women’s bodies and devaluing all forms of sexual expression except between married heterosexuals who are trying to conceive—as opposed to “defending life”?

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Derek E. Karchner, Attorney at Law, The Catholic University of America, Columbus School of Law

The debate over the contraception mandate is a debate about conscience and whether one’s conscience must yield to another’s personal reproductive rights or the nation’s public health priorities. My answer to both is a profound NO. Conscience has enjoyed a robust space in the discussion of American rights. It should remain so.

This idea that conscience underlies our notion of rights is not new. John Rawls expressed the idea, in A Theory of Justice, that we all share a basic equal liberty of conscience which is central to developing a fully adequate scheme of liberty and one who holds conscientious beliefs “regards them as binding absolutely in the sense that he cannot qualify his commitment to them for sake of . . . promoting other interests” such as economic or social benefit. In this way, conscience informs all actions or, as Thomas Aquinas wrote in the Summa Theologica, conscience spurs one to action or causes one to abstain from action in response to the acquisition of knowledge, which has shaped one’s views about the proper course of action. It is not simply a belief. Rather, conscience involves an advancing of one’s beliefs through action or avoiding action that would compromise those beliefs.

American rights jurisprudence is based on the notion that an individual’s conscience should be largely free from state coercion. Indeed, an animating force behind the reproductive rights movement was the sense that government was making choices for citizens when it comes to sex, to the use of contraceptives, and the like. That is, the state was encroaching on conscience.

However, the contraception mandate is part of a broader effort to erode the right to exercise of one’s conscience. At first, having contraception grew out of an individual’s right to exercise his or her conscience with regard to reproduction. The contraception mandate and similar debates on the state suggests that certain favored liberties will be transformed into rights that can be enforced by the state against those who refuse to facilitate their exercise. This is hardly the death of conscience as we know it, but it portends a radical shift in how we view and respect conscience. While certainly conscience should yield to certain paramount social priorities, this is hardly one of those priorities.

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Daniel Maguire, Professor of Theology, Marquette University

Galileo would have welcomed the bishops’ current fixation on sexual-reproductive issues. In his day their focus was on the stars; their attention has shifted to the pelvic zone where they are once again stumbling and bumbling, claiming authority on issues where they have no privileged expertise. Increasingly, Catholic laity no longer dance to their music, especially on sexual reproductive issues where they and their theologians have long since had a change of mind. On issues like birth control the bishops are effectively in schism.

Their current zeal and bullying tenor has more than a tinge of panic. Their seminaries are emptying, clergy sexual crimes and hierarchical cover-ups are being exposed, whole dioceses are going bankrupt. Time for a little diversionary stress on birth control?

Unfortunately, Catholic disarray is not just church business. The bishops are would-be amphibians, demanding sectarian privileges, while playing big and tough in the public square. They are awash in inconsistencies, wanting and needing public finances for their institutions but violating the consciences of the diverse publics they serve in their tax-supported institutions.

They base their case on a fallacy, grasped and supported by the religious right and Republican hopefuls. “Religious freedom” is their bogus cry. They claim “religious freedom” to violate the religious freedom and conscience rights of all who are served in their establishments.

All this hierarchical ruckus may serve to raise the overdue question of whether Catholic hospitals should face the sunset rule. They began before the state saw its obligation to bring health care to the poor. They can no longer provide for the poor without massive state aid, including tax-exempt status. (Tax exempt = tax shifted, meaning someone else has to pay).

Before the state saw its duty to respond to fires, Catholic monks rose to the need. They stopped when the state took over. Otherwise we would have Catholic firehouses, such as, for example, The Immaculate Conception Fire Company. The question is: are Catholic hospitals, like Catholic firehouses, anachronistic and anomalous remains of a mission no longer theirs?

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Kathleen Sands, Associate Professor of American Studies, University of Hawaii at Manoa

The contraception dispute is about power. Who has to pay and who rides free? Who controls reproduction and who is controlled? Whose beliefs can determine public policy—or veto it—and whose beliefs don’t matter? “Religion” cannot adjudicate the fair distribution of power, because the word is always already a prisoner of power.

Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.

And what about other religions (say, Christian Science or Jehovah’s Witnesses) that object to other elements of health care? Or the huge businesses (say, Walmart or Whole Foods) whose devoutly religious owners might like their own set of exemptions? Should they get “religious liberty”? And if so, wouldn’t universal coverage become completely impracticable?

For some, that’s the goal: their “religious liberty” metastasizes into a demand that all employers, simply by invoking “religion,” could exempt themselves from any element of health care coverage. They’re part of the alliance that now owns “religion”: conservative evangelicals, Tea Partisans, and a Catholic hierarchy trying to reassert authority after the exposure of its own catastrophic moral failures.

In public discourse, religion is what “religion” does. And this is what “religion” is doing here and now. So, while elected officials dare not question “religious freedom,” scholars must be more discerning.

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Kevin M. Schultz, Assistant Professor of History and Catholic Studies, University of Illinois at Chicago

First, let me say this wouldn’t be an issue if it weren’t an election year. My mother works at a Catholic hospital whose insurance has covered birth control for years. The nuns who oversee the moral direction of the hospital haven’t complained once. So it seems there is some posturing going on now that has a lot to do with timing. This speaks volumes about the increasing importance of “the Catholic vote,” although that’s not what we’re here to discuss.

Regarding rights claims, there will always be a tension between individual rights (and/or minority group rights) and the fact that we all belong to a broader society that requires us to check some of our claims when we participate in it. To this point, it’s worth remembering that no church is being compelled to pay for birth control here (they get exceptions), just the auxiliary services nominally provided by a church that reach out into greater society, for example hospitals like my mother’s (which happens to employ more non-Catholics than Catholics). We all make compromises when we participate in society, and we should argue with compassion about the compromises we’re asked to make. But it seems a small compromise to make to have one’s insurance cover the cost of birth control pills for your auxiliary employees (Catholic or not) in order to maintain tax-exempt status and continue to receive millions of federal tax dollars to support your auxiliary services, like Catholic Charities.

Finally, it strikes me as particularly ironic that the Catholic Church, which, for the past 150 years has been making consistent communitarian arguments against the perceived acids of liberal individualism, is now turning the tables to say a “common good” argument has no merit when it compels their group to make compromises when they choose to branch out into broader society. More obnoxiously, their use of vitriolic cultural wars language does the Church, and the country it has thrived in for more than two hundred years, a great disservice.

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2 Responses to “The contraception mandate”

  1. avatar Gary Bynum says:

    First, thank you for demonstrating your individual position on this matter by including five opinions supporting yours to only one supporting religious organizations. There are too many positions to refute without carrying on for several pages, so let me point out the most obvious fallacies.

    The first is that this mandate reaches far beyond Catholic Institutions that receive government financing. The agency that facilitated the adoptions of both my children is run by Evangelical Christians, receives no money from any government, and will be forced by this mandate to pay for something it finds abhorrent.

    This leads us to the second issue, which is that no one wants to discuss the fact that we have moved beyond simple contraception… to abortifacients. We are not simply talking about stopping fertilization, the government has surreptitiously expanded its demands to include the destruction of a zygote. This, for many in this country, equates to abortion. At least five of your six contributors will certainly disagree with that thought process, but it is very real to many. Professor Hulsether makes a typical pro-choice argument debunking those who believe that life begins at conception, but does not follow by positing his position on when it does begin, thereby leaving a gaping hole in his argument. He attacks those who believe differently than he as “extreme”, claiming that “virtually everyone” agrees with his position, but that position is left unstated in order to protect him from any opposition. However, the bottom line is that this is not a debate about the beginning of life, but the rights of religiously-affiliated organizations not to participate in practices that run contrary to their most deeply-held beliefs.

    Finally, we are not arguing about the right of a woman to obtain contraception, or even free contraception. Nothing in the opposing viewpoint of the Catholic Bishops nor the other defenders of conscience would stop a woman from being able to obtain contraceptives, or even abortifacients. It will not even stop those who can’t afford them from getting them free of charge. Planned Parenthood received half a billion dollars of government funding last year to provide services just like this, and there are plenty of other resources available to women who want these services. Why not let them? The question is, who will pay? In the example I mentioned at the outset, the private Christian adoption agency, who believes that life begins at fertilization, will be forced to violate its conscience and pay for the abortions it counsels its clients against.

    This has nothing to do with, as Professor Maguire describes, the “bankruptcy of dioceses”. This is not about, as Professor Hulsether describes, “controlling women’s bodies,” or Professor Sands’ slippery slope tale of “all employers.” We are talking about FORCING organizations to literally choose between paying for services that run diametrically opposed to their conscience, or ultimately closing their doors. The doors of our adoption agency are open to all, have helped thousands of women with their pre-natal care, and placed hundreds of children in loving homes. Am I correct in assuming that this now runs contrary to our nation’s ever-changing values? If not, why not allow these women to obtain the services that are already available to them, many through your tax dollars and mine, and allow those of opinions different from the vast majority of your scholars to protect their consciences? Oliver Wendell Holmes once said that the right of a man to swing his fist ends at the tip of another man’s nose. It appears that religiously-affiliated organizations better stock up on tissue.

  2. avatar Jessica Polebaum says:

    At The American Interest, Peter Berger weighs in:

    What is to be learned from this episode? A number of things: The large expansion of federal power hidden in the innumerable pages of the legislation which established “Obamacare”. Obama’s captivity to his much-vaunted “base”, with its strongly secularist contingent (I have called it an American version of the Turkish ideology of Kemalism—religion is a virus to be kept out of public space, quarantined in religious reservations). The continuing political clout of religion in the United States (Kemalists are always surprised when they come across this—perhaps because they mostly talk to each other). And, contrary to a widespread opinion, the fact that the “culture war” between conservatives and progressives is by no means over—and continues to be politically significant. Each of these lessons would merit extensive discussion. However, I would like to comment here with a different focus—the deepening relationship of Catholics and Evangelicals.

    This has been going on for some time in America. In a broader historical perspective, this is something new.

    More here.

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