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An illiberal mandate.

4458527284_21d7409410 (1)In our January 13 editorial, we criticized a ruling from the Department of Health and Human Services that would require all employers to include "contraception and sterilization coverage in their health-insurance plans, including those provided to employees of religious institutions." Only religious organizations that primarily employ and serve co-religionists, and whose mission is to inculcate its values, according to the "interim final rule," could be exempt from the mandate. The U.S. Conference of Catholic Bishops, we wrote,

argues that compelling the church to pay for plans that cover services the church has long held to be immoral violates the religious-freedom guarantee of the First Amendment. Catholic hospitals, universities, and social-service agencies see their mission as caring for people of all faiths or none, and they employ many non-Catholics. Given this understanding of mission, inevitably there will be a degree of entanglement between any large religious institution and the modern state. That should not be an excuse, however, for imposing secular values on more traditional religious communities.

So, we concluded, President Obama ought to expand the religious exemption to include organizations like universities and hospitals. Apparently he was not persuaded. (Bear with me, this is going to be a long post.)

Friday, HHS announced that the rule would stand, but that religious institutions would have until August 2013 to figure out how to comply. In the meantime, secretary of HHS Kathleen Sebelius explained, organizations that do not currently offer contraception coverage will have to provide notice to employees that will include information about where they can obtain contraceptive services. Noting that the rule will have no effect on existing conscience-protection laws covering health-care providers -- meaning, for example, that a Catholic hospital won't be made to perform sterilizations -- Sebelius promised "to work closely with religious groups during this transitional period to discuss their concerns."Obviously, the decision provides little comfort to religious groups that objected to the interim rule. Within hours of the announcement, the USCCB fired off a press release vowing "to fight [the] HHS edict." Archbishop Timothy Dolan of New York put out a brief video protesting the decision. In effect, the president is saying we have a year to figure out how to violate our consciences, Dolan said. And Sr. Carol Keehan, president of the Catholic Health Association -- and a key ally in the Obama administration's effort to pass the Affordable Care Act -- also expressed disappointment with the ruling. While noting that it was "important to have clarified by the president and the secretary of HHS that this decision will not undermine the current conscience protections in law and so very necessary for our ministries," she called the final ruling "a missed opportunity to be clear on appropriate conscience protection."Keehan is right. The Obama administration blew a chance to correct far too narrow an exemption. Doing so would have avoided the specter of government forcing religious groups to act against their moral convictions. What's more, expanding the exemption would have maintained the status quo. That is, if HHS had expended the exemption, women who work for Catholic institutions that do not cover contraception would not lose anything they already had.But is Dolan correct? Is HHS just kicking the can down the road to make it impossible for the Supreme Court to rule on this before Election Day? Or could something be worked out that might satisfy the demands of Catholic moral teaching? One idea that's been proposed is the so-called Hawaii compromise.Hawaii requires all employers in the state to include contraception services in their health-insurance coverage. As Wake Forest University's Melissa Rogers explains:

Under Hawaii law, religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact and describing alternate ways for enrollees to access coverage for contraceptive services. Hawaii law also requires health insurers to allow enrollees in a health plan of an objecting religious employer to purchase coverage of contraceptive services directly and to do so at a cost that does not exceed the enrollees pro rata share of the price the group purchaser would have paid for such coverage had the group plan not invoked a religious exemption.

Under Hawaii law, a religious organization that objects to providing contraception coverage to its employees can invoke a refusal clause that would allow the institution to exclude such services from employee health plans. Religious groups that invoke the refusal clause must -- as required by the HHS ruling -- provide written notice to employees informing them that contraception is not included in their health plans, and they must tell employees where such services can be obtained. A refusal clause only pertains to contraception services intended to avoid pregnancy. An employer must provide coverage for contraception prescribed to treat, for example, the symptoms of menopause. According to the law, an employee is entitled to buy contraception coverage from her insurer at a cost that is no higher than the enrollee's pro-rata share of the price the employer would have paid had it not exercised the religious exemption. So religious institutions do not have to subsidize insurance coverage including contraceptive services, and employees who want such coverage can purchase a separate rider with their own money.Would that satisfy Catholic moral teaching? It seems so. According to the Catholic moral tradition, cooperation with "evil" (in this case, the use of contraception) is permitted in some circumstances. The USCCB objects to forcing Catholic institutions to fund contraception coverage for employees because it believes doing so would involve them in unacceptably proximate cooperation with evil. Catholic institution pays insurance premium. Insurance company pays for contraception. Employee uses contraception. (We'll get to whether that's a sound analysis in a moment.) But if HHS and religious employers can come to an agreement like the one reached in Hawaii, religious employers would not be directly contributing to the use of contraceptive services. It's true that, as a group purchaser, a religious institution's buying power would be used to set the price an employee would have to pay for a contraception rider, but that cooperation is too remote to be illicit because the good of providing health coverage to employees justifies the act.But what if such a compromise cannot be reached? What if religious institutions outside the narrow exemption are made to cover contraceptive services that an employee may or may not use? In the USCCB's response to Friday's decision, Archbishop Dolan is quoted saying, To force American citizens to choose between violating their consciences and forgoing their healthcare is literally unconscionable. It is as much an attack on access to health care as on religious freedom." Is he implying that if the religious exemption is not broadened, Catholic institutions will stop providing health care to employees? He wouldn't be the first. Late last year, Bishop Robert Lynch of St. Petersburg threatened to stop providing health coverage to diocesan employees if HHS refused to expand the exemption. Instead, he would offer employees a lump sum they could use to purchase coverage on the open market. How many bishops would follow Lynch's lead? And is that the only course of action permitted by Catholic moral teaching? I don't think so.(Here I'm cribbing from comments I left on another thread.) In the United States, benefits are part of an employees compensation package. Thats why Bishop Lynch said hed offer diocesan workers more money on top of their base salary, which they could use to buy insurance on the open market. Those plans will likely be more expensive and less comprehensive than those offered by the diocese, and they may include contraception and abortion coverage. What happens when a diocesan employee buys coverage that includes abortion and contraception with money provided by the diocese? What happens when an employee cant get good coverage because he lacks the diocese's purchasing power, and ends up with a pile of medical bills he cant pay? Or forgoes treatment because it could bankrupt him?To what extent is the institutional church cooperating with evil when its employees purchase contraceptives with their salaries? What is the difference between a diocese giving employees money they can spend freely and giving an insurance company money for coverage that may or may not include procedures and drugs the institutional church deems gravely immoral, or necessary to a gravely evil act? What does it mean morally for a diocese to pay, say, Aetna for a plan excluding the pill and abortions, when other Aetna plans include such services? Does the bishop believe Aetna is not using diocesan funds to cover other plans that do include contraception? By Lynch's logic, are bishops already cooperating with evil by paying insurance companies at all? If so, how remotely? More remotely than they would be if they paid for coverage that could lead to a Catholic employee violating church teaching against contraception? How might a bishop justify such a thing? Perhaps by weighing it against the good of health coverage for his employees -- coverage individuals could not get for themselves on the open market.Paying for health-insurance that includes contraception coverage does not amount to formal material cooperation with evil because an employee may or may not take advantage of the benefit -- and the act of using artificial contraception is something an employee could engage in with or without health insurance. Rather, when a Catholic institution pays for health insurance that includes birth control, it is remotely cooperating with evil. Remote material cooperation is permissible when there are proportionate reasons. Providing health care for someone who could not get comparable coverage as an individual on the open market (and at this point an individual could not) is sufficient reason to freely and remotely cooperate with evil.So much for the moral-theological analysis (and, moral theologians, I'm happy to be corrected). What about the politics of Obama's decision?My initial response to the decision was, "This is politically daft and philosophically illiberal." Why risk the Catholic vote Obama worked so hard to win in 2008? I still think the HHS rule is profoundly wrong-headed, but I'm not so sure it's politically foolish, especially not when Obama has been so strongly criticized from the left. Michael Sean Winters has announced that Obama lost his vote over this. Is he typical of most Catholic voters? Obama knows most Catholics disagree with church teaching against contraception, and that they want contraception coverage. He also knows Catholics don't respond well when they think bishops are telling them how to vote. By shoring up his base on this issue -- and reducing unintended pregnancies is something he ran on -- Obama is risking the portion of the Catholic vote that is sensitive into the argument that even if you think contraceptive services should be provided as a matter of basic health care, it's wrong to force religious institutions to violate their moral precepts by paying to cover them. How many voters are keyed in to that question? How many are paying attention to their bishops' statements on election-year issues? Not many, it seems. And it's not as though the bishops have made much noise about the fact that twenty-eight states already require religious institutions to cover contraception, and eight of them lack a religious exemption. So perhaps Obama figured that he couldn't win with the USCCB -- not when its former president feels free to call his "the most secularist administration in history" -- and decided that expanding contraception coverage was worth the criticism.We'll know in eight months.

Comments

Commenting Guidelines

Claire --The bishops are spending not only the government money but also the money that they raise for the hospitals and schools. That money is not the government's. And there is more than money that the bishop and their agents are contributing -- there is the added value of the work the bishops and others put into the programs.Again, the issue is not whether or not the bishops' view of contraception is reasonable. The issue is do they themselves as individuals have a right to practice their own religion without interference from others? It is an issue of religious freedom, not of religious/moral corrrectness of belief. It will always be possible, given the variety of religions that are possible that some beliefs will be unpopular and even unreasonable by most people's standards. Still that isn't the issue. The issue is not who is right or wrong, the issue is do the bishops have a right not to buy contraceptives when it is against their religion and when the rights of others to buy and use contraception is not being frustrated.Viewed from another angle, the issue is Nanny Government -- the notion that government has an automatic right to solve people's problems if it is capable of doing. (That's a whole other can of worms.)

Jeanne --The bishops are not denying any of the employee rights. The employees can still get contraceptives. The bishops are only refusing to pay for what the employees want and by their own lights even need. But an employer is not bound to satisfy every employee need. Employees need food. Employers are not obliged to pay for it -- they are only obliged to pay just wages.

If one has the religious right not to buy contraceptives for oneself, then surely one has the right not to buy them for other people.Ann,This certainly can't stand as a principle applying to health care or just about anything else! One has the religious right not to buy just about anything for oneself. In an oft-repeated example, Jehovah's witnesses are religiously opposed to blood transfusions. Until fairly recently, they did not permit organ transplants. Some even today go so far as to oppose the use of clotting factor for hemophiliacs. The principle you state would give every individual employer the right to design its own insurance coverage without regard to medical needs and medical standards. In certain cases, we don't even allow parents to impose their own beliefs about medical care on their own children. Would you want a hospital to let a child die because his or her parents objected to certain medical procedures like blood transfusions, or (worse) because parents wanted to forego conventional medical treatment for faith healing?

Ann,Remember that organizations who feel they cannot, in good conscience, provide insurance that covers contraception do not have to provide insurance at all.

Grant, without denying the tension between free exercise and the establishment clauses, there is a big difference between this rule and tax-exemption, and it relates more or less to the broadness of the categories. Tax exemption is a broad category and it depends on whether an organization meets a list of factors having to do with mission (not for the profit of individuals), organizational governance, and how one raises funds (e.g., running a food business won't be non-taxable no matter how high a percentage of the profits are provided to charitable endeavors). Some religious organizations (Scientology) have a hard time qualifying, while most don't have a problem. Numerous other types of missions are also accommodated by the broad category called "tax-exempt status." It certain has nothing to do with the sectarian doctrine or beliefs of those claiming the exemption.In the case at hand, there is a general rule (minimum benefits) from which some are seeking an exemption based on explicitly sectarian beliefs. Not only does that mean that these organizations are seeking a preference (which is valuable beyond its conformance to their beliefs and advantages them financially vis a vis other organizations that cannot claim the exemption -- let's say, a non-profit but non-sectarian hospital or educational institution), but the exemption itself is very narrow and based on a sectarian position that is itself held by a narrow range of religious organizations: the notion that contraception is wrong and that covering it through insurance constitutes material non-remote cooperation with the behavior. Is it fair, for instance, to allow Catholic organizations not to fund contraception, when Jehovah's Witnesses have to fund blood transfusions, Scientologists have to meet mental health parity laws, and maybe some other organizations have to fund organ transplants? You underestimate what going down this road means.By the way, Hawaii is somewhat different in that employers are actually forced to provide insurance, a law which has been in place since around the early 70s (predates and is mostly exempt from ERISA preemption for the cognoscenti).

2004 - A California law requiring employers who provide prescription drug coverage to include birth control for women remained intact Monday when the U. S. Supreme Court denied review of Catholic Charities' claim that it shouldn't have to pay for practices it considers sinful.The justices, without comment, turned aside an appeal by Catholic Charities of Sacramento from a decision in March by the California Supreme Court. The state justices ruled that the 4-year-old law was a valid anti-discrimination measure that didn't interfere with religious beliefs or practices.The church-affiliated charity remains "free to express its disapproval of prescription contraceptives and to encourage its employees not to use them" as long as it treats male and female employees equally, the California court said at the time.Monday's decision was the first opportunity for the nation's high court to review any of the laws passed by 21 states that require employers to include contraceptives in health plans that cover prescription drugs. Another challenge is pending in New York state courts.http://articles.sfgate.com/2004-10-05/news/17448219_1_catholic-charities...

David N> --The child's right to life (another theme of the bishops) would trump the parents' right to not buy blood for it. This whole argument is a matter of competing rights and which rights should trump which other rights when circumstances are such that both cannot be honored.'Not buying contraceptives for employees is indeed analogous to not buying blood for one's child. And the solution is the same -- let the government act for the employee and child when the bishops and parents cannot in conscience act for the child.

The U.S. Suprem Court also declined to review a New York law. This is what led to Fordham providing coverage for contraceptives, etc in its health plans (but not providing those services in house - students have to go elsewhere to get them). "Like California, New Yorks Catholic Charities of Albany, et al v. Gregory V. Serio saw ten Catholic and Baptist organizations (including one Baptist church) challenging the states Womens Health and Wellness Act, which mandated insurance coverage for contraceptives in addition to other womens health services. According to the suit filed in 2002, the plaintiffs argued that the restrictive requirement infringed on their religious freedoms as enshrined by both the US Constitution and New York Constitution. In 2003, however, the New York Supreme Court dismissed the complaint, granting summary judgment in the defendants favor and upholding the act as constitutional. The groups then appealed, and in early 2006, a divided appellate division affirmed the original decision. Appealing once more, the New York Court of Appeals affirmed the decision once again later that year, preserving WHWA as constitutional as applied to the plaintiffs. The US Supreme Court decided not to consider the challenge in 2007."http://www.rhrealitycheck.org/blog/2011/09/30/religious-exemptions-contr...

David --True, the employers don't have to supply insurance, and that might be the solution. Or maybe the RCC could self-insure the universities and hospitals, etc. -- and make the policies available to all comers whether employees or not. They could provide health insurance without contraception coverage and make buying into it voluntary. There are enough Catholic institutions of that sort that the insurance company would be very large and thus able to provide insurance at a reasonable rate.I just don't see why this sort of thing should be necessary in the first place, and, worst of all, I think that the government is in this matter depriving the bishops et al of a freedom of religion right. I think both freedom of speech, freedom of religion and the other First Amendment rights need to be preserved scrupulously, guided by the principle "When in doubt, give the benefit of the doubt to the First Amendment".

John H, you are comparing state laws to this new, unconstitutional federal mandate.While neither congress nor the executive have the power to dictate healthcare policy, states certainly do.

Brett, What I was pointing out was that, in both cases, the U. S. Supreme Court refused to hear an appeal of the state Court decisions. That suggests to me that they are not champing at the bit to hear an appeal of a future Federal court decision on the same question. I don't understand your comment that "neither congress nor the executive have the power to dictate healthcare policy." It seems to me that they do that all the time with Medicare, Medicaid, and other programs. The Supreme Court has agreed to rule on some specific parts of the Affordable Care Act (mandate/penalty, Medicaid burden on States) but the issue of whether Congress had a right to pass such a law to begin with isn't on the table - nor is the question of the executive's right to issue regulations needed to implement the law

The question is if congress or the president can force individual mandates on citizens and private insurers, not state legislatures. Do they have the power to force individual citizens to purchase a specific product? Not via the power enumerated in the constitution...the same applies for the "contraception mandate."

It seems ironic that Republicans have become so vocal about the alleged unconstitutionality of mandated health insurance, considering the fact that it was a Republican (Heritage Fdn., Newt Gingrich, Mitt Romney)innovation, and one that Obama himself opposed during the 2008 campaign.But we digress. Hypothetically, it is hard not to agree that Catholic instutitions should be allowed to opt out of federal mandates for anything that in itself violates Catholic moral doctrine, BUT this is a complicated situation. As far as I know, Catholic moral doctrine does NOT object to the use of birth control pills for several common medical conditions (irregular menstrual cycles, endometriosis, cystic acne, etc.) How, then, can bishops object to mandated coverage under these circumstances? Is it therefore prudent to demand any insurance plans NOT cover these medications at all? Won't that automatically amount to discrimination against some women -- including Catholic women -- who suffer from certain medical conditions?

I would add that, given the complexity of the issue, it seems odd that many Catholic bishops, including Cardinal Mahoney, became so accusatory and quick to condemn the President himself for what may have been an oversight of a federal agency. Whatever happened to episcopal diplomacy...and, well, tact?

I suspect we're at the point where Mormons who believed in polygamy once were. The government outlawed it because it wanted to, because it knew the general population wouldn't object. Obama has apparently decided that the general population is behind him on this, that he's free to force the bishops to do what he says. (I imagine his Catholic "experts" must be telling him that they'll cave in - that their protest is just empty bluster.) He doesn't seem to give a damn about any damage that may be done to Catholic institutions. A rigidly progressive position - use the power while you've got it to bulldoze the people standing in the way of progress.

The Hawaii "compromise" is not acceptable under HHS's ruling. It is incorrect to suggest that there is still room left for negotiation and that compliance could happem under that scheme. It is even more incorrect to imply that if victims of this administration don't pursue the Hawaii compromise, they are the ones who haven't done all they can short of "war." HHS has said my way or the highway. There is nothing left open. In addition, forcing a religious organization to tell and facilitate their employees how to get embryo-killing drugs, contraception, and sterilization, is a violation of religious freedom and the freedom of speech as well. "You don't have to kill anyone--just refer people to a specific hitman and make sure they get there." That may be what you consider acceptable cooperation in evil--but it is irrelevant to what other people consider acceptable, Catholics and not Catholics. To make excuses for the federal government forcing people to do this because it's not really that bad in your view is disgusting. Man up and admit you were wrong about Obama and religious freedom.

Brett: This thread was not intended to debate the constitutionality of the ACA. Lots of people believe the commerce clause allows it. We'll see what this Supreme Court thinks soon enough.Barbara: Thanks for laying that out. I'm not familiar with the jurisprudence on such cases, but a more pronounced material benefit to a religious group be required in order to run afoul of the establishment clause? From an actuarial standpoint, it's hard to see how a religious institution would save a substantial amount of money by not providing contraception coverage. In fact, it might even be more expensive not to, given the fact that having babies is more expensive than not.Eric: You still don't need the conscience "hook." It doesn't matter whether the bishops are using it. I see your point about the problems entailed in ascribing a conscience to a group of people. But, as I've already pointed out, you don't need to claim a religious institution has a conscience in order to make the argument that the government is infringing on the organization's religious freedom by forcing it to pay for something it considers immoral on the basis of religious belief.Bonaventure: Thanks for your assertions. Down here in the States, I'm hearing quite the opposite about what's permissible under the law. I've warned you about your attitude before. If you can't make an argument without ascribing ugly motives to your interlocutors, get lost. If you can't do that on your own, I'll help.

To make excuses for the federal government forcing people to do this because its not really that bad in your view is disgusting. Bonaventure,The federal government is not forcing anyone to do anything. It is requiring coverage of contraception in insurance, but it is not requiring any religious organization to provide insurance. It can certainly be argued that it is a serious matter for the government to regulate insurance in such a way that religious groups feel they cannot in good conscience provide it. Still, no one is forcing religious groups to provide insurance that pays for contraception, morning-after pills, or sterilization, because no one is forcing them to provide insurance.

The Washington Post opines:"requiring a religiously affiliated employer to spend its own money in a way that violates its religious principles does not make an adequate accommodation for those deeply held views. Having recognized the principle of a religious exemption, the administration should have expanded it."http://www.washingtonpost.com/opinions/respecting-religious-exemptions/2...

I understand and agree with the USCCB regarding conscience clauses for Obama-care, but I would make a wider argument. Why should any employer religion based or no be forced to provide BC pills or other contraceptives, or pay for abortions for that matter? If we are going that route, why not have the federal government mandate that all employers health plans pay for dental/orthodontic services?Look, as a union-man, I understand workers want decent benefit packages. With this in mind, and in line with the principle of subsidiarity by the way, those benefit packages should be negotiated by the local workers at the local level and not mandated by the federal government.If someone considers contraception and abortion important enough, they will find an employer who pays for them. On the other hand, many working folks do not have benefit packages at all. Why then, should these workers be paying for a federal government that spends time mandating free BC pills for other, better-off workers?

As an experiment, dive a bit deeper into contract/benefits details. Some bosses/owners are situated where all of their workers are men and his wife does the bookwork and tends the office. Why then, would any of this apply until he hired a woman? Insurance companies like to load up plans with bennys and then of course, the union and employer share the cost somehow (90/10, 70/30, or whatever percentage they settle on). Why would he or his workers want to pay for any of this sort of coverage?So if a boss has twenty guys working for him under a contract, why should he be forced to consider any of this? For all the high and mighty blather about BC pills and how important they are (a right to free BC pills?) what if, rather than wading through federal mandates regarding the insurance he provides and pays for, the boss simply decides to drop the coverage altogether? Then his guys have nothing thank you very much.It might surprise some, but that fact of the matter is there are more important things in the work-a-day world than free birth control pills and free IUDs. Follow this arc out to its logical end, and people will want the feds to mandate free condoms and free Viagra! :-)

"So, in the case you mentioned, the Bishops would be protected in a way that the administration of these institutions need not be."Eric, But what about a Catholic University's canonical status?Just for the record: Every Catholic University has both a cononical and civil status. Thus Catholic universities worry about their cononical status as a Catholic institution (as well as their civil status) when ther is a possible danger of losing it. Because the University of Notre Dame is listed in the KENNEDY DIRECTORY (the Bishops' book), it is formally recognized as a Catholic University. Notre Dame's mission statement also alludes to this fact (i.e., its "Catholic" identity) no fewer than 12 times (something all employees are familiar with, directly or indirectly). The university does not want to lose this canonical status.Thus when Fr. Jenkins, president (and a member of the Congregation of Holy Cross), noted that the Obama mandate "would compel Notre Dame to either pay for contraception and sterilization in violation of the church's moral teaching, or to discontinue our employee and student health care plans in violation of the church social teaching," he was intimating that such a violation would jeopardize Notre Dame's canonical status as a Catholic University, something that the Congregation of Holy Cross and the University's Trustees don't want to do.Possibly for you, canonical status is a minor thing. However, for Notre Dame (and other Catholic universities and colleges), losing its official Catholic status would be like a bank, albiet a well known bank, being removed from the Weiss financial rating agency for delinquency and major violations. It would be devastating. Actually, it would be far, for worse, as it would put the university (and the Congregation of Holy Cross) in antagonism with the soul and animating principle of their ecclesial and spiritual identity.

Ken --Thanks for the union view. Nothing like the pragmatic to put things in perspective.

I'm with Sebelius (and Barbara, above,) on this one. If "we don't pay for ___ because we think it's immoral," is allowable on religious freedom grounds, then EVERYBODY'S RELIGIOUS FREEDOM COUNTS, and soon we have a situation in which any number of medial procedures--blood transfusions, psychiatric care, medical care itself--may be denied to employees. Can you really say "if you want coverage for surgery then pay for it yourself, or don't work for a JW?" The alternative would be to say, "well that's silly," of some religiously held convictions, like those of the JW's, Scientologists, Christian Scientists, et al. Do you really want the federal government to be in the position of deciding which religiously held positions are theologically reasonable? And if the feds do that, then surely we cannot expect the magisterial aversion to birth control to meet that standard, since the overwhelming majority even of Catholics do not find the magisterial position compelling. So let's use public reason: there are clear public health benefits for providing contraceptive coverage. There are even demonstrable cost savings, as noted above. A tiny minority of Americans find contraception to be objectionable, a stance not amenable to public reason. Federal standards of health care coverage should reflect public reason, not the views of the tiny minority. (That way lies chaos-shall we not fluoridate public water supplies because of the unsubstantiated views of a tiny minority?)Catholic tradition ITSELF affirms that standards for civil law are different from the requisites of natural law. Civil law is about the common good--not about enforcing Catholic sexual ethics in all its detail.And if indeed the tiny minority are correct on this one, (or correct on fluoridation, for that matter,) the ball's in their court to make a compelling argument based on the common good (not a sectarian reading of natural law,) that will convince other people of good will.

@ Ken: sure, it's easy to say "then don't work for Catholics," or JWs, or any religious group, if you want adequate health coverage. But in this economy, walking away from a job is a very risky thing to do, especially if you have a family. Lots of folks will take any decent job they can get in order to put food on the table. Do you want the comprehensiveness of those people's medical care to hinge on the particular religious beliefs of their employers? Or should we establish a broad baseline reflecting good medical practice and the enhancement of public health, and let employees decide for themselves whether they will make use of a given medical benefit. Otherwise, the most vulnerable are the folks who don't have the money in the bank to walk away from a job.

Oh spare us the sob story Lisa; we all know times are tough and this issue is not that complicated. Besides, while people do change jobs for various reasons, few would as you say "walk away from a job", in this economy, all because the boss won't pay for birth control pills.Bear in mind you are talking about something you want your boss to give you for free. You want the federal government in Washington DC to tell your boss to give you something you want, again, for free.Nobody is saying you cannot have PC pills or other types of contraceptives. Some are simply trying to point out that the federal government should not operate like that at the local level, forcing bosses to buy BC pills for you. Times are tough after all, and in any case, what makes you think someone else should give you something like this for free?As such, it is a matter of personal priorities. Working people are adults; we do have brains and self-control. If someone thinks free contraceptives as part of a job benefits package is important enough, they will find job where the employer pays for that. If they still need the job, but the boss wont pay for birth control pills, then they can buy the pills themselves or do without them.

@ Ken, If religious liberty applies to MY religion, then in a pluralist democracy, it applies to ALL. As I said in the earlier post. EVERYBODY'S RELIGIOUS LIBERTY COUNTS. So sure, contraception isn't going to break the bank. But do working folks deserve to have their health care be construed by the vagaries of their bosses' religions? Surgery. Blood transfusions. Medical care at all. Psychiatic care. Still a "sob story"? This is a question of public policy, and the reach of the kind of argument that the bishops want Obama to make.

"Do you really want the federal government to be in the position of deciding which religiously held positions are theologically reasonable?"Lisa --Didn't the recent SCOTUS decision about the disabled worker explicitly say that it is up to the religion itself to say what its religious beliefs are? In other words, if Scientologists reject psychiatry on religious grounds, then whether or not that is a *reasonable* belief is irrelevant. This business of religious freedom has some weird legal ramifications, I grant you. But either we grant that one has a fundamental *right* to weird religious beliefs or everyone's religious beliefs go out the window. If my religion tells me to wear tiny little shoes on my ears, then I have an almost sacred American right to do so. The legal problems arise when there are conflicts of religious rights and other rights legally and how to prioritize those rights.

The logic of Lisa Fullam's argument, as with Eric Bugyis' substantially similar argument, requires Catholic employers to pay for their employees' abortions. Not coincidentally, it should be noted that President Obama, who wants to coerce Catholic employers to pay for their employees' contraception and sterlization, marked the 39th anniversary of Roe v Wade by issuing a statement praising that evil decision and vowing to defend it.

Lisa; You make me smile if only more bosses paid heed to what their pastors say on Sundays! I will admit that while religion is not foremost in most bosses minds, it naturally affects their decisions. In reality, they (again naturally) tend to focus more on the money end of things and yes, of course the benefits packages they offer will be affected by the vagaries of their bosses religions. The salary and working conditions they provide are also affected by the business owners world view.My point is that the details of a benefits package offered by a boss in a small South Dakota city for example, will naturally be different than one offered by a boss in Hollywood, or than that offered by an international conglomerate with an office in New York City, and that this is Ok, this is natural. If a group of employees in California can convince their boss that he or she should pay for contraceptives, fine. If on the other hand, a similar group of workers in South Dakota either does not care that much about it or cannot convince their boss to provide contraceptives, then that is their business. In neither case is it the business of the federal government. I once worked for a company that was purchased by an international conglomerate that was based in Paris. Accordingly, we were all informed that while the company did not like unions, they also explained how with certain practical adjustments, our contracts/benefits packages would be based on the arrangements that prevailed in France. It was not a bad deal I must admit.Because subsidiarity is so important, these sorts of things should be settled locally, certainly within the pertinent sector of the economy. If people find they cannot resolve it locally, the next step should be at county or state level. The federal government should be the last resort. People who work for a company in Alabama know what they want from their boss, and they should be allowed to convince him to provide it. The federal government should not nose into local affairs/details like this. If we continue down this road, the federal government will be nosing into all sorts of things that in fact are local issues. Once that happens, it is just a matter of who pulls the strings on the federal level and in that case, crony capitalists usually win out over working people. Politicians might be for sale, but they are not that cheap. Just look at how nicely GE is making out because of the influence it has purchased under this administration; in their defense, they are not the only ones playing that game nowadays.The crony capitalism and influence buying we have long had in the military sector is bad enough; we certainly do not want to allow that to seep through the entire federal government and out into society. That is something we should try to limit rather than allow to metastasize.

"Just look at how nicely GE is making out because of the influence it has purchased under this administration; in their defense, they are not the only ones playing that game nowadays."Congress is not "under" this administration.

"The question is if congress or the president can force individual mandates on citizens and private insurers, not state legislatures."Brett -- Is it your intention here to raise a constitutional issue as basic as, say, Marbury? Are you seriously asking whether or not Congress (and by extention the President as executive) can tell us what to do only in certain areas specified in the constitution? If so what are those areas, and where in the Constitution does it say that Congress can't mandate any other sorts of laws?

Ken,Many of those men probably have wives, which would make them likely to be interested in birth control coverage.

"So lets use public reason: there are clear public health benefits for providing contraceptive coverage."Yes, it rids us of the scourge of children."Federal standards of health care coverage should reflect public reason, not the views of the tiny minority."These regulations have nothing to do with public health. Contraception is almost never medically necessary. It is already widely available. Many women who want it can afford it without a subsidy. For those who want it and can't afford to pay list price, it is already available at reduced or no charge.These regulations solve a public health problem that doesn't exist. Their purpose is political - to reward Democratic interest groups: women's groups, Planned Parenthood, Big Pharma. This is the Democratic Party at work.These regulations are profoundly anti-Catholic. The Catholic Church teaches that sexual intimacy should exist in, and only in, marriage, which is between a man and a woman, is faithful, and is for life. It also correctly teaches that each and every sexual encounter within marriage must be ordered toward procreation. Millions of women fulfill this ideal over the course of an adult lifetime. Those who cannot or choose not to are called to continence. Millions of women fulfill this ideal, too.Couples who use contraception within marriage are committing a sin. Even a single use is sinful. A persistent use of contraception within marriage can have the effect of separating the couple from God, a fate which may be nearly as bad as pregnancy or motherhood. Sexual intimacy is always sinful for those who are unmarried. To the extent that contraception enables an unmarried couple's willingness to engage in non-marital sex, the contraception is also sinful.I know of two situations where the use of contraception isn't sinful prima facie. One is as part of post-rape treatment. The other is within marriage, when one of the partners is afflicted with a serious sexually transmitted disease. The former almost certainly isn't sinful. The latter is not a clear cut case. But both cases together account for a very tiny percentage of overall contraceptive use.In short, there is no generally applicable situation in marriage or outside of marriage when contraception is morally permissible. To require employers to subsidize contraception is to require them to cooperate in sinful activity. The degree of proximity or remoteness is an interesting question. But neither proximate nor remote cooperation with a sin should be chosen if both can be avoided. The church certainly is right to want its institutions to avoid both possibilities.

Philosopher Charles Taylor strongly rejects the bizarre and, in his words, tyrannical demand that public reason should monopolize civil discourse. It is of course true that often religious views will not win approval in a diverse society.But exactly the same is true of any plausible alternative, Rawls and Habermas, the two leading proponents of public reason, notwithstanding. The "two most widespread this-worldly philosophies in our contemporary world, utilitarianism and Kantianism, in their different versions, all have points at which they fail to convince honest and unconfused people..."So why handicap religious views on principle and not the many less-than-convincing secular offerings?http://blogs.ssrc.org/tif/2008/04/24/secularism-and-critique/

Jim: Thanks but no thanks for your little moral lesson. If you're really unable to come up with another scenario in which contraception would be licit, then you need to think harder. Try reading Paul Baumann's piece in our collection of short essays on church teaching on sex. Or try listening to women who almost die in child birth more than once. Or women who are suicidal and require a birth-defect-causing antidepressant to keep razor blades at bay.You're also not reasoning clearly when you call the HHS ruling "profoundly anti-Catholic." In fact, the coalition that opposes the decision includes people from several religious groups. The bishops are the loudest, but that doesn't make them the only interested party. What if HHS believes it is a public good to provide free preventive services like contraception? What if HHS leadership was persuaded that when half of the abortions in this country end unintended pregnancies, one way to reduce the total number of abortions was to make it easier to avoid such pregnancies (not to mention other outcomes improved by reducing the number of unplanned pregnancies). Of course, that sort of reasoning is not Catholic, but it's not anti-Catholic either -- not any more than civil laws permitting divorce are anti-Catholic. You write, "To require employers to subsidize contraception is to require them to cooperate in sinful activity. The degree of proximity or remoteness is an interesting question. But neither proximate nor remote cooperation with a sin should be chosen if both can be avoided." The degree of remoteness is not just an interesting question. When it comes to Catholic moral thought, it is the only one that matters. Because there is no such thing as avoiding sinful entanglement entirely. As I and others have argued, HHS should have expended the exemption because it should not force a religious institution to act against its religious beliefs. But those institutions lost the argument. And now they have to figure out how to go on functioning. Catholic groups are well within the limits of the tradition's moral reasoning to comply with the law, especially if they can work something out along the lines of the Hawaii compromise.

Per Cupcake; Many of those men probably have wives, which would make them likely to be interested in birth control coverage.Please, you have no way of knowing that. Sure they probably have wives, but what makes you think you just know the majority of them would be interested enough in BC pills to press their boss to pay for them? And what makes you think it is any of your concern in the first place? Bear in mind that when negotiating for benefits, while everyone likes to say the boss pays for it or its free, the fact of the matter is the boss has a certain amount of money he will put toward wages and benefits. When negotiating then, one must decide whether more of that pie will go (for that year anyway) toward raises for the workers, or toward benefits. If the majority of a group of workers want dental insurance (for example), they would first verify that they agree amongst themselves on that point, and then they press the boss for dental coverage in lieu of all or part of what otherwise would have been their pay raise for that year. In the example I cited, the point is not whether or not the men are interested in including BC pills in their benefits package; they may well be. My point was that the decision is theirs to make, not yours and not mine. It certainly is no business of a federal bureaucrats located a thousand miles away in Washington DC.I do not mean to sound harsh, but it is important to keep in mind, especially in discussions about this sort of thing (benefits packages and wages), that there is a big difference between logic and emoting. In dealing with money, wages, and benefit packages, logic works best and emoting usually is not helpful at all.As for public reason (Lisa), it is probably best to ask some older Germans, older Russians, or older Cambodians how that worked for them. We American arent perfect either; we need only look at Roe v Wade to see where public reason has taken us.

Cupcake - What if those men in the example understood that their wives wanted to use BC pills, but felt that overall, on balance, they were better off not including that in their work/benefits package and that they would just pay for them individually? Would that be OK? In any case, why would you think that you or I or anyone else outside that group should have a say in the matter?

Patrick, I think Charles Taylor is wrong to put "religious views" on the same footing with Rawls, Habermas, Kant, etc, and there are good theological reasons for insisting on a categorical difference here. "Religious views" entail some reference to specialrevelation and some tradition method for the cultivation of the virtues for its reception. It relies on a particular metaphysical picture of the world for its authority. At the most basic level, for Christianity, it involves some relevant and constitutive reference to God. Otherwise, if belief in God is not involved, the view is not "religious," at least if we're talking about Christianity. If I happen not to believe in God, I can't accept a basic premise of one's religious view and therefore will not be able to follow the argument. I will be excluded for the conversation because I don't recognize its fundamental premise. For someone like Kant, God simply isn't relevant to most public uses of reason. It's not even that one must assume God doesn't exist. It's simply that the question never arises. So, the "religious view" brings with it and extra, fundamental, and controversial premise that is not necessary for rational deliberation in most cases. If religious people want to insert themselves into public debates "religiously," then they will need to establish their first premise, e.g. "God exists," and go from there. For a Christin perspective, this is known as "evangelization." If you're not expecting people to consider religious premises, then the view you are defending is not religious, and we're back to Kant, Mill, and the public debate that continues about human ethics. Now, you may think there's no stable ethical system that does not include God, but that itself is a claim that must be defended aginst the nonbeliever or, in my case, believer who thinks that you can make stable ethical claims without reference to God. Interestingly enough, the Bishops are actually asking to be exempt from the public conversation. Since they were not able to convince people that the teaching of the Church was relevant to the healthcare debate, they now want to claim the priviledge to opt out of the results of that debate. So, they are being sore losers. You can't have it both ways: want to be heard in public and then be exempt from the results of that hearing.

Eric, should Marxists, utilitarians, libertarians, feminism, environmentalists et al., be excluded from public debate on the same grounds you want to exclude the religious views of Christians --"It relies on a particular metaphysical picture of the world for its authority." Forgive me, but I seriously doubt that you've found a secular system that doesn't rely on a particular metaphysics.In your utopia cost/benefit analyses would be welcomed but any mention of man created in the image of God would be avoided as not "publicly rational." Your utopia would silence a huge portion of the American electorate or force them to translate their concerns into Rawls/Habermas vocabulary, as certified by their local philosophy and theology faculties. Your utopia more closely resembles Sparta rather than Athens or Jerusalem. Again, as Taylor argues, it's tyrannical to those of us you consider insufficiently rational. You have a monumental task in front of you but I can't wish you good luck in explaining Habermas to the masses.

Patrick, there is a difference between excluding religious reasoning from the public square and disagreeing with its logic for purposes of public decision making. In this case, there is clearly an effort to respond to and accommodate religious organizations. That the compromise did not go further is not a rejection of the right of religion to join the conversation. You are also avoiding the central theme of Eric's point: if your reasoning arises out of a religious principle, or at least if the religion is Christianity, Judaism or Islam, your principles flow from divine revelation. Say what you want about Marx, he isn't asking you to believe him because God whispered the truth in his ear. I don't really think the difference is all that great, because most people are going to judge reasoning baased on whether it makes sense to them, whatever its source, but it does mean that someone who starts by saying, "God tells us . . ." is facing an uphill climb at persuading those whose underlying beliefs are different.

I don't need to explain Habermas. If you want to begin your discussion of healthcare with the claim that humans are created in the image of God, then you will need to establish that claim and its relevance to the discussion. In the same way, a certain kind of feminist might need to establish the truth and relevance of the claim that the rights of women deserve preferential treatment over those of men. These are not mutually exclusive thought systems deserving of equal consideration. Everyone's foundational premises must be proved and shown to be relevant. In this sense, we might say "religious views" are like any other, but once it has been decided that belief in God is not relevant to the issue at hand, we must move on to the other relevant considerations. If you would like to convert everyone to Christianity before we decide on healthcare minimums, you are more than welcome to preach it in the public sphere. But, you cannot expect you're religiously-informed opinions to receive public assent without establishing their fundamental premises.

Barbara and Eric; People can no more leave their convictions, their consciences, their world-view at home when they enter the public square than they can leave their notions of mathematics there.As for accepting things without strict proofs; since Jews, Christians, Muslims and Buddhists make up the majority of mankind, it is only natural that their world-views and assumptions are likely be accepted without taking time for a formal proof before each discussion than humanists or atheists views are.Marxist and fascist notions of utopia have both proven to be not only evil, but also disastrous; secularists and atheists have the burden of proof, not the rest of the world.

And Eric, it is only because man is created in the image of God, because He told us to love our neighbor as ourselves, that we are even discussing healthcare, how we can best take care of each other; how we can best tend to the common good.

Barbara, I think were in at least partial agreement since you seem to admit that religious discourse is not illegitimate in civil discourse. It may not be the prudent thing to do in certain circumstances or there may be other ways of arguing that are more persuasive to larger segments of the population. But it should not be ruled out in principle as the public reason advocates do. For myself, I tend to think that a lot of secular arguments fail even by their own standards and can be satisfactorily answered without resorting to fideist assumptions. But I would not rule out the arguments of a Martin Luther King or a Reinhold Niebuhr simply because they havent firmly established to the satisfaction of Eric Bugyis and other public reasoners the cogency of their first principles.In my view Marxist are equally free to make their arguments. Along with many others I happen not to be persuaded that history is dominated by class struggle or that the labor theory of value is valid. I think it imprudent of Marxists to advance those arguments but I would not claim that they should be silent until they have persuaded the nation that these are incontestabe premises from which political decisions should flow. To coin a phrase, I am laissez faire in regard to Marxists. Why cannot public reasoners grant the same leeway to those who derive their first principles from religious sources, whether its the Bible, some personal revelation, or an obscure passage in the Summa Theologica?As long as we have the first amendment much of this discussion is academic and people can argue however they want to. But its odd to find academics so little concerned about excluding religiously motivated citizens from expressing their most important beliefs in public while giving free rein to a multitude of bizarre theories. Odd, but not surprising.Eric, Of course I dont expect religious leaders to gain immediate assent to their premises, just as I dont expect the same of Marxists or utilitarians. Thats an impossible, utopian standard that no world view can ever meet. Yet those holding a variety of world views, religious and non-religious alike, have a perfect right to speak in public using whatever language they choose. if you are still maintainig the public reason argument that Taylor opposes, that as a matter of principle everyone [should] deliberate in a language of reason alone, leaving their religious views in the vestibule of the public sphere (cf. the Taylor link above) then you will have to use the arguments of someone like Habermas or Rawls (Damon Linker I suppose is another who makes this argument).Do you really want to exclude any future Reinhold Niebuhr, John Courtney Murray, Martin Luther King, Abraham Heschel, or indeed, Charles Taylor from public debate or are you merely giving them advice about the most effective rhetoric among the highly educated? Do you want to censor Commonweal when it makes arguments based on religious premises?

Ken,Focusing on the individual company and its employees is the wrong scale. The goal of the Affordable Care Act (ACA) was to ensure that every American has health insurance both for their well being and to ensure that when catastrophe strikes an individual, those who treat them will be compensated. Part of making sure everyone has health insurance is defining a minimum of what counts as health insurance. A policy with a $5000 deductible and a $1000 maximum lifetime payout that covers only shark attacks is only marginally better than no coverage. The ACA mandates that the Department of Health and Human Services (HHS) come up with a minimum standard for what health insurance plans cover with a stipulation that all plans must cover preventative care with no copay. This is where the birth control coverage comes in.Personally, I would prefer just extending the Medicare system to the entire population. Health care tends to too many market failures for a private market to ever function well. My second choice would be for everyone to move from employer provided insurance to the individual insurance exchanges. It is ridiculous that our employers choose our health insurance plans for us and that health insurance is dependent on employment for most of us. Either of these options would avoid the problem here where employees and employers have conflicting moral beliefs.

Ken, Mathematics is available to everyone and doesn't involve any claims to special revelation. Why wouldn't the burden of proof be on everyone to provide an account of the truth and relevance of their foundational principles? Believers need to show that God both exists and is relevant to making decisions about healthcare, and evangelical atheists would have to show that the non-extistence of God is both true and relevant. For my part, I would say that, while God exists, recognition of that fact is not essential for making decisions with regard to healthcare minimums. Lastly, I have a little more faith in humanity. I think we are actually concerned about one another's flourishing because we actually care about our fellow human beings and because there is a basic human solidarity that is not just based on an awareness that God made us and told us to be nice to each other, even if God did and we should.

Grant, I will admit that you've fully doubled, to four, the number of highly unusual scenarios in which the use of contraception is not prima facie sinful. A thing, like an unjust regulation, can be anti-Catholic and gore other oxen, too. But given the prominent objections raised, not only by Catholic bishops but also by the Catholic Health Association and various Catholic universities, it would be difficult for HHS to maintain (even if its Secretary weren't Catholic) that it wasn't aware that its new regulation would violate the religious freedom of Catholic institutions. HHS is certainly free to believe whatever it wishes about what is good for women, but its actual policies should be in the American tradition of a generous respect for the free exercise of religion.There may be situations in which impinging on religious freedom is the lesser evil. Blood transfusions may violate a tenet of Jehovah's Witnesses, but the death of a patient would be even worse. But I can't think of any such situation in the US in which the word "contraception" would appear. The convenience of filling contraception prescriptions at a local pharmacy shouldn't override the pharmacist's objection to contraception; contraception is easily obtained elsewhere, so the patient must live with the minor inconvenience of driving a little farther or ordering over the Internet. And there is no marginal social gain that justifies the diminishment of religious freedom when religious exceptions to forced contraception subsidies are so narrow as to be almost meaningless.HHS has issued a regulation that is sharply divergent from American tradition and values. I'd think that an American citizen wouldn't need to accept church teaching on contraception to be extremely concerned about this development.

I think the main problem is that Secretary Sibelius is mad because the hierarchy won't let her be a bishop like them so she could boss people around on Sundays as well as on week-days :-)

Patrick, I am not advocating that we censor anyone. You can say anthing you want in public, using any language, with reference to any picture of the world no matter how grounded in reality. The public sphere is the cacophony of the marketplace of ideas. I am making a philosophical point of sorts about the "religiousness" of an idea. I think that what someone like Habermas is concerned with are those who might claim, "We should do 'x,' and my reason for saying we should do 'x' is that the Bible says so and is the inspired Word of the creator." What should not be allowed is the expectation that people will follow your recommendation of doing 'x' without a prior assent to its religious reasons. If that religious "reason" is indeed the necessary condition for establishing the validity of doing 'x,' then you will have to convince people of that reason in order to get them to assent to 'x.' If the religious "reason" is not necessary for establishing the validity of 'x,' then 'x' can be established without reference to any religious premises. But, in that case 'x' is no longer a religious matter, and one can expect assent from believers and non-believers alike. But if 'x' really is a "religious view," then it will not be accepted until everyone accepts the religious premise on which it is grounded.So, it is strange to me that one would say "religious views" should be heeded just like "secular" ones, because the point is either completely trivial, i.e. we should listen to everyone's reasons for coming to conclusion 'x,' or it is an attempt to bully people into allowing the believer certain foundational premises without having to argue for them. For example, I imagine (and have participated in) conversations that go something like this:"I think we should do 'x.'""Okay, why is that?""Because as a Christian I believe that we were created in the image of God.""Ok, so how is it that you have come to the conclusion that we were created in the image of God?""The Bible, which is the Word of God, tells us in Genesis that 'In his image he created them.'""How do you know that the Bible is the Word of God?""Well, I told you that I'm a Christian and that's what I believe.""Ok, well, I don't believe that. So, I don't think we should do 'x.'""But, you don't understand, I'm a Christian and I KNOW that this is what God would want us to do.""How do you know God exists, and how would you know His will if he did?""(insert your favorite argument for the existence of God and special revelation)""I'm not sure I accept (...), because (insert your favorite refutation of the existence of God and special revelation.)"...the debate continues for a while..."Ok, so what do you think about us doing 'x'?""Yeah, I don't think we should do it, because I don't accept these "religious" reasons.""Well, I don't accept your atheist reasons!""You're the one who brought it up! I don't have any atheist reasons, I'm just saying that you haven't established the existence of God, which you said was essential for proving that we should do 'x.' So, since I don't believe in God, I don't think we should do 'x'.""So, just because you don't believe in God, you don't agree with me?" "Yes.""Why are you prejudiced against Christians!""I'm not. I just think they're wrong.""How do you know that?""I think we've already covered it. But, if we must (go back to the beginning of the conversation and repeat as needed until you get the Christian to believe that you actually disagree with him because he's wrong)."Now imagine if every policy discussion went this way...

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