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A Thought Experiment (Updated)

Consider the following story:

Suppose there is a law requiring every father to purchase a car for each of his daughters or pay a hefty fine, and Smith and Jones set out to meet this obligation. Smith wants to buy his daughter a car with a turbocharged engine, and when he goes to the auto dealer he is told that such a car will cost $20,000, which he gladly pays. Jones, on the other hand, thinks turbocharged engines are dangerous, and would rather not buy his daughter a car with one. But the dealer informs him that another law requires that all new cars sold in the region come with turbocharged engines; there is no way to purchase a car without one. The salesman offers Jones a deal, though: he'll remove the $1,000 cost of the turbocharging from what Jones has to pay for the car, and remove any mention of it from the information included with the car when it's purchased. However, the manufacturer will send Jones's daughter a letter informing her that her car is turbocharged, and letting her know what this means and how it works.

And now answer the following question:

Is Jones required by law to purchase his daughter a turbocharged car?

Speaking for myself, it seems clear that the answer is "Yes": the fact (if it is a fact) that Jones wouldn't be paying for the turbocharging doesn't mean that he wouldn't be buying his daughter a car that has it, and so the only differences between Jones and Smith lie in what they want and what they pay, while what they have to buy (and so pay for) is in the relevant respect exactly the same. That the opportunity to buy a non-turbocharged car has been taken away from Jones is simply unaffected by the fact that the turbocharging is being given to him for free.In light of this, and bearing in mind the necessarily imperfect character of analogies and the well-documented difficulty of eliciting non-biased responses to cases like the above, consider the following policy:

... women will have free preventive care that includes contraceptive services no matter where she works [sic]. The policy also ensures that if a woman works for areligious employer with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide, payfor or refer forcontraception coverage, but her insurance company will be required to directlyoffer her contraceptive care free of charge.

More specifically:

The new regulation will require insurance companies to cover contraception if the religious organization chooses not to. Under the policy:oReligious organizations will not have to provide contraceptive coverage or refer their employees to organizations that provide contraception.oReligious organizations will not be required to subsidize the cost of contraception.oContraception coverage will be offered to women by their employers insurance companies directly, with no role for religious employers who oppose contraception.oInsurance companies will be required to provide contraception coverage to these women free of charge.o The new policy does not affect existing state requirements concerning contraception coverage.

Aside from the non-religious character of Jones's objection to turbocharging, in what relevant respects does the policy just described fail to be analogous to the one we imagined? (Again speaking for myself, the answer is "None".) And if they are analogous, then how is it that in being required to pay for a health insurance policy in which coverage for contraceptives has been included for free, a religious employer "will not have to provide contraception coverage", that they have "no role" in making such coverage available to their employees?UPDATE: The bishops seem to share my concern, writing in their analysis of the proposed policy that "in the case where the employee and insurer agree to add the objectionable coverage, that coverage is still provided as a part of the objecting employer's plan, financed in the same way as the rest of the coverage offered by the objecting employer. This, too, raises serious moral concerns."


Commenting Guidelines

Jimmy Mac,The problem with the polygamy and peyote examples is that those cases involved already existing law criminalizing an activity. For the current HHS proposal to be a parallel case under those legal principles, we'd have effectively treat it as obviously criminal to have an insurance policy that doesn't cover sterilization, contraception, etc. Even if the government wanted to go there, wouldn't they have to use the regular legislative process, rather than the regulatory process? And in fact the administration doesn't take the position that not-providing-contraception is parallel to polygamy or using peyote -- there *is* a religious freedom exemption for Churches. The fact of that exemption seems to undermine the rationale for the ruling that all other policies must cover sterilization and contraception.

David: I don't want to get into a spat here, so let me just apologize for my terse reply.Grant: The "mutually conflicting accounts" are (1) the one posted in the WH press release, and quoted in my post and in one of the comments just above, which implies that contraceptive coverage will be a ("free") add-on to employer-sponsored policies, and (2) the line you were evidently given by administrative officials, which implies that adding contraceptive coverage will involve an additional policy over and above the one paid for by employers. I think this distinction is meaningful, which is why I walked back my argument somewhat in the comments. But I'm advising that we withhold judgment on which interpretation is the accurate one until we see the actual text of the law. "Sources in the administration told me it is this way" isn't good enough for me, no matter the administration, especially when the official release has such a different implication.

Grant, here is a crucial paragraph from a document signed by several bishops and posted at Whispers in the Loggia:

Non-exempt religious organizations that object to these services may offer a health plan without them that is, they do not list the services in their plan and they do not pay directly for them. But the insurance issuer selling this plan must offer to add these services for each of the organizations employees free of charge (that is, no additional premium and no co-pay or out-of-pocket expenses). We are told that this is not to be seen as a rider rather, these items will simply be covered, but without the employer endorsing or directly providing them. [My emphasis - JS] However, it remains unclear as to how insurers will be compensated for the cost of these items, with some commentators suggesting that such compensation will ultimately be derived from the premiums paid by the religious employer. This lack of clarity is a grave concern.

Does this not demonstrate that there are conflicting interpretations of the policy being floated?

John: All we have right now are reports from the administration (as covered by reporters for many media outlets). I won't try to convince you of their accuracy. Just know that I'm not the only one who was told. We also have reports that Sr. Keehan, who was consulted on the revision, approves of the new mandate. As do NETWORK and Catholic Charities USA. I supposed I'm inclined to provisionally take the word of people who were involved in the crafting of the policy over those who were not. We'll see.

Since contraception is an absolute non-negotiable for zealots like Cardinal Wuerl, no compromise can be acceptable. No government policy that obliges anyone anywhere to collude in the evil of contraception -- for instance, by insuring for its expense -- can be tolerated. Would you expect bishops to tolerate a government that obliged insurance for the expenses of poisoners or torturers or pimps or drug peddlers? Of course not. A government that made the subsidizing of evil obligatory would itself be evil. Evil is evil is evil. In the eyes of the bishops sterilization and contraception are evil, so the least compromise they accept would make them evil themselves.

I can tell the men who wrote and the anxiety they have about controlling the women sexy parts. That individual women apparently cannot be trusted to exercise their individual conscience about the use contraception and the control the number of children they bring into the world short of abstinence, whether inside or outside of marriage and that unintended and unwanted pregnancies need to be their just punishment. For men, not so much, since they continue to be free to walk away.As of Humanae Vitae, it still seems a particularly odious encyclical, and I judge not only from its departure from Thomist doctrine, but also from its fruit, the grinding poverty and immiseration, occasionally rising to furious slaughters over resources, where the Church, or its like minded Muslim clerics, have succeeded in denying women access to contraception and education. This is evident from Nigeria to the African Lake District to Pakistan to the Philippines. Finally, speaking of encyclicals, it is interesting that the Church is now seeing the virtue of religious freedom since Canon law and past encyclicals still in effect have found it as great an evil as contraception to allow heretics free to lead souls to perdition....In 1864, Pope Pius IX "infallibly" declared that the idea that people have a right to freedom of conscience and freedom of worship is "insanity," "evil," "depraved," and "reprobate". He also declared that non-Catholics who live in Catholic countries should not be allowed to publicly practice their religion. In 1888, Pope Leo XIII "infallibly" declared that freedom of thought and freedom of worship are wrong. These encyclicals are available on-line. [Note 4 gives addresses for them.] See

"As of Humanae Vitae, it still seems a particularly odious encyclical, and I judge not only from its departure from Thomist doctrine, but also from its fruit, the grinding poverty and immiseration, occasionally rising to furious slaughters over resources, where the Church, or its like minded Muslim clerics, have succeeded in denying women access to contraception and education. This is evident from Nigeria to the African Lake District to Pakistan to the Philippines. "I agree.