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What Should a Catholic Justice Do?: A Hypothetical Question

In one of my previous posts, I said the following about how the courts ought to treat the religious liberty claim: The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: The mandate interferes with religious libertyand it doesnt serve a compelling state interest because it harms women and children, so it should be struck down. Thats a no-go. The church cant put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law.This statement generated a bit of discussion: My colleague Richard Garnett pointed out, quite rightly, that the Court doesnt simply adopt the governments assertion of the importance of its interest hook, line, and sinker. It evaluates the governments interestsometimes it agrees with the governments assessment, sometimes it doesnt. My purpose in writing this sentence was simply to point out that the court doesnt uncritically adopt the religious liberty claimants characterization of the governments interest, either. To take a crude example, the Supreme Court is not likely to say Okay, the religious pacifist before us says that 1) killing is a deep violation of his conscientious religious beliefs and 2) all warfare is bad for the U.S., because waging war is always wrongno compelling interest on the part of the government. That would be, in my terms, for the religious pacifist to put both thumbs on the scales.So how should a court to go about evaluating the religious liberty claim, on the one hand, and the governmental claim, on the other? Many religious liberty litigators say that the court has to accept the claimants account of a) the nature and b) the seriousness of their violation of religious libertyno judicial evaluation required or allowed. I am not sure this is the right approach, at least with respect to RFRA, which says that the government may not substantially burden a persons exercise of religion. Its tricky, though. On the one hand, I dont want to read the word entirely out of the statute. Nor do I think that its necessarily a good thing for religions to imply that they cant give an account of whether a burden is substantial or non-substantialit suggests that religiously infused moral beliefs arent susceptible to being given rational accounts. Nor do I think that this pure deference approach actually accounts for the case law. (I suspect for instance, that one of the reasons that Catholic conscientious objectors in war time had such a hard time is that the courts assessed, tacitly, their stands against the general non-pacifist position of Catholic teaching and raised an eyebrow about the religious claims). On the other hand, there are very good Establishment Clause reasons for a court not to get into the weeds of religious teaching.What about the government interest side of things? Well, the government has to present its case: In the case of the contraceptive mandate, this would include 1) the studies about preventive health care services in general; 2) the studies that show that women are more likely to be disadvantaged than men by the lack of first-dollar preventive care coverage; and 3) the Institute of Medicine study about preventive services for women. (Remember, that the government is claiming that first-dollar coverage is necessary, so that arguments about contraception being easily available at Walmart for a cheap price dont quite engage the question on the table.)So lets put a hypothetical question on the table. Say that weve a Catholic Supreme Court justice: Lets call her Associate Justice Antonia Clarentia Ligouri. Lets assume here that she takes the bishops claim that the mandate is a substantial interference with religious liberty at face value. How should she go about evaluating the weight of the governments interest in providing first-dollar contraceptive coverage, on the other side of the scale? Does it matter whether she is convinced by the arguments that contraception is intrinsically evil, or accepts its evilness on the authority of the Church (a privileged interpreter of natural law)? Does it matter whether shes convinced by the account of the way contraception will harm the common good in Humanae Vitae, or accepts it as an obedient daughter of the Church. How should she go about evaluating the IoM study, and the material on preventive care? Would the health risks to children who result from unplanned pregnancies matter? Should she simply substitute the Churchs judgment about the social benefits of contraception for that of the IoM? What weight, if any, does she give to the fact that the court has held contraception to be constitutionally protected as part of the right to privacy (Griswold v. Connecticut, Eisenstadt v. Baird)? What weight, if any, does she give to the fact that the EEOC has long held that failure to cover contraception as part of a prescription program counts as discrimination against women? What weight, if any, does she give the fact that the vast majority of religious traditions in this country do not consider contraception always wrong?What would you do if you were Justice Ligouri?

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.



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I wouldnt be so quick to dismiss the 'easily available at Walmart' argument because the government's required 'compelling justification' would seem to necessitate more than $10 a month expense. And its similar to the cost of condoms which women are free to purchase for their partners so the sexual equality argument is weak. IMHO free vs $10/month could not be compelling for anyone in the US.

She should recuse herself. She is a woman and has a vested interest in the outcome.After all, that is the line of argument that the Prop 8 supporters used to claim that Judge Vaughn Walker should recuse himself from ruling on certain aspects of the challenge to Prop 8.Tongue in cheek, folks; tongue in cheek.

If i were Justice Ligouri, i would ignore most of those issues. I don't see that RFRA requires a balancing of the extent of the burden against he importance of the government's interest. It doesn't say "the more substantial the infringement of relgiious liberty, the more compelling he government interest must be."Absent obvious frivolousness, I would accept the filing of the complaint as sufficient evidence that an infringement of religious liberty will occur. I don't see that he Court can quantify the seriousness of that infringement without getting deep into the weeds internal to the religion (e. g. does the mandate require formal cooperation or remote material cooperation - and what do those terms mean?) The initial question is whether a compelling government interest exists. If the government has consulted experts and followed their recommendations, I don't see the Court substituting its judgement for that of the experts and the responsible administrators. If the Court determines that a compelling government interest exists, the burden would shift to the plaintiff to demonstrate that there is another workable method of fulfilling the government interest that would be less restrictive on the plaintiff

IMHO free vs $10/month could not be compelling for anyone in the US.Bruce, You are assuming that cheap generic oral contraceptives are the safest and most effective method of contraception for all women, which is simply not true. Note the following:

Free birth control led to dramatically lower rates of abortions and teen births, a large study concludes. The findings were eagerly anticipated and come as a bitterly contested Obama administration policy is poised to offer similar coverage.The project tracked more than 9,000 women in St. Louis, many of them poor or uninsured. They were given their choice of a range of contraceptive methods at no cost - from birth control pills to goof-proof options like the IUD or a matchstick-sized implant.When price wasn't an issue, women flocked to the most effective contraceptives - the implanted options, which typically cost hundreds of dollars up-front to insert. These women experienced far fewer unintended pregnancies as a result, reported Dr. Jeffrey Peipert of Washington University in St. Louis in a study published Thursday.The effect on teen pregnancy was striking: There were 6.3 births per 1,000 teenagers in the study. Compare that to a national rate of 34 births per 1,000 teens in 2010. . . .

There are many women who, for medical reasons, should not use oral contraceptives. What method of contraception a woman should use is between her and her doctor. To expect all women to buy cheap generic birth control pills from Walmart is to be dismissive of concerns about women's health.

If I were Judge Ligouri EITHER I would have to decide as an officer of the Court whether or not the interests of the State outweigh the religious freedom of the plaintiffs, by basing my opinion on the Constitution and precedents only. In other words, as imperfect as the State's understanding of the particular religious beliefs at issue might be, I must still decide in favor of the State if I see the interest of the common good outweighing the interest of religious freedom, 0R -- if I as a citizen thought that the State was so corrupt that it cannot logically employ its own principles fairly, then I would be obliged to try to overthrow the government, using still available legal means if any are available or, lacking that, using extra-legal means to get rid of the government.But the possible imperfection of the Courts' decisions has never stopped the Courts from rendering decisions. The fact of Courts reversing themselves *shows* they recognize their own essential imperfection. What I'm saying is that I, Judge Ligouri, know that I might possibly make an error regarding the relative weights of the rights involved, but that is no excuse for automatically agreeing with the plaintiffs instead of the State or refusing to make a decision.

As Justice Ligouri I believe it is my duty to weigh whatever medical evidence the government presents by scientific standards, not by my own religious beliefs. I can't imagine those arguing on behalf of an exemption for the Catholic Church will or can present evidence refuting the claims of the Institute of Medicine or try to disprove findings such as those quoted above about the St. Louis Study by David Nickol. (I'm Justice Ligouri, remember?) I don't believe I have a right as a Catholic to substitute the Church's judgment about what is in the "common good" for the governmental and societal consensus about the benefit of contraception. For example, the Title X Family Planning program has been funded by the government for forty years, through Republican and Democratic administrations and when both the House and the Senate had both Republican and Democratic majorities. There is just no question that there is a solid consensus among Americans and medical professionals that contraception is not merely a good, but a good that government ought to promote. Speaking further as Justice Ligouri, I know that "compelling interest," "substantial burden," and other key concepts relating to this matter have technical meanings that are very important in deciding this case, but I do not have any law clerks handy, and Google is less helpful than one might imagine on this topic, so this is it for now.

I think I might consider omitting the H in IMHO before delivering an opinion on the lives and circumstances of millions of people I have never met and do not know.

Justice Ligouri should lean heavily, as a matter of principle, on the judgement of previous courts (Griswold v. Connecticut, Eisenstadt v. Baird) and the judgements of commissions such as the EEOC.I think that she can also use her Catholic moral reasoning on material or formal cooperation with something a religious body or adherent deems to be intrinsically evil.In the case of the purchase of insurance, neither the religious body nor the adherent is necessarily formally cooperating with contraception (certain forms of contraception are not necessarily intrinsically evil since the intent is to regulate menstrual cycles in some instances). The fact that an insurer carries these products does not necessarily mean that they need to be accessed.I don't see this action as restricting the freedom of religious bodies in a formal sense. Even though many Catholic theologians held that the Iraqi war was not a just war, they were not permitted to withhold their taxes. The government interest in taxation for, in part, the purpose of waging a war over-rode their objection to how the taxes were being spent.But again, even here, there was not, through taxation, formal cooperation with something people considered evil.

PSAccording to Justice Roberts, as I understand it, the mandate is actually a tax so within the constitutional scope of what the government can mandate.

What is a wanna be Catholic permitted to think and discuss publicly? I'm a former agnostic turned believer currently working my way through an adult confirmation program which culminates, hopefully, in my being received at Pentecost. I do pray that I can accept Catholic teachings, but the Church doesn't always make this easy for me. I related, in a prior comment to a prior Commonweal editorial, my experience with the parish closest to my home. "This president," said the priest in his homily, "is the most anti-Catholic president in history -- he's just like Hitler." 80% of my Jewish European relatives perished in Khotyn (Ukraine) during WWII. I got up and walked out, as unobtrusively as possible. I found another parish, which eschews political homilies. But, just this past Saturday, time constraints forced me to attend the Saturday vigil at the former (closer to home) parish. This week's homily addressed the 40th anniversary of Roe v Wade and recalled Pope John Paul II's "culture of death" quote. "We have a culture of death in this country," went the homily, "and it starts with the President." The homily went on to say that abortion not only kills babies, but it scars for the life women and families participating in those abortions.David Nickol rightly quoted the Washington University/St. Louis study. 50% of unwanted pregnancies end in abortion. 50% of unwanted pregnancies result from failed contraception. There are now available contraception methods which are virtually 100% reliable, and one of these methods (implantable hormone delivery) works through a mechanism which is, without controversy, purely preventive of conception and doesn't involve interference with implantation. But the 100% effective methods are very expensive and often beyond the reach of the women most at risk. The St. Louis study showed that making these methods available to women most at risk dramatically reduced teenage pregnancy and dramatically reduced abortion rates as well.I've made the following argument before, but it bears repeating, in the present context. In Humanae Vitae, Pope Paul VI raised the issue of lesser evils. He stated that lesser evils may sometimes be tolerated to prevent greater evils, but that the lesser evil did not apply in the case of "artificial" contraception. However, the "evils" he cited in this context were things such as the burden to poor families of bringing another child into the world. He did not discuss (nor, I believe, did he anticipate) the reality of abortion on demand, which would become manifest around the globe in less than a decade following H.V.ObamaCare will dramatically reduce abortions, through expanded access to health care, including counseling about sexually transmitted diseases and pregnancy, and through the availability of (virtually) 100% effective contraceptive measures through the mandate (currently under attack by the Catholic bishops and the priests who follow their lead). There is no idea offered by any anti-contraception group or individual which has any possibility of approaching the stunning efficacy in reducing abortion of universal access to free contraception on demand, using modern methods with virtual 100% reliability. Recalling this week's homily by the priest of the parish nearest my home, I agree that abortion is evil and that the lingering effects of past abortion on women and families can be devastating. If ever there were a situation where a lesser evil should be not only tolerated but embraced, if it prevents a far greater evil, it is in the case of contraception as a measure to prevent abortion.If "artificial" contraception is such a grave evil, why have I not heard a single homily on the importance of Catholics eschewing this in more than a year of perfect weekly (and obligation day) attendance at mass? Why has there not been a single intention prayer that Catholics adhere to Church teachings regarding contraception?I think that abortion is truly horrible. I grieve for all of those involved. And this grief makes it incomprehensible to me that the Catholic Church in America is so stridently opposed to allowing even non-Catholics to have access to a benefit that they have earned as a consequence of their employment, when said benefit would do far more than anything else ever proposed to prevent the unspeakable horror of abortion, which is so often the consequence of unplanned pregnancy. This doesn't even consider the additional issue that lack of health insurance results in the deaths of 50,000 already born people in the USA per year, and that the Catholic bishops have done everything in their power to fight the passage and implementation of expanded access to health insurance through the Affordable Care Act.Getting back to my original question: is it appropriate for a wanna be Catholic to be thinking like this and to be publicly discussing such thoughts, in a forum such as this?Addressing Kaveny's question: no, justices shouldn't put a Catholic thumb on the scale. They should just call balls and strikes, according to the Constitution, as stated by Justice Roberts. But realistically, as Yogi Berra said, nobody's human; so the thumb is always going to get in the way of what should be impartial jurisprudence.- Larry Weisenthal/Huntington Beach CA

I'm not sure I understand why the church can't put both thumbs on the judicial scale. Is it some sort of court procedural issue? If the church claims that its religious liberty is violated, and the government argues that it must do so for a compelling state interest, the church cannot counter argue that there is no compelling state interest because of x, y, and z? I am not saying that I agree with church teaching on contraception. I happen to have problems with church teaching on the subject. I also think the church would have a tough time selling its argument on the contraception's societal damages, as the opposition's argument is much more convincing.

Once again I can only gasp in admiration before the Vatican's success in getting Humanae Vitae so talked about after 45 years -- more talked about than the Council they have buried with equal success -- and to get young and potentially troublesome theologians to waste their brains on non-issues invented as part of a clever power ploy.

Could someone please correct the misspelling in the headline?

What method of contraception a woman should use is between her and her doctor.David, This mindset is part of the problem. The method of contraception should be primarily between a woman and her sexual partner, not her doctor. And condoms are an inexpensive alternative. Finally, no woman NEEDS contraceptives, they are a want.

50% of unwanted pregnancies end in abortion. 50% of unwanted pregnancies result from failed contraception.This is a mis-characterization of the issue and its causality. Actually, 100% of unwanted pregnancies result from sexual intercourse. In 50% of those instances, no contraceptives were used and and 50% the contraception 'failed'. That failure could include a lack of use, misuse, or an inherent failure of the contraceptive.With this statement of the issue, its clear that contraceptives can, at best, only be a partial solution. The only foolproof solution is involves people controlling their sexual behavior until they are, at least, not hostile to bearing the child they may be procreating. Contraception can never do anything more than somewhat ameliorate.

The method of contraception should be primarily between a woman and her sexual partner, not her doctor.Bruce,While one would expect a couple practicing contraception to agree on the method, most popular contraceptives (and the most effective contraceptives) are drugs that require prescriptions, and only a doctor is qualified to evaluate a woman's health situation and prescribe the right contraceptive for her. So ultimately, it's between a woman and her doctor. This mindset is part of the problem. I might say the same to you! Contraception is an intrinsic evil. No one should really do it. People who do are up to no good. It's not a medical expense. It shouldn't be covered by insurance. Women or couples who can't afford the more expensive, more effective contraceptives should buy cheap generics at Walmart. That is the mindset that is the problem. If the St. Louis study I mentioned above is any indication, contraception can dramatically cut the unwanted pregnancy rate and the abortion rate, but Humanae Vitae Catholics would prefer a higher abortion rate to a lower one achieved through contraception.

Remember that 14% of prescriptions for contraceptives are for non-contraacptive medical problems?What about the rights of these women to have sucha problem addressed?Who's deciding on tghe MOTIVe and PURPOSe of the precription?Justice Ligouri, I don't know if you wish to practice medicine also in deciding who should pay for this under what medical circumstances.

Remember that 14% of prescriptions for contraceptives are for non-contraacptive medical problems?David,These prescriptions present no religious issues.

contraception can dramatically cut the unwanted pregnancy rate and the abortion rateDavid,Here is the issue in a nutshell. The statistics you and Larry cite have the following numerical implications.Current abortions in the US 1,200,00050% 'unwanted' pregnancy 600,000and 50% of those from failed contraception 300,000So if contraception is 100% effective then abortions drop from 1.2 million per year to 900,000. I agree thats a substantial and valuable 300,000 saved lives. But now we are at a dead end. What is the next step in the contraception/abortion logic? There isnt any, and we are at a floor of 900,000 abortions. Way too many for me.CS Lewis has 2 quotes which I think are apropos: 1) We all want progress, but if you're on the wrong road, progress means doing an about-turn and walking back to the right road; in that case, the man who turns back soonest is the most progressive.2)Aim at heaven and you will get earth thrown in. Aim at earth and you get neither.The contraception/abortion path is the wrong road on earth, IMHO.

That is the point, Bruce. These precriptions pose no religious issues yet the suing entities and many bishops claim that they should not be covvered by insurance. Should the recipients be penalized by having to pay for this on their own because these medications have another purpose that some find morally objectionable?

Larry -- Thanks for a wise post and its non-rhetorical presentation. Much stronger for it.

many bishops claim that they should not be covvered by insurance.David, I think you are mistaken.

Does it matter whether she is convinced by the arguments that contraception is intrinsically evil, or accepts its evilness on the authority of the Church (a privileged interpreter of natural law)? It might matter if one took seriously what many commentators on the right have said about the danger of allowing concepts and tenets of international law to infiltrate and pollute American jurisprudence, and if one heeded their dire warnings about Sharia.A justice who accepts Church teaching on contraception and rules accordingly, not because she finds it persuasive but merely because it is Church teaching, would be allowing the judgment of a foreign head of state, supported by an international assemblage of men he or his predecessor had appointed to their office, to settle a question of American law. And that judgment derives ultimately from an unquestionable authority that is claimed to belong to a subject of the Roman Empire in the time of Tiberius. It is a very long leap for a state that establishes no religion.Personally, I don't much like the conservative disdain for international law, because I think that sound arguments should be heard, wherever they come from. But appeals to authority are a very different matter.

Once again, I note that every argument Prof. Kaveny offers in defense of the current HHS mandate would also apply to a future HHS mandate requiring employers to provide insurance for employees' surgical abortions. The Supreme Court recognizes that abortion is protected by the right to privacy, and there are medical professionals who will tell you that abortion saves lives. I also note that if the current HHS mandate is upheld, it becomes quite likely that there will be a future HHS mandate requiring employers to cover surgical abortions. After all, the Democratic Party is committed to taxpayer funding for abortion.

Hi Bruce, To address some of your comments:Just so that we can be on the same page, here's the reference to the Washington University/St. Louis study currently under discussion:Obstet Gynecol. 2012 Dec;120(6):1291-7. doi: http://10.1097/AOG.0b013e318273eb56. unintended pregnancies by providing no-cost contraception.Peipert JF, Madden T, Allsworth JE, Secura GM. Department of Obstetrics & Gynecology, Washington University in St. Louis, School of Medicine, St. Louis, Missouri 63110.Secondly, the "50/50" statistics I quoted were an approximation, from memory. Here are the precise data (as cited and referenced in the above clinical research study):[Quoting]:"In the 20062008 cycle of the National Survey of FamilyGrowth, 49% of all pregnancies were reported to beunintended. Of these, 29% were mistimed, 19% wereunwanted, and 43% ended in abortion.(3) Approximatelyhalf of unintended pregnancies result fromnon-use of contraception, and half result from inconsistentor incorrect use and contraceptive failure.(4)"So the precise statistics are that 49% of pregnancies are unplanned. 43% of unplanned pregnancies end in abortion. Half resulted from inconsistent/incorrect use and contraception failure; half resulted from using no contraceptive measures at all.Your armchair calculations state that the Affordable Care Act has a ceiling of preventing only 1/4 of abortions (i.e. 300,000 per year). But this reasoning and math are flawed.43% of unintended pregnancies end in abortion. Presumably, all 1.2 million yearly abortions in the USA were from the "unintended" group. Very few are likely arising from the "intended" group. The "intended" group would, presumably, include only a relatively few "buyer's remorse" cases and abortions performed for valid medical indications.So, if 1/2 of unintended pregnancies result from incorrect use of contraception or failed use of contraception, presumably the "ceiling" from making available 100% effective methods of contraception would be 600,000 abortions prevented, not 300,000.But the potential goes beyond that. The Affordable Care Act also includes yearly preventive care services for women, which would include counseling regarding women's reproductive issues. Women who don't wish to conceive but who are sexually active would receive counseling regarding STD preventative measures and also the need for contraception. Thus, the number of women at risk to have an abortion for an unintended pregnancy who are not using any contraceptive measures at all would likely go down, and this would also have the effect of reducing overall abortions.But the above (my projections and Bruce's projections) are simply hypothetical estimates. Fortunately, thank to the St. Louis study, we now have real world data. The study subjects in the St. Louis study were an extremely high risk cohort (urban cohort, average age 25%, fifty percent of study subjects African American). Yet the rate of teenage birth within the St. Louis study cohort was 6.3 per 1,000, compared with the U.S. rate of 34.3 per 1,000! The article states that 80% of all teenage pregnancies are unintended/unwanted. Additionally, the abortion rate for the St. Louis group was only 4.4 to 7.5 per 1,000 compared to the national rate of 19.6 per 1,000. These data indicate a real world reduction in abortion rates of closer to 75%, rather than Bruce's 25%, and point to a potential prevention of 900.000 abortions per year, which is consistent with common sense expectations, I'd argue.Recalling the anti-Obama priest's homily (quoted in my earlier comment), abortion doesn't only affect the aborted baby, it affects the mother and family of the mother, and this effect is often life-long. So the impact of preventing all those hundreds of thousands of abortions, through the use of highly effective contraception, shouldn't be dismissed, simply because it would never be 100% effective in preventing 100% of abortions. In other words, think seriously about allowing the perfect be the enemy of the good, in this case.And there is really no alternative, if the goal is really to prevent abortions, as opposed to talking about preventing abortions.- Larry Weisenthal/Huntington Beach CA

Larry,Thanks for providing the study. It is based on what I believe is called a 'convenience sample' which basically means the group is not random. As a result, the statistics produced are not applicable to a broad population.But lets just assume your math of preventing 600,000 abortions is correct. (All abortions from unintended and half of those from failed contraceptives - that would be the correct math btw). That still leaves 600,000 which is too many IMHO. And I dont believe this large number is a problem with contraception, per se. Rather, its a function of the underlying contraceptive premise, which is that sex is primarily "recreational" and only secondarily "procreational". So with appropriate 'technology' we can eliminate the 'procreational' effects. Unfortunately, that is proceeding down the wrong path because sex is primarily 'procreational' as evidenced by all the pregnancies, intended or otherwise.I'd also like to point out this is a justice issue for women. Contraception/abortion are trying to make the sexual outcome for women more like that experienced by men. But of course that can't happen because women are born with a womb. So true justice argues against contraception not for it.We have spent the past 80+ years arguing that more contraception will provide the answer, yet it always seems just around the corner. What will it take to recognize that is a false prophet speaking?

Hi Bruce, I don't mean to be overly contentious, and back and forth arguments between 2 people determined to defend respective points of view are seldom helpful to anyone. So I'll let you have the last word, following this last from me. I think that you missed two of my points, or else I didn't explain them clearly. Firstly, since we now have (albeit expensive) contraceptive measures which are virtually 100% effective; we can now prevent nearly 100% of unwanted pregnancies. This requires two things, both a part of the Affordable Care Act. Firstly, making these expensive contraceptives available to all who wish to use them, through mandated coverage. Secondly, counseling young women regarding the availability of these contraceptives, through the yearly reproductive counseling which is also part of the act. The Washington U study, again, demonstrates that this is entirely feasible and that unprecedentedly good results may be obtained. You are basically arguing in favor of abstinence. I entirely agree that this is preferable. But I would also add that it is entirely theoretical. There is no evidence (or common sense, for that matter) to indicate that unwanted pregnancies and resulting abortions will ever be prevented on a population basis through public health programs based on abstinence only.- Larry Weisenthal/Huntington Beach CA

Bruce,That "justice" argument in your next-to-last paragraph at 5:46 pm could use a little more explication.

I thought the question under consideration was whether the health care mandate is an infringement on religious liberty even if a justice assumes that contraception is morally wrong from a religious point of view.It is not a out the efficacy of contraception in preventing abortion (Larry and David's cite of the St Louis study is compelling).

Thanks Larry. I appreciate your argument. My take is be the following: if people behaved 100% correctly, then abstinence would produce no unwanted pregnancies. Even if people's use of contraceptives was all 100% correct, all the contraceptive measures have a failure rate associated with them. Their use across a population is guaranteed to produce 'unwanted' children simply because of the failure rate. In addition, the perception of 'virtually 100% efficacy' encourages the behavior which produces 'unwanted' children. Of course, we know that in neither case will people's behavior be 100% correct.As for the justice argument, let me add the following. Justice requires men to acknowledge that women may become pregnant as a result of sexual intercourse. Just treatment of a woman requires a man to recognize, acknowledge and accept responsibility for this biological fact. Anything less is not fully treating the woman as the human person she is and is therefore unjust. And according to Aquinas "an unjust law is no law at all". So of course the Supreme Court Justice must overturn the mandate so as to maintain the integrity of the law he is sworn to uphold, which provides liberty and justice for all.

Bruce,That a man has responsibilities to a woman in a sexual relationship I think no one will wish to deny. How their decision to use contraception, if both freely agree to it, is an act of injustice to the woman that should be addressed by the law is still utterly unclear to me.As an aside, does anyone know if Aquinas has ever been cited in a Supreme Court decision?

To return to the 14% of contraceptive prescriptions for other medical, non-contraceptive reasons... My typing error may have been confusing when I wrote "cowered" rather than "covered." My understanding is that the the bishops in general (and some in very particular!) and some entities, through the suits filed, argue that contraceptive precriptions should not be financially COVERED by institutions because of their obvious intrinsic quality in attempting to prevent "pregancy" (not arguing around what that means) or primary usual usage.Therefore, they are claiming that an insitution can deny paying for medical coverage regardless of the purpose. If you know something different from this, Bruce, I would appreciate your source.I have not seen any bishops or spokepersons address this other than saying that it is not expensive. This is unfair and dangerous to women who have conditions that warrant this prescription and are told that their health insurance will not pay for it.

John,True Justice is unalienable; it cant be taken from or given away by the posessor

John, (Sorry it the return key by accident)So neither consent nor privacy can make an unjust act truly just. An example would be prostitution.

David,Here is Bishops Lori's response in Congressional testimony last February.During last weeks House Committee on Oversight and Government hearing on religious freedom, Rep. Rosa DeLauro (D-CT) posed a question to the witnesses about women who take oral contraceptives for purely medical reasons, such as those who need to mitigate their risk for ovarian cancer or blood clots.Catholic Bishop William Lori responded that our Catholic law of theologyrecognizes that the same drug can be used for different purposes with different effects and our plans reflect that, so we should be given credit for the nuance and the understanding that we have already brought to the table.

John Prior wrote: "As an aside, does anyone know if Aquinas has ever been cited in a Supreme Court decision?"In the Roe v. Wade decision, Justice Blackmun wrote: "Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common law scholars, and found its way into the received common law in this country."

Thank you, Bruce for that reference. I will attempt to check out that whole statement. That particular nuance does not seem to have been repeated in any other ay or in the grand "Fortnight for Freedom>"Interstingly, Lori finally accomodated to the Connecticut legislation around rape protocols for Cathollic hospitals, but I believe that it was under protest. But the core question that remains is whether he would allow insurance companies of Cathollic insitutions to pay for them! Would there be some review panel that he or others propose to examine why a physician is prescribing these medications?I don't expect that you would necessarily know to answer this, but I have not seen this distinction made in the various objections of the hierarchy and I think it would be very difficult to implement, if not programmatically, at least on the practical side betwen physician and patient.

All the discussion of Aquinas evokes his "delayed hominization" that was re-proposed (or at least explained sympathetically, I thought) by Joseph Donceel, SJ in his "Philosophical Anthropology." That seemed to help with the twinning and occasional recombinant phenomena, but loses value at some time shortly after that stage...

Bruce,I will leave prostitution aside for now, if you don't mind, since I am having trouble enough with contraception. I think but am by no means certain that your argument is something like this: Contraception is evil per se. Therefore, anyone who expects a woman to use it is acting unjustly toward her, even when she herself is apparently quite willing to do so.If your premise is correct, that would be a reasonable conclusion, although it might still be a strained argument to make in a court case. But huge numbers of people around the world reject that premise and see contraception as an almost unmixed blessing. Some think Vatican condemnation of it is less an enunciation of divine or natural law than a sad consequence of interfaith rivalry and doubling down on a mistake to avoid losing credibility.The short answer to an assertion that contraception is evil is, "No, it is not." People on that side of the question will go on to talk about the injustice of denying women access to it.

John, my premise is not that 'contraception is evil per se'; rather that is the conclusion. My premise is that all humans have the inherent right to Just treatement. That justice is inalienable, it cant be given or taken away, so mutual consent is irrelevant. Treating women justly requires recognizing, acknowledging, accepting and supporting them in the biological fact that they may become pregnant as a result of sexual intercourse. Trying to prevent pregnancy is failing to acknowledge and support them in their human ability to become pregnant. Therefore it is unjust. Ergo, contraception is unjust.Think about prostitution. Mutual consent and privacy are both present. So what makes it wrong? The exchange of money? Cant be that because we regularly and licitly exchange money for goods. I submit its that each party is treating the other as a commodity which is unjust treatment of a human person.

hi Cathy -- Just a few thoughts (at MOJ), responding to yours, about the task of evaluating, judicially, the "compelling"-ness of asserted government interests in fundamental-rights cases:

"many bishops claim that they should not be covered by insurance."David, I think you are mistaken."Cardinal Wuerl was asked about this precise point by a young woman on a morning program on Washington DC television, and he replied: "well, contraceptives are not so expensive anyway". He expressed no willingness to modify the bishops' stance in view of the non-contraceptive purpose of 14% of prescriptions.

As one who has long thought that the use of contraceptives is always an expression of moral responsibility and justice toward oneself, one's partner, and a possible future child, I am bemused by this: "Treating women justly requires recognizing, acknowledging, accepting and supporting them in the biological fact that they may become pregnant as a result of sexual intercourse. Trying to prevent pregnancy is failing to acknowledge and support them in their human ability to become pregnant. Therefore it is unjust. Ergo, contraception is unjust."This is biologism at its worst. The woman is defined as a childbearing animal, and the only factor recognized in the free and adult pursuit of her sexual or marital life is her "ability to become pregnant". All liberties and rights accrue uniquely to this; with no consideration of the possible tragic consequences of bearing too many children. Incredible, but perhaps a sign of the depths from which the Catholic fuss about contraception stems.

Quoting from the MOJ article linked by Professor Garnett (my emphasis and bracketed insertions)

I think that those of us who think the mandate [fails under?] RFRA think so not so much because we think a court will and should hold that "increasing access to contraception is not, in fact, a compelling public interest, because contraception is immoral", but instead think that "the burden on religious practice is unnecessary, because [1] the government's interest could have been achieved by less burdensome means and [2] because the government's willingness to exempt so many employers from the mandate calls into question the claim that the *government* believes the interest is really compelling."

My recollection of the Becket complaints is they argue that the contraception mandate is both unconstitutional under the first amendment and unlawful under RFRA. The argument about the number of exemptions (grandfathered plans, strict religious, non-profit orgs with religious objections) is better aimed at the first amendment claim as demonstrating that the mandate isn't "a rule of general applicability" and would fail, even under Smith. The second argument is an issue for RFRA but, although RFRA says that the government must demonstrate that its proposed rule is the least restrictive, as a practical matter, i think that the plaintiff will have to start the process by proposing other solutions acceptable to it that would achieve the compelling government interest. The idea that the government could use taxpayers money to pay for free contraceptives for everyone in the country doesn't sound like a winner to me - and I wonder if the bishops would want to endorse it.

Sorry, I reversed "first" and "second"

Bruce,I hope I will not be giving offense if I say that your notion of justice for women in relation to men sounds like the age-old one that would deny any agency to a woman in the intimate details of her own life. She cannot even with her own "irrelevant" consent, indeed by her own insistence, exercise any control over her fecundity, except presumably by perfect abstinence. Or perhaps not even by that, for abstinence is a pretty sure check on her "human ability to become pregnant," which evidently is her all-controlling destiny.For myself, I would rather be silent in my opposition to contraception, if I was opposed, than offer a bizarre argument that makes justice seem an instrument of coercion and women mere reproductive vessels saved from their own choices.

David Pasinski --The delayed hominization argument has huge moral consequences in cases of rape. It allows the rape victim several days to dispose of the non-person.

Bruce --Women also have the natural animal capacity to eat. Why would it be wrong to advise a woman not to eat if gaining weight is a threat to her well-being, even her life?

If I were "Justice Ligouri":I would hope that I understand that the rights articulated in the US Constitution are not "absolute" [as President Obama has pointed out last Monday]. But these rights must be tempered and balanced against each other for the common welfare of the People.Justice Ligouri would recognize that the 14th Amendment's "due process" and "equal protection" clauses apply to every citizen - including Catholic women!Justice Ligouri would hopefully understand that Catholic hierarchs' claim of infringement on their First Amendment "religious liberties" is actually a thinly veiled attempt by celibate autocrats to have the government impose their discredited anti-feminine ideology on their own congregants who overwhelmingly reject this "tyranny upon the mind of [women]."

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