Here is a view in the Guardian that is representative of a growing swell of opinion against the policy wisdom of granting exemptions for conscience reasons to religious institutions.  I want to ask a question about one feature of the argument which one frequently hears in these discussions:

“Why should the conscience of an employer trump a woman’s conscience?” Illinois Democratic Representative Jan Schakowsky asked in a statement. “Why should an employer decide for a woman whether she can access healthcare services that she and her doctor decide are necessary? Why are we talking about allowing some employers to put up a barrier to access at a time when women are struggling afford and access healthcare?”

Indeed, what Rep Schakowsky asks is of vital importance. This isn’t just an issue of separating church and state, or of being forced to define what constitutes religious affiliation, doctor-patient privacy or a public health matter. If President Obama sides with the Catholic leaders demanding the exemption, his decision would directly impact the lives of millions of poor Americans already struggling in the recession.

It seems to me that this argument is confused, even if extremely popular and demagogically effective.  The right question is not whether the religious institution’s conscience should “trump” the individual’s conscience.  If the health care law contains an exemption for religious employers, the individual woman is not being prevented from obtaining contraceptive services.  She is only losing the power to compel her religious employer (for whom, one should expect, she agreed to work voluntarily) to pay for her contraceptive services.  On the other hand, if there is no exemption, the religious employer is being compelled to provide contraceptive services, in direct violation of its beliefs.  What is of “vital importance” is the failure of so many people to recognize this distinction.

11 thoughts on “Conscience v. Conscience?

  1. Should the option of conscientious objection to paying for abortions be limited to religious organisations?

  2. Matthew, thanks for the comment (and nice to have you commenting here).

    I think that’s a hard question. Historically, and for constitutional reasons, we have been specially attentive to religious conscience and there is a long legislative tradition (stretching back to the 17th century in some of the colonies) of trying to accommodate it. Those historical reasons have seemed important as a prudential matter in the past, though maybe they are perceived as less so today. But if you are asking how it is possible to justify, as a theoretical or philosophical matter, an exemption for religious conscience but not an exemption for secular conscience (in this context and in others), I think that is very hard to do.

  3. I was referring to what you’re calling ‘religious conscience’ on the part of an employer who is not a religious organisation. If the RC church can object on this basis, can individual employers sharing this religious conviction regarding abortion not claim the same exemption?

  4. I’m editing my comment because I now think I understand. If the individual employer shares the “religious” conviction regarding abortion, then it seems to me that it would be an example of “religious conscience.” In that situation, I would agree that you don’t have to be the Roman Catholic Church to object on religious conscience grounds. Some people have argued that there should be a different rule for individuals who work for the state and private employers, and that seems sensible to me, though I am not sure how I come down on it. Some people have also argued that in some circumstances the availability of the particular service being sought, and which the religious claimant is objecting to, should make a difference. I also think that is reasonable.

  5. I’m interested in ‘extra-Catholic’ implications as well, but for the sake of simplicity how about this: If I’m sole owner (or maybe even just the majority owner) of a business, and I’m (sincerely) Roman Catholic, should I be allowed an exemption re. paying for employee health-care benefits that cover abortion on the grounds of religious conscience?

    I’m guessing you see where I’m going: a lot of employers could invoke exactly the same argument as the Roman Catholic Church, and with the identical justification, couldn’t they?

  6. I sent my comment at 5:21 before I saw your edit at 5:01. Thanks.

  7. I question whether the question can turn on the supposition that, “if there is no exemption, the religious employer is being compelled to provide contraceptive services, in direct violation of its beliefs.” As I understand it, most employers are not required by law to offer health-related benefits to their employees, although the practice of providing such benefits is common. If an employer offers health benefits, though, federal anti-discrimination laws and health plan enforcement regulations act to protect an employee’s rights under those health plans.

  8. Yes, that is true. One could force the religious employer to make a choice: either offer your employees no health insurance at all or, if you do, provide any and all services with which you have a conscience objection. I don’t think it is necessary or wise to do that, but I guess some people do.

  9. So, depending on how the law is tailored, either employers or employees are put to a choice. If some employers are exempted from current discrimination and health benefit laws so they can offer health benefits omitting some medications and services, employees can choose whether to accept such benefits or seek employment elsewhere. If current discrimination and health benefit laws are enforced, employers can choose to offer health plans complying with those laws or not offer any plans at all. (The latter choice may put an employer at a competitive disadvantage, unless the lack of health benefits is offset other ways, e.g., by higher wages.) To the extent that employers already have an option under the current laws consistent with their religious views, they have less need for an exemption from those laws.

  10. Yes, I agree that either employers or employees are “put to a choice.” Whenever we assess the benefits and burdens of any policy decision, these are decisions that we will have to make. Oftentimes everyone will not get everything that they want.

    But, for me, the issue is not only about whether one or another group or individual is inconvenienced, or made to bear costs, but about the nature of the costs to be borne. To take a faintly ridiculous example, one could describe a mugging as presenting the victim with a choice — your money or your life. Or one could describe it as a choice from the mugger’s perspective — I can either hold up this person or not have as much money as I would like. The question is not the issue of choice itself, but the quality of the choice that one is putting to the chooser. Some choices are more in the nature of forced choices than others, and we are concerned about some kinds of choices (for moral and other reasons) more than other choices.

    Even the law itself, as presently constituted, gives employees of, say, the Roman Catholic Church an exemption. That is because, historically and constitutionally, we have been especially concerned about encroaching on the autonomy of religious organizations to manage their internal affairs — and their relationships with their employees — as they have seen fit (within limits, of course). So we aren’t dealing with allocating benefits and burdens in a vacuum. We are working from a baseline — historical and legal.

    The controversial piece of this, I take it, is not whether institutions like the Roman Catholic Church should be compelled to make these kinds of choices, but whether hospitals and other charitable organizations that it operates should be granted the exemption as well.

    Your view, it seems, is that these organizations should not be allowed the exemption. You frame the issue as a simple one of selecting between putting the burden on the religious employer or on the employee, and you choose the employee. Even taking the problem on the terms that you propose, I disagree with your choice, at least in the absence of further information. As a matter exclusively of selecting between one or another party to bear costs, I would want to know some more information: (1) how many employees does, say, a Catholic hospital subject to the exemption employ?; (2) of these, how many are not co-religionists, and so may not share the beliefs of the employer?; (3) how many are women?; (4) how many participate in the religious organization’s health plan, as opposed to the health plans of their spouses or partners? These are only a sample of questions I would want to know about before deciding how to allocate benefits and burdens.

    But your view also overlooks the nature of the employer’s objection in this case. Again, not all objections carry the same moral force. An employee who does not receive funded contraceptive services may object that she really would like to have them paid for by her employer, but that is not the same kind of objection — not in the same category — as a religious organization saying that it does not want to fund services to its employees which are fundamentally at odds with its religious commitments. If that does not persuade you, then I suppose you would also think that there should be no exemption for any religious organization at all. And if that is your view, I think it puts you directly at odds with the constitutional traditions of this country.

  11. God’s Law is the standard and not “conscience.” Also, Scripture in no way authorizes civil government to provide “healthcare services” to anybody nor does the U.S. Constitution (Article I, Section 8).

    John Lofton
    Communications Director, Institute on the Constitution
    Active Facebook Wall.

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