Posted on by Mark Movsesian

Washington Post on Contraceptive Coverage

Here’s a bit of surprise: the Washington Post has come out against the Obama Administration’s decision to require religiously-affiliated employers  to cover contraceptives, including abortifacient drugs, in their health-insurance plans:

The best approach would have been for HHS to stick to its original conclusion that contraception coverage should generally be required but to expand the scope of its proposed exemption for religiously affiliated employers who claim covering contraception would violate their religious views. The administration’s feint at a compromise — giving such employers another year to figure out how to comply with the requirement — is unproductive can-kicking that fails to address the fundamental problem of requiring religiously affiliated entities to spend their own money in a way that contradicts the tenets of their faith. . . .

[T]he significance of the new health-care law is that the federal government will for the first time require all employers to provide insurance coverage for their workers — in other words, to spend their own money to help underwrite this coverage — or, in many cases, to pay a penalty. In this circumstance, 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.

Posted on by Marc O. DeGirolami

Sarah Posner’s Muddle

The occasions are rare when I find much to agree with in the columns of Sarah Posner, a writer for the blog “Religion Dispatches.”  But this particular column is a mess. 

The especially messy portion that I want to highlight is the discussion of the connection between the ministerial exception case, Hosanna-Tabor v. EEOC, and the recent decision of the Obama Administration to make permanent a rule which will require various religious employers  to provide their employees with health plans which cover services and products with which they have objections of religious conscience.  Posner says:

The Beckett [sic] Fund for Religious Liberty, which, as I reported in my long religious freedom piece, represents both a Catholic college and an evangelical university in challenging the rule, has issued a statement (tellingly calling the rule an “abortion drug mandate”) claiming that the rule will not withstand constitutional scrutiny. As other observers have noted, opponents of the contraception mandate have claimed that the Supreme Court’s recent decision in EEOC v. Hosanna-Tabor, which recognized a “ministerial exception” that prevents churches from being sued by “ministerial” employees under federal employment discrimination laws. [sic] The Beckett Fund makes this argument in its statement [sic], but legal observers have noted the narrow holding in that case. The opponents of the Obama administration decision like the Beckett [sic] Fund does in its statement, will attempt to make the Hosanna-Tabor into a broad statement against government interference in church affairs in an attempt to bolster their claims against the contraception mandate.

The second sentence in this paragraph is ungrammatical, so it is opaque to me what Posner means.  “Opponents of the contraception mandate”…claim what exactly?  They don’t seem to be making any claim about Hosanna-Tabor in the second sentence.  There is also a citation to the Becket Fund (as in Sir Thomas of Becket, not Samuel Beckett) and a document which it has produced purporting to challenge the contraception mandate by making an argument from the ministerial exception.  Could someone point me to the place where the Becket Fund makes that connection?  Or could someone point me to the place where anyone — anywhere — has made the claim that the holding in Hosanna-Tabor can be extended to “a broad statement against government interference in church affairs” which would render the contraception mandate unconstitutional?  I’ve been poring through documents about this issue on the Becket Fund site, and have not found any making this completely dubious connection.  Who, other than Posner in this column, is saying this?

UPDATE: Though the Becket Fund has not made the argument referenced by Posner, I am apprised that Matthew Franck at First Things makes a connection between Hosanna-Tabor and the contraception mandate in this post.  Franck says that Hosanna-Tabor stands for the view that “in the internal governance of religious organizations, the First Amendment permitted no government interference.”  Respectfully, that is not what the Court held.  The Court held that when it comes to hiring and retention decisions of those employees defined as “ministers” (however defined), anti-discrimination laws which apply to secular institutions do not automatically apply to religious organizations.  The case was narrowly limited to employment discrimination suits “brought on behalf of a minister.”  There is nothing in this holding which would apply to the contraception mandate.  It may be that the connection between the Hosanna-Tabor decision and the contraception mandate case is, as Franck also says, that the Obama Administration in both cases is taking hard-line and extreme positions.  But that is not a legal connection.

Posted on by Marc O. DeGirolami · 11 Comments

Conscience v. Conscience?

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.

Posted on by Marc O. DeGirolami

Democratic Dissensus on Insurance Coverage Religious Exemption

An interesting story here about internal dissensus between President Obama and several Democrats in the House.  The issue is that under the new health insurance regulations which are part of the health care overhaul, all employers are required to cover contraceptives for women free of charge as well as certain types of medical sterilization, and there is disagreement both about whether there should be any exemption at all for religious employers and, if so, about how broad the exemption should be. 

It appears from the story that the President is at least somewhat favorably disposed to a broader exemption — one which might protect not only churches but also religiously affiliated schools, hospitals, and other religious organizations — while House Democrats are opposed to that enlargement and possibly to any exemption at all (such a position would mean that the Catholic Church, for example, would be compelled to cover contraceptive devices free of charge for its employees).  As an unnamed Senate Democrat who participated in the discussions is reported to have noted, “This is a pro-choice president. It’s a surprise that we are even having this debate with the administration.”  It will be interesting to see how this plays out, but I’m fairly confident of one thing: much as I respect Senator Hatch, I do not believe that any exemption is constitutionally required under the Free Exercise Clause as interpreted under current doctrine.

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Balancing (Ethically) Government Healthcare Spending

This month, Oxford University Press publishes Prevention vs. Treatment: What’s the Right Balance? (Halley S. Faust & Paul T. Menzel eds.).  The volume collects essays by, among others, lawyers and religious ethicists on the proper balance between preventative and curative care in government health spending.  The collection is of particular relevance in this time of increased government healthcare  regulation and the possibility of real nationalized healthcare in the United States.  It  offers both legal and spiritual-ethical guidance as to how government should structure its healthcare-spending priorities.  See OUP‘s description below:

Everyone knows the old adage, “an ounce of prevention is worth a pound of cure,” but we seem not to live by it. In the Western world’s health care it is commonly observed that prevention is underfunded while treatment attracts greater overall priority. This book explores this observation by examining the actual spending on prevention, the history of health policies and structural features that affect prevention’s apparent relative lack of emphasis, the values that may justify priority for treatment or for prevention, and the religious and cultural traditions that have shaped the moral relationship between these two types of care.Economists, scholars of public health and preventive medicine, philosophers, lawyers, and religious ethicists contribute specific sophisticated discussions.
Please follow the jump for further description from OUP. Read more