It Is About Contraception (and Healthcare)

In a recent post over at The Freeman, there's an eloquent argument that the recent healthcare debate is not about contraception. The article is even entitled "It's Not about Contraception." The argument, as the author frames it, is about "freedom versus compulsion." (I mentioned this in my post on this subject yesterday, though linked to a copy of the article at Reason.)

However, there's a major sense in which this is entirely about contraception ... a sense which is inherent in both The Freeman post and in the Catholic Church's stance on this issue.

You see, the author discusses a claim (from a Catholic) that there were "legitimate liberty interests on both sides of this debate." His argument is that the only claim with any legitimacy is the religious liberty claim. The claim that women have the right to contraception is, in his argument, fundamentally invalid.

But that's precisely the point that's in question. If contraception access (for free) is a fundamental right, then there are conflicting liberty interests.

Religious Liberty Limitations

As far as I know, no one is actually questioning whether religion has a fundamental liberty interest. No one is saying that religious liberty shouldn't be protected from intrusion by the government. The only question is whether the claim to contraceptive rights is valid.

However, we all recognize limitations on where religious liberty extends. There are fundamentalist Muslims who believe it's a moral right to pour battery acid on children who disobey their moral code. Virtually no one  in America--not even the most ardent religious libertarian--would really argue that they should be allowed to do this. In fact, the government has a legitimate liberty interest to move in and intercede in these situations. Any law that prohibits battery acid assault restricts our hypothetical fundamentalist Muslim's "free exercise" of their religion.

So we all recognize that the government does have a right to intervene in ways that violate the letter of the First Amendment. The current issue is a debate where, from the President's perspective, he's trying to balance the two liberty interests (broad access to health care and religious rights of conscience).

The Freeman article makes a compelling case that these two claims are not equivalent, saying that health care is not a fundamental right. However, there is an organization which would disagree with that ... the Catholic Church.

Health Care as a Right

As if the situation weren't muddled enough already, there's the fact that, on the whole, the Catholic Church has been a major supporter of the Obamacare legislation from the beginning, according to not only George Will and Rick Santorum, but also stemming from their very own statement on the issue which begins:

Catholic teaching insists that health care is a basic right flowing from the sanctity of human life and dignity of the human person.

The Catholic statement goes on to protest wording in the legislation that may support abortions.

Still, the core is this: Catholic teachings indicate that "health care is a basic right." So health care would be a competing liberty interest, based specifically upon Catholic teachings.

Of course, Catholic teachings don't concede that birth control is a legitimate component of health care ... but it also doesn't agree with the greater thesis of The Freeman article (or the conservative attack on Obamacare) that mandating health care access is fundamentally a violation of individual liberty. In other words, they agree with the basic principle of Obamacare, but disagree with the specifics of the implementation.

So the first step in the debate is whether or not the health care legislation (and contraceptive access specifically) is constitutionally valid. That's a question for the Supreme Court ... and it is heading there shortly.

This specific religious liberty conflict is just one component of the greater debate over the role of the federal government in providing health care. The ultimate question is not about religious liberty, but about whether or not the government can mandate health care guidelines and force any institution to pay for them.

Once that is decided, then (if Obamacare is upheld) the question gets into a more detailed one of just and constitutional implementation ... and whether these competing liberty claims have equal standing.

Ham Sandwiches for Jews and Religious Liberty

Unless you've lived under a rock the last couple of weeks, you've heard about President Obama's latest maneuver in his "War on Religion." In case you missed it, here are the particulars:

Obamacare includes a mandate that all employers provide health insurance. Part of this is a provision that the health insurance provide free access to contraception. Certain religious organizations, most notably the Catholic Church, objected to this. Churches that morally object to contraception were given a specific exemption, but organizations related to those organizations - hospitals, schools, and other institutions - were not included in this exemption. Many within these religions, on both the right and left, thought this violated their religious rights of conscience, because they were now forced to provide to their employees the means of acquiring free birth control.

In response, Obama announced that they would revise the rule. Religious-affiliated institutions would have to supply healthcare, but they would be offered special plans which do not explicitly include contraceptive coverage. Instead, the insurance company would independently approach the employees, offering them free coverage, with none of the cost passed on to the religious institution. The religious are rightly skeptical of this solution, because the fact is that the cost for this will ultimately be passed on to someone, and very likely it'll be in the premiums paid by the religious-affiliated institution (if not spread out over all premiums). Still, some are appeased by this decision and some are not. 

The libertarian magazine Reason contains a very well-reasoned argument (appropriately enough, given the magazine's name) that contraception is not a fundamental right, but I don't for the moment want to get into debating Obamacare ... I want to discuss what I'm beginning to see as a fundamentally flawed interpretation of religious freedom. It was inherent in my earlier discussion of a recent Supreme Court case that left ministers unprotected from job discrimination and I see it now front and center in this new argument.

The problem is that we're fundamentally misplacing where religious freedom is supposed to reside: with the individual or with the institution.

The Jewish Ham Sandwich

First, a thought experiment:

The Jewish and Muslim religions oppose the eating of pork on religious grounds. It is taught in these religions that they have received a divine command from the Lord God to avoid eating this unclean animal.

Now, let us assume that a law passed which set the price of ham sandwiches for everyone. It got through the process and was passed. If you live in America, you can buy a ham sandwich for $1.00, let's say. Americans as a whole subsidize these discounted sandwiches with their tax dollars. (The usefulness of such a law is, for the moment, beside the point. Apparently the pork lobby went whole hog on this one, if you'll excuse the pun.)

Jewish institutions (as well as Muslim ones) complain about this, because their religion doesn't permit the consumption of ham sandwiches. They do not want their employees to be able to get cheap ham sandwiches, so there is a special exemption. People who work for Jewish institutions - even secular employees who are not themselves Jewish - must pay the full price for ham sandwiches.

What is the consequence of this? The consequence is simply this:

Employees of Jewish institutions who choose to eat a ham sandwich have to pay more than anyone else.

The Contraceptive Ham Sandwich

No, it's not a new special at Subway.

There are certainly differences between the ham sandwich situation and the contraceptive one - most notably that there is a mandate for the Catholic institutions to pay for healthcare while there's no similar imperative on my hypothetical Jewish organization (since religions and religious-affiliated institutions are, typically, tax exempt). But the end result of both of these is the same:

These religious institutions want to create a situation where if an individual (secular) employee chooses to act in a way that is contrary to their religious doctrine, it will be more financially costly for them to do so.

In other words, those who argue for this broader exemption are implying something significant:

The rights of the religious institution to enforce their religious doctrine on employees takes precedence over the rights of the religious individual (religious or not) to choose how to live their life.

This, to me, seems like the specific oppression of religious individuals, not their liberation.

Frankly, my employer - even if it's a religious employer - does not have the right to decide for me which legal rights apply to me. (They really don't even get to decide which moral rights apply to me. If I'm a Catholic and I disagree with their mandate and want to have birth control, I am perfectly free to do so, and it's none of the Catholic Church's business unless I choose to make it their business and tell them.)

This would be like the Christian Scientists (who do not believe in medical treatment) being able to exempt themselves from paying into Medicare, thus denying all of their employees the rights to a health insurance safety net! The employer just doesn't get to make that choice.

The goal of the Obamacare legislation is purportedly to place all healthcare rights in the hands of the individual, making it so that they can make the best choices for them and have healthcare that will make those choices more accessible. You cannot invoke rules which remove that access from certain people based upon the religious institution that they work for!

The Religious Charade

It's of course perfectly legitimate to think that Obamacare is bad law. The Reason article I cited earlier, for example, is really making this argument. The flaw in the article, and in this entire line of attack, is that it's not about religion, it's about contraception and healthcare. The conservatives who are attacking it over and over as a "War on Religion" are just grabbing any opportunity to attack legislation they don't like.

They might be right to oppose the legislation, but they aren't right to manipulate religious sentiment to do it.

I genuinely think that President Obama gave very little thought to religious institutions when he crafted the law. I think he felt that contraception was an important public health issue and invoked that rule, without any consideration that it would offend certain religions. And then, when those religions were offended, he made a reasonable stab at amending the legislation to address their concerns. And when they continued to complain, he once again amended it.

If that's a "War on Religion," it's the wussiest war I've ever heard of.

Follow-Up Notes

Since posting this, I've found the following two interesting online posts which have a direct bearing on the themes based in my post. I guess great minds think alike:

• United States Conference of Catholic Bishops: Bishop Lori Tells Parable of the Kosher Deli and the Pork Mandate in Congressional Testimony
• NY Times "The Stone" philosophy column: Birth Control, Bishops, and Religious Authority