Susan Stabile at Fordham's Program on Conscience and Catholic Institutions

Last evening Susan Stabile was the featured speaker in Part II of our Catholic Lawyer’s Program which this year explores the theme Faithful Citizenship: the legal, ethical and cultural implications of bringing Catholic values and social teaching into public life. In light of her scholarship (see, eg, State Attempts to Define Religion: The Ramifications of applying Mandatory Prescription Contraception Statutes to Religious Employers, 28 Harv. J. L. & Pub. Policy 741 (2004-2005), she was the perfect guide for the question of how Catholic institutions grapple with the questions that arise “when conscience clashes with state law and policy.” She gave a masterful overview, followed by a thought-provoking response from practicing attorney Piero Tozzi, who filed an amicus brief in support of Catholic Charities of Albany in the NY State Serio case.

It was an amazing tribute to Susan’s work that forty people—mostly practicing lawyers—slogged through the ankle deep sludge of the previous day’s snow, on one of the iciest and coldest days we have seen in a long time! (or perhaps this is NY’s protest that she will soon be leaving this area for slightly colder parts? Sigh.)

Both Susan’s and Piero’s remarks will be published in a forthcoming issue of the Journal of Catholic Legal Studies (a co-sponsor of the event). In the hopes of continuing the conversation, I’ll put out the questions that her presentation raised for me.

First, Susan argues that there’s a broad cultural shift at work – from respect for negative rights (to be free from coercion), to increasing demand for positive rights (society must affirmatively support and perhaps pay for one’s demands). I’m wondering how broad that is – as I’m teaching the seminar on CST & Economic Justice, I have the sense that we still struggle mightily with the grounds to articulate “positive rights” when it comes to constructive vehicles for insuring that basic needs are met (food, shelter, etc.). If there is a cultural shift, might it be limited to, or might there be something different in how it is applied to the “reproductive rights” sphere? Most sharply, could it be that “positive rights” currently seem to have the most pull when they will eliminate (eg, through birth control or abortion) a potential person who might have another claim on society’s resources?

Second, she drew a distinction between type of burdens on religious institutions. Eg, it’s one thing for a Catholic hospital (or it’s agent) to be forced to perform the act of abortion; and it’s another to have to pay increased premiums for contraception. But even with this distinction, she made a strong argument that it poses a significant burden on Catholic institutions to require them to pay for contraception (see her Harvard article).

Here’s a question that might help to sharpen the argument: the image that came to my mind was vouchers. In the school voucher cases, many argue that the government is not actually paying for specifically religious schooling, but rather for education generally, and it’s the parents’ free choice to select the option of a religious institution which supplies to society the service of education. How is this case different? (eg, the Catholic employer is paying for “healthcare,” mediated by individual choices for which individual people take responsibility).

If the insurance policy of a religious employer covers abortion of any kind, shouldn’t that be raising similar flags as the contraception cases? Or could a similar analysis apply? What does it mean to pay for insurance which leads open a number of options, some moral and some not? Or more broadly, how do we think about institutional conscience when the ground level decisions are mediated by individual choices?

(I have no idea how to answer any of these questions. This is really just a prod to Susan, to put out more of her thoughts – the program’s question and answer period was terrific).

Amy