A Question from Marty Lederman

Marty Lederman sends in the following in response to some of the discussion here about the contraception mandate.  I've opened comments for substantive responses to the specific questions that Marty asks.

I, too, am a longstanding proponent of RFRA, and of religious exemptions where the standards of RFRA are satisfied.  But Marc, before one even gets to the question of the "least restrictive means" of advancing the government’s public health interest, the employer would have to demonstrate a substantial burden on its exercise of religion.  And on that question, I remain genuinely baffled, because it seems to me the burden on religious exercise—the compelled “complicity with evil”—has merely been presumed, rather than explained, by virtually everyone involved in this debate.  

I am taking as a given a particular employer’s sincere belief that the use of contraception is sinful or greviously wrong, on religious grounds—and that material cooperation with that wrong would itself be wrongful.  Nevertheless, I would welcome anyone's careful and reasoned articulation of how the HHS rule would substantially burden an employer's religious exercise or, more to the point, how it would require material cooperation with evil under Catholic doctrine (or the equivalent under other religious precepts), or (as we now so often hear) "force the employer to choose between complying with the law or religious commands."  

Any employer's funds are, after all, invariably and regularly, but indirectly, used for activities that the employer considers wrong or sinful—through the government's use of taxes, the employee's use of salary, the employee's use of the employer's phone and computer (which of course might be used to purchase contraception, procure abortion services, etc.), and so on.  How is this case materially different?

Here, the state would merely be requiring the employer to offer a group health plan to its employees that covers all forms of medical care beneficial to health, including contraception.  (Contraception, that is to say, is hardly the focus of such a plan—it is but one of countless forms of health care that are required to be covered.)  The cost of the premiums would presumably be shared by the employer and employees, although it's not clear that federal law actually requires an employer payment.  (I may be wrong about that, but I don't believe federal law would require the employer to subsidize that plan at all—such subsidization is a function of market arrangements between employers and insurance companies.  I'll proceed here, however, on the assumption that, at least as a practical matter, virtually all employers would choose to pay part of the cost of the plan, in order to lower the premiums for their employees.)  The cost to the employer in subsidizing the group plan will, in turn, be reflected in lower salary payments to its employees.  In other words, the employer would have transferred the money in question to employees, anyway, but now that exchange will take a different form, one that facilitates a lower cost of health care through efficiencies of scale.  

The employer would not "choose" for the health plan to include contraception—that would be a standard condition as a requirement of federal law (just as the postal employee cannot choose which letters to deliver, including to the abortion clinic, etc.).  And, of course, and most importantly, the plan will not be used to subsidize purchase of insurance unless a particular employee chooses to use it in that way.  In other words, there will always be intervening private choice, akin to that in the sort of voucher plan that many of the writers on this blog have long insisted breaks the chain of responsibility and endorsement between the state and religious education, social services. etc.  And if and when an employee chooses to use the plan to cover contraception, not only will the employer not be required to administer or hand over the contraceptives (this is not, in other words, a case analogous to the doctor being required personally to perform an abortion), and not only will the funds not come directly from the employer, but the employer will not even know about the insurance company's reimbursement—just as if the employee had used her wages from the employer for the same purpose.

Moreover, the employer will remain free to express—to its employees, to the public, or to any other audience of its choosing—in the most vigorous of terms, that it believes the use of contraception is sinful; that it discourages and condemns such use by its employees; that it opposes the HHS rule; and that it would never willingly associate itself, however indirectly, with an insurance plan that reimburses for such contraceptive use.  That is to say, there will be no risk of any confusion about where the employer stands on such issues.  (As I understand it—woefully inadequately, no doubt—this also forecloses the possibility of “scandal” under Catholic teachings; but I welcome further insight on that doctrine, of which I know very little.)

Under these circumstances, is there any plausible case that the employer is "complicit" in the use of contraception, under any Catholic or other religious doctrine?   The fact that many of the Catholic employers in question—those who have a sincere and genuine belief that contraception and its willful and material facilitation are sinful—do, in fact, offer such plans in conformity with similar state laws surely offers further reason to question whether there is a strong case that such employers are "cooperating with evil."  (Indeed, as I understand it, under most state laws the employer is not required to provide group plans at all, and therefore there is a stronger sense of employer "choice" in those cases than there would be under the HHS rule.)

These are not rhetorical questions—I'm genuinely curious as to the answers (as are my students, who have repeatedly been asking such questions in class).  The Dana Dillon post (http://catholicmoraltheology.com/hhs-roundtable-cooperation-with-evil/) to which Rick linked last week was helpful, as was the Vincent Miller post to which Dillon linked; but frankly, they merely strengthened my doubts about whether this is really a case involving "material cooperation with evil."