Monday, October 29, 2012
First of all, welcome back,
Michael, to these pages, and thank you for posting the abstract of Frederick
Mark Gedicks’s abstract. I look forward to reading the full essay soon, and
that effort may prompt some further reflections from this scribe. But I think
it important, given the significance of the matters which Professor Gedicks
addresses in his abstract and the impact his general thoughts will have on
certain events associated with next Tuesday, November 6, to offer these
thoughts on his major contentions now.
There is no question that the
Patient Protection and Affordable Care Act of 2010 (the Act) poses questions
about religious liberty. The Act and its regulatory scheme have served as a
catalyst of a good number of employers who are demonstrating in existing
litigation why there Constitutionally protected freedoms are under
impermissible attack. Whether the Act poses questions about Supreme Court and
other judicial decisions is another matter. As Justice Ginsburg stated in her
concurring and dissenting opinion in National
Federation of Independent Business v. Sebelius, “A mandate to purchase a
particular product would be unconstitutional if…the edict…interfered with the
free exercise of religion…”
The so-called “contraception mandate”
is a two-edged sword. Without it, those people who want artificial
contraception paid for by health insurance consider themselves denied an
entitlement which is not mentioned in the Constitution but is mentioned in the
Act. With it, those people who, because of their religious convictions which
are protected by the Constitution, must sacrifice their Constitutionally
protected right to a right generated by legislation and regulation. The issue
is this, and it is starkly simple.
But the abstract suggests that it
is more complicated. Is the issue solely one of the state excusing a religious
believer from complying with a statutory/regulatory scheme that imposes on the
liberty of the person who wishes to have free artificial contraception, or as
Professor Gedicks argues, “by imposing on [those who want subsidized
contraception paid for by the objecting religious believer] the costs and
consequences of religious beliefs that they do not share?”
One thought in response to his
contention is that Congress could have done a better job in protecting both
claims, the Constitutional one and the statutory/regulatory one, but it did
not. Nevertheless, the abstract suggests that the Constitutional claim is
inferior to the statutory/regulatory one of the Act. Professor Gedicks emphasizes
this perspective by stating that the Constitutional right does not permit the
holder to “interfere with the liberty of others”; thus, “religious liberty may
not be used by a religious employer to force employees to pay the costs of
anti-contraception beliefs that they do not share.”
The First Amendment jurisprudence
does not address the specific facts of this matter, but the text of the First
Amendment does: “Congress shall make no law… prohibiting the free exercise [of
religion].” Did not Justice Ginsburg make this point in her concurrence/dissent
as I have already pointed out? There is a contention in the abstract that the
liberty which emerges from a statutory/regulatory scheme is not only the
equivalent of the Constitutional claim but might even surpass it when “fundamental”
access to contraception is challenged. This contention is on shaky ground
because the Constitutionally protected right that is asserted by religious
employers is not prohibiting all access to contraception; rather, the argument
is contending that this access must not be underwritten by the person who
objects to paying for it on a Constitutional right that will otherwise be
compromised—a compromise which violates an unambiguous Constitutional claim.
The further arguments advanced by the
abstract about the advancement of women, the spacing of pregnancies, the
enhancing of health including the new-born, and access to participation in the
workplace are not what are at issue and should not be used to camouflage what
is really at stake: the unambiguous Constitutional right of the free exercise
of religion.
It may be that Professor Gedicks
develops a response to this concern in the full essay, but I am troubled by the
statement in the abstract that the financial obstacle for low or no-income
women to have to pay for contraception is not restricted to women who are
married. I think this intensifies rather than diminishes the religious freedom
concern if the religious believer is asked to subsidize sexual promiscuity to
which the believer also objects on religious grounds. This statement as it
appears in the abstract should make us realize that the “right” to underwritten
protection against the consequences of sexual license is the wake of Eisenstadt v. Baird. And I don’t think
that Eisenstadt supports that
proposition that anyone has a Constitutional right to contraception that must
be paid for one who objects on First Amendment grounds.
RJA sj
By Frederick Mark Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University School of Law
Abstract:
The “contraception mandate” of the
Patient Protection and Affordable Care Act of 2010 poses a
straightforward question for religious liberty jurisprudence: Must
government excuse a believer from complying with
a religiously burdensome law, when doing so would violate the liberty of
others by imposing on them the costs and consequences of religious
beliefs that they do not share? To ask this question is to answer it:
One's religious liberty does not include the right
to interfere with the liberty of others, and thus religious liberty may
not be used by a religious employer to force employees to pay the costs
of anti-contraception beliefs that they do not share.
That the free exercise of religion is fundamental constitutional right
is not in doubt. But access to contraceptives is also fundamental. Such
access, moreover, is a critical component of the well-being and
advancement of women, enabling them to time and space
their pregnancies, thereby enhancing their own health (and that of their
new-born children) and facilitating their participation in the
workforce on more equal terms with men.
Contraception nevertheless remains a significant expense beyond the
reach of many women who lack insurance coverage or whose health
insurance plans do not cover contraceptives or do so only with
substantial patient cost-sharing. This is a financial obstacle
to the use of contraception by working-class and lower-income women, and
simple economics suggests that women of all but the highest income
levels are likely to use contraceptives more often and more consistently
when they can obtain them at no cost.
The rhetoric of those challenging the mandate charges federal violation
of the free exercise rights of religious employers, usually without
mentioning the substantial federal interests in protecting the religious
liberty and enlarging the access to contraceptives
of employees who do not share their employer’s religious values. The
contraception mandate strikes a sensible balance of these competing
liberty interests by generally exempting only religious persons and
organizations who do not externalize the costs of their
religious beliefs and practices onto others who do not share them.
The contraception mandate does not violate the rights of religious
employers under either the Religion Clauses of the First Amendment or
the Religious Freedom Restoration Act. The mandate is a “religiously
neutral, generally applicable” law that does not discriminate
against religious employers, does not entangle government in disputes
about theology or internal church governance, and does not
“substantially” burden the free exercise of religion by nonexempt
religious employers. The mandate is additionally justified as
the least restrictive means of protecting compelling government
interests in public health and gender equity. Finally, while all these
conclusions apply fully to religious nonprofit organizations, they apply
with special force to religious owners of for-profit
businesses operating in commercial markets.
Paper downloadable here.
From John O'Callaghan (Philosophy, Notre Dame), and following up on my earlier post, comes this response to Tom Friedman's recent piece on being "pro-life":
[MOJ readers might be interested in this] video of this feeding
clinic in Evansville, Indiana http://www.youtube.com/watch?v=pvxbAYmS2XI as
a kind of visual refutation of Friedman's slander against the pro-life
movement—that it does not care for anyone after birth. If we may be so
bold as to suggest that the Catholic church is the largest institutional
pro-life voice in the country, notice the crucifix on the wall, and the name of
the clinic. It's a Catholic hospital. The first formally constituted Catholic hospitals date from at least the early part of the 4th century. Apparently Julian the Apostate was so concerned about these philanthropic enterprises of the Christian church that served everyone, Christian and pagan alike, that he directed that institutions of the empire should be set up to rival them, and
perhaps even undermine them. (http://www.newadvent.org/cathen/07480a.htm)
Plus ca change… The Federal government has been involved in a
serious way in health care for what, maybe less than a century? But we
know no more than 223 years at the conceivable best. Businesses began
providing health insurance to employees in the latter half of the last century
as a competitive market advantage for acquiring labor over competitors. And Tom Friedman only lately heard about sugary drinks from the mayor of New York. All these exemplars of being pro-life. But Christians and the
Catholic Church have been caring for people throughout their lives, feeding
them, clothing them, educating them, visiting them in prisons, comforting them
in death for 2000 years, whether those they cared for were Christians or not.
And Tom Friedman would have the federal government tell Catholic
institutions they aren't Catholic enough or pro-life enough. Nice.
Matthew Shadle, at
Catholic Moral Theology, has an
interesting post up, which aims to provide some historical background and context for the "Paul Ryan controversy" and which notes, among other things, that Catholics have, in the past, had to think about how to deal and cooperate with (or not) "alien ideologies." Like Rep. Ryan's critics, and the authors of the
On All Our Shoulders statement, I agree that Rand-style "objectivism", and also certain forms of "libertarianism", are in serious tension with the Christian proposal; I do not think, though, that the "Ryan is a Randian!" charge is accurate or helpful, or that Catholic Social Teaching is necessarily statist, or that there is not ample room in the CST tradition for correctly-understood (i.e., understood in Christian-anthropology terms, not in atomistic or Randian terms) individualism. Putting that all aside, though, I thought the post was thought-provoking.
Recent comments by Indiana Senate candidate Richard Mourdock have provided an occasion for some candidates and activists to recycle, for presidential-election purposes, the "anti-abortion extremism!" charge. I think it is
worth remembering, though -- Charles Reid's
recent argument notwithstanding -- which of the two major-party candidates' views and record on abortion actually
are "extreme".
I gather that, tomorrow, while I am celebrating the eve of All Saints Day, some people are marking
"Reformation Day." Maybe, in an ecumenical gesture, I'll re-read a few pages of Brad Gregory's "The Unintended Reformation" . . .
