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.
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I've come to expect to hear weak arguments about how the Church should stop concerning itself with issues outside the sanctuary, but when they're made by a member of my state's legislature and given prominent placement on my local paper's op-ed page, it still raises my blood pressure before I've even finished my breakfast. Consider this gem from Rep. John Lesch in today's Star-Tribune:
No one begrudges a bishop's role in squaring away his own flock. But when he runs a large hospital upon which a city relies for jobs and health care services, he need not be wagging his finger as you walk in the emergency-room door.
If I want to hear moralizing, I'll go to church. If I want to access legal health care, I'll go to my health care provider. And I think my conscience is adequate to understand the difference between the two.
And then, of course, a history lesson:
The pilgrims fled England because they prized individual conscience over the Church of England's mandates. The founding fathers recognized this and ensured that the First Amendment afforded individual freedom from religion.
Catholic or non-Catholic, our hard-won freedoms cannot afford another election-year intrusion.
Limiting the mandate to "large hospitals" would certainly be a step in the right direction (though still problematic, in my view). I repeatedly see pro-mandate arguments ignoring the vast array of Catholic institutions that will be affected. The broader point that pervades the piece, though -- that church is the building where worship services are held -- is troubling, especially coming from the "progressive" left (as Tom Berg eloquently argued in the Christian Century recently). And the suggestion that "conscience" is what guides us in knowing that the Church oversteps its bounds when it enters into the realm of social services? Ugh.
On a positive note, however, it appears increasingly likely that the Obama administration will be revising the rule, perhaps even later today. Unfortunately, the reasoning employed by our pro-mandate elected officials is unlikely to disappear anytime soon.
In the midst of our struggles over the sanctity of human life, the meaning of marriage, and the future of religious liberty and the rights of conscience---struggles that will determine what we stand for as a nation and who we are as a people---we would, I think, do well to recall the wise teachings and inspiring example of the late Fr. Richard John Neuhaus. Here is a tribute to him that I did for First Things soon after we lost him only a few years ago: http://www.firstthings.com/onthesquare/2009/03/he-threw-it-all-away.
My friend Kevin Walsh has a smart reaction to the Linda Greenhouse column that I wrote about yesterday, noting that the least restrictive means portion of the RFRA standard is an almost sure loser for the Administration. A bit from Kevin's analysis:
After beginning by criticizing the rhetoric of mandate opponents and noting the silence of mandate supporters on the question of conscience, Greenhouse states that “the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.” But Greenhouse’s framing of the analysis reflects a basic misapprehension of the legal protections for religious liberty already embedded in federal law. Greenhouse writes that objecting religious institutions claim “a right to special treatment: to conscience that trumps law.” That is wrong: the objecting religious institutions claim that the mandate violates federal law. They do not argue that conscience “trumps law.” Far from placing conscience over law, the objecting institutions advance a claim under the law . . . .
The RFRA provides that the federal government cannot substantially burden the exercise of religion unless doing so is the least restrictive means of accomplishing a compelling government interest. Yet Greenhouse’s discussion contains no mention at all of the “least restrictive means” part of the test. Instead, Greenhouse says that a RFRA challenge “would pit the well-rehearsed public health arguments . . . against religious doctrine.” The omission is telling, because the weakest part of the government’s case will be this least restrictive means requirement. There are so many other ways for the federal government to accomplish its objectives that it should lose the RFRA claims on precisely this point.
Earlier in her column, Greenhouse notes the lack of a “full-throated defense” of the contraceptives mandate, “except on pure policy grounds.” The best explanation for the silence of the mandate supporters with respect to religious liberty may be the simplest: nobody likes to pick a fight that they cannot win.
Thursday, February 9, 2012
The administration has signaled that it is looking for a compromise to the contraception insurance issue. How about this? Those employers who conscientiously oppose providing contraception insurance to their employees should not be able to profit from a religious exemption. Accordingly, the employers should be required to increase employees' wages by the amount the employers save because of a religious exemption.
The employer might not want to pay higher wages, but could have no serious religious objection to the requirement. Employees could use the money to purchase insurance for contraception if they wished or for other purposes at their option.
From the perspective of the administration, this proposal has a disadvantage. A major reason for requiring employers to include contraception as a part of their insurance was to encourage greater use of preventative services by employees. One way to mitigate this disadvantage would be to afford a tax deduction for the premiums required to purchase contraception insurance. The fringe benefit of insurance was not taxable in the first place. Indeed, from the perspective of the administration, it would make sense to make all contraception expenses tax deductible or, alternatively, even a tax credit. If the evidence showed that tax policy of this character would increase contraception, we could expect abortions to decline in turn. Of course, the Catholic Church would oppose any such tax policy on moral grounds, but it could not argue that the policy would violate its religious freedom.
