Eric Bugyis and I share a respect for Stanley Hauerwas. HIs reaction to the HHS contraception-mandate decision, though, is very different from mine. "Obama defends conscience," he writes, by which it appears he means that the President, unlike the Catholic Church, respects the consciences of those who believe that it is not immoral to use contraceptives, including early-abortion-causing drugs. He writes:
This is, of course, a victory for all those who care about the religious liberty of individuals and the freedom of individual conscience, which by definition is meant to be protected from the unwelcome coercion by institutions to do things (or not do things) that are not relevant to the performance of one’s explicit duties to them, including one’s employer. The Obama administration did offer one gratuitous concession to those religious institutions.
It is, "of course," not a victory for those who care about the religious liberty of individuals, and it is, in my view, Bugyis's thinking, and not the Bishops', whose thinking on this matter is regrettably "muddled." (I am afraid that his suggestion that Archbishop Dolan would do well to take the year which the Administration has given him to prepare for the mandate's imposition to "reflect on what the concept of 'conscience' actually means" goes beyond mistake-making into unattractive and unworthy snark.) The notion that the refusal of a religious institution to subsidize an another's activity to which the institution objects on moral grounds is meaningfully analogous to a legal, punishment-backed requirement that such an institution subsidize such activity is, again, confused. The "coercion" involved in the mandate saga is the coercion by the government of religious objectors; the employers who do not want to pay for (even indirectly) their employees' contraception are not "coercing" those employees to do anything. Bugyis thinks the Church fails to respect the consciences of those who reject the the Church's teaching on contraception but the Church is not fining such people for their unbelief. (The claim of some that, because the government has declared that contraception-coverage is now -- because the government has declared it so -- a baseline entitlement, and so a refusal to subsidize is equivalent to a fine is cute, but unpersuasive.)
Yes, a meaningful exemption could mean that employees of Catholic institutions who want to purchase and use contraception have to pay more, but policies which raise slightly the cost of an activity are not helpfully or even plausibly regarded as forbidding that activity or as coercing people to forbear from engaging in it. (Never mind the fact that the government, if it wanted to, could easily subsidize the activity itself; but why bother when you can make religious employers do it?) Yes, in a democracy, in a political community in which people disagree, it will sometimes be the case that some people and institutions will be required to comply with legal directives to which they object. That's life. But in a political community that cares about religious freedom (as ours does), we make efforts to specially accommodate religion-based objections, especially in cases where (as here) it is easy to do so.
Bugyis writes, "[a]s it stands, the bishops and other religious leaders seem intent on protecting their prerogative to coerce rather than counsel, and this is a slap in the faces of the faithful, who have already endured and forgiven so much loss of moral credibility among their clergy." Again, the bishops are not "coercing" anyone, and the question whether the Church's teaching on contraception has been persuasive (to most people, obviously, it has not), should be entirely irrelevant to the question (I understand that it is relevant to the Administration's political calculations) whether a government that is constitutionally and culturally committed to religious freedom should make Catholic institutions subsidize employees' contraception. At the end of the day, it seems to me that Bugyis welcomes the mandate out of something like spite, as a kind of justified punishment, or come-uppance, of the Church for its failure to confess error and reform in the direction he would like. Very disappointing.
I'm not sure I have much to add to what I wrote here about the HHS mandate and religious freedom. The mandate is bad policy, in part because it imposes a burden, without good reasons, on the religious freedom of Catholic and other religious institutions. It would not have been difficult to craft a policy that allowed an exemption to employers with religious objections to the mandate and that provided government contraceptives-purchase support to employees of such institutions.
In addition to the Washington Post editorial criticizing the mandate, there have been powerful expressions of disagreement from liberal and center-left observers, including Roger Cardinal Mahony and Michael Sean Winters . Archbishop Timothy Dolan has been particularly outspoken, and convincing, in his interventions, in USA Today and the Wall Street Journal. I also recommend Archbishop Jose Gomez's piece in First Things, "A Time for Catholic Action."
The decision seems particularly cynical and insulting when one considers the support that Sec. Sebelius received from some prominent Catholics and the tone and content of the speech that Pres. Obama delivered at Notre Dame. Coupled with the bizarre and extremist brief that the Administration filed in the Hosanna-Tabor case, this decision may reasonably seen as a betrayal of those Catholics who actually believed that the President intended to lead an administration that was sensitive to religious-liberty concerns.
The decision is all the more unattractive for being so obviously political, in a low sense. It appears to me that the Administration simply decided that -- perhaps because the Bishops' stock is low in American culture at the moment, and perhaps because the polls and many advisors assure them that, because most Catholics report that they don't accept the Church's teachings on contraception (remember, though, this mandate covers some abortion-causing drugs, too) -- it would not face any serious political cost if it imposed the mandate, but it would demoralize "the base" during a re-election campaign if it did not. Catholics were quite useful during the 2008 campaign and, apparently, the Administration believes that this decision will not cause Catholics to stay home or switch sides in sufficient numbers to undermine the 2012 effort.
Again, Archbishop Gomez:
But the issues here go far beyond contraception and far beyond the liberties of the Catholic Church. They go to the heart of our national identity and our historic understanding of our democratic form of government. In his address last Thursday, Pope Benedict gave us some prophetic advice for these troubling times:
Here once more we see the need for an engaged, articulate and well-formed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture and with the courage to counter a reductive secularism which would delegitimize the Church’s participation in public debate about the issues which are determining the future of American society. The preparation of committed lay leaders and the presentation of a convincing articulation of the Christian vision of man and society remain a primary task of the Church in your country; as essential components of the new evangelization, these concerns must shape the vision and goals of catechetical programs at every level.
There will be much more to say about this in the weeks ahead. But this much is clear at the present moment: Now is a time for Catholic action and for Catholic voices. We need lay leaders to step up to their responsibilities for the Church’s mission. Not only to defend our faith and our rights as Catholics, but to be leaders for moral and civic renewal, leaders in helping to shape the values and moral foundations of America’s future.
In contrast to the bizarre argument underway in some forums that the HHS mandate is the Church's own fault or that this is a great victory for individual conscience against oppressive religious institutions, I'd like to think that MOJ's distinctive role in our little corner of the blogosphere is to bring us back to the legal issues in play, since we are, after all, talking about administrative implementation of a federal statute. To that end, Michael Greve has a post at the Liberty Law Blog that spells out the unprincipled and ad hoc means by which the Administration has gone about this whole process:
The Affordable Care Act (ACA) requires certain employer health plans to cover preventive care for women without co-pays or deductibles, “as provided for in comprehensive [but then non-existent] guidelines supported by the Health Resources and Services Administration [HSRA].” ACA §1273 (a)(4). In July 2010, HHS proposed an IFR to the effect that “preventive” care should encompass pregnancy prevention, and it instructed the private Institute of Medicine (IOM) to provide guidance. The IOM invited and heard presentations from such groups as the National Womens Law Center, Planned Parenthood, and the Guttmacher Institute (but not from any religious group). Predictably, the IOM urged inclusion of the full panoply of FDA-approved devices and procedures, including sterilization and so-called “morning-after” and “week-after” pills. (These drugs “prevent” pregnancies after they have begun. Many Christian denominations in addition to the Catholic Church view them as abortifacients.) Within less than two weeks, without further notice or public comment, HHS adopted this position in an IFR and HSRA issued guidelines. 76 Fed.Reg. 46621 (published Aug. 3, 2011), 45 C.F.R. § 147.130; http://www.hrsa.gov/womensguidelines.
Follow the progression: first comes a statutory text of sufficient ambiguity to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it’s been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.
This “process” has been playing out while Mrs. Sebelius’s office has issued hundreds of waivers for employer health plans that fail to comply with the ACA’s and HHS’s exalted standards, such as “mini-med” plans used by McDonald’s. Without those waivers, the ranks of the uninsured would swell. Hiding the ACA’s inanity is sufficient reason to suspend the legal requirements; First Amendment objections apparently aren’t. And the administration has proceeded by IFR, without the full notice-and-comment rulemaking apparatus of the Administrative Procedures Act. The APA requires “good cause” for IFRs, 5 U.S.C. 553 (b)(B)—most commonly, situations that do not admit of delay (think homeland security). A rule that can be suspended for a year can’t have been that urgent to begin with.
One of the great pleasures of teaching multiple courses is to see the many threads that connect them. This is not to say that law is a seamless web. It isn't. But there are twisting and turning concatenations. This is happening for me this semester with criminal law and constitutional law. One little example is that my view of the congressional delegation to the US Sentencing Commission in Mistretta is colored by the knowledge that the Sentencing Reform Act contains a panoply of justifications of punishment -- and so my first reaction after reading the case was to wonder whether a group of folks with no electoral accountability and no obvious constitutional warrant should be charged with the eminently political task of balancing conflicting theories of punishment that will bind the rest of us.
I spotted another perhaps more macrocosmic crossover in this column by Adam Gopnik, which discusses some of the claims by the late Professor William Stuntz in his book, The Collapse of the American Criminal Justice System. The argument in Gopnik's piece, which he attributes to Stuntz, that especially interested me was this. In searching for a reason why the United States incarcerates more people than other Western European countries, Gopnik writes that Stuntz traces the problem:
all the way to the Bill of Rights. In a society where Constitution worship is a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system -- much inferior to the exactly contemporary French Declaration of the Rights of Man....
The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles -- no one should be accused of something that wasn't a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done -- it talks procedurally. You can't search someone without a reason; you can't accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice....
The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality. The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That's why America is famous both for its process-driven judicial system...and for the harshness and inhumanity of its prisons. Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated.
It's an interesting piece, and I should mention that I haven't read Professor Stuntz's book. But I'm dubious about at least some of these claims. Some questions about this thesis after the jump.
My teacher and friend, Philip Hamburger, will be visiting us at St. John's Law School next Monday, January 30, at 4:00. His visit is the first in a new seminar that Mark Movsesian and I have put together, Colloquium in Law: Law and Religion. Academics in the New York area and beyond are invited to attend these sessions. Please write to me or Mark if you would like to come.
Here's another excellent contribution to Public Discourse today -- Archbishop Chaput's remarks at the Cardinal O''Connor Conference on Life: "Disability: A Thread for Weaving Joy." He explores with great insight the mix of suffering and joy that accompanies the experience of caring for people with Down Syndrome in our culture. A taste:
These children with disabilities are not a burden; they’re a priceless gift to all of us. They’re a doorway to the real meaning of our humanity. Whatever suffering we endure to welcome, protect, and ennoble these special children is worth it because they’re a pathway to real hope and real joy. Abortion kills a child; it wounds a precious part of a woman’s own dignity and identity; and it steals hope. That’s why it’s wrong. That’s why it needs to end. That’s why we march.
In the recent discussions by Rick and Robby about the organ transplant for the child with disabilities, I was struck once again by that curious paradox of our contemporary culture -- what strikes me as the deepening consensus that a disability doesn't detract from the basic dignity of a human who lives among us, along with the consensus displayed by 80% of the women who receive prenatal diagnoses of Down Syndrome that we really don't want people with disabilities living among us.
Charles Camosy's comments about that debate intrigued me. He was quoted as saying:
"Everyone deserves an equal chance to these organs, regardless of your mental capacity," said Charles Camosy, a professor of Christian Ethics at Fordham University.
Camosy said that while it's true that there are shortages of kidneys and other organs, the criteria used to make transplant decisions "should not ever devalue those that are mentally disabled."
"This is a growing movement that transcends liberal or conservative that says this kind of life, because it's so vulnerable, it deserves special protection," he said.
In the mix of considerations for organ transplants, he almost seems to be suggesting that we ought to give a preference to the most vulnerable. Is there any argument for a 'preferential option for the vulnerable' that might be as compelling as the preferential option for the poor? And, this leads me to a different question. Do Catholic hospitals incorporate a preferential option for the poor in their considerations about who should get any organ transplant (leaving aside the issue of disability)? Should they?
I have no doubt that Newt Gingrich would be a strong advocate for defending the religious liberties of Catholic groups currently threatened by Obama administration policies. When it comes to the religious liberties of Muslims, though, Gingrich takes a sharp turn toward intolerance.
[A]sked if he would ever endorse a Muslim running for president[,] "It would depend entirely on whether they would commit in public to give up Shariah," Gingrich said.
Let's get this straight: you're welcome to participate in our public life if you "give up Shariah." Sounds like the sort of treatment given to Rocco Buttiglione by the EU (and rightly criticized by many conservatives). Or consider this piece of red meat he happily threw out to voters:
Gingrich also called the Ground Zero mosque "a deliberate and willful insult to the people of the United States who suffered an attack by people who are motivated by the same thing."
What exactly is the "same thing" that motivated the 9/11 hijackers and Muslims who want to have a mosque near their homes and places of work? Is it the "same thing" that motivates Catholics and abortion clinic bombers? We must resist efforts to paint religious believers with a single broad brush. When it comes to Muslims, Gingrich appears ready to do just that.
Is Gingrich anti-Muslim? Well, he does generously concede that "A truly modern person who happened to worship Allah would not be a threat." It is "a person who belonged to any kind of belief in Shariah, any effort to impose it on the rest of us, [who] would be a mortal threat." So are religious believers welcome to participate in public life in Newt Gingrich's America? Yes, as long as you're "a truly modern person" who just happens "to worship Allah." Not reassuring.
Here, at Public Discourse, is Prof. Michael Stokes Paulsen, reflecting on the Roe anniversary and on today's March for Life:
Today, thousands of people at the March for Life in Washington, D.C., are commemorating the thirty-ninth anniversary of a legal and moral monstrosity, Roe v. Wade, and its companion case, Doe v. Bolton. . . .
. . . It is important . . . to view reality with eyes wide open, focus clear, and gaze not averted. On this thirty-ninth anniversary of Roe and Doe, I would like simply to set forth what Roe and Doe held, in as clear-headed and straightforwardly descriptive legal terms as possible, and to lay out its human and moral consequences. My brief tour of Roe’s unbearable wrongness begins with Roe’s radicalism—its extreme holding creating a plenary right to obtain or commit abortion—proceeds with Roe’s legal untenability, and concludes with Roe’s immorality and the moral problem of our seeming passivity and quiescence in response to the greatest legal and moral wrongs of our age. . . .
God bless all those, in Washington at the March for Life and around the country, who today (but not only today) are not only bearing witness to Roe's wrongness but also reminding us of the what-should-be-very-uncomfortable fact that most of us have made our peace, perhaps with regret, with a culture and with a legal regime in which it is not only permitted, but regarded as a moral, fundamental right, to be protected and celebrated, for some people to cause the death of other people who are vulnerable and dependent. Lord have mercy.
For another view, here is President Obama's statement, on the occasion of the Roe anniversary.
The Obama administration's abortifacient and contraception mandate is appalling, but I cannot claim to be surprised by it. In fact, I would have been surprised---indeed stunned---had the administration done anything significant to honor or protect the rights of Catholics and others on whose consciences the mandate will impose.
In every area touching the sanctity of human life and issues of sexual morality, the Obama administration is aggressively prosecuting the agenda its critics predicted and its most ardent left-wing supporters hoped for. Those who are driving the train, including key administration officials who self-identify as members of the Catholic Church, have no regard for the ethical beliefs of Catholics and others when they are in conflict with left-liberal orthodoxy. Their task, as they perceive it, is to fortify and expand the "right to abortion" and "sexual freedom" wherever they can. They pursue this agenda with a religious zeal because, in fact, the ideology in which abortion is a "right" and "sexual freedom" is a core value is their religion. These beliefs are integral to their worldview. If, like Kathleen Sebelius, they happen to be Catholics, you can be assured that it won't be Catholic teaching, or the Judaeo-Christian ethic, that shapes their policies on issues of life and death and marriage and sexual morality; it will be liberal ideology---pure and simple---that does the shaping.
Interestingly, Obama and his people have been willing to break the hearts of those on the left when it comes Guantanamo, rendition, basic procedural rights of detainees and those accused of supporting terrorism, targeted assassinations, drone attacks, and so forth. But they keep faith strictly with them when it comes to anything pertaining to abortion, contraception, and other central components of the ideology of lifestyle liberalism---the conscience rights of Catholics and others be damned.
Pro-life citizens, including many Catholics, who in 2008 allowed themselves to be persuaded that Obama wouldn't, as his critics warned, push abortion hard and run roughshod over the religious liberty and rights of conscience of Catholics and other pro-life citizens and their institutions, have now gotten a rude awakening. His administration revealed its contempt for religious freedom and the rights of people and communities of faith when it embraced an extreme and utterly untenable position on the ministerial exemption in the Hosanna-Tabor case. In case anyone thought that was some sort of isolated mistake, the President's abortifacient and contraception mandate leaves the matter in no doubt.
In 2012, it is no longer possible to sustain illusions about what Obama and his people mean to do to us. They are already doing it. "Fool me once, shame on you; fool me twice, shame on me."
Update: Michael Winters of the National Catholic Reporter won't be fooled twice: http://ncronline.org/blogs/distinctly-catholic/jaccuse. Thanks to my former student Mike Fragoso for sending me the link. But Mike, what on earth were you doing reading the National Catholic Reporter? Let me guess: You look at it for the pictures.
The Constitution uses the word "Establishment" exactly twice. The second time is familiar to MOJ readers: "Congress shall make no law respecting an establishment of religion..." Do you know what the first reference is? (No peeking!...the answer, a thought, and a question after the jump)
