Putting aside consideration of the merits and weaknesses of the contraceptive rule, Matthew Yglesias believes that the principle of freedom of conscience is being selectively applied:
Freedom of Conscience And Its Limits: Let me pull a point out of a rather long John Holbo post. Start with the assumption that ObamaCare is repealed, in its entirety, tomorrow. The day after tomorrow Abdul Hussain, owner and CEO of a large private firm with 5,000 employees, announces that his firm will no longer offer employees health insurance that permits women to visit male doctors or male employees to be treated by female doctors. This is a newsworthy event, and the day after the day after tomorrow Health and Human Services Secretary Kathleen Sebelius and Attorney General Eric Holder both offer the opinion that this is a form of illegal discrimination…. Will Mitch McConnell and other Congressional Republicans stand up for Hussain's "freedom of conscience" in this case? Will my conservative twitter followers?
I'm going to guess no.
Conservatives don't like the Affordable Care Act and are sympathetic on the merits to the claims of those who think contraceptives or morally wrong, so in this particular case the principle of "freedom of conscience" seems appealing to them. But there's actually nobody who endorses the general principle being invoked here.
This is territory that many have already covered, but I think Yglesias brings up an especially challenging example for those who approach this as an open and shut case of impermissible religious infringement.
One doesn't have to think very hard to come up with cases showing that not all situations and not all religious exemptions are created equal. Exceptions have long existed. The legislature and the judiciary, not the churches, ultimately decide the exceptions. Examples:
Child protective services will step in if a Jehovah's Witness parent refuses a necessary transfusion for a child.
Ministers of churches can perform legally recognized marriages, but if a church teaches that same-sex partners are rightfully entitled to marry in the church, the government still won't recognize those marriages in states where those marriages aren't legal. And even in states where they are legal, the federal government still does not recognize those marriages.
Governments have outlawed religiously-sanctioned polygamy, even when the practice has been a central tenet of faith.
Catholic Charities has had to give up acceptance of state money or comply with state law relating to foster care and adoption placement.
And there remain murky areas to be sorted out. Catholic hospitals take in a great deal of money in direct payments from coverage provided at taxpayer expense, i.e, both Medicare and Medicaid. Most of the rest of the operating money comes from direct payment by private insurers. And these hospitals have professional development offices for outside fundraising. The money that Catholic affiliated hospitals use for operations and growth doesn't come from the Catholic dioceses or religious orders that long ago stopped pumping money into these organizations.
So when Catholic Church officials speak of the Church spending its money, it should also be made clear that none of that money belongs to the Church per se. It belongs to non-profit health care organizations that operate just like other non-profit health care organizations. If this money belonged to the Church, the bishops or religious orders could demand some of that money for themselves, but they can't because it isn't their money. And if this money was church money, then there might be a problem with all those direct government payments, particularly from Medicaid, which isn't an insurance policy that was ever paid by the Medicaid patient; it's a straightforward government payment for an individual deemed eligible by the state. When that money is paid out, is it the individual's money or the state's money?
I have no opinion on how this would or should shake out it if it lands in the courts. This may be decided by genuine legal minds rather than us amateur bloviators, but I do think this situation is far more complicated than many are acknowledging. Politics. Feh.