The Contraceptive Rule

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 Start with the assumption that ObamaCare is repealed, in its entirety, tomorrow.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.

Comments

[Chuck]

The laws of this nation are based on the Constitution which applies to everyone.

First amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Is the Catholic Church a recognized Religion? Yes it is and its rights need to be respected and protected. Catholic's believe that any form of contraception is a fundamental violation of their moral beliefs. Plain and simple, the national health care act violates their rights by forcing them to participate in a practice that violates their religious belief. (Prohibiting the free exercise thereof.)

The examples sited above dance around this simple fact. If Mr. Hussein wishes to state that women and men are segregated in health care, this example simply violates established Civil and Human rights by discrimination based on sex. (See the Civil Rights Laws)

Regarding same sex marriage. Currently the laws of marriage are based on State definitions. If a state decides that it is socially acceptable to have same sex marriages, that is their right to decide, however, the Federal Government does not have to recognize them. (I will not go into the constitutional reasoning; you are free to research those yourselves.)

Regarding the polygamy argument, there is a difference between something being illegal and if the law is being enforced.
Sodomy for instance is defined as unnatural sex acts. This would include anal and oral sex. With the exception of cases of incest and rape, when was the last time someone was charged with sodomy? Under current law, same sex marriage would be a crime based on sodomy laws alone. Thankfully, the American people are waking up to the civil rights aspect of same sex marriage and now 9 states have made it legal. All 50 states have statutes against polygamy. Most if not all states will turn a blind eye to it if polygamy is not flaunted at them. One of the problems I see in the prosecution is the legality of the marriages. Legally they are not married to more than one wife, they are cohabiting. If they actually had married by the lawful standard they would also be committing bigamy which would be easier to prosecute.

The affordable Care Act was noble in intent, but it is clearly being vetted out to be very poorly written. (I guess we needed to read it before we passed it)

Contraceptives are a personal choice, and as such should not be FORCED upon anyone or any religious group if it violates their Religious beliefs. As per Child protective services stepping in if a Jehovah’s Witness parent refuse a necessary transfusion for a child, this is based on human welfare laws. With contraceptive health (excluding abortion) these do not create a Life or death situation and the individual is in control of the outcome (don’t have sex and you wont have a baby). However, a child not receiving a transfusion would possibly be a life or death situation and human welfare must be taken into consideration. Regarding Abortion (the loaded gun issue) if the patient’s life can be stated to be in danger, this would be a human welfare issue. However, although the procedure should not be PREVENTED, a Religious group should not be forced to pay for something that is as basic as their moral interpretation of killing what it defines as an unborn but alive person.

I will agree with you that this situation is far more complicated than many are acknowledging simply because we have allowed the government to create laws and practices which over time have distorted and in other ways ignored the constitution.

[Dr X]

Chuck,

So I take it you're okay with Muslims who provide health insurance imposing a same-sex physician requirement on their non-Muslim employees.

The part you wrote about polygamy and same sex marriage laws was evasive gibberish. The fourteenth amendment made the bill of rights applicable to the states and the federal government has DOMA. Clearly you want to selectively apply the authority of government to restrict religious practices based on your own inclinations and you'll twist yourself into an intellectual pretzel to justify your own inconsistency.

First you present the First Amendment in absolutist terms to justify your position, then you agree with exceptions, none of which are covered by your absolutist view of the First Amendment. Fact is you're interpreting the law beyond the text. and that's what the courts do and have done.

[Chuck]

Actually regarding the Muslims same sex physician requirement. I don't know how you could misunderstand me. As I stated it is simply discrimination based on sex. I did not state I was for it. I don't know how you would think that my statement would imply I would be for such discrimination. For the Record IM NOT.

I presented the First Amendment as it is written. Are there contradictions in some of our other laws? Yes. Do some laws ignore the constitution? Some would say definitely. Can Gays and Sodomy be separated? I don't think think so. Technically, in the states that have legalized same sex marriage, they have created a legal contradiction that needs to be corrected. Corrected by repealing the sodomy laws.

I'm not trying to twist anything. I think you looking at my comments from a different perspective. As for interpretation of the law, you are right that the courts have interpreted them beyond the text.
It will be interesting how this plays out across the national media and the courts.

[Arthur]

Good post, Doctor.

Dear Chuck,

whoosh