During this morning's annual prayer breakfast, President Obama only obliquely referenced the week's unpleasantness between his administration and U.S. Catholic bishops. The relationship, already shaky, became even more strained by recent Health and Human Services edicts that will require Catholic hospitals, universities and social services to pay for health plans that include contraception, sterilization and the "morning after" drugs Plan B and ella. He said:
Now, we can earnestly seek to see these [religious] values lived out in our politics and our policies, and we can earnestly disagree on the best way to achieve these values. In the words of C.S. Lewis, “Christianity has not, and does not profess to have a detailed political program. It is meant for all men at all times, and the particular program which suited one place or time would not suit another.
Our goal should not be to declare our policies as biblical. It is God who is infallible, not us . . . So instead, it is our hope that people of goodwill can pursue their values and common ground and the common good as best they know how, with respect for each other. And I have to say that sometimes we talk about respect, but we don’t act with respect towards each other during the course of these debates.
But each and every day, for many in this room, the biblical injunctions are not just words, they are also deeds. Every single day, in different ways, so many of you are living out your faith in service to others.
A more specific pushback against the bishops' campaign to depict the HHS decision and other recent controversial moves by the administration as part of an orchestrated campaign to diminish religious liberty was delivered by Cecilia Muñoz. On the White House blog Muñoz acknowledged some "confusion" over the new regs, but wanted folks out in progressive Catholic swing vote land to "have the facts":
Churches are exempt from the new rules: Churches and other houses of worship will be exempt from the requirement to offer insurance that covers contraception.
No individual health care provider will be forced to prescribe contraception: The President and this Administration have previously and continue to express strong support for existing conscience protections. For example, no Catholic doctor is forced to write a prescription for contraception.
No individual will be forced to buy or use contraception: This rule only applies to what insurance companies cover. Under this policy, women who want contraception will have access to it through their insurance without paying a co-pay or deductible. But no one will be forced to buy or use contraception.
Drugs that cause abortion are not covered by this policy: Drugs like RU486 are not covered by this policy, and nothing about this policy changes the President’s firm commitment to maintaining strict limitations on Federal funding for abortions. No Federal tax dollars are used for elective abortions.
Over half of Americans already live in the 28 States that require insurance companies cover contraception: Several of these States like North Carolina, New York, and California have identical religious employer exemptions. Some States like Colorado, Georgia and Wisconsin have no exemption at all.
Contraception is used by most women: According to a study by the Guttmacher Institute, most women, including 98 percent of Catholic women, have used contraception.
Contraception coverage reduces costs: While the monthly cost of contraception for women ranges from $30 to $50, insurers and experts agree that savings more than offset the cost. The National Business Group on Health estimated that it would cost employers 15 to 17 percent more not to provide contraceptive coverage than to provide such coverage, after accounting for both the direct medical costs of potentially unintended and unhealthy pregnancy and indirect costs such as employee absence and reduced productivity.
Muñoz wrote that the administration is "committed to both respecting religious beliefs and increasing access to important preventive services."
"And as we move forward, our strong partnerships with religious organizations will continue," she added. "The Administration has provided substantial resources to Catholic organizations over the past three years, in addition to numerous non-financial partnerships to promote healthy communities and serve the common good. This work includes partnerships with Catholic social service agencies on local responsible fatherhood programs and international anti-hunger/food assistance programs. We look forward to continuing this important work."
Her remarks seem to walk around, as does much of the debate in cyberspace (do kids still call it that?), the potential constitutional problems with the new policy. Perhaps more comment from the White House on this matter will be forthcoming.
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I was reading Wikipedia on Reynolds decision of 1979 re: polygamy and wondering about applications from that, but that is a more extensive discussion.
I still will have more questions, but apprecate your post...
One aspect that I would love to see some commentary upon is the experience of the Church in Europe especially with some related issues. I can't help but hink with the gnerally socialized medicine approach, there havfe been "quiet accomdocdations" or many variations on this the juxtaposition of the themes that are raised.
For those of us who remember the SC decision about prayer in the schools (although a very distinct argument, I realize), there is an emotional resonance. I remember the wonderful nun who was my debate coach being unconcerned and helping me write a speech defending that ruling for which we both took some flak. How will history repeat itself
I think that the WH reaction is healthy and more moderate than so many episcopal letters of last weekend!
It seems obvious to me that if the Catholic Church were running Catholic Health Insurance, Inc. a wholly owned subsidiary of the Catholic Church, adhering to the teachings of the faith, it would not be required to offer contraceptive coverage. However, not making an insurance product available designed exclusively for the sensibilities of the Catholic Church does not constitute an attempt to dimish religious liberty any more than not making an insurance product that doesn't cover Viagra so that none of my insurance dollars (however miniscule in amount) goes to paying for such a thing that I find morally offensive, is an effort to diminish my liberty.
Off the top of my head, I can't remember such a sharp comments by bishops since the days when the civil and human rights of 11% of Americans were at issue. But off the top of my same head, I can remember several recent presidents who were tougher with their enemies, going so far as to destroy them (the air traffic controllers' union) or burglarize their psychiatrists.
None of these apologists are addressing a more difficult issue- the valid, direct criticism of so called progressive and democratic Catholics. And the growing evidence, no matter what your personal option, from independent press reports ( WSJ, POLITCO, others) that document that this was a deliberate and knowing election year decision by the White House. To add insult to injury the WH is planning to defend the decision by politically minimizing and isolating the Catholics who disagree.
The WH is not writing off Catholics- they are expecting the only people who care will be those who would never have voted for him anyway.
I voted for Obama and, given the presumptive Republican choices, will vote for him again although I am disappointed at some of his policies and programs (though, admittedly, not necessarily this one). I respect fellow bloggers and each person's choices and surely those who see this as true conscience/freeedom issue and have felt somehow betrayed by this proposed policy
But how many of fellow commentators were disposedto oppose him and looking for a good reason to hang a principle upon to begin a campaign against him at this point?
Surely this is our common right and my reasoning and rationale is just as debatable as your own, but just be honest about what else motivates us.
Why should non-Catholics be expected to accommodate a ban that most Catholics simply choose to ignore?
"It seems obvious to me that if the Catholic Church were running Catholic Health Insurance, Inc. a wholly owned subsidiary of the Catholic Church, adhering to the teachings of the faith, it would not be required to offer contraceptive coverage. However, not making an insurance product available designed exclusively for the sensibilities of the Catholic Church does not constitute an attempt to dimish religious liberty any more than not making an insurance product that doesn't cover Viagra so that none of my insurance dollars (however miniscule in amount) goes to paying for such a thing that I find morally offensive, is an effort to diminish my liberty."
The issue is consitutional primarily. It narrows the access of religious institutions to provde needed services in the public square. Employees of Catholic institutions are free, of course, to reject the Church's teaching on birth control (and many of course do), but they have no constitutional right to require the insitution itself to pay for the services it considers to be in violation of its moral teaching (and, respectfully, the Catholic Church has the "right" to define its own moral teachings no matter how many individuals reject it - I know that's an unpopular statement). As Ross Douthat wrote yesterday:
"The Church isn’t asking for the right to fire an employee for missing Mass on Sunday or for coveting his neighbor’s wife. It just doesn’t want its institutions to be legally required to pay for acts that it considers immoral, as the price of running hospitals at all. (Or to pay for them directly, since obviously an employee could use their paycheck to buy any produce or service they so chose.) This isn’t the equivalent of a hypothetical Muslim hospital demanding, say, that all its employees permanently abstain from pork and alcohol and premarital sex. It’s the equivalent of a hypothetical Muslim hospital declining to stock Playboy in its gift shop, or serve pork and alcohol in its cafeteria."
Very honestly, the more I read of those who support the President's policy, the more I'm convinced such support is based on a delight in seeing the Bishops' getting some deserved comeuppance rather than an accurate understanding of the policy itself. THus, I thought it was particularly cheeky of Ms. Munoz to mention in her post the fact that many Catholics do not follow the Church's teaching on birth control. The fact is the Administration has shown its true mettle in this issue.
If we wanted to use an only slightly less absurd analogy, we could state that a religious employers conscientious objection to paying for open heart surgery does not represent a burden on the employee, who remains free to pay for such surgery on their own accord, without realizing that that is a practical impossibility for most citizens.
Obviously, open heart surgery is not contraception, but neither is buying a magazine. They are both about as logical a metaphor. But if anyone has purchased a prescription that is not insured, they will know what an extreme financial burden it is for any but the most well-off, as evidenced by the substantial bipartisan political constituency that amended the Medicare drug benefit. Whatever flaws it may be a net benefit, it recognized the extreme financial burden of pharmaceutical costs.
To not cover the benefit is to practically deny in most cases, and in this case is to deny it to employees that are never required or expected to embody the belief system. To elect to drop coverage altogether for all medical services rather than to provide this coverage, as my local bishop Robert Lynch has threatened, is cruel and Pharasaic, as it ignores the practical effect of the decision as surely as refusing to heal someone on the Sabbath did two millennia ago.
Most of the arguments in support of the HHS Mandates in the comments here and elswhere have been about contraception and the Church's teaching, NOT about the applicable federal law. If you look at the USCCB site you can see the submission the Bishops made to HHS; it is wholly in terms of federal law; I have seen not one single commentator address those arguments. The fact that Ms. Munoz on the White House's very own blog chose to make the argument about birth control and Church teaching confirms this, as Michael Sean Winters points out today as well (http://ncronline.org/blogs/distinctly-catholic/not-remotely-issue).
You go on to say "there is no viable constitutional challenge to the regulation is written under the First Amendment's ecclesiastical abstention doctrine."
I disagree; Hosanna-Tabor makes this a "close call."
Finally, you quibble with Douthat's analogy, then make one of your own to open hear surgery. It is your analogy, unfortunately, that is "facile and weak." First of all, contraception is much more readily available and less expensive than is open heart surgery. The idea that women who want it cannot get birth control is laughable; just ask many a middle school student. Obtaining birth control in this country is not a "practical impossibility." Secondly, this is not a case of "dropping coverage." These agencies have never provided for this coverage, and I suspect most female employees who take these jobs understand that fact. On the contrary, it is the HHS that is newly-mandating this coverage, so the notion of "dropping the coverage" thus leaving these employees in some kind of necessitous circumstances is simply not accurate.
Challenge Taken:
Here is the only portion of the USCCB website that I see addresses existing federal law, which parenthetically, I would know, is not an issue of constitutional law, which is what I was addressing:
Yes. For example, a law in effect since 1973 says that no individual is required to take part in “any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services” if it is “contrary to his religious beliefs or moral convictions” (42 USC 300a-7 (d)). Even the Federal Employees Health Benefits Program, which requires most of its health plans to cover contraception, exempts religiously affiliated plans and protects the conscience rights of health professionals in the other plans. Currently no federal law requires anyone to purchase, sell, sponsor, or be covered by a private health plan that violates his or her conscience.
The report provision applies to individual health professionals participating in actual procedures, as the Bishops' concede after the misleading earlier suggestion. Here is the complete provision:
(d) Individual rights respecting certain requirements contrary to religious beliefs or moral convictions
No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to hisreligiousbeliefs or moralconvictions.
Their attempt to cite this provision is being violated by the current regulation is misleading, at best. Moreover, if they were correct, it would be a simple matter of invalidating the regulation, as regulations are subordinate to statutes. This is not an honest argument.
One other dishonest point about the article is as careful phrasing in the final sentence, specifically the use of the term ''private health plan'' since Medicaid already covers contraceptive coverage, and everyone pays taxes towards that support.
Also, I disagree with Mr. Winters’ reasoning as unChristlike. One can never omit context of the moral reasoning under any accepted ethical model. Certainly Christ did not when he addressed the application of prohibitions from working on the Sabbath, and their practical effect. Of course the degree of conscientious objection impacts the analysis. Are we really suggesting that any of the Orders/Dioceses view the regulation is the equivalent of covering abortion? Even their own language refers to this as a potential slippery slope, but not the action itself. In no manner of practical application outside the abstract are the two ever equated. And that also undermines the attempted citation to federal law, which refers to actually participating in the procedure. No one would reasonably equate compelling an individual to perform an abortion/sterilization with providing generalized health-care coverage which includes contraception.
Let me jump a little bit out of order before addressing the constitutional dimension. You mention that no one is suggesting dropping coverage. It was a very specific reason I raise that, and I raised the example of my own local bishop, who did so at a Red Mass that I personally attended
Here is a media piece - http://www.tampabay.com/news/courts/catholic-bishop-lynch-vows-to-thwart-health-care-law/1204205
If draft regulations aren't changed, Lynch said, the Diocese of St. Petersburg will no longer provide health insurance for its 2,300 employees
As far as the availability of birth control, I'm referring to oral contraceptive pharmaceuticals, which is the issue. Those are tremendously expensive if not insured and require a prescription. Again, any fair reading of my original point raise the issue of cost rendering it practically unavailable.
Finally, the Constitutional argument. I maintain that it's not a close call for any principled jurist, which by definition may not include much of the block willing to strike down the law for less principled reasons. Hosanna-Tabor did nothing to alter that analysis. It was solely based upon the teachers status as an ''minister'' and the ministerial exception. Here, by definition, we are only referring to coverage for non-ministerial police. There is no demand a ministerial police must be covered by any coverage that includes contraception or abortifacients.
Here are some relevant passages from the first part of the opinion:
Petitioner Hosanna–Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church–Missouri Synod. The Synod classifies its school teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God. To be eligible to be considered “called,” a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.” *696 “Lay” teachers, by contrast, are not required to be trained by the Synod or even to be Lutheran. Although lay and called teachers at Hosanna–Tabor generally performed the same duties, lay teachers were hired only when called teachers were unavailable.
After respondent Cheryl Perich completed the required training, Hosanna–Tabor asked her to become a called teacher. Perich accepted the call and was designated a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.
Held :
1. The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Pp. 702 – 707.
(a) The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses*697 ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. Pp. 702 – 704.
No fair reading of the above suggested that opinion can be stretched to cover non-ministerial employees. I've seen repeated reference to this decision as backing the Bishops’ position on the conscience clause/contraception controversy, but I can't see this remotely close.
Yes I am a lawyer. Rather hard to conceal.
From memory, I believe the Reynolds decision you refer to is the one that involved the continuing legality of the practice of polygamy. Forgive me if I memory is errant.
If I am correctly anticipating the point you are making, the more modern version of that involves the use of peyote for Native American faiths, and was from the 1990s.
Very very generally (one who makes summaries of legal documents without reviewing the actual text runs the risk of humiliation), both decisions limited the reach of the Free Exercise Clause when it collides with generally applicable criminal laws. Certainly some of the reasoning may be applicable here, although we are not talking about the criminal context, nor public safety concerns, at least on the direct criminal police power Constitutional context.
But it is good food for thought.
I do like your other question. I always hesitate when any advocacy group, which would include the White House, throws out a statistic like that about the 28 states. I don't have the time to check how perfectly accurate that statement is. But in instances in which I cannot personally check the veracity of statement, I usually rely upon the adversarial system, noting that the "other side" will fact check it. I have not yet seen any pushback against this factual assertion. It may be that I haven't seen it. But presuming there is none, given the intensity of this debate, I think we can presume it's accurate.
That of course does not answer your specific question about how it operates, but my first question was how accurate that statistic was, as it also caught me by surprise.
One other political Comment. If it is indeed true that numerous states have mandated such coverage, which has not been previously objected to by affected Catholic institutions, it bolsters my suspicion that the Bishops are certainly not practicing the principles constitutional avoidance, which is really an action that supposed to apply to judges, but which provides a handy metaphor here. Courts are supposed to avoid a constitutional collision is possible. Put another way, if it is possible to construe the act cannot do violence to a Constitutional provision, the Court is supposed to do so rather than seek a collision with the legislature.
Here, it seems to me, and I am certainly a partisan, That the Bishops are looking for a fight. Bishop Levada when he was in San Francisco, attempted to find a way to comply with law regarding benefits for same-sex couples without violating the Church's teaching. Here it seems there might be numerous proposed compromises regarding the mechanisms of providing coverage which could avoid a political collision. But from the outset, and I've been following this debate for a few months, the Bishops have asked for nothing but a wide-ranging exclusion which would set up an immense legal precedents for any religiously affiliated employers to avoid generalized legal requirements. I have seen no dialogue about a different mechanism for delivering the coverage, although there are plenty of options.
Obviously, I'm not in the room either at HHS or the USCCB office, and perhaps there were such discussions, and the Administration was unreasonable. But from the beginning, I have heard the language of political war from the USCCB, and this is the first response I recall hearing about.
As with the passage of the health care bill itself, when the USCCB went into incredible mental gyrations to try to pretend that the Act somehow expanded access to abortion, it seems the Bishops are looking for a reason to oppose the administration. Then they could not take yes for an answer, even after the president agreed to issue an executive order that satisfied Rep. Stupak. The Bishops seemed to continually search for a reason to oppose passage of expanded access to health care which the Church should otherwise support. This certainly feels like a continuation of that mindset.
I'll use a crude epithet, but one that feels to be applicable - it seems they are being motivated by the "Ad Majorem GOP Gloriam" mindset.
My rather polemic concurrence is that the bishops are indeed looking for a fight as the fighin'rhetoric displays. "Aux armes, citoyens..."
They are hoping, I believe, for a buzz that comes from being a "persecuted church" - a favored propanganda that would carry over intothe growing acceptance of issues of gay rights and drops the focus on the sex abuse issues. Nothing like becoming a an underdog to rally the faithful- even if the "faithful" have largely not believed in what was being proclaimed for a long time !!!
I don't expect we'll see any letter on "I'mnot concerned about the very poor."
Although never formally Jesuit trained, AMDG...
http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf
http://www.ncsl.org/issues-research/health/insurance-coverage-for-contraception-state-laws.aspx
Heres the diocesan newspaper for Madison Wi reporting their decision to provide contraception coverage starting in August 2010 under state law:
http://www.madisoncatholicherald.org/opinion/editorial/1595-2010-08-19-editorial.html
Political commentator and Weekly Standard magazine editor Bill Crystal urged an even more aggressively attack on Obama for this regulation iby tying this abuse to Liberty to Obama's new Affordable Health Care law.
The Affordable Health Care law is already in big political trouble for economic and civil liberties reasons. More than 50% of likely voters have consitatnly wanted this law reepealed. More than half of the states Attorney Generals are suiting the federal governement over the law's constituionality. Now a Religous Liberties abuse can be added to the law's infamy with the voters.
The Bishop must stand for the church's Consistutional rights to religious freedom.
By Charles P. Pierce, February 7, 2012
Since the topic for today seems to be "religious liberty" as defined by various columnists and cable-news stars, maybe we should fire up the Wayback Machine and take a look at a case that went all the way to the Supreme Court, which decided (in the voice of arch-Papist Antonin Scalia) that the secular law need not bow to someone's religious "conscience," even as regards the performance of the sacred liturgy of that person's faith.
(Imagine, if you will, the outcry if the FDA demanded to test all the sacramental wine in all the rectories in America to make sure it hadn't gone bad.)
On April 17, 1990, the Supreme Court decided the case of Employment Division, Department of Human Resources of Oregon vs. Smith. In that case, two men were fired from their jobs as drug-rehabilitation counselors because, as part of their worship service in the Native American Church, they regularly ingested peyote. (It should be noted here that peyote has been regarded as a sacrament in these religions since long before anyone else came up with bread and wine.) They were also denied unemployment benefits for this same reason. They managed to get a ruling from the Oregon Supreme Court reinstating their benefits, but Oregon appealed the case to Washington and, by a 5-4 vote, the Supreme Court reversed the Oregon court's ruling and decided against the two men.
This was clearly a decision in which the court decided that the practice of a religious liturgy, which is certainly more dear to an informed religious conscience than is the accidental collision between the secular law and a discredited doctrine, could be circumscribed because it was contrary to the secular law. Writing for the majority, Justice Scalia said:
We have never held that an individual's religious beliefs excuse him from compliance
with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.
And, also (quoting Justice Frankfurter):
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.
And, also, too:
Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."
And, finally:
It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.
In other words, Native Americans should have had a better lobby.
Read more: http://www.esquire.com/blogs/politics/supreme-court-religious-freedom-6652940#ixzz1ljnJ5cKC
According to Jesuit Fr. Ladislas Orsy, writing in the Encyclopedia of Catholicism, church law, like ordinary human law, has two stages. First, it is formulated by the lawgiver and promulgated or brought to the attention of the subjects. In the second stage, those who become aware of the law must try to understand it as they “encounter it in their concrete, particular and personal situations.” They must then “form a critical judgment about the law either by affirming it through steady obedience or by bringing to the legislator’s notice the difficulties the law may generate.
Yet according to the survey results this year, almost half of these loyal believers say you can be a good Catholic without adhering to church law on divorce and remarriage, on living together without a valid marriage, on attending Mass weekly. And 60 percent of this highly committed flock says you can be a good Catholic without following church teaching on contraception. It would seem then that many dedicated Catholics are trying to develop an informed conscience and have concluded they may disagree with official teaching in good faith in some cases. At least implicitly, they recognize that the two-stage characteristic of authentic teaching means a law not received by the greater church lacks the force of obligation. Call it dissent, if you will, or call it non-reception. It is what’s quietly happening in today’s American church.”
cffRobert McClory, November 17, 2011, http://ncronline.org/print/27638