The Tip of the Iceberg

by Dave Schuler on February 13, 2012

To see the lack of a meeting of minds in the argument over whether forcing Catholic hospitals, schools, and other institutions that aren’t houses of worship per se is a violation of religious liberty you need only contrast John Holbo’s recent post at Crooked Timbers with an open letter signed by members of the faculty of Notre Dame Law School.

Mr. Holbo notes:

Religious liberty is individual liberty. It should now be possible to illustrate how McConnell’s proposal violates this principle without making it sound as though you are worried about creeping sharia, etc. (If two consenting adults want to submit to binding arbitration by an expert in sharia law, or something like that, that’s generally ok. Stuff like that. Group rights grow out of individual rights in this way, without fundamentally abrogating them.) You can explain that you are in favor of same-sex marriage (if you are) not just because someone somewhere says it’s religiously ok – so Bam! it is. For them. Rather, same-sex marriage is justified because it’s a voluntary association between two consenting adults, so forth. All this flows from consistent commitment to optimizing the supply of individual liberty. That means: making sure everyone has as much of the stuff as possible, consistent with everyone having it. When you give groups the right to restrict the religious liberties of individuals, you sacrifice this principle. (Americans are ok with some people having a lot more economic liberty than others, in effect, due to being richer. But I don’t think they think some people should have a lot more religious liberty than others, due to being richer.)

and

Suppose alcohol is made illegal, on purely religious grounds. I think it’s fair to say that forcing people not to drink amounts to compelling a kind of religious observance. (A negative observance, to be sure. But that’s still a form of observance.) Compelling religious observance is a violation of religious liberty, which includes the right not to be observant of any given religion. Suppose it’s just a ‘sin’ tax, not an outright ban. Alcohol is made hugely expensive. Well, if the sin in question is purely religious – if we aren’t making the case that the state has some compelling civic or secular reason for trying to discourage alcohol consumption – then I take it forcing someone to pay more, purely on the grounds that they are ‘sinning’, imposes a religious restriction on them. Purely religious ‘sin’ taxes ought to be regarded as violations of individual religious liberty. See, for example, the history of special taxes on Jews in European history.

Now, the pill. Yes, employees can go out and buy the stuff even if it isn’t covered by employers. But, since it would be free otherwise, by law, the church groups are, in effect, imposing a ‘sin’ tax, to express religious disapproval of what these individual are up to. Surely that’s a violation of religious liberty: to wit, the right not to regard being on the pill as sinful. If the Catholic church wanted to impose a voluntary sin tax on practicing Catholics – if the Bishops said all Catholics who use birth control should pay a bit extra, to atone for this sin – that would be acceptable (at least legally non-objectionable, in the eyes of the government). But the church can’t ask the state to compel payment of this tax, unless there has been some kind of binding contract to pay. The church can’t compel the state to help them extract payment even just from Catholics, let along non-Catholics. It’s not the government’s business. Quite the contrary.

That is, the issue is not one of religious liberty but of individual liberty competing with group liberty and the individual liberty should prevail.

On the other side the law school faculty:

It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer. It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer. What matters is what services the policy covers.

and

The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization. This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.

That last is significant. Subsuming sterilization and abortifacients into a single category with the Pill as “contraception” and then tailoring the argument solely to the Pill, as much of the news and blogospheric commentary has done, is certainly cherry picking.

Is this just the tip of the iceberg? What other controversial rulings will HHS promulgate? For example, what fertility treatments must be covered by an acceptable insurance policy? That’s likely to be as problematic for Catholic institutions as the broadly-conceived contraception provision is. I’ve been unable to locate a consolidated statement of the specific requirements of an acceptable insurance plan. I’m guessing that the details are emerging piecemeal and there currently isn’t such a consolidated statement.

Are the provisions really the minimum requirement? Or are they trying to define some sort of optimal plan?

One final point: I really think there is a lack of meeting of minds on the subject of compromise. The Catholic Church is not a consensus-based institution. What most Catholics do is utterly irrelevant. If the church hierarchy elects to dig in its heels, the Obama Administration will have entered into a struggle from which the most it will exact is a pyrrhic victory.

{ 58 comments… read them below or add one }

michael reynolds February 13, 2012 at 9:08 pm

oops.

Janis Gore February 13, 2012 at 9:14 pm

Like Rick Santorums’s?

Janis Gore February 13, 2012 at 9:23 pm

Drew, I’m a woman. I have paid for contraception. But when the cost of an average intrauterine device has popped from $300 to $800 dollars, I need to take a loan.

Andy February 13, 2012 at 11:05 pm

I think most are missing the big picture here, which is that this is a side-show for bigger problems in our health care system. Matt Yglesias makes a good point:

An underplayed angle in all this is that it highlights the extreme awkwardness of trying to build a health care system around a set of subsidies and regulations on employers. If people’s health care coverage was instead some blend of things they paid for out of pocket and things the government pays for as a social service, then we’d just be having an argument about whether or not the government should pay for women to get free or discounted contraceptives.

“Awkward” is way too charitable a word in my view. Frankly, I think people should be worried over the precedents these fights over federal authority could set, but everyone seems focused on achieving the tactical victory, whatever the cost. Whoever “wins” it’s a temporary victory until a future administration decides to interpret the regulations differently. To me this is just another example for why it is so important for us to abandon employer-based health care and reform the entire system.

PD Shaw February 13, 2012 at 11:13 pm

steve, its my understanding most insurance policies did not provide contraception coverage until women’s groups began lobbying the states to mandate it. These are new developments. The SCOTUS ruled in a 1976 case, General Electric Co. v. Gilbert, that an employer didn’t discriminate by not offering contraception coverage. There was a more recent Eighth Circuit Case a few years ago that reached that same conclusion, pointing out that the policies were gender neutral because they didn’t cover condoms and vasectomies. One underlying problem I believe is that courts are reluctant to mandate aspects of employment benefits when the benefits themselves are optional; otherwise the employer might just drop the coverage (or the more common dispute, the pension).

sam February 14, 2012 at 8:31 am

Actually, that’s not quite right, PD. In GE vs. Gilbert, the Court ruled that GE did not discriminate against women by not offering insurance coverage for pregnancy-related disabilities. Contraception is not mentioned anywhere in the opinion. The Eighth Circuit case, Standridge v. Union Pacific Railroad Company is binding only the states of that circuit, Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. (Interestingly, Arkansas, Iowa, and Missouri have the employer mandate in place, with only Arkansas allowing a religious exemption [Source] ) FWIW, Union Pacific RR added the coverage subsequent to the litigation. Outside of the Eighth Circuit, the EEOC ruling is still applicable. Here’s a story on it.

Most of Obama’s “Controversial” Birth Control Rule Was Law During Bush Years:

President Barack Obama’s decision to require most employers to cover birth control and insurers to offer it at no cost has created a firestorm of controversy. But the central mandate—that most employers have to cover preventative care for women—has been law for over a decade. This point has been completely lost in the current controversy, as Republican presidential candidates and social conservatives claim that Obama has launched a war on religious liberty and the Catholic Church.

Despite the longstanding precedent, “no one screamed” until now, said Sara Rosenbaum, a health law expert at George Washington University. [Not entirely accurate, as we saw above.]

In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn’t provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Employers that don’t offer prescription coverage or don’t offer insurance at all are exempt, because they treat men and women equally—but under the EEOC’s interpretation of the law, you can’t offer other preventative care coverage without offering birth control coverage, too.

sam February 14, 2012 at 10:20 am

Steve Taylor has a nice post over at OTB on the current state of the law. Pretty informative, and is a corrective to something I wrote above — the SCOTUS ruling in GE vs. Gilbert was reversed via legislation.

In 1978 Congress amended Title VII of the Civil Rights Act of 1964 to enact the Pregnancy Discrimination Act (PDA) (P.L. 95-555, 92 Stat. 2076). This act was passed to reverse the Supreme Court’s decision in General Electric Company v. Gilbert (1976) in which the Supreme Court held that Title VII’s prohibition against “sex” discrimination does not include a ban on pregnancy-based discrimination. Title VII generally bans sex discrimination in employment. By amending Title VII, Congress extended that prohibition to include pregnancy-based discrimination. In Gilbert, the Supreme Court held that General Electric’s disability plan did not discriminate against women in violation of Title VII when it provided coverage for virtually all nonoccupational illnesses and accidents except pregnancy. Quoting analysis that it had used in a previous constitutional law decision, the Supreme Court explained that General Electric’s plan did not constitute sex discrimination because “the program divides potential recipients into two groupsâpregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes” (Geduldig vs. Aiello [1974]). [Pregnancy Discrimination Act (1978)

Janis Gore February 14, 2012 at 11:38 am

I do have problems with mandating that insurance companies cover, in my case, an elective intervention, forget the bishops.

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