A (Long) Musing On The New Contraception Rule

There’s been a long and somewhat intense discussion going on in the comments over at Kyle’s sub-blog about the Obama administration’s rule requiring Catholic institutions to provide coverage for contraception in their health care plans. There are a number of interesting threads I’d like to pull out here and state explicitly in a post that’s longer than a comment. It’s really long, so I’m just putting the whole thing behind the fold.

Health Care Provision

Up front, let me state my opposition to employer-provided health care plans. In my opinion this should be a function of the state. If you’re more of a standard libertarian, maybe you believe it should be a function of some market in general. Very few people who really think about this issue believe it makes much of any sense for employers to be in charge of this process. But that’s something we’ve chosen through some kind of quasi-democratic process, and the ACA is designed to keep that less-than-ideal structure in place while universalizing access to health care. It’s an ugly compromise, and it’s a debate for another day. (For the rest of this, we assume the ACA mandate is constitutional. Again, debate that another day.)

The reality, however, is that that same quasi-democratic process has given us a basic idea of what it means to provide health care. It’s something we have (largely) defined in policy, and we have all kinds of rules about which things have to be covered, which things don’t, and so on. There is a certain set of people who reject even this much government, but this post isn’t really addressed to them. My point is that, for most people, what constitutes health care is a relatively defined set of activities. And that set includes contraception. This rule was necessary only because the law of the land – ACA – enshrined in policy the notion that contraception is part of a basic health care package. 28 states already had such policies in place before ACA, as well.

Core  and Non-Core Religious Activities

One of the things that I think really clarifies my position on this debate is a distinction between activities that are a part of a particular set of religious practices and activities that are undertaken by members of that religious group. A law that prohibited eating crackers on Sunday would be prima facie unconstitutional for a few reasons, but one of those reasons is that it interferes with the free exercise of a lot of religions. I made a joke in the thread at Kyle’s blog about how the Obama position doesn’t interfere with the Eucharist, and James pushed back because that’s not the entirety of Catholicism. I take James’ point, but I meant that as an illustration of something that is core to what it means to practice or “exercise” Catholicism.

On the other hand, provision of hospitals and schools is not something I consider part of what it means to be Catholic. Can you be a Catholic (a practicing, devout Catholic, that is; ignore the vast swathes of people who call themselves Catholic for other reason) without taking the Eucharist, being baptized, etc.? The answer appears to be no. Can you be a Catholic without running (or working in) a hospital? I should think you can. It follows, then, that the “free exercise” of a religion is something different (perhaps subtly) from the activities undertaken by members of that religion – even if those activities are sponsored from the very top of the church hierarchy.

A side note: The services provided by Catholic hospitals and religious schools in general are invaluable. As James pointed out in the other thread, churches have been in the education business a lot longer than the state. I hope they stay in. My own soon-to-be-blushing (one hopes) bride went to a Quaker school, where she received a first-rate education. It would be a loss to the nation if such institutions were to cease to exist. (This is my attempt to demonstrate that my position is not [solely, anyway] grounded in animosity.)

Regulating Non-Core Religious Activities

Okay, let’s pull it all together. What does Obama administration’s (hereafter we’ll just go with Obama) position do, and how does it fare against the Free Exercise Clause?

It’s important to note that it appears Obama and I more or less agree on the distinction I’ve made above (in case you were keeping score, this actually may be a first for us). The mandate does exempt churches from having to pay for contraception. What it includes are institutions (like hospitals) funded by religious organizations that are not part of the core religious function of those organizations.

This strikes me as exactly the right compromise. Mandating that employers must provide health care coverage (which, again, we’ve already agreed is stupid, but that’s what we have) and then extending that mandate to require payment for contraception would effectively prohibit the Catholic Church from existing in America without violating its own ethics. (The employment of priests and other officials of the Church is something I am putting in the “core” category; I think this is uncontroversial.) That sure looks like an obvious violation of Free Exercise.

Another aside: Note that, if you’re nodding along with this last bit, you have just agreed that a law can be discriminatory or violate someone’s rights without being explicitly intended to do so. This has a lot of applications, arises naturally in any discussion of the Constitution, and is not an invention of liberal activist judges.

Back to my point: the Church does not have to provide hospitals. It is not part of what it means to be Catholic. These hospitals don’t even require employees to be Catholics, nor do they restrict treatment to Catholics. They are a secular enterprise dedicated to a secular goal – health care provision. And health care provision is a thing that we have defined in policy, which does now include contraception. Would we allow a religious exemption for a Christian Scientist hospital that refused to pay for their employees’ health care at all? We would not (again, assuming ACA has to be the framework we’re working from).

A Practical Rejoinder

Even if all of this is true, it doesn’t make the case that we couldn’t grant an exemption if we really wanted to. That depends on how important we consider the issue. The wide availability of contraception is something a majority supports. Requiring health care plans to cover it is also widely supported. Even Catholics support it. Take a look at Kevin Drum’s statistics rundown for some evidence of these claims. The reality is that the weight of public opinion appears to be on Obama’s side here. I can’t fault him for going with it, and not only because I think it’s the morally correct thing to do (access to contraception being one of the cornerstones of the modern improvements in women’s health).

Going Further

Now, just a little bit of a thought experiment. How far does the Free Exercise Clause get us here anyway? Assuming again that the ACA is the law of the land, what if a Christian Scientist church (or whatever they have; I honestly don’t know) refused to provide health care plans that covered any modern medical techniques? Could we reasonably grant an exception to that? It seems to me like the answer is no. In which case, what has Free Exercise bought us?

Kyle suggests a framework predicated on “grave harm” or “substantial harm”. We probably all, or mostly, agree that that gets us to a place in the middle. It would require Christian Scientists to provide actual health care coverage but potentially leave some room for Catholics to refuse to provide contraception. But who defines “harm” in this case? Is it the democratic process? Because, as we see above, people basically agree that everyone should have access to contraception. How long before the Catholic Church’s position becomes as outrageous as the Christian Scientists’?

Mostly that’s food for thought, but it’s also a defense of my initial claim that this entire employer-provided health care coverage regime is patently ridiculous.