Republican presidential candidates, “conservative” members of Congress, and many Catholic leaders are up in arms over the Obama administration’s initial decision to mandate that various Catholic institutions that supply health insurance to employees—except those who qualify for a narrowly defined “conscience” exception, limited to churches themselves and their employees—include coverage for birth control. Part of the rationale for the mandate is precisely that covered institutions both employ and often serve many non-Catholics, which could mean denying non-Catholic employees access to the preventive health care embodied in the coverage of contraception. According to the mandate’s critics, this decision by agency officials flagrantly violates the right of the Catholic Church to the free exercise of religion by failing to accommodate the religious conscience of Catholic institutions; these church-related employers view it as sinful to finance employee decisions to use birth control contrary to church teachings.
One might, of course, doubt whether paying for health insurance that includes contraception coverage really constitutes significant cooperation with evil, even assuming that Catholic doctrine relating to artificial contraception presents the true morality. The same evil act could be engaged in by employees, whether Catholic or not, with or without health insurance. And there is no reason to think that insurance coverage would by itself induce any one to use contraception, especially one who views it as a violation of a religious duty. So any “cooperation with evil” taking place in such a situation would be quite remote, and it has been observed that the compelling justification for the act of providing health care for one who could not get comparable coverage as an individual on the open market would be sufficient to justify such a remote form of cooperation with evil. But that may be a question to be pondered by Roman Catholics, and perhaps the church itself.
More fundamentally, perhaps, it is not at all clear that the legal requirement in question imposes a constitutionally significant burden on the religious employer. For one thing, church-related employers subject to the requirement are free to forego providing health care insurance to their employees. These institutions could naturally complain that this places them in the dilemma of financially supporting sinful behavior or not fulfilling a presumed church-related employer duty to supply health care benefits. One media source quotes a Catholic archbishop as saying that the mandate unconscionably forces citizens “to choose between violating their consciences and forgoing their healthcare.” But neither the mandate nor the insurance coverage does anything that requires employees to violate their consciences, and there is no reason to think that a church-related employer could not substitute higher pay for health insurance benefits and thereby avoid any dilemma.
When confronted with the same basic issue, the California Supreme Court even suggested that religion-related employers might offer “its employees a raise to offset the reduced benefits” if health insurance was no longer supplied. Catholic Charities of Sacramento v. Superior Court, 10 Cal Rptr.3d 283, 313 n. 19 (2004). Moreover, even if the requirement cost the employer more money, the United States Supreme Court has stated that “it cannot be expected, much less required that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions.” Braunfield v. Brown, 366 U.S. 599, 605 (1962). I teach a law school course on Religion and the Constitution, and this question is raised directly in the book I use, which was co-authored by at least one committed Roman Catholic.
Virtually every republican candidate for President has lamented the practice of judicial activism and argued for either strict construction or a relatively narrow reading of originally intended meaning. Justice Scalia, the described model for Supreme Court practice endorsed by these candidates, has in fact offered a rather restrained reading of the implications of the First Amendment’s guarantee of the free exercise of religion. Surely it should not be irrelevant to a truly modest judge that twenty-eight states already require religious institutions to cover contraception, and eight of them do not even have a religious exemption. It has also been observed that the overwhelming majority of Americans see birth control as a basic right, and even American Catholics widely ignore the church’s teachings on the subject.
At the same time, many thoughtful commentators, including both non-Catholics and many philosophical liberals, have contended that the administration decision was both unwise politically and illiberal philosophically. On the political front, it appears unwise to potentially lose the vote of committed Roman Catholics in swing states who might make the difference in the upcoming presidential election. Philosophically, many contend that religious pluralism imposes certain obligations on government, and they suggest that the mandate does in effect require church-related employers to act against the church’s teachings. More importantly, perhaps, there may well be workable alternatives to a direct confrontation with church-related employers or abandoning the interests of all women in preventive health care that includes access to birth control. Several have urged the administration to consider a regulation that uses the approach of a Hawaii law that requires health-insurance plans to cover contraception, but allows religious employers, in the alternative, to not cover birth control and to enroll employees who want contraception coverage to pay for coverage at a reduced premium out of their own pockets. It is suggested that this approach enables employers to avoid their funds to go toward contraception even as it ensures that employees can obtain contraceptives without paying more than if they worked for an employer that did generally include it. It may or may not be demonstrable that an alternative approach could meet the legitimate interests of people on both sides of this policy debate.
It is sad, however, that both candidates and legislators would choose to drop political bombs on those who seem to have staked out a position on the opposite side, even as they ignore the power of the concerns that inform the other position. Think of how much more useful it would be if folks would acknowledge the honest and fairly held positions of those with other instincts and, rather than attacking their sense of fairness and commitment to constitutional principle, earnestly seek ways to determine if each side’s concerns might adequately be addressed. Political partisanship is poisoning the water of political discourse in this country.