I will warn you at the outset here that I have no intention of providing any sort of solution to the debate raging in Catholic circles and elsewhere over the health care mandate. What I hope to do here, though, is offer some food for thought on this debate and spur thinking in new directions by comparing the current situation to other situations that we might want to act differently.
To begin, let me outline the contours of the primary debate… The new federal health care regulations require that all employers of a certain size provide their employees health insurance. Included in the regulations is a mandate that this health insurance must cover, among many other things, contraception. Contraception is officially understood as illicit by the Catholic church and so this causes a conflict for Catholic organizations. Now, in the bill, religious institutions such as churches, dioceses, etc. are exempted from having to provide anything that goes against their avowed religious or moral beliefs. Religious schools, universities and hospitals are not considered under this exception. Thus, the mandate for contraception still applies to them.
Now, consider the following questions and parallel cases. Are these the same? Should We follow the same logic?
- If a religious university or hospital should be able to claim religious exemptions to government mandates, then why shouldn’t Catholic owned ‘mom and pop’ business owners be able to claim the same right? Is there a fundamental difference between an institution that claims religious beliefs as part of their mission (like a university) and an individual shop owner whose business may not have anything to do with Catholicism, but which is owned by a Catholic? And if an individual shop owner can make such a decision, then what of corporations – can a Catholic majority on the board of directors of an organization make the same claim? What about an organization with a Catholic majority of shareholders?
- [Update] One of the outcomes of the recent supreme court case Citizens United vs. Federal Election Commission was that corporations were to be understood as persons before the law, and therefore corporations held the same rights (namely, in the Citizens United case, the right to free speech) as an individual would have. Consider this in light of the health care mandate. If corporations are people, then shouldn’t individual people be protected just as corporations are under this mandate? So if the rule is expanded to include religious hospitals schools (corporations in their own right), should it also not include religious individuals (including Mom and Pop shopowners)?
- [Update] In the Citizens United case the Supreme court also ruled that spending money on political advertisements was considered part of free speech. If money spent can be considered a form of free speech then shouldn’t money withheld (from spending on practice one does not condone) also be part of free speech? Does the right to free speech run both ways – is the right to remain silent equally protected as the right to “get loud” under the first amendment?
- In the case of military conscription, an individual can claim exemption from all military service on the basis of belief and participation in a particular religion. That religion needs to have a documented heritage of being pacifist (Catholicism does not count). Also the individual cannot determine whether a particular war is licit or illicit – CO status only applies to those faiths with a blanket belief in pacifism. Is there a case for conscientious objection to the health care mandate similar to what one might make concerning the military draft? And if the health care case is struck down as unconstitutional, then will this affect the existing CO status laws for military conscription?
- If Catholic institutions (and individuals) can avoid covering contraceptive devices under the health care mandates, then can Jehovah’s Witnesses avoid covering blood transfusions for their employees?
- What makes religious beliefs so sacrosanct? Are other beliefs that do not refer to a God or Gods just as valid?
- Say a new internet start-up wants to remain young and lean and so they establish a policy that says no employee may have children, knowing that once people start having families their commitment to this fragile start-up might wane and the efforts and hours they put in might diminish. This organization has a logical, though non-religious, belief system that is both part of the organization’s ethos and aims towards its telos (just as a Catholic organizations beliefs do). Should this organization be allowed to make such a discrimination when it comes to who they employ? Why is this the same or different from religious based moral claims?
- [Update] Or what if someone rests their beliefs not on selfish motives or on theological foundations, but rather on strong philosophical grounds. What if a strict utilitarian came to the conclusion that health care coverage that included end of life care (the most expensive type of health care) was just too expensive to society. The money spent on end of life hospice and nursing care could be better spent on – that is, it could maximize happiness best if it was spent on – research and development of treatments and prevention of future disease. Could this utilitarian justify not having to pay for end of life care?
- Recently, a federal court struck down California Proposition 8 as unconstitutional. Prop 8 defined marriage as being between a man and a woman and the court ruled that it violated the constitution’s equal protection clause: “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” In this case, equal protection refers to the right to define what marriage is. Is the health care law a similar case? It seems clear that the health care law hinges on differing beliefs regarding the definition of health care (Does “health care” include contraception?) Does the health care law mandate a particular belief in one definition of health care? And if so, could this health care mandate be struck down under the same logic as the recent federal court ruling on Prop 8?
Many thanks to Katie Holland, Diana Jefferies, Joe Miller, Jaime Wright, Brian Green and Katie Hennessey for the discussions that led to these comparison cases. I will update with more as the conversation progresses.
[Incidentally, this method of thinking – determining the morality of unknown cases by determining their similarity to known cases – is known as “moral casuistry” and it has a long history in both the Catholic tradition and the larger western tradition. It is also a very powerful moral tool. Most Catholics today (aside from trained theologians and ethicists) have never heard the term casuistry, but it dates at least as far back as Aristotle and was a large part of how the Catholic church ‘did’ ethics in the middle ages. Today, this way of reasoning is still used prevalently by bio-ethics committees in hospitals by comparing new medical cases to previously determined ethical cases. It is also the basis for “case law” in legal circles. For more on this tradition see Albert Jonsen and Stephen Toulmin's The Abuse of Casuistry and Richard B. Miller's Casuistry and Modern Ethics.]
[Matthew Gaudet is an adjunct professor of ethics at the University of San Francisco and a graduate student at the Graduate Theological Union. For more of Matt's posts on this blog, please click here]