What Kant Can Teach Us In The Catholic Church vs. HHS Mandate Case

Kant reminds us that we think of law as being universal and objective.  Therefore, we need to think about what happens when we make a law, because that law applies to everyone universally, not just to the case we are thinking about.  

I doubt that Immanuel Kant will be able to convince any of my conservative Catholic friends that the HHS mandate with the Hawaii exception is a workable compromise for an imperfect system.*  (Well, maybe Kant himself could, but my use of Kant probably won’t convince anyone). At the same time, I am teaching Kant this week in my intro Ethics course and so I have the categorical imperative on my mind as the HHS mandate question rages on.  Thus, I thought it might be helpful to apply Kant to this conundrum and see if there was not something to learn from the 18th Century German philosopher.   I am by no means a Kantian, but I do think his emphasis on the universality of moral law is something we need to always keep in mind, and this case is a perfect example.

For those not familiar with Kant’s work, here is a quick and dirty summary:  Kant said that ethics boils down to one’s duty to do uphold what he called the categorical imperative.  That’s just a fancy way of saying a universal duty – a duty that applies to everyone, always.  There is only one categorical imperative for Kant: that we should never do any action that we wouldn’t want everyone else to do.  It’s a modification of the golden rule.   So Kant says that we shouldn’t lie because if we lie when “it is necessary” then we would have to allow everyone to lie when necessary.  If we allow everyone to lie when necessary, the we would never know if someone was telling the truth or lying out of necessity, and the whole institution of trust would break down.  In short, our actions are only morally legitimate if we can say that we would want everyone else to do the same action.

So lets think about Kant in terms of the health care mandate.  What is the maxim that is at stake here?

Catholics want to protect the right of employers to determine what medical procedure their funds pay for.  Now let’s try to universalize that point: would we want all employers to be able to restrict the health care they provide on the basis of the religious beliefs of the employer?  In a previous post, I suggested that, by the same logic that Catholic were arguing against contraception, Jehovah’s witnesses could argue that they would not pay for insurance that covered blood transfusions.  Thus, in Kantian language, if we universalized the maxim that “employers should be able to determine what counts as health care,”  then we would have to allow for a (radical) Jehovah’s Witness to restrict the health care of his/her employees on the same principle.

While I am not a thoroughgoing Kantian, I do believe he makes a useful point here, especially with regards to what we are asking our government to do.   Contemporary Western governments are built on enlightenment thinking that has come from thinkers like Locke, Rousseau, and, yes, Kant.  In this case, Kant reminds us that we think of law as being universal and objective.  Therefore, we need to think about what happens when we make a law, because that law applies to everyone universally, not just to the case we are thinking about.  We need to take a long view here and understand that while Catholics may want to restrict the health care law to not include contraception, the precedent set for allowing employers to define what qualifies as health care for their employees is a potentially dangerous one to set.

[*I hope to write on the current American health insurance system as both imperfect and unethical in a later post, but for now, I did not want to confuse the debate. ]

23 responses to “What Kant Can Teach Us In The Catholic Church vs. HHS Mandate Case

  • The Ubiquitous

    I know you’re pulling the philosophical angle, but because you shift into precedent you find yourself in legal territory. It is not a dangerous precedent to set, for you speak where there is already precedent which backs up the pan-JudeoChristian alliance opposing this move. I say this because there is a legal standard to apply, you know, which shows when the government may fairly override matters of religious liberty. It’s called strict scrutiny, and the most pointed part of that is the compelling government interest standard. It pretty much speaks for itself.

    Is there a compelling government interest in forcing contraception coverage? I know you may not be aware that contraception is already available and affordable for approximately 100 percent of the population, but put that aside. Using only your test of the moral imperative, please consider contraception. Is there a compelling government interest to give everyone the power to avoid having children?

    Here we come, Italian-level TFR!

    • Matt

      Thank you for your replies. I am indeed a philosopher not a legal scholar, so pardon and assist in correcting my ignorance – can you give us some other examples of the “strict scrutiny” standard you are invoking? The reason I ask is because the question “Is there a compelling gov’t interest in forcing contraception coverage?” hinges on what one’s definition of “compelling” is, doesn’t it? So it would be good to have a baseline for what is “compelling” before I respond more fully to your argument.

      • The Ubiquitous

        I’m not a legal scholar, either, but I did learn enough to fake my way through student teaching.

        Strict scrutiny is the overarching standard, from which there are three subpoints, whose summaries I paraphrase:

        1. Compelling governmental interest. While never well-defined, this generally refers to something necessary or crucial as opposed to something merely preferable.

        2. Narrowly tailored. If the government action is overbroad or fails to address essential aspects of the compelling interest, then the rule fails here. (As a layman, I’ll grant the Obama administration this one, though it might be argued that forcing contraception is much wider than forcing the coverage of the Pill when it is to serve specific medical reasons.)

        3. Least restrictive means. There cannot be a less restrictive way to achieve the compelling government interest.

        So the answer is: I don’t know, either, but these are the principles, and the courts certainly rule all the time on this sort of thing. I’ll leave the application of these principles to those better informed than I.

        Illustrating that there is precedent to handle this sort of dispute, however, and that this is not breaking new ground to give employers carte blanche to determine coverage suffices to show that if your statement is true —

        … the precedent set for allowing employers to define what qualifies as health care for their employees is a potentially dangerous one to set.

        — it must rely on an ambiguous, almost alarmist use of “potentially.”

      • Matt

        OK, I don’t find the link very clarifying (Really? – the main example cited is the defense of race based curfews on Japanese Americans during WWII?) or, more to the point, compelling. Ultimately, I conclude that this is not a case of ‘strict scrutiny.’ It is not a case in which one religious group is being singled out. In a pluralist democracy, people can have dissenting opinions without undermining the entire structure of law:

        The Court must use strict scrutiny if one of these tests is met:
        a. the impact is so “stark and dramatic” as to be unexplainable on non-racial grounds,
        b. the historical background suggests intent
        c. the legislative and administrative records show intent

        What this actually is is a case of weighing personal vs. corporate rights. Specifically, who has the right to define what constitutes health care, the employee or the employer? It seems to me that the Hawaii compromise allows the employee to retain the right to define health care without burdening the employer with any fiscal (or moral) responsibility for those choices.

        (I rest my case on the logic provided in the previous paragraph, but to emphasize the point using Catholicism’s own language, in a case of personal vs. corporate rights, the principle of subsidiarity would demand that the choice be moved to the lowest competent level, which in this case is the level of the individual. The state, in this case, is protecting the interest of the individual, as it should, but the decision is actually being made at either the corporate or the individual level. Subsidiarity says it has to be the individual level.)

      • The Ubiquitous

        Far as I can tell, what you’ve just written boils down to: “The use of corporate funds should be made at the individual level.”


      • Matt

        Far as I can tell, what you’ve just written boils down to: “The use of corporate funds should be made at the individual level.”

        I am not arguing that all corporate funding decisions need to be made at the individual level. What I am arguing is when the RIGHTS of a corporation to make funding decisions come into conflict with the RIGHTS of an individual worker in that company, then we need to uphold the rights of the individual at the cost of the rights of the corporation. This is Catholic Social Teaching 101, the principle of subsidiarity:

        “It is a fundamental principle of social philosophy, fixed and unchangeable, that one should not withdraw from individuals and commit to the community what they can accomplish by their own enterprise and industry.” (Pope Pius XI, Quadragesimo Anno, 79)

      • The Ubiquitous

        Please show that contraceptives are a right.

        Barring this, please show that the right to purchase contraceptives — a different thing — should overrule the right of the employer to keep from violating deeply held convictions regarding moral evil.

        Now, the conflict of these two interests, on the legal level, will be handled with the strict scrutiny standard. While neither you nor I can really parse this, this action is not itself a dangerous standard except in an alarmist sense. There are precedents, whether or not Wikipedia knows them.

        As for the moral interest, whether it is right or wrong for the Church to do this, this is another question entirely. I do not know if the successors to the apostles will agree or disagree with my comparison with the ways of being an accessory to sin, but they certainly seem to oppose this move on some moral grounds.

        Therefore, knowing nothing about the intricacies of Catholic Social Teaching unlike some of the Bishops opposing the mandate, it is dubious to suppose that Catholic Social Teaching may be used to all-but directly support a grave evil, as per the teaching of the Church,

        I do not think someone who does not know a great deal about Catholic Social Teaching may fairly argue even the fundamentals, and so I recuse myself from the Catholic-qua-Catholic normative argument.

      • Matt

        please show that the right to purchase contraceptives — a different thing — should overrule the right of the employer to keep from violating deeply held convictions regarding moral evil.

        Your choice of words is biasing your claim here. Both sides are claiming that the other is violating their “deeply held convictions.” That is to say, both sides (the employer and the employee) are claiming rights here – in fact they are claiming the same right: the right to determine what constitutes health care. Both have a logical claim to that right (the employer by paying for it and the employee as the recipient of the benefit of that right). Thus, the argument is not over whether a rights claim exists here, but over who has the superior rights claim. It is in sorting out who has the greater claim that I turn to the principle of subsidiarity.

  • The Ubiquitous

    Shot off the previous comment in a daze. Should have actually read what you had to say.

    I doubt that Immanuel Kant will be able to convince any of my conservative Catholic friends that the HHS mandate with the Hawaii exception is a workable compromise for an imperfect system.

    Any of your Catholic friends, I hope. If the objection weren’t already common sense. [As the Archbishop of Washington DC has argued:]

    As I understand the so-called Hawaii compromise, [it’s] “You don’t have to do this. You just have to refer people to them.” That seems to me like saying in our schools, “We’re not going to have pornographic Web sites in our classrooms but we will have to have referrals to where the kids can go to find those Web sites.” I don’t think it makes sense.

    — it would be profoundly out of touch with Catholic teaching.

    Under the old teachings of the Catholic Church, the faithful were asked to memorize the nine ways of being an accessory to another person’s sins. The following consist of the old teaching:

    (1) By counsel;

    Don’t need even to get to the rest of the nine, do we?

  • The Ubiquitous

    … but here’s the rest, anyway.

    (2) By command;

    (3) By consent;

    (4) By provocation;

    (5) By praise or flattery;

    (6) By concealment;

    (7) By partaking;

    (8) By silence;

    (9) By defense of the ill done.

    • Matt

      To be clear, my original post was offered as a means to understanding what Kantianism had brought to the table in the formation of liberal democracies, including this country’s government. In this case I was emphasizing the universality of law, and cautioning of the unforeseen consequences of establishing a precedent by offering or abolishing any law. If we are talking about law in a country built on liberal democratic principles, then the only level on which one can offer an argument is those same liberal democratic principles. Catholic theological teaching applies to Catholic morality, but it holds little weight in an argument about our pluralist democracy.

      That being said, I don’t see how the Hawaii compromise violates a single one of these 9 “ways of being an accessory.” You seem to think that a Catholic university that offers a health care plan in which the insurer is willing to offer contraception free of charge somehow constitutes that university “counseling” their employees to use contraception. I don’t see how that follows at all. It is the insurer who is counseling, not the university. Can you please explain in more detail what you mean?

      At the same time, your list does provide the answer to where the good Archbishop’s “pornography in school” analogy goes astray. In that analogy, it would be the school who is “counseling” the student about where to find pornography. In the reality of the Hawaii compromise, it is the insurance company that has to both contact and fund this benefit for the insured person. That makes it a different case.

      • The Ubiquitous

        I’m flattered you credit me, but I take no responsibility for old true things. Part of the joy of Catholicity, you know, is not being liberal or conservative, original or one of a crowd, but in being just plain true. Anyway —

        The Hawaii solution merely adds a middleman. When someone asks for certain things we don’t do, we refer them to a referrer who we know is required by law to provide them? I stand with counsel, because we partake of the employee’s sin by counseling them to counsel with someone who will, we know without a shadow of a doubt, advise them on how to get their condoms.

        Presumably, it would require also silence rather than dissuading the employee from the course of contraception. Something tells me that the Obama administration would not appreciate this.

        Moreover, if the Hawaii Compromise requires us to pre-emptively hand these references out, then we are in fact provoking them by showing them the free contraception.

        There is also the practical question of fungible funding. Where does the insurance get this magical money to fund the opt-in contraceptive insurance? Does it fall from the sky? Or does the employer pay into that pot and walk away for a time?

        Here we come with silence again, if not concealment.

      • Matt

        So it seems your main issue is with having to “refer” people. If this goes away, so do all of your claims except for “silence.” And no one is telling Catholic universities they cannot express their views on contraception, as far as I have heard.

        So, when the official white house statement (quoted here) said that “a woman’s insurance company ‘will be required to reach out directly and offer her contraceptive care free of charge. The religious institutions will not have to pay for it.'”, most news organizations have emphasized the “free of charge part. However, most important for this discussion is the “insurance companies reach out directly” part.

        As for the fungibilty of money argument, it holds no water. By this argument, Catholic institutions would not be able to get any insurance from a provider that ever provides contraception and all providers do to non-Catholic corporations and organizations.

      • The Ubiquitous

        If referring goes away, what we have is not the Hawaii compromise as it has been consistently presented. But because I don’t honestly know what it entails and what it doesn’t, I’ll give you the liberty of defining that term. So granting this characterization, I’ll look at the rest of your argument.

        However, most important for this discussion is the “insurance companies reach out directly” part.

        … insurance companies the employer pays for.

        As for the fungibilty of money argument … Catholic institutions would not be able to get any insurance from a provider that ever provides contraception and all providers do to non-Catholic corporations and organizations.

        That’s … exactly what I’ve been saying. If you mean to reduce my argument to an absurdity, you haven’t gone all the way yet.

        There is a market, or will be soon, for companies which don’t touch that sort of coverage, much in the manner of The Sienna Group for mobile phone coverage. It’s what you’d call a cottage industry, fersure, but it should have the liberty to exist.

        This supposes that insurance companies are even required for medical insurance; most damningly, the last point —

        all providers do to non-Catholic corporations and organizations.

        — is factually wrong. Plaintiff in EWTN v. Sibeliusis a self-insurer. Ergo, the network, even supposing it would still be allowed to self-insure, would in the lack of a company itself have to “reach out.” Small group insurers are in the same boat, so far as I’ve heard, but I don’t know for sure.

      • Matt

        “EWTN is a self-insurer.”

        Fair enough. Self insurers do complicate this matter, and I don’t claim to have the solution to that issue.

        However, I feel it is necessary to recall that my original post did not make any specific claim about a specific case. The point of the post was to explore the model of universality that Kant has bequeathed to Western societies and that is now central to our understanding of legal and political mores. In fact, I didn’t even make a claim about this model of universality, though I leaned hard in a direction of caution.

        Furthermore, I have offered the caveat in the asterisked section that I believe the entire healthcare system in this country to be impractical, imperfect, and immoral. I do plan to eventually post my more general thoughts on how healthcare ought to be organized, but for fear of confusing this post, I kept them separate. However, your accusations here has pushed up against it and so I will comment briefly and ask for your patience until I can get a more thorough post out there.

        In short, I disagree with you that insurance is unnecessary on the grounds that our health care should not be linked to our employment at all. And if we have fully privatized health insurance choices (like we do for auto insurance for example), then insurers who offer coverage to individuals are vital for the distribution of risk across the pool of insured persons.

        In the case before us, I have said here that the conflict arises between a corporate payer of insurance and an individual recipient of that insurance, who may have two very different views on what constitutes health care. But if we delinked health care from employment and allowed each individual to seek out their own policy, then all decisions would rest with the individual and you would remove the corporate employer from the equation. This would remove both the financial and the moral burden on the employer (unless you are going to claim that wages paid by a Catholic institution that go toward buying contraceptives makes the employer culpable).

      • The Ubiquitous

        Delinking employment from insurance may be a solution on this particular issue, but it’d be overkill over this issue. It’d be like jumping into a volcano because you’re cold — I don’t think you mean this issue is the reason we should do this.

        I will admit that my arguments do presume that what-is stays largely the same; they are tailored to the particular situation we find ourselves in now. In the current crisis, the HHS Mandate is certainly unconstitutional and certainly immoral. In the future, and if we artificially were only concerned with the issues heretofore mentioned, it may not be as bad of a thing.

        My interest is in the specific issue of the Mandate, and so that’s where most of my reading has been. I’m sorry if I led the goose toward the herring on the rabbit trail. Thank you for the engaging discussion.

      • Matt

        You are going to have to make a better argument to claim it is “unconstitutional.” I presume you mean the first amendment here, but that argument is dubious at best.

        Beyond that, I think we have reached the end of this discussion as you indicate. Thank you as well for the discussion.

  • Martin

    I think the larger question, form Kant’s perspective, would be, “Do we want to give someone the power to make someone else buy what they do not want?” For those of a liberal bent who can’t wait for the government to force Catholics to buy contraceptives, they better just hope the next Republican President and Congress don’t make them buy a gun. They’ll have all the constitutional precedent they need . . .

    • Matt

      Martin, thank you for your comment. The problem I see with your logic is that this law does not set that precedent. We have long had other government requirements that include the requirement to purchasing ‘X’ in order to do ‘Y’. The closest parallel here is the requirement to have car insurance in order to register and operate a vehicle. Another close parallel though would be the requirement placed on businesses to purchase and provide safety gear for their employees.

      Furthermore, in all of the above cases, the requirements (costs) are tied to some other desire on the part of the actor. The cost of operating a car includes car insurance, just as the cost of operating a business includes purchasing safety gear and, now, health insurance for your employees. The same cannot be said for your gun requirement example. As you present it, gun purchases would be an absolute requirement, not a requirement that is tied to an action that we can freely choose or not choose (e.g. the choice to operate a vehicle or run a business above).

      Now, if you said that republicans might try to require all businesses to purchase guns for the protection of their employees, that would be a closer parallel. To that argument, I would restate, as I did above in the comments, that the entire problem here is more fundamental than the mandate. The problem is the illegitimate linkage between employment and health insurance. The conflict of morality between employer and employee is just one of many reasons why we need to seriously consider ending the norm of health insurance as an employment benefit and move to either a single payer system or a true market system (like auto insurance).

  • skylar

    The issue of insurance is perhaps about ethics, but it’s not about Christianity. Jesus answered that question 2000 years ago.
    He was asked if they should be paying taxes to Caesar. We all know that the Romans weren’t exactly running a day care with that money…they were conquering left and right.
    Jesus told them, “give to Caesar what is Caesar’s and give to God what it God’s” In other words, you can live in this world without being OF this world.

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