Religious Freedom and Contraception (among other things)

by John Holbo on February 13, 2012

I’m amazed by the turns this issue has taken. I posted about it two weeks ago. My post had problems. Among other things, I slighted legal issues to focus on what I took to be really going on, motivation-wise. This was because I took the legal issues to be relatively clear-cut. Obviously, for Scalia-endorsed reasons, you can’t just give everyone the private right to nullify any public law, piecemeal. Religious liberty doesn’t mean that. But, apparently, it does?

“The fact that the White House thinks this is about contraception is the whole problem. This is about freedom of religion, it’s right there in the First Amendment. You can’t miss it — right there in the very first amendment to our Constitution,” McConnell said. “What the overall view on the issue of contraception is has nothing to do with an issue about religious freedom.”

McConnell went on to embellish the argument, claiming Obama is being “rigid in his view that he gets to decide what somebody else’s religion is.” He said that “this issue will not go away until the administration simply backs down.”

McConnell is sensitive to the fact that most Americans aren’t opposed to birth control. So he’s leaping from the specifics of the case to the general principle. Reading opinion stuff the past two weeks, I can see why Republicans think they are on solid ground here. A surprising number of commentators, including some on the left, have been saying they think the Obama administration is in the wrong here, on religious liberty grounds. But it seems obvious (to me) that this is absurd, because the McConnell line is absurd. I am less sure that this means it’s good politics for the Dems. Clearly the Republicans are hoping they can win a bigger share of the Catholic vote, at least, by painting Obama as anti-Catholic. But the McConnell line is so absurd that it looks like bad politics to me (which is saying a lot, I know.)

What will McConnell have to say about the Muslim employer who – speaking purely hypothetically! – wants to impose de facto sharia law on Muslim and non-Muslim employees alike by unilaterally nullifying the application/enforcement/funding of various laws in creative – and religiously sincere! – fashion. Obama is going to oppose this sort of thing, because he hates religious freedom. Republicans, on the other hand …

Or take the classic case: should sincere pacifists be allowed to withhold a portion of their tax bill, proportionate to the amount of the budget that goes to funding the military? The GOP, I take it, will be supportive of all who choose to check that box.

I suppose someone is going to try to argue that this case is different, due to the peculiar design of the health insurance law. The government doesn’t provide this thing. The government requires employers to do it. So the case is analogous to conscientious objection to military service. You can force people to pay taxes that pay for guns, but you can’t actually force them to shoot the guns, personally. You have to let them be stretcher-bearers instead, or something of the sort. Only in this case the objection is to one particular form of stretcher-bearing, as it were. But it’s really hard to take this too seriously. It’s not as though anyone is suggesting we force Catholic employers to hand out birth control pills personally, much less that we force them to force employees to take the pill or anything like that. Forcing employers to pay someone else – an insurance company – potentially to pay for someone else – a doctor – to tell someone else – a pharmacist – to give something to someone that the employer wouldn’t ever ask for, for themselves, hardly seems analogous to asking a pious Quaker to shoot a man.

(The principle that layers of bureaucracy are semi-prophylactic against moral pollution is subject to doubt. But we seem to have no other principle, so this will have to do in the case of prophylactics.)

Sticking just with the medical case, getting specific: suppose the Muslim owner of a large company that employs Muslims and non-Muslims (or even just Muslims) wants to be exempt from insuring medical stuff except in cases where male employees see male doctors and female employees see female doctors. The owner find it objectionable that ‘his money’ should pay for anything he finds religiously repugnant, and this is his take on sharia law. Would Republicans have any objection?

What goes for employers will go for family law as well. Surely employers do not have more religious authority over their employees, in the workplace, than parents do over children, or spouses over the terms of their weddings. Maybe this will sound good to conservatives for about two seconds. But if you really think that religious conviction automatically overrides public law then you clearly just legalized not just same-sex marriage but polygamy and a bunch of other stuff that’s not even occurring to me at the moment. How not?

So this issue seems perfectly tailored for Democratic gotchas. Which is why I keep expecting the issue to go away. But it doesn’t.

You might object that some of these gotchas will get the Dems right back. Do the Dems have to pretend to be scared of creeping sharia, or opposed to gay marriage, to articulate what they think is wrong with McConnell’s principle? Does the table-turning need to get as phoney and nonsensical as all that – just to expose the phoniness and nonsense?

I think it should be possible to avoid that problem. But, in order to do so, you have to be crystal clear about what the principle really is. Conservatives are hammering home the talking point that Obama is telling you what religion to practice. No. Obama is (or has been: I hope the administration isn’t caving) taking the entirely correct line that religious liberty is an individual right. This means limiting group rights to impose religious views or practices on individuals.

It is more complicated, of course, but this is the principle. 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.)

It might seem that I have now wandered far from the starting point. Surely the right to take the pill is not a religious right. Taking the pill is not like taking communion. Yes, that’s fair. But it does not follow that restricting the right to take the pill is not a restriction on individual freedom of religion.

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.

So: the contraception case really is an issue of individual religious rights (to take the pill) vs. group religious rights (to coerce individuals not to take the pill.) Individual rights trump group rights in a case like this. So Obama is right.

{ 292 comments }

1

Sebastian 02.13.12 at 7:00 am

This contraception case is silly on so many levels.

First, IF the government decides that contraception is sooooooo super-important that it needs to be provided for, then the government darn well should do the providing.

Second, there is no reason at all to make the employers do the providing. What, do we not give a damn about unemployed people getting contraception? You’d think the public case for unemployed people getting it would be AT LEAST as strong as for employed people.

This isn’t an employee safety issue where you just *absolutely have to cram it down the employers throat*. This isn’t a wage issue that has to be dealt with because it is inextricably tied to the employer. It doesn’t have the employer-employee nexus of collective bargaining.

Which leads to

Third, there is no reason whatsoever not to allow conscientious objectors to opt out of it. This isn’t a restaurant where the state needs to have neutral cleanliness standards to prevent people from dying of e-coli. This isn’t a hazardous workplace that needs OSHA standards to prevent limbs from getting chopped off. This doesn’t even save money by being more efficient (at best it is a vaguely hidden tax–instead of paying it through the IRS you pay it through insurance companies who are mandated to provide the service which you are mandated to buy).

Fourth, your last paragraph is ridiculous. Even at a Catholic charity organization they aren’t coercing individuals to not take the pill. The Church just doesn’t pay for it.

So even if the case for government provided contraception is strong, the case for forcing employers to do provide is pathetically weak and the case to force Catholic conscientious objectors to do so is completely non-existent.

And that is why it is getting framed as a bigotry issue.

2

duck-billed placelot 02.13.12 at 7:14 am

The reason that employers have to provide it is because there is not a government run health care alternative. This continues to be fallout of our ridiculous, hodgepodge medical system and the horrific lack of a public option (Medicare for All) in the latest-greatest Liberal Legislation of The Century, the ACA.

Sebastian, stopping a sin tax of an extra $650+ bucks a year to be a regular adult is not soooo ridiculous. On top of that, many women take the Pill for reasons besides non-pregnancy (such as less debilitating, less painful periods). The government (rightly!) sets standard levels of medical care and coverage, and (a small part of) the Catholic Church wants to stomp their feet and deny their employees that coverage because bitches, legs closed. See, now, if there were a public option, then religious employers could whine and moan, and the govt. could say, that’s cool, your health care is insufficient, please pay this penalty and all your employees get Medicare at no extra cost. Huzzah, protect the worker! But no, as it is, there is no other way for their employees to get the necessary preventative health care they need, so.

3

adam.smith (was Sebastian(1)) 02.13.12 at 7:14 am

Sebastian -
1. the government _does_ the providing by mandating insurance coverage. I’m pretty sure the government considers appendectomies as sooooo super important, too. Yet it doesn’t actually set up clinics to perform appendectomies – it requires that they be covered by health insurance. That’s the way a semi-private health care system works/has to work. The alternative is an entirely state-run system (which, needless to say, would be fine with most liberals).

2. Unemployed people will, for the most part, get access to contraceptives either through medicaid or through the subsidized health insurance they buy.

3. Yes there is. As John notes, and as Kristof notes in his Sunday NYTs column, the idea that the state can allow religious groups to define the type of insurance they want to provide for their non-religious employees is, frankly, insane. See Kristof’s rather compelling examples http://www.nytimes.com/2012/02/12/opinion/sunday/kristof-beyond-pelvic-politics.html

4. That’s not what John writes. He’s talking about an individual sin tax, de-facto imposed by the church on its employees by not covering contraception.

4

John Holbo 02.13.12 at 7:23 am

“Fourth, your last paragraph is ridiculous. Even at a Catholic charity organization they aren’t coercing individuals to not take the pill. The Church just doesn’t pay for it.”

What do you think about the sin tax case? Is it contrary to religious liberty for the government to impose a tax on something that religion x thinks is sinful, but religion y does not? (Assume that there is no attempt to provide a non-religious justification for the tax? The motive is admittedly religious.)

I agree with you that it’s silly that the whole thing is being dog-legged through employer-provision. Either it should be single-payer or we really shouldn’t have it. But given that it is employer-provided, clearly employers need to be compelled to meet a general public standard.

I agree that it’s silly to have to call contraception a religious right. But it’s comparable to calling the right not to have to pay a special tax for being a Jew a religious right. It isn’t part of the Jewish person’s positive religious self-conception that they should NOT have to pay this tax. It isn’t a violation in that sense. But it is violation of religious liberty to tax Jews differentially, merely for being Jews.

I don’t get your final paragraph at all. I thought, from previous stuff you wrote, that you were in agreement with the following. The system is silly. It shouldn’t be an employer mandate. But, given that it is (now I get hazy about your line of thought) it’s less silly to have it be a consistent mandate than to let employers just decide whatever sort of insurance they feel is best.

The motive for the law obviously isn’t actually anti-religious bigotry. That, I think you will agree, is a silly read. The motive is to ensure basic insurance coverage, as broadly as possible. Obviously opposition to the law will seek to frame it as bigotry. Throw mud and hope some sticks. I know you don’t approve of Obama care, but you do agree that the bigotry charge is off?

5

John Holbo 02.13.12 at 7:24 am

Now I’m confused about which Sebastian is which.

6

John Holbo 02.13.12 at 7:26 am

That is, I’m confused about what each Sebastian has written previously. So ignore my imputation of likely beliefs. I will henceforth take each Sebastian as it comes.

7

duck-billed placelot 02.13.12 at 7:27 am

Also, let me point out that, as someone who has actually worked for The Church (social services branch), their people (except the Bishops and the Cardinals and the Pope, I guess) are not rolling in it. Low, low salaries, and a big part of their sales pitch is the ‘great benefits’ offered. That extra $650+ is a hardship to many of their employees, and medical care that doesn’t care for my needs is, you know, not great.

Also, also, as mentioned by John and now Sebastian the Prior (adam.smith), this is not about contraception, really? I mean, if they get this, then the next thing they’ll say is no Gardasil for your children, because we literally believe it’s better for your child to be a woman with cancer than an adolescent who has sex. And then no gyn appointments for girls at all, because only sexy sex people need those. And then some bright MBA-holder will realize that if he claims his religion is about pure-of-body, he can refuse to pay for insurance for his overweight employees, or ones who smoke, or ones who drink, or ones who fail to show up at the company gym at 5:30 every morning. I mean, yes, for the religious types it’s partly about contraception. But it’s also about avoiding having to pay for your worker’s health care.

8

Sebastian 02.13.12 at 7:58 am

Well hey, if we’re going to impute what is next, how about taking away the license of a doctor who doesn’t want to perform elective abortions?

Look, if instead of doing things properly, you cram things down through employers, you get problems like this. But it doesn’t do any good to pretend that it isn’t a problem just because politically you don’t want to do the actual right thing.

If you believe that the actual right thing is to make sure that everyone has access to contraception (and for the record I certainly believe that), you need to freaking provide it. Or at least provide a backstop if it isn’t provided elsewhere. And then if enough people disagree with you about that, it works through the political system and you either do or do not provide it.

But that is really quite different from forcing people to provide it directly themselves. You’ve gone from balancing people’s collective participation in things they do or do not like (mitigated through the political system) to directly forcing them to participate in an unmitigated way.

Now sometimes you have to do that. You can’t have safety regulations for food in restaurants without enforcing food safety regulations. You can’t allow conscientious objectors to that because it undermines the whole point of a safety regulation.

I get that.

You can’t have wage and hour laws without involving an employer because well, they hire for the hours and pay the wages.

I get that.

But forcing Catholic Charities to provide contraception coverage isn’t like that. The nexus between contraception and employing people *is not tight*. In fact it shouldn’t be tight, we don’t really want employers involved in that.

The moral force to the “we can’t make exceptions” argument comes when the law and the person asking for the exception are intimately entwined. A chef can’t ask for exceptions to the “wash your hands” regulations because he is preparing the food that we want not to have e coli.

The moral force of “we can’t make religious exceptions to neutral laws” comes from the idea that the neutral laws are regulating the religious person in an unavoidable way. But if there is no reason whatsoever to regulate the religious person in that way, it loses almost all of its force. If you believe that we need to be sure that people can get contraception, there is no reason to force people who believe contraception is immoral to provide it. And even if you stupidly decide that an employer mandate is the best way to go, there is no reason whatsoever not to allow opt-out *because the object of the law is the person who is seeking contraception*. It isn’t an ‘employee’ in their status as an employee.

When you force religious objectors to participate in circumstances where they are not a necessary party *except by the fact of your law forcing them to be such a party* it looks a lot like petty bigotry.

Employers are not a necessary party to birth control access.

9

John Holbo 02.13.12 at 8:14 am

“But it doesn’t do any good to pretend that it isn’t a problem just because politically you don’t want to do the actual right thing.”

But what if you think that, politically, you can’t do the actual right thing? You should do the second-best thing, right? What if that is employer mandate? At this point I lose the thread. You seem to think there is some principled objection, but I honestly fail to see it.

“When you force religious objectors to participate in circumstances where they are not a necessary party except by the fact of your law forcing them to be such a party it looks a lot like petty bigotry.”

Why does it look like petty bigotry? We agree, I take it, that the motive isn’t actually bigotry. So, at best, appearances are deceiving. But, seriously: where’s the appearance, once you have swept aside plain old conceptual confusion? Why doesn’t it just look like an ugly kludge via this dog-leg of employer-provided health care? That’s what it looks like to me. That’s what it is, no?

10

Sebastian 02.13.12 at 8:31 am

Through the political process, in the US, we allow the death penalty.

But we don’t force random people who object to the death penalty to actually strap the person down for the needle. And even if you chose to be a prison guard we don’t force you to strap the person down for the needle if you agree with the concept of incarceration but disagree with the death penalty. Conscientious objectors are allowable unless the are strictly necessary. Even in times of war we didn’t make the Quakers shoot at people.

We do however force chefs to a minimum level of cleanliness. Why? Because food handling laws can not be divorced from the position of being a chef.

Contraception providing can easily be divorced from employment providing. There is literally no reason whatsoever that they can’t be separated. In fact it would be a positive good if they were separated.

Therefore, there is no principled reason to not allow conscientious objection. Note I’m not saying that the principle of conscientious objection ALWAYS wins. I’m saying that in cases where the conscientious objector isn’t a necessary participant we shouldn’t force them to participate just because “we make the rules”.

11

Sebastian 02.13.12 at 8:42 am

“But what if you think that, politically, you can’t do the actual right thing? You should do the second-best thing, right? What if that is employer mandate? “

It isn’t even the fourth best thing, but hypothetically speaking you should allow conscientious objection in that case because you are failing to go through the proper political process to mitigate conscientious objection (which is to say that we don’t allow hyper diffuse conscientious objection on the level of what taxes get spent on).

The problem is when you try to move from one level to another. A defence of “you don’t get to conscientiously object to taxes” doesn’t translate directly into “you don’t get to conscientious object to ANYTHING EVER”. We pretty much all understand that there is a continuum there. If you feel the need to short circuit the political process by mandating direct action (especially when making big changes through administrative fiat), you need to also be sensitive to the fact that you are losing a lot of the moral force of the collective action decision making process and might need to mitigate it by letting people opt out *especially when they are entirely unnecessary parties*.

12

Manta1976 02.13.12 at 8:43 am

Curiosity: would it be acceptable to allow employers to not pay coverage for contraception (or for whatever procedure they find objectionable), as long as they are willing to pay their employers the difference in the cost of health insurance in cash?

13

Jeffrey Kramer 02.13.12 at 9:04 am

Sebastian, #8;

The moral force of “we can’t make religious exceptions to neutral laws” comes from the idea that the neutral laws are regulating the religious person in an unavoidable way.

You’re starting with the assumption that “religious exceptions” are always legally or morally necessary, except in the cases where the only way to achieve some important public good is by subjecting the religious persons to the laws or regulations in question. That’s a very disputable assumption from a moral standpoint, to put it mildly. Nor is it AFAIK the assumption under which U.S. law operates. Rather, we grant a great deal of latitude to individuals who claim that their religious convictions forbid them from personally engaging in acts which are otherwise mandated, we grant a somewhat lesser degree of latitude to individuals who claim that their convictions require them to engage in acts which are otherwise prohibited, and we treat with much greater skepticism claims of institutions to be exempt on grounds of conscience from laws and regulations.

We grant no latitude at all to individuals who claim that their convictions require them to refuse paying money to local or federal governments which will “misuse” that money for “immoral” purposes. Why should we start granting it, if the government legally designates a third-party (the insurance company) as the collector of money, rather than collecting it itself? Granted that this is a inefficient and evasive way of achieving the public health ends; do people have the right to opt out of laws which they consider inefficient and evasive? Do they have stronger “claims of conscience” against inefficient abominations than against efficient abominations?

If that’s not it, what is the critical difference between saying “we have passed a law stating that you must pay taxes to the government; you cannot avoid this by claiming your religion opposes some of the things the government use taxes for” and saying “we have passed a law stating that you must pay insurance companies; you cannot avoid this by claiming your religion opposes some of the things the insurance policies pay for”? The only difference I can think of offhand is that the insurance policy has the word “contraception” in it, while your 1040 doesn’t have the word “war.” I don’t see how this is enough for even the subtlest Jesuit to work with.

14

Jeffrey Kramer 02.13.12 at 9:28 am

Contraception providing can easily be divorced from employment providing. There is literally no reason whatsoever that they can’t be separated.

Sure there is. The mandates on employers were found by the legislatures which passed the ACA to be the best way of providing access to insurance, and so “divorcing” them would be a loss in terms of public money or public health. The fact that you and I (or the Bishops) think the legislatures were badly mistaken in reaching this conclusion does not create a right of conscientious objection which would not obtain otherwise (i.e., if they legislatures were actually right in thinking the mandates were the best ways of protecting health at the least cost).

By the way, we seem to be debating the regulation as it existed before Obama offered his revision; it certainly should be acknowledged that Catholic hospitals, etc., are not even being required to buy the employees the objectionable policies.

15

Eli Rabett 02.13.12 at 9:29 am

Too complicated.

The reply is that McConnell wants employers to be free to force their religion on employees.

You provide useful examples, but substitute Halakh for Shariah when arguing with a Republican

16

ben in el cajon 02.13.12 at 9:49 am

Well, Sebastion and others have been mostly civil, so I will try to be as well. I was raised in the Mennonite Church (general conference, for those in the know), so as a young man I was an absolute pacifist. At the end of the 1970s, the US re-instituted registration for the military draft, a policy which continues to this day. I ignored the law until I recieved a letter telling me I would receive no student aid unless I agreed to participate. I wrote all over the margines of the registration form about being a conscientious objector, although there was no acknowledgement of that designation in the official format. I cried when I mailed in the letter, knowing that I cared more for a college education than I cared about God, or other human beings, or my own integrity. The state, in all its power, conquered my soul (although no conservative today, nor any Christian I am aware of, would care at all about my desire not to kill Others).

Sebastian, you are wrong in your analogy about the death penalty and contraception. No regulation is making a priest hand out condoms; the first draft of the rules merely require businesses and organizations to provide insurance that meets minimum standards of modern health. The current draft simply states that insurers must meet minimum standards of modern health, even if the businesses are too stupid, superstitious, or evil to accept those standards or pay for them. These are far less oppressive of someone’s conscience than registration for military service.

Also, although I’m getting increasingly less civil, I want to register how morally bankrupt it is to equate giving someone the opportunity to direct her own life, reproductive choices and pleasure with strapping a man to a table and killing him, or dropping bombs on a house. I don’t know how to comprehend the mind of someone who thinks both actions–preventing one’s own pregnancy and taking someone else’s life–are similarly evil. It’s like staring into the eyes of a sociopath; realizing that people with such inhuman beliefs are trying to acquire more power and influence in America makes me glad I’m no longer a pacifist.

17

John Holbo 02.13.12 at 9:49 am

“But we don’t force random people who object to the death penalty to actually strap the person down for the needle. And even if you chose to be a prison guard we don’t force you to strap the person down for the needle if you agree with the concept of incarceration but disagree with the death penalty. Conscientious objectors are allowable unless the are strictly necessary. Even in times of war we didn’t make the Quakers shoot at people.”

I discuss the Quaker case in the post. It seems to me that the insurance case is like the paying your taxes case, not like the actually having to shoot people case. Quakers have to pay their taxes, even though it goes for stuff they don’t approve. How are employers not like that case?

18

SimonW 02.13.12 at 10:56 am

Sebastian, should institutions associated with Jehovah’s Witnesses be allowed to offer insurance which only provides care which doesn’t involve ‘whole blood’ blood transfusions, or even no blood transfusions at all?

19

Paul 02.13.12 at 11:19 am

I think it would be wonderful of all those employers who don’t want to fund contraception to fund paid maternity leave for their female employees who need it.

Alternatively I expect that they could find a whole range of ‘valid’ reasons to reduce their employment of women of child bearing age.

20

Henri Vieuxtemps 02.13.12 at 12:02 pm

Playing devil’s advocate here: would a boycott scenario be an acceptable analogy here?

Suppose you’re a pacifist. Yes, you pay taxes and they pay for the military. Yes, you have to put up with that: render unto Caesar, etc.

But you are still free to boycott any private entity that supports the military, that benefits from wars, etc. Right? You could boycott GE, for example.

And now the Caesar tells you (whatever the rationale) to buy stuff from GE. Dontcha think this takes the tension to a whole different level?

21

Jonathan H. Adler 02.13.12 at 12:11 pm

The principle that the government may tax people to pay or provide for things that people cannot be required to pay for or provide directly is well established in U.S. law, particularly where fundamental liberties are concerned.

On the legal side of this, the Religious Freedom Restoration Act was a much larger problem for the Administration’s policy than the First Amendment. In either case, however, government policies that impose a substantial burden on the free exercise of religion are disfavored. The only difference is the showing necessary to show that the burden is justified. This is what’s missing for your parade of silly examples. The more extreme the examples become, the easier it is to show that the government’s interest is sufficient to justify the law in question. In the case of the contraception mandate, however, it is difficult to show that the policy satisfies RFRA’s requirement of strict scrutiny, for the reasons Sebastian notes, among others.

JHA

22

John Holbo 02.13.12 at 1:29 pm

“The only difference is the showing necessary to show that the burden is justified. This is what’s missing for your parade of silly examples.”

Well, it’s certainly possible that I am missing some legal niceties. Intuitively, the burden is not heavy. There is a tenuous ‘not one red cent!’ principle. Tenuous because it’s not so clear there really is a single red cent in question, not strictly (and a ‘one red cent’ principle has to be very strict about there really being a red cent). And because the duty/point of impaired free exercise itself is not clear. And intuitively, the government does have a compelling interest in guaranteeing the basic quality of the insurance that is mandated. Here there is a sort of confusing feature, added by the fact that it doesn’t make sense to do it all through employers – not really. But given that’s the way the law works, it obviously has to work as well as possible in that way. The government has a compelling interest in doing it well through employers.

23

Jonathan H. Adler 02.13.12 at 1:47 pm

The impairment on free exercise — that is, the burden on religious practice — comes from requiring an individual to do something her religion proscribes (in this case, facilitating or paying for the commission of a mortal sin). This easily qualifies as a substantial burden under the relevant caselaw.

As for whether the burden is justified, the government’s interest must be compelling AND the means selected must be the most narrowly tailored possible. Intuition doesn’t determine what’s a “compelling” interest (as opposed to a “substantial” or “important” interest). It’s a term that has been defined by decades of case law, and few things beyond national security and saving life qualify. But even assuming that the government’s interest is “compelling,” the mandate doesn’t meet the latter part of the test as there are other, far more direct, ways of ensuring even greater access to contraception (e.g. government provision). That the mandate only covers employer provided health care only exacerbates the problem, as it makes the policy quite under-inclusive — a big no-no under strict scrutiny, which is what RFRA imposes on the federal government.

JHA

24

Andrew F. 02.13.12 at 1:51 pm

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.

I don’t think I understand this part of the argument, in particular the steps I’ve filled in with “??” below:

1. Suppose there is a law L that requires all employers except church-run organizations to provide insurance coverage for contraception;
2. Employees of such organizations must now pay for this coverage, or the services that would be covered by it, themselves;
3. ??
4. Church-run organizations are imposing this cost on their employees;
5. ??
6. Church-run organizations are imposing a “sin-tax” on their employees.

JHA @20: In the case of the contraception mandate, however, it is difficult to show that the policy satisfies RFRA’s requirement of strict scrutiny, for the reasons Sebastian notes, among others.

Sure, once you can show that the policy is in fact substantially burdening the free exercise of religion. Is the running of a hospital the “free exercise” of the Catholic religion? Not clear to me that it is.

25

Manta1976 02.13.12 at 2:02 pm

Is the running of a hospital the “free exercise” of the Catholic religion? Not clear to me that it is.
The part in the catholic (and more generally christian) doctrine about “charity” must have escaped your notice…

26

Jeffrey Davis 02.13.12 at 2:05 pm

On a practical matter, health insurance for women who don’t want to get pregnant is cheaper than for those who do. On a practical level, employers should definitely leap to give their employees support for contraception. Why not just 2 plans? With contraception support + the cash difference between what that costs and what it costs for insurance with maternity support.

27

Barry 02.13.12 at 2:12 pm

Sebastian: “When you force religious objectors to participate in circumstances where they are not a necessary party except by the fact of your law forcing them to be such a party it looks a lot like petty bigotry.”

You’re not telling the truth here; the religious groups are not forced to participate in anything, except for their non-religious activities. Churches, for example, are rather leniently permitted to treat their purely religious employees quite differently.

28

SamChevre 02.13.12 at 2:12 pm

the entirely correct line that religious liberty is an individual right.

I think this is where the analysis errs. For a good thorough treatment, I can’t recommend Stephen Carter’s (Yale Law) The Culture of Disbelief too highly.

To summarize the argument, though–religious belief is, for almost all religions, a matter of group practice; thus, you can’t protect individual rights to participate without protecting group rights to function as religious groups.

29

wkwillis 02.13.12 at 2:22 pm

Well, they can pay for the insurance or they can pay for the baby. Getting free obstetric and maternity leave and disability insurance (for her and for her kid) is going to cost them even more that contraceptives, so the Churchs would obviously not be doing it for the money. They might even get people competing hard to work there.

30

Marc 02.13.12 at 2:23 pm

This is a case where the details matter; that’s why I like what Obama did in his second take. He distinguished between what an insurance company has to do and what an employer has to do. It may seem meaningless to some, but a lot of liberal Catholics really were uncomfortable with one position (the church has to provide contraception directly) and not another (the church contracts with insurance companies, who in turn are obligated to provide services to their customers.) It ends up in the same place, but it removes the church from the direct discussion.

Having said that, the religious exemption has gotten far, far out of control in the US in other contexts. If you’re providing public services you abide by public rules. A pharmacist doesn’t get to choose which prescriptions they like and which they don’t; you don’t get to void discrimination laws for agencies providing public services; and so on. (To translate: Yes, you can require that priests be Catholics. No, you can’t refuse to hire gay people if you’re running the county adoption agency.)

31

Marc 02.13.12 at 2:26 pm

@23: In fairness, the bishops would fiercely oppose universal government provision of contraception. That’s a lot closer to “pacifists not wanting to pay taxes for wars” than they’d admit, but that wouldn’t stop them for doing it anyhow.

32

John Holbo 02.13.12 at 2:38 pm

“in this case, facilitating or paying for the commission of a mortal sin”

If the issue is facilitating mortal sin, and insurance qualifies, then there is as well a problem with the church paying cash dollars to anyone who might mean to spend some of the money on contraception. If the issue is paying for the commission of a mortal sin, I again fail to see the problem. No one is being paid to commit a mortal sin. Not strictly. And if we are being loose about it then, again, how is it worse than paying cash, which may be used for sinful purposes?

Andrew F makes a good point about how my sin tax argument is unclear. I need to take another crack at it. The nub of the idea is that you are unequally depriving some people of something that the law guarantees to others in your position. The reason you are not getting it is that someone else thinks that something you do is sinful. It’s not clear why that should be grounds for unequal deprivation.

Jonathan’s other legal points I am, admittedly, not really qualified to judge. I can well believe that the fact that the mandate covers only employees – what about all these unemployed people? – makes for an awkward sight, in the eye of the law.

33

Russell Arben Fox 02.13.12 at 2:40 pm

Group rights grow out of individual rights in this way, without fundamentally abrogating them.

A highly debatable theoretical claim, that.

34

John Holbo 02.13.12 at 2:45 pm

“To summarize the argument, though—religious belief is, for almost all religions, a matter of group practice; thus, you can’t protect individual rights to participate without protecting group rights to function as religious groups.”

I certainly agree that religious belief is, for almost all religions, a group practice. But I don’t think it follows that religious rights can’t be individual rights. After all, ensuring individual rights ensures the rights to certain sorts of religious group practice. The question is: is there no possibility of meaningful religious group practice unless, in effect, some people are deprived of their individual religious rights, in the sense I am defending. I am skeptical that there is a good argument to this conclusion. I remember reading about Carter’s book some years ago – but not the book itself. Some “New Republic” article or something. Can’t remember. But I remember not being convinced.

35

John Holbo 02.13.12 at 2:47 pm

“Group rights grow out of individual rights in this way, without fundamentally abrogating them.

A highly debatable theoretical claim, that.”

Yes, but I would defend it in the religion case. Admittedly, my post has an air of self-evidence on this point that my comments are now lacking.

36

Jeffrey Kramer 02.13.12 at 3:25 pm

The impairment on free exercise—that is, the burden on religious practice—comes from requiring an individual to do something her religion proscribes (in this case, facilitating or paying for the commission of a mortal sin). This easily qualifies as a substantial burden under the relevant caselaw.

If doing anything which makes it more likely that another individual will do something which one regards as sinful constitutes “facilitation of sin,” and if compelling such facilitation is ipso facto a “substantial impairment of free exercise,” then there are virtually unlimited opportunities for future lawsuits. And no matter how many mattresses the government tries to pile up to ease the moral discomfort of the religious, the most exquisitely sensitive will always cry that the pea beneath is causing them agonies in their conscience.

(By the way, is it legally relevant if the claimant here has been sleeping on that lumpy mattress for a decade or so in 28 states without feeling the need to cry out for relief?)

37

Jonathan H. Adler 02.13.12 at 3:25 pm

“If the issue is facilitating mortal sin, and insurance qualifies, then there is as well a problem with the church paying cash dollars to anyone who might mean to spend some of the money on contraception.”

It’s different because the choice to spend wages on contraception (or anything else) is the result of a free choice made by another moral agent. This is also why there’s not a problem with tax dollars — and might not be a problem were employers to provide some sort of “voucher” that employees use to purchase the health care plan of their choice — but there is a problem with the religious entity having to pay for the coverage when it purchases insurance.

And the issue about the under-inclusiveness is not just about unemployed folks. It’s also about those with jobs, including the self-employed, who don’t obtain their insurance through their employer, and whether they can, e.g., satisfy the minimum coverage provision with a plan that does not include contraception.

JHA

38

Russell Arben Fox 02.13.12 at 3:28 pm

John,

Is there no possibility of meaningful religious group practice unless, in effect, some people are deprived of their individual religious rights?

I think this is manifestly the case in many strongly communitarian/exclusivist/authoritarian religious groups, like Hutterite or (some kinds of) Amish or Hasidic religious groups. In those cases, what you see are faith-driven collective acts of self-provision and maintenance, theologically grounded in a notion of community or covenant, and defending the right of individual members to pursue acts contrary to the collective puts into question the faith motivation of the whole (meaning not just the faith of all other individual members, but also of the collective body itself).

Obviously these are extreme cases, deserving of some finely detailed theoretical responses (hence, the long debate over rights of exit, and internal vs. external restrictions, Kymlicka, Taylor, Okin, etc.); the situation at hand isn’t nearly so extreme, and I tend to think that the Obama administration’s revised position–I like your description of it in terms of prophylactics–fairly effectively satisfies most of the fears about interference with religious bodies acting holistically in the performance of the work they feel called to do. I mean, it’s an awkward reach-around (one that single-payer would fix, by the way!), but it does seem to work. I want to see more legal parsing and discussion of the revision, though, because while the whole argument is surely nonsensical within a framework which associates religious freedom solely with the individuals who choose to affirm or reject the instructions of their religious faith, for those who accept that religious groups themselves, as groups, also may be understood as possessing rights, then any kind of government mandates, even indirect ones, deserve scrutiny.

39

Harry 02.13.12 at 3:32 pm

Slightly orthogonal, but in fact I think this gives some indirect support to Sebastian’s position: once you back off doing “the right thing” because it is politically unfeasible, and back down to the second best (or fourth, or tenth best — I’m fully with Sebastian on this) thing, you have to entertain and maybe implement all sorts of exemptions for which there are, in principle, no reasons (and some of which may be, in principle, thoroughly objectionable). Why? simply to compromise with the power of other people who could make things go even worse. I agree with John and adam.smith that the resources at stake here do not (morally) belong to the employer. But no-one who created the law can make that argument politically; “if that is what you think, why on earth didn’t you tax them?”

40

Uncle Kvetch 02.13.12 at 3:40 pm

In fairness, the bishops would fiercely oppose universal government provision of contraception.

As would Mitch McConnell.

The notion that government-provided universal access to contraception would somehow “resolve” this issue is, in the current US political context, nothing short of hilarious. “The government now wants to FORCE Catholics to pay for OTHER PEOPLE’s BIRTH CONTROL out of THEIR OWN POCKETS.” Yeah, that’ll fly.

What will McConnell have to say about the Muslim employer who – speaking purely hypothetically! – wants to impose de facto sharia law on Muslim and non-Muslim employees alike

He’ll say that’s different, because shut up. And you know this as well as I do.

Why do you insist on attributing good faith and intellectual integrity where none is warranted? They don’t call them culture wars for nothing.

41

Brad DeLong 02.13.12 at 4:18 pm

Re: Jonathan Adler: “The impairment on free exercise—that is, the burden on religious practice—comes from requiring an individual to do something her religion proscribes (in this case, facilitating or paying for the commission of a mortal sin). This easily qualifies as a substantial burden…”

Do you really believe in a God who sends people to hell for using condoms?

42

Morgan Warstler 02.13.12 at 4:30 pm

The solution was for liberals to do the hard work and create a healthcare plan that was not tax deductible, so employers get out of the game AND still give up on the Single payer model.

Push all individuals to buy insurance personally, and choose “does or does not” cover abortion etc. covage and then give subsidies to the poor.

t would have been harder, and since they didn’t do the hard work, employees of Catholic hospitals are screwed.

Next time do the hard work.

43

piglet 02.13.12 at 4:44 pm

Why is it that that “employers are forced to provide” thing still crops up? As in Sebastian 1 “Second, there is no reason at all to make the employers do the providing.”

Can we perhaps agree that employers are not providing any health care period? Health care providers (doctors, hospitals) are providing and insurance companies are paying. Employers may or may not buy health insurance but that’s the end of it. Can we agree on that?

44

Vlad 02.13.12 at 4:44 pm

The notion of “free choice by another moral agent” is where criticism of the Obama compromise should collapse, as a matter of logic and, especially, public policy. The current version of the freedom of conscience claim must go something like this: in order for my conscience to be “free” on contraception, the following must all be true:

1. I can’t use contraception;
2. I can’t provide contraception to anyone else;
3. I can’t be forced to follow a generally applicable law that requires the insurance plan I’m making available to my employees to cover contraception; AND
4. The secular insurance company that I’m using to provide health insurance to my employees can’t be forced, by generally applicable law, to offer side deals to my employees through which contraception is made available free of charge.

I think step 3 goes too far, but step 4 is simply ludicrous. The insurance company is the “moral agent” in step 4, not the Catholic Church (presumably, Catholics who feel very strongly about contraception choose not to work for insurance companies that provide contraception coverage). Once you get to step 4, Catholics are no longer simply preserving their ability to avoid “facilitating” the use of contraception; they are insisting on the right to prevent people with whom they do business — the insurance companies — from facilitating the use of contraception. So now it’s not just the churches that get religious exemptions from generally applicable laws, but also the secular companies that do business with the churches? Because money! It’s fungible! Ridiculous.

It’s also morally and logically indistinguishable from Catholics insisting that “freedom of conscience” gives them an affirmative right to burden the ability of their employees to use contraception. The “conscience” objection to the Obama compromise isn’t “I’m being forced to violate my conscience by providing contraception to my employees;” instead, it’s “I’m being denied my right to burnish my conscience by making my secular employees pay for contraception out of their own pockets.” Since all manner of common and fun activities are also considered “mortal sins,” by one religion or another, think of all the fun places this notion could take us. No coverage of prenatal care for unmarried mothers, since it would clearly amount to “facilitation” of fornication. No coverage of STDs for any unmarried people, for the same reasons. No coverage of treatment of AIDs (or, heck, maybe any disease) for gays, since homosexuality is a sin.

I don’t think I’ll ever cease to be amazed at the ACA’s ability to drive people stark, raving stupid.

45

Watson Ladd 02.13.12 at 4:55 pm

I’m missing something: why does religious liberty have anything to do with groups? The right to assemble to practice a religion has everything to do with the rights of those in the group that is practicing the religion, and even if we legally agree to treat the group as having a claim to particular rights, this follows from its members having particular rights. If you ban synagogues, the congregations can sue, but so can the members. We don’t let the Amish enforce their restrictions on their members as law: you can always leave.

And I’m not convinced by Sebastian’s argument either. Congress has wide latitude in economic regulation, including the regulation of benefits. Whether Congress enacts a tax on employment to pay for birth control or mandates that employers provide it to avoid benefits from being taxed is immaterial to who pays for it. When the Church employs someone in a secular role they have to follow the laws on secular employment. I don’t see that as interfering with the core religious mission. The Church could always not run hospitals and just raise money for them instead. (Which would be better for all of us when you consider what Catholic hospitals won’t treat)

46

JW Mason 02.13.12 at 4:56 pm

the choice to spend wages on contraception (or anything else) is the result of a free choice made by another moral agent. This is also why there’s not a problem with tax dollars—and might not be a problem were employers to provide some sort of “voucher” that employees use to purchase the health care plan of their choice—but there is a problem with the religious entity having to pay for the coverage when it purchases insurance.

On the main point, John H. is of course completely right (and the trolls are of course trolling; but the usual arguments against mud-wrestling a pig don’t apply here since John seems to enjoy it as much as they do) but I do have to say, I find Jonathan Adler’s argument above absolutely fascinating.

So, evidently a dollar paid in a market (or, interestingly, as taxes) carries zero moral responsibility, but if something other than pure purchasing power is exchanged, it carries a moral residue along with it. So if the employer provides a dollar to the employee, and the employee then uses that dollar to make a payment to a pharmacist for contraceptives, all the agency rests with the employee; but if the employer provides a dollar’s worth of insurance to the employee, and the employee uses the insurance to pay the pharmacists, some of the agency still rests with the employer. Evidently a cash payment severs the chain of moral custody, but a payment in kind does not. (Presumably in a barter economy we would all be fully accountable for each others’ actions.) There’s some kind of profound & important confusion of free markets and free will going on here, I think, but it would take a David Graeber to do it justice.

47

kharris 02.13.12 at 5:04 pm

Without reference to the religious aspects of the birth-control debate, perhaps it’s worth pointing out that we aren’t really talking about “insurance” when it comes to birth control. This is coverage of a drug expense. All that happens is that somebody (and who that somebody is depends on elasticities, but the standard argument is that it’s ultimately the employee) pays the insurance company to do a bunch of paperwork, and allows the insurance company to charge a steep fee on top of the cost of the paperwork, in order to handle payment for birth control.

This is true of a good many payments. Anybody have an option for insurance for spectacles? Do you pick up the option? Doofus! Insurance is for unlikely events that would impose a serious burden if paid for by the individual. Much of medical insurance, under ACA or otherwise, is really a plan for having a firm process payment and paperwork and collect a fee for doing so. If we had real medical insurance, the birth control issue would never come up – and our insurance costs would be lower.

48

MPAVictoria 02.13.12 at 5:05 pm

“What will McConnell have to say about the Muslim employer who – speaking purely hypothetically! – wants to impose de facto sharia law on Muslim and non-Muslim employees alike

He’ll say that’s different, because shut up. And you know this as well as I do.”

Exactly! As far as they are concerned those other religions aren’t real anyway.

“Sebastian, should institutions associated with Jehovah’s Witnesses be allowed to offer insurance which only provides care which doesn’t involve ‘whole blood’ blood transfusions, or even no blood transfusions at all?”

As far as I can tell no one has responded to this point to my satisfaction. We have had a process to decided what requirements an acceptable insurance plan must meet. If we allow one group to get a religious exemption from having to supply these basic requirements why not allow others? What makes Catholics so special? Birth control is a basic part of health care for millions of women. You don’t want to provide it fine, don’t take the government subsidy.

49

piglet 02.13.12 at 5:07 pm

“It’s different because the choice to spend wages on contraception (or anything else) is the result of a free choice made by another moral agent. This is also why there’s not a problem with tax dollars”

That doesn’t make a scrap of sense. For the record, I am forced by the laws of the land to pay, with my tax dollars, for wars, death penalty and other things that I find utterly unconscionable. For the record, this does pose a moral problem for many people, me included, and some have on these grounds preferred to go to prison rather than indirectly support morally wrong policies (I’ll be curious how many catholic bishops will be going to prison on conscientious grounds). Clearly, US law does not provide any remedy or exemption for us on grounds of religion or conscience. To say that this is not a problem, but insurance dollars for contraception are a problem, is pretty outlandish. I don’t think it is possible to make a logically coherent case for an exemption from the insurance coverage mandate without also arguing for exemptions from the tax mandate. This is pure sophistry, really.

50

John Mark Ockerbloom 02.13.12 at 5:10 pm

The one case where I can see Vlad’s step-sequence compress down is where Catholic institutions self-insure. Apparently some of them do (and a recent New York Times story notes some cases where they specifically do so to avoid state mandates on contraceptive coverage.)

This, IMO, would be more problematic for Catholic institutions than cases where they’re simply paying an outside insurance company, since if I understand the accommodation announced on Friday, the insurers — in this case, the institutions themselves — would have to provide the coverage they object to.

On the other hand, unlike healthcare and education, it doesn’t appear to me to be part of the practice of Catholic faith to be in the insurance business.

51

Sebastian 02.13.12 at 5:15 pm

“By the way, is it legally relevant if the claimant here has been sleeping on that lumpy mattress for a decade or so in 28 states without feeling the need to cry out for relief?”

For the moment I’ve said my piece on the main issue, but purely for clarification sake I’d like to note that this talking point ran ahead of the actual facts. The original Nancy Grace talking point was that 28 states require health insurance providers to provide contraception.

The actual fact is that 28 states require health insurance providers to provide contraception if they provide a drug/pharmacy benefit. If you self-insure the pharmacy benefit you don’t have to provide contraception, and lo and behold hospitals regularly self-insure their pharmacy benefits for other reasons. So it wouldn’t be at all shocking if the Catholic hospitals in question were already getting around it that way.

But Nancy Grace either didn’t know that, or didn’t care, and drew the incorrect inference that the existence of these laws meant that the Catholic church was already dealing with this, and only tried to make a stink over Obama doing it.

Further, 20 of those 28 states have direct religious exemptions. This would tend to undercut the purpose of the talking point, so again either the proponents of the talking point don’t know this, or they prefer the talking point to the facts.

Of the 8 remaining states, it isn’t clear that the Catholic Church had ever been forced to provide contraception (either because of non-explicit-in-the-law exemptions or a lack of enforcement). So the talking point appears both factually wrong in its particulars and wrong in its concept.

Again, I’m not a fan of the Catholic church. But I am a believer in religious pluralism.

52

Julian 02.13.12 at 5:16 pm

I am a little confused by the employment arguments being debated here. I don’t know how far this logic would go. For instance, is it legal for a company to refuse to employ women based on their religious beliefs? Or, if they are forced to employ women, can they define their job categories to limit their pay and authority? Can they define a dress code? How far does the religious exemption extend?

53

Substance McGravitas 02.13.12 at 5:16 pm

The one case where I can see Vlad’s step-sequence compress down is where Catholic institutions self-insure.

An excellent solution: the insurance rules could be adhered to but they’d be in the clear because no Catholic would ever use those services.

54

piglet 02.13.12 at 5:19 pm

As a further example: in Germany, the law requires every employer to contribute to the employee’s health insurance (fifty-fifty). The law further specifies the minimum standards for what health insurance has to cover. These standards include contraception coverage for women up to the age of 20. Questions to the moral theologians:
1) Is that fundamentally different (aside from the age cutoff) from what US law now requires?
2) If yes, how is it different?
3) If no, why hasn’t the German Catholic church ever demanded an exemption from the insurance mandate?

Btw, in case that matters, German Health insurance is not government-run. It is run by several independent entities roughly comparable to US health insurance providers.

55

Uncle Kvetch 02.13.12 at 5:22 pm

Again, I’m not a fan of the Catholic church.

Sure you are, at least at the moment. You’re a fan of whatever liberals happen to be criticizing on any given day.

“Sebastian, should institutions associated with Jehovah’s Witnesses be allowed to offer insurance which only provides care which doesn’t involve ‘whole blood’ blood transfusions, or even no blood transfusions at all?”

As far as I can tell no one has responded to this point to my satisfaction.

And no one will.

56

Sebastian 02.13.12 at 5:23 pm

I clearly said something that tripped the filter. Short version–the 28 state talking point is false, the Catholic church has not been forced to provide contraception before. Hopefully the extended version comes out of moderation soon.

57

Omega Centauri 02.13.12 at 5:25 pm

It may well be covered (I don’t have time to rtead through the comments), John certainly implied this with his individual liberty, as opposed to the liberty of non governmental organizations to inhibit the former. I think we can make the case that the Republicans consider large organizations to be super-individuals whose rights (by dint of their size and power) trump individuals. The Democratic position is that indivuals (the little people) need government to redress this power imbalance.

58

Henri Vieuxtemps 02.13.12 at 5:32 pm

@54, according to wikipedia:

There are two separate types of health insurance: public health insurance (Gesetzliche Krankenversicherung) and private insurance (Private Krankenversicherung). … About 87.5% of the persons with health insurance are members of the public system, while 12.5% are covered by private insurance (as of 2006).

So, it is mostly government-run.

Why don’t you guys just accept that the ACA is a fuck up of colossal proportions, and be done with it? Why would anyone want to defend this crap.

59

Jonathan H. Adler 02.13.12 at 5:35 pm

Do you really believe in a God who sends people to hell for using condoms?

Nope. Nor do I believe in a God that requires people to adopt particular types of grooming or dietary habits or to consume psychedelic substances, but that’s irrelevant. Under the First Amendment and RFRA, the core tenets of any religion, and what complying with the religion requires, are defined by the members of that religion.

JW Mason –

The point is that when insurance coverage is contracted for, some things are covered and others not. The mandate requires that contraception be part of the contract, so it is part of what the employer is required to pay for. Under current doctrine, we treat tax dollars differently because we all pay taxes into the common fisc, and then those tax dollars are spent on those things that the government decides to spend them on. There’s no free exercise problem here, even though many of us object to many things the government spends the money on, because we’re not required to pay for those things directly. This distinction is found throughout First Amendment jurisprudence, including in the speech context (e.g. government can’t force you to pay for objectionable speech, but it can use your tax dollars to pay for objectionable speech).

JHA

60

Bruce Baugh 02.13.12 at 5:44 pm

I would love to see the folks saying “I don’t want to pay for that as an employer” back anything like Medicare for all. But it’s just so clear that what they’re shooting for is the ability to say “I don’t want you to have that, and as your employer I can keep you from having it”. They want the employer to be crucial in employees’ lives…when they approve of the employer.

61

Patrick 02.13.12 at 5:58 pm

My employer allows me to deduct my United Way contribution directly from my paycheck. Could they say that they’d continue to do so, but I’d have to designate agencies other than the Boy Scouts (homophobia, anti-atheist discrimination) to donate to because they object to its immoral national policies? (I’m told, by the way, that the Boy Scouts around here are more like the Catholic laity than the bishops, if you get my drift.)

This seems the most analogous situation, other than the fact that contraception is necessary to some people’s health, while charitable giving is not.

62

Barry 02.13.12 at 6:03 pm

piglet 02.13.12 at 5:07 pm

” For the record, I am forced by the laws of the land to pay, with my tax dollars, for wars, death penalty and other things that I find utterly unconscionable. “

Or, in short, by the laws of the land liberals and other non-rightwingers are forced to pay for *everything that the right uses the government to pay for*, with few to no exemptions. And back in the day, I saw no right-wingers disturbing themselves about it. And h*ll will freeze over before those same bishops will refuse communion to a right-winger for using tax dollars and the compulsion of law to do things against the ‘seamless garment of life’.

63

MPAVictoria 02.13.12 at 6:05 pm

Sebastian and Jonathan H. Adler:

This question is directed specifically at both of you. Should institutions associated with Jehovah’s Witnesses be allowed to offer insurance which only provides care which doesn’t involve ‘whole blood’ blood transfusions, or even no blood transfusions at all? Should Christian Scientists allowed to provide insurance that covers no medical care? Should Scienetologists be allowed to provide insurance that does not cover any mental health issue?

64

Uncle Kvetch 02.13.12 at 6:05 pm

For instance, is it legal for a company to refuse to employ women based on their religious beliefs? Or, if they are forced to employ women, can they define their job categories to limit their pay and authority? Can they define a dress code? How far does the religious exemption extend?

More good questions that we won’t see any answers to in this thread.

But we would probably do well to drop all this talk about “religion,” as it’s obviously a distraction at this point. McConnell gives away the game when he criticizes Obama for “decid[ing] what somebody else’s religion is,” because a person’s religion is clearly whatever that person says it is. Thus does an invocation of “religious beliefs” become an all-purpose get-out-of-jail-free card.

But it’s just so clear that what they’re shooting for is the ability to say “I don’t want you to have that, and as your employer I can keep you from having it”. They want the employer to be crucial in employees’ lives…when they approve of the employer.

Thank you for cutting through the BS, Bruce.

65

Vlad 02.13.12 at 6:13 pm

The example of the Catholic insurance company (or even Catholic self-insurer) illustrates why I think even step 3 in my little sequence goes too far — the claims of “freedom of conscience” here are really claims to preferential treatment by the dominant religion (if you consider, as I do, the contemporary Catholic church to be a part of a right-wing Evangelical/Catholic political alliance that currently dominates discussion of religion in America).

There can be no denying that the provision of insurance is a heavily regulated activity in this country, and that being in the business of providing insurance is emphatically a privilege that the State can grant or withhold depending on criteria established, directly or indirectly, through its legislative processes. There is no right to be in the insurance business, let alone a right to be in the business of providing Catholic insurance. By the same token, there is no right to be in the hospital or educational businesses, or the right to be in the business of providing Catholic health services or Catholic educations. Don’t get me wrong: the State can’t single out insurance, or health care, or education provided by religious institutions for special treatment. But the flip side is that religious institutions providing those secular services can’t demand special treatment, either.

Allowing people to claim that their religious freedom is “burdened” because they’re required to follow the same laws as everyone else when providing secular services is a recipe for one of two things. Either you have a situation where the laws are nothing but a matter of individual conscience, and thus just recommendations. Or you have a situation in which the dominant religion is able to ignore laws it finds inconvenient by bringing political pressure to bear to carve out exceptions for ts “conscience” (which is special! And matters more than yours!)

It’s easy to see why the Catholic church is throwing a fit over this — they’ve been able to insist on the latter sort of treatment for hundreds of years.

66

mds 02.13.12 at 6:24 pm

Somewhat more detailed version of the “28-state” talking point:

28 states require insurers which cover prescription drugs to provide full coverage of FDA-approved contraceptive drugs and devices.

* 8 states do not have religious exemptions (Colorado, Georgia, Iowa, Montana, New Hampshire, Vermont, Washington, Wisconsin).

* 4 states exempt churches and church associations, but not hospitals or other institutions (Arizona, California, New York, Oregon).

* 7 states exempt churches, church associations, church-affiliated primary and secondary schools, and (arguably) charities and universities, but not hospitals (Arkansas, Maine, Massachusetts, Michigan, New Jersey, North Carolina, Rhode Island).

* 8 states have much broader exemptions which can apply to hospitals (Connecticut, Delaware, Hawai’i, Illinois, Maryland, Missouri, New Mexico, West Virginia), and 2 of those states also allow secular organizations and religious insurers to claim exemptions on moral or religious grounds (Illinois and Missouri). Out of those eight, Connecticut requires the objecting employer to subcontract out provision of contraception coverage, and Hawai’i and Missouri offer individual access to contraception coverage at the group rate.

* One state only exempts insurers (Nevada).

[Source: The Guttmacher Institute]

So, by the numbers, that’s eight states that exempt no-one, twenty states in total that don’t exempt hospitals, and of the remaining eight which do potentially exempt hospitals, three offer alternative methods of providing the coverage to employees.

(Now, it’s possible that this is nevertheless all an evil plot to institute a slippery slope to impose elitist New Hampshire and Georgia values on the God-fearing folk of Connecticut and Illinois, by using a supposed compromise modeled on left-wing Missouri law. However, given the miserable track record with the truth of those usual suspects making the biggest fuss in Congress, the press, and the comment section of this blog, I’m still inclined to side with Justice Scalia’s opinion in Employment Division v. Smith.)

67

Katya 02.13.12 at 6:28 pm

“For the record, I am forced by the laws of the land to pay, with my tax dollars, for wars, death penalty and other things that I find utterly unconscionable.”

Exactly. Why do I, a taxpaying citizen, have to directly contribute money to fund government undertakings to which I object on moral and religious grounds, but a religious organization is supposed to be exempt from this aspect of living in a democracy?

Plus, the employer is not paying for contraceptives. The employer is paying for a health insurance plan that includes coverage for contraceptives. The insurance company pays for contraceptives if, and only if, the employee chooses to use them.

Not to mention, there’s no reason that this exemption should apply only to religiously affiliated organizations–if any employer objects to paying for health insurance that includes coverage for some thing that employer finds objectionable on religious grounds, he or she should be able to opt out, on the same logic the church and right wing are using here. Why isn’t an individual’s religious liberty just as important as an organization’s? What’s the distinction that permits a Catholic hospital to opt out of paying for coverage that includes a contraceptive benefit but prohibits the owner of the local office supply store from doing the same?

68

Dan Robinson 02.13.12 at 6:30 pm

JHA:

It’s different because the choice to spend wages on contraception (or anything else) is the result of a free choice made by another moral agent. This is also why there’s not a problem with tax dollars—and might not be a problem were employers to provide some sort of “voucher” that employees use to purchase the health care plan of their choice—but there is a problem with the religious entity having to pay for the coverage when it purchases insurance.

How is insurance different than a voucher or a tax in this analysis? Not all employees will use the insurance to procure birth control. Presumably, if they are obedient Catholics, only very few of the employees will use it for this purpose. Therefore, in your analysis, there is “a free choice made by another moral agent” before any contraception is procured (and another, separate free choice before it is used). So if the test is whether there is a free choice by another moral agent, that test is satisfied.

Insurance is also like a voucher in that you can use it or not use it for a variety of different services, and different people will use it for different things. I’d like to hear you explain again, without using this “free moral agent” argument, why this is different than forcing employers to purchase a voucher or to pay into an HSA.

The fact that employees are not required to use insurance to buy contraception brings up another point. If religious organizations want to influence their employees’ behavior, why shouldn’t they do it the traditional way: by convincing them that it is morally or spiritually right to act in a certain way? The Bishops seem to think that they can use the ACA as a government-mandated shortcut to compel religious action from their employees without going through the hard work of spiritual/religious leadership. Why should our laws be used to help the Church force its employees to follow religious precepts when the Church has failed to convince the employees to be observant on their own?

69

JW Mason 02.13.12 at 6:36 pm

Jonathan Adler,

I guess I don’t understand how you’re using the word “directly.” A makes a payment to B, B makes a payment to C, C hands over the pills (or IUD.) Why is A morally responsible when B is an insurance company, but not when B is an employee or when B is the state?

70

piglet 02.13.12 at 6:46 pm

HV 58 (about German health insurance):

“So, it is mostly government-run. Why don’t you guys just accept that the ACA is a fuck up of colossal proportions, and be done with it? Why would anyone want to defend this crap.”

My comment isn’t concerned with defending ACA. This is only respondsing to the religious liberty argument. For precision’s sake, no, the German “gesetzliche Krankenkasse” is not government-run. It is run by non-governmental entities. Their operation is regulated by law to be sure but so is the operation of US health insurance providers. If you are interested in the fine points, Krankenkassen are “Körperschaften des öffentlichen Rechts”, similar to public TV and radio broadcasters (e. g. http://en.wikipedia.org/wiki/ARD_%28broadcaster%29). Believe it or not but these public broadcasters are not “government-run” (this would be unconstitutional), although they are funded by a user fee collected by the government. (Btw this would be another case in need of a religious exemption).

The only reason to mention this was that if the church needs a religious insurance exemption in the US, the same case could be made in Germany. But it isn’t being made. Why?

71

MPAVictoria 02.13.12 at 7:03 pm

I feel the need to quote Charles P. Pierce, a man who is probably the best writer on american politics today, on this issue:

“It must be made clear within our politics that this whole affair has been an affront to the rule of law, an attempt to enshrine the doddering nonsense of Humanae Vitae into our secular lives, and that politicians like Rick Santorum who espouse it are not simply people of good will who disagree, but authoritarian extremists to whom the health of women is less important than the power of clerical bureaucrats in our lives.”

72

Sebastian 02.13.12 at 7:05 pm

Mds, all 28 states allow exemptions if you self insure the drug benefit–which many hospitals (Catholic and otherwise) already did for the obvious non-contraception-related reasons [i.e. when you run a pharmacy you can often get better drug benefits than by going outside].

73

Davis X. Machina 02.13.12 at 7:27 pm

It is possible to feed the hungry, to give drink to the thirsty, to clothe the naked; to shelter the homeless, to visit the sick, to ransom the captive and to bury the dead without hiring anyone.

No employees, no mandate. No mandate, no problem.

74

JW Mason 02.13.12 at 7:28 pm

Re 71, of course I loathe Santorum too, but I don’t understand why this is good writing?

“It must be made with our politics that” is just throat-clearing; it could be cut without losing anything. “Affront to the rule of law” is cliche. “Doddering nonsense” doesn’t read well to me, and you enshrine something *in* something else, not *into* it. The referent of “it” in “espouse it” is unclear — it seems like it should be the subject of the clause, which is “affair,” but an affair is not something one can espouse. “Simply,” again, is just space filler. “Disagree” needs a “with…” or “about…” following it. And “in our lives” is extra verbiage (where else would they have power?) that ends the sentence on a weak note, and also ruins the parallel construction of “health of..” and “power of…”.

Just saying.

75

Tom Maguire 02.13.12 at 7:32 pm

Am I alone in realizing that history didn’t start this morning?

Nick Kristof, and John, offer scary examples of wild-eyed Muslims imposing sharia law. But we have had employer-sponsored health care for sixty years – has their been a problem previously with Muslim employers, or observant Jews, or Jehovah’s Witnesses (Kristof’s examples).

And in the comments, from 7:27 Am the Duck Billed Placelot warns of a slippery slope:

“Also, also, as mentioned by John and now Sebastian the Prior (adam.smith), this is not about contraception, really? I mean, if they get this, then the next thing they’ll say is no Gardasil for your children, because we literally believe it’s better for your child to be a woman with cancer than an adolescent who has sex. And then no gyn appointments for girls at all, because only sexy sex people need those….”

Really? Why have these Catholic institutions shown such forebearance all these years before springing this on us? Plenty of Catholic institutions exist *today* that offer health coverage to their employees – do they cover Gardasil? I read that 96% of health plans do. And for example, Google kicks up a Catholic “Mercy Care Plan” plan in Arizona that covers Gardasil, but that hardly answers the question for every possible employer out there.

My point – neither the Catholic Church nor this issue sprang into being last Thursday. And life has chugged along with the previous compromise for quite a while.

ERRATA: Re “Should Christian Scientists allowed to provide insurance that covers no medical care? “: Nick Kristof offered that example and blew it. Per their website, Christian Scientists consider a decision to seek conventional medical care a matter of individual conscience. That said, plenty of employers do not offer medical care coverage, their possible Christian Scientificity notwithstanding.

76

Ellen B. 02.13.12 at 7:36 pm

The point is that when insurance coverage is contracted for, some things are covered and others not. The mandate requires that contraception be part of the contract, so it is part of what the employer is required to pay for. Under current doctrine, we treat tax dollars differently because we all pay taxes into the common fisc, and then those tax dollars are spent on those things that the government decides to spend them on. There’s no free exercise problem here, even though many of us object to many things the government spends the money on, because we’re not required to pay for those things directly. This distinction is found throughout First Amendment jurisprudence, including in the speech context (e.g. government can’t force you to pay for objectionable speech, but it can use your tax dollars to pay for objectionable speech).

JHA

JHA -so a Catholic-affiliated hospital, as an example, can’t force me to pay the invoice they send to cover the medical care I received after being transported there unconscious if I consider Church beliefs objectionable? The hospital is, after all, “buying” employee insurance coverage with dollars it gets in payment for services rendered to the population at large – it’s not giving medical care or education away nor is it relying on Church donations willingly made as a parish does. If Congress wants to expand the religious exemption, it needs to rethink who’s actually paying and it isn’t the Church. If they want to debate religious freedom, they need to consider the implications of pretending patients or students with Constitutional rights aren’t the ones primarily funding some Church businesses. That’s most problematic for hospitals because the Church operates a great many and might well have the only facility in the vicinity. Perhaps, in exchange for this expanded exemption, the Church ought to run its businesses off donations willingly given by those who share its beliefs rather than expect those who don’t share them to contribute financially. The Church is then free to exercise religion without intruding on the free exercise of those who wouldn’t willingly contribute one cent to the Church.
Won’t happen of course because some politicians would need to apply the same logic to this as they do to taxes: businesses don’t pay taxes, their customers do. Government has no money, it spends taxpayer dollars. Well…the Church doesn’t have any money either to operate universities or hospitals, it spends what it gets from charging the public for services.

77

MPAVictoria 02.13.12 at 7:38 pm

“Just saying.”

Ouch JW….

Opinions can differ of course. I think that Mr. Pierce is a fantastic writer who gets to the core of the issue being discussed while usually providing a chuckle or two.

Check out his blog at Esquire sometime. Maybe you will agree:
http://www.esquire.com/blogs/politics/

78

MPAVictoria 02.13.12 at 7:40 pm

“ERRATA: Re “Should Christian Scientists allowed to provide insurance that covers no medical care? “: Nick Kristof offered that example and blew it. Per their website, Christian Scientists consider a decision to seek conventional medical care a matter of individual conscience. That said, plenty of employers do not offer medical care coverage, their possible Christian Scientificity notwithstanding.”

Way to miss the point Tom. It is not whether they ARE doing these things but whether they should be PERMITTED to do them.

79

marcel 02.13.12 at 7:53 pm

DOG FIGHT, DOG FIGHT!

And Kevin Drum bites first: “The world has long needed a Shorter John Holbo, and today”

80

LightsOut 02.13.12 at 7:58 pm

@ Jonathan H. Adler:

The impairment on free exercise—that is, the burden on religious practice—comes from requiring an individual to do something her religion proscribes (in this case, facilitating or paying for the commission of a mortal sin).

Question: Say a non-Catholic employee of a Catholic hospital, as he is about to pick up his check at the end of the week, proclaims that he can’t wait to use that money to go get some condoms, pick up a random woman at a bar, and get laid. Then the next day, he’s going to use more of the money to participate in a pro-choice rally and make a generous donation. Would it be within the employer’s rights to then deny the employee his pay, or at least some amount of it? Or to withhold it until he promises not to use it for those purposes?

Once it is known how the money will be spent, can an employer then act in some way? Or must the employer be forced to fund activity that it finds objectionable or morally wrong?

81

piglet 02.13.12 at 8:11 pm

Tom misses the point in many ways. “But we have had employer-sponsored health care for sixty years – has their been a problem previously with Muslim employers, or observant Jews, or Jehovah’s Witnesses (Kristof’s examples).”

You are right, to date we haven’t needed religious exemptions for these cases. If that is the case, how does that lend support to the claim that the Catholic church needs a religious exemption? The whole debate has been about whether or not the church should get special treatment. And the answer is no.

82

Jonathan H. Adler 02.13.12 at 8:12 pm

JW Mason –

The difference is choice. In your hypo, B does not get to choose whether or not to pay C to provide the contraception, as it is already contracted for. Also, for those institutions that self-insure, A and B are one and the same.

Dan Robinson –

Religious employers are not claiming the right to influence the behavior of their employees. They are claiming the right to be employers without giving up their rights of conscience.

As for the employment discrimination examples above, under current First Amendment doctrine, religious institutions are exempt from employment discrimination (and retaliation) rules when it comes to clergy and others who perform similar functions. The Supreme Court so held just this year, 9-0.

Back to the contraception mandate, the First Amendment does not preclude the imposition of such a mandate on religious institutions generally. The federal government, however, is bound by RFRA, and this law imposes a more stringent standard on policies that burden the free exercise of religion. So just because states can impose contraception mandates — and they can under current law — does not mean the federal government can follow suit.

JHA

JHA

83

MPAVictoria 02.13.12 at 8:22 pm

I would like to point out to everyone reading that Jonathan H. Adler has still not responded to this direct question:

“Should institutions associated with Jehovah’s Witnesses be allowed to offer insurance which only provides care which doesn’t involve ‘whole blood’ blood transfusions, or even no blood transfusions at all? Should Christian Scientists allowed to provide insurance that covers no medical care? Should Scienetologists be allowed to provide insurance that does not cover any mental health issue?”

I would also like to pose another. Nearly 60 percent of women use birth control pills for something other than, or in addition to, contraception. For example for women at risk for ovarian cancer, taking birth control pills for five years reduces their risk of getting cancer by 50%. Should these women be denied access to medically needed drugs because it offends the sensibilities of some pompous blow hard?

84

MinaWest 02.13.12 at 8:28 pm

Do you think Obama is overplaying his desire to appease the middle class at the expense of alientating the church?

85

piglet 02.13.12 at 8:33 pm

“They are claiming the right to be employers without giving up their rights of conscience.”

The simple answer to this is that there is no constitutional right to be an employer. If you want to be an employer, you have to abide by the relevant laws. Everything else is a distraction.

86

mds 02.13.12 at 8:48 pm

Should these women be denied access to medically needed drugs because it offends the sensibilities of some pompous blow hard?

I think we’ve already established that the rights of pompous reactionary theocratic misogynist blowhards always trumps the provision of health care to women, due to horseshit origami “rights of conscience.”

87

Jonathan H. Adler 02.13.12 at 9:01 pm

MPA Victoria –

Insofar as some of those treatments are potentially life-saving, there would be a stronger claim that they could pass muster under RFRA, but the principles are the same. Requiring such employers to provide such coverage would burden their religious exercise, so the question is whether the state can proffer a sufficiently compelling justification for imposing that burden. And, as with contraception, the easy way around this problem is for the government to provide or subsidize the treatment in question, or to stop privileging employer-provided insurance so that individuals are better able to obtain insurance in line with their own moral and religious preferences. At issue is not “access” to contraception (or anything else) but who pays for it.

JHA

88

MPAVictoria 02.13.12 at 9:12 pm

” MPA Victoria—
Insofar as some of those treatments are potentially life-saving, there would be a stronger claim that they could pass muster under RFRA, but the principles are the same. Requiring such employers to provide such coverage would burden their religious exercise, so the question is whether the state can proffer a sufficiently compelling justification for imposing that burden. And, as with contraception, the easy way around this problem is for the government to provide or subsidize the treatment in question, or to stop privileging employer-provided insurance so that individuals are better able to obtain insurance in line with their own moral and religious preferences. At issue is not “access” to contraception (or anything else) but who pays for it.

JHA”

Well at least you are consistent. Though I would argue that for the people objecting to this the issue is indeed that dirty, slutty women want access to contraception and they don’t want them to have it. Does the new policy, where the insurance company and not the organization in question handles the distribution of contraceptives, ease your concerns?

Also lets just say I started a new religion with a tenet against putting safety guards on saws. In fact for this religion the use of any type of device intended to prevent injury is a mortal sin as it shows a distrust of GOD. Does the government have the right to force me to violate my DEEPLY held religious beliefs and obey safety regulations?

/Curious to see exactly how crazy you are willing to go.

89

piglet 02.13.12 at 9:19 pm

“And, as with contraception, the easy way around this problem is for the government to provide or subsidize the treatment in question”

Since that argument has come up a couple times: regardless of whether that solution might or might not be preferable on policy grounds, as a general principle it is complete horseshit. The government mandates thousands of specific requirements without paying for most of them. This line of argument seems to question the very principle of government regulation. It is like saying that the requirement that cars have seat-belts is problematic so the government really should pay for those seat-belts out of tax-payer money if it really really wants it, otherwise somebody might demand a horseshit origami (thanks mds) exemption.

If you think that nobody would ever demand a conscientious objection to seat-belt laws, you are naive. Somebody would found a church of driving without seat-belt. On what grounds can you deny an exemption to a member of that church? Who are you to doubt the sincerity of that person’s religious belief? Any regulation that somebody might dislike on religious grounds “would burden their religious exercise”, in JWA’s terms. If that is so, then you have to either give up regulation altogether or you have to agree that the state doesn’t have to grant any religious exemption period.

90

marcel 02.13.12 at 9:19 pm

LightsOut asked:

Would it be within the employer’s rights to then deny the employee his pay, or at least some amount of it? Or to withhold it until he promises not to use it for those purposes?

Once it is known how the money will be spent, can an employer then act in some way?

Most of employees, most of us, are work under conditions of at will employment. So is largely free to fire the employee for any reason at all: I am not a lawyer (IANOL?), but I think the exceptions are pretty much limited to firing related to race, gender, age and disability, things that are explicitly regulated by law. So the answer to your questions, I think, is that the employer cannot withhold pay already earned, but is free to fire the employee.

I recall an episode from I think the 2004 election, but maybe the 2008, in which a woman parked her car in an employee parking lot and had (IIRC) a KERRY FOR PRESIDENT bumpersticker on the car, and she quickly lost her job. This was in Alabama (again, IIRC), the story went national almost immediately, with the employer making the point that he didn’t want someone with her views on his payroll. I’m pretty sure she was quickly hired by the Kerry campaign.

91

Uncle Kvetch 02.13.12 at 9:24 pm

And, as with contraception, the easy way around this problem is for the government to provide or subsidize the treatment in question

No, it isn’t, as I said in #40 above. You are either completely ignorant of US politics or simply arguing in bad faith to say that this would somehow resolve the problem, rather than simply shifting the “controversy” to another context.

92

Just some guy 02.13.12 at 9:52 pm

Mr. Vieuxtemps asks
“Why don’t you guys just accept that the ACA is a fuck up of colossal proportions, and be done with it? Why would anyone want to defend this crap.’

I don’t know if you’ve ever taught middle school students, but I have. There were always a significant number of sullen, slow students in the class, and since you’re no longer allowed to beat them, you must occasionally engage in inane, convoluted arguments to get them to do what they are supposed to be doing.

This is why ACA, and not a single payer system, made it through Congress.

Intellectually, it’s a pile. But it does get more people covered.

93

bexley 02.13.12 at 10:08 pm

@ Uncle Kvetch

He’ll say that’s different, because shut up. And you know this as well as I do.

I think you’re being highly unfair here. There are at least two other tactics available:

1. Ignore the question and hope it goes away. I suspect Sebastian is utilising this ploy – feel free to prove me wrong and actually answer.

2. Creatively misunderstand the question – as shown by Tom Maguire.

94

bexley 02.13.12 at 10:21 pm

Also for all those arguing that catholic affiliated businesses should get this special treatment:

Should a business affiliated with the Southern Hypothetical Baptist Church of White Supremacy be entitled to refuse to employ or serve people of colour due to their religious beliefs? Obviously doing so would be illegal. Yet we would tolerate this infringement of personal belief quite happily (unless you’re Ron Paul).

And this is a far more direct infringement because the business is being forced to hire and serve people against its religious conscience while here Catholic affiliated businesses are only being required to provide health coverage without contraception through an insurer who will separately offer free contraception to employees.

95

Henri Vieuxtemps 02.13.12 at 11:05 pm

@92 This is why ACA, and not a single payer system, made it through Congress.

What, because there are slow students in your class? Sorry, not convincing. I remember even back in 1993 something like 75% of the population wanted a single payer system. There’s simply no reason, other than obvious corruption of the political system, to not have it. And there is no good reason to defend crappy ACA; whatever troubles it faces, it deserves them. Let it die.

96

MPAVictoria 02.13.12 at 11:13 pm

“other than obvious corruption of the political system”
And there is your answer Henri.

“And there is no good reason to defend crappy ACA; whatever troubles it faces, it deserves them. Let it die.”

As a Canadian who is reasonably happy with our system part of me agrees with this. The other, more sensible, part thinks that the ACA is an improvement on the status quo and may even be a step towards a system of universal care. Some actual human beings will be able to get medical treatment that they otherwise would not have gotten thanks to the ACA. This is a non-trivial improvement. In fact for the individuals helped it is literally a life saving improvement.

97

Omega Centauri 02.13.12 at 11:16 pm

Dan @68. Although I like your argument, that the church should have to use persuasion, not coercion in these matter, I don’t think it is realistic. My son is to some extent a part-time catholic employee, though not a member of the faith. The employer has been scrupulous in not asking him whether he belongs to the religion, or suggesting that he should join. I think they do this out of deference to the law, that they cannot make religious persuasion a requirement for employment. Basically, they can’t force employees to attend discussions of their (the churches) position on moral questions.

98

jh 02.13.12 at 11:16 pm

The Catholic Church does not recognize those not married within the Church. Can they now refuse to cover who you describe as your spouse, since they do not recognize your lay marriage? How about those children you have, in their view, out of wedlock? Let us give them their religious liberty and allow them not to offer health insurance for those bastard children. I mean, to do otherwise would be against “religious liberty.”

99

marcel 02.13.12 at 11:45 pm

Perhaps someone else has already made this point, and I missed it.

My understanding is that the law that Congress passed with regard to health insurance nigh unto 2 years ago doesn’t require anything of employees. It does not require any Catholic organization, neither the Church itself nor any affiliated organizations, to buy any health insurance for any of its employees. Rather, individuals who do not have health insurance coverage that meets certain minimal standard will have to pay somewhat higher taxes.

The coverage can be something that individuals buy for themselves or that another individual buys for them, it can be a government program if they are eligible or it can be employer-provided. My understanding is that the recent kerfluffle is ultimately about whether contraceptives are to be included in the minimal standards.

Is this incorrect?

100

Aulus Gellius 02.13.12 at 11:56 pm

I think it has to be pointed out that the Jehovah’s Witness example really stretches a long way beyond the Jehovah’s Witnesses. Insurance companies pay for a number of things forbidden by some religions: stays in hospitals which serve food forbidden by some religions, treatment by medical professionals wearing uniforms considered impermissibly immodest by some religions, etc. As far as I know, there’s no movement among, e.g., Orthodox Jewish organizations to protest the injustice whereby they are forced to pay for their secular employees to eat cheeseburgers; would such a movement be less defensible than the current Catholic one?

101

Sebastian 02.14.12 at 12:15 am

“The government mandates thousands of specific requirements without paying for most of them. This line of argument seems to question the very principle of government regulation. It is like saying that the requirement that cars have seat-belts is problematic so the government really should pay for those seat-belts out of tax-payer money if it really really wants it, otherwise somebody might demand a horseshit origami (thanks mds) exemption.”

and

“The simple answer to this is that there is no constitutional right to be an employer.”

We’ve already been over this as early as comment 8. Proper regulation of employers involves the employer-employee relationship. You can’t get an exception to say wage and hour laws because they are the proper focus of employer-employee laws. But on the other hand you don’t have to sign away your right to free speech just because you are an employer and there is “no constitutional right to be an employer”. If the government wants to give contraception, there is no logical need to do it through the employer. Furthermore there is very little nexus between contraceptive decisions and your employer. Because of that, there is no reason not to allow conscientious objection because the employer is not a necessary party to the law.

102

bexley 02.14.12 at 12:20 am

whatever troubles it faces, it deserves them. Let it die.

And then what? Let the perfect be the enemy of the not very good and get the utterly rubbish instead? Clinton tried to introduce universal healthcare and faced heavy opposition from the usual suspects. It has taken more than a decade to reappear on the US agenda in even the current format.

103

bexley 02.14.12 at 12:42 am

Furthermore there is very little nexus between contraceptive decisions and your employer. Because of that, there is no reason not to allow conscientious objection because the employer is not a necessary party to the law.

1. Other than the fact loads of Americans get healthcare insurance through their employer. Its a bit late in the day to start arguing that there is very little nexus between healthcare and employers in the US.

2. The new compromise from Obama puts the onus on the insurers to separately provide contraception for free. So does this meet your approval?

3. The Republicans aren’t arguing for Government handing out contraceptives for free. So the alternatives are either the mandate or nothing. You have to choose one – no ducking and weaving that the Government can provide it because the reality is that the Repubs won’t let Government provide it.

4. Also you could just as easily have said:

“If the government wants to give blood transfusions, there is no logical need to do it through the employer. Furthermore there is very little nexus between your blood transfusion decisions and your employer. Because of that, there is no reason not to allow conscientious objection because the employer is not a necessary party to the law”

So presumably you’d allow businesses affiliated with Jehovah’s Witnesses an exemption from providing health insurance that covered whole blood transfusions? Or any religious affiliated organisation any kind of exemption up to and including refusing coverage for women at all if there is a chance they’ll be treated by a man. We’re still waiting to hear from you on this.

104

John Holbo 02.14.12 at 12:51 am

“Because of that, there is no reason not to allow conscientious objection because the employer is not a necessary party to the law.”

Sebastian, what is wrong with the simple line that the case isn’t really like conscientious objection?

Reason: conscientious objection is to engaging, positively, in an action that you find profoundly morally objectionable. There is no plausible case to be made that anyone is asking employers to do something that meets that standard. Reason: suppose a Catholic employer provides an insurance policy for his workers and the insurance policy covers contraception. And, later, the employer finds out that one of his workers actually used coverage to get contraception. And later that worker had sex and didn’t conceive on numerous occasions. The employer is reasonably sure about this. Now: the employer goes to his priest and confesses. Is the employer (probably) personally guilty of a mortal sin? No. There are lots of Catholic employers as it stands, and the church has not been banging away for years about the need for such employers to tailor the insurance policies those employers may offer to conform to the moral canons of the Catholic church, and not those of any other church, lest the employers be guilty of mortal sin. You are responsible for what YOU do, not for what others do. You can’t conscientiously object to your neighbor being in the army, and shooting someone. You can only conscientiously object to YOU being in the army, and shooting someone. Conscientious objection does not extend to cases in which there is a large web of actors and your actions are connected to theirs and you object to something they do that is connected to what you are doing.

“If the government wants to give contraception, there is no logical need to do it through the employer. Furthermore there is very little nexus between contraceptive decisions and your employer.”

But there is a long-standing nexus between employer-employee relations and the provision of health insurance (an accident, to be sure, but one of long-standing). We aren’t asking employers to engage in contraceptive decisions on behalf of their employees. We’re asking them to provide health insurance. And, indeed, the government – by setting insurance standards – is proposing to take the contraceptive decisions part out of the employers hands. What’s wrong with splitting the difference, then. The government decides what gets covered (because that’s not really the employer’s business, as you say). And the employer foots the bill (because there is a long-standing employer-employee nexus in which employers foot the bill for health insurance.)

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piglet 02.14.12 at 12:54 am

Sebastian: “Furthermore there is very little nexus between contraceptive decisions and your employer. Because of that, there is no reason not to allow conscientious objection because the employer is not a necessary party to the law.”

Employment has nothing to do with contraception, and therefore an employer should have the right to interfere with employees’ use of contraception? You are serious I take it? Not trolling at all?

Just a reminder: still no response to the Jehovah’s witnesses example. There is no nexus between employment and blood transfusions is there?

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Sebastian 02.14.12 at 12:56 am

“So presumably you’d allow businesses affiliated with Jehovah’s Witnesses an exemption from providing health insurance that covered whole blood transfusions? Or any religious affiliated organisation any kind of exemption up to and including refusing coverage for women at all if there is a chance they’ll be treated by a man.”

You seem to be making up religious objections that don’t actually exist. I think that in general forcing people to violate their religious observations is the sign of a bigot if reasonable accommodations are available. I don’t think we should make Jehovah’s Witnesses provide for blood transfusions just because they happen to be employers. That doesn’t mean that their employees should be unable to get blood transfusions, I think for example that anyone who doesn’t get coverage through their employer or somewhere else should be able to get Medicare for whatever the fair premium is. And especially when there are things like Medicare already available (and spending enough money per capita to pay for universal health care in Canada) there is no reason to fail to allow true religious accommodations.

Further you’re taking the hypothetical much further than even the Catholic church does. They aren’t asking the government to let them bar their workers from using contraception. They are asking that the government let the church not pay for it.

BTW, there aren’t many businesses ‘affiliated’ with Jehovah’s Witnesses for reasons which should be obvious to anyone who knows something about their faith more than that they don’t to transfusions.

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chris 02.14.12 at 1:10 am

And, as with contraception, the easy way around this problem is for the government to provide or subsidize the treatment in question

From your mouth to Mitch McConnell’s ears, but in the meantime, would you mind not flogging the red herring?

Requiring such employers to provide such coverage would burden their religious exercise

Why? Because they say so? That’s far too lax a standard for what constitutes religious exercise or burdens thereon. It’s right up there with Jews or Muslims not wanting to pay wages to someone who uses them to buy bacon. But those would be laughed off the political stage because they’re not members of the de facto ruling religion.

If paying taxes for weapons isn’t a substantial burden, how is paying employee fringe benefits for contraceptives any more substantial? It’s not one of those medieval unbeliever taxes that’s discriminatory on its face. It’s a religiously neutral law of general applicability. That used to mean something in this country, until some religious lobby passed a law that, on its face, IS a “get out of everything free” card. Except you only practically get to play it if you’re a Christian, so it’s ok. Because only other religions are scary.

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MPAVictoria 02.14.12 at 1:13 am

” I think that in general forcing people to violate their religious observations is the sign of a bigot if reasonable accommodations are available. “

Should we really be calling people bigots here Sebastian?

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MPAVictoria 02.14.12 at 1:20 am

“Perhaps someone else has already made this point, and I missed it.

My understanding is that the law that Congress passed with regard to health insurance nigh unto 2 years ago doesn’t require anything of employees. It does not require any Catholic organization, neither the Church itself nor any affiliated organizations, to buy any health insurance for any of its employees. Rather, individuals who do not have health insurance coverage that meets certain minimal standard will have to pay somewhat higher taxes.

The coverage can be something that individuals buy for themselves or that another individual buys for them, it can be a government program if they are eligible or it can be employer-provided. My understanding is that the recent kerfluffle is ultimately about whether contraceptives are to be included in the minimal standards.

Is this incorrect?”

I agree this is an interesting point that no one has addressed. If (some) catholics care so much let them refuse the subsidy.

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faustusnotes 02.14.12 at 1:24 am

This “debate,” viewed from the outside, is so ludicrous as to be cringeworthy.

What’s really sad about this is not the pathetic logical twister games required to make this current controversy possible, but the fact that “debate” in the USA has failed to get past this primary school-level conception of “freedom.”

If this is what you guys have to work with, I really do pity you.

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John Holbo 02.14.12 at 1:29 am

“You seem to be making up religious objections that don’t actually exist.”

I don’t see why we have to stick with religious objections that actually exist. The issue is conceptual. The principle we are concerned with covers religion x and y, which don’t exist yet, and may have objections to various medical procedures that are regarded, by most of the population, as standard sorts of procedures. The question is: what do we do in those cases? So what is your answer?

“I think that in general forcing people to violate their religious observations is the sign of a bigot if reasonable accommodations are available.”

Sebastian, what reasonable accommodations do you have in mind? What principle do you propose? Are you ok with the McConnell principle, and all it implies: namely, every employer gets complete conscientious carte blanche to say what goes in the insurance they provide. So we have no general standards, in effect? Do you really think the only likely reason to object to that policy result is sheer anti-religious bigotry?

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piglet 02.14.12 at 2:44 am

“You seem to be making up religious objections that don’t actually exist.”

You are arguing for a general principle are you not? We are probing that general principle by examining where it would lead us if rigorously applied to other cases that could realistically come up. That those cases are hypothetical doesn’t invalidate the argument. Frankly, only a few weeks ago, I would have thought the case under debate as unlikely and far-fetched. The catholic church starting a fight over health insurance coverage for contraception seemed to me no more plausible than Jehovah’s witnesses starting a fight over blood transfusion. That reality is crazier than reasonable people would think is one of the take-home messages here.

And with that, I’m out of here. Good night.

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Bruce Wilder 02.14.12 at 2:49 am

Sebastian: “You seem to be making up religious objections that don’t actually exist.”

I’m not sure the “religious objection” being attributed to the Catholic Church “actually exists”. That is, I’m not sure Catholics, as a lay community, feel any moral squeamishness over contraception. The alleged objection is coming largely from the bishops, a strange and reactionary group of male celibates. It’s not their money they object to spending, and they don’t have any personal use for contraception. I don’t think it unreasonable to be skeptical — their objection seems more contrived than genuinely ethical.

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marcel 02.14.12 at 3:10 am

D’oh@$%!

Where I ,wrote, “doesn’t require anything of employees”,

I meant, “doesn’t require anything of employers”

That typo comes close to eviscerating my meaning.

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Sebastian 02.14.12 at 4:19 am

“You are arguing for a general principle are you not?”

And you’re arguing for the general principle that conscientious objection can’t be real and shouldn’t be accommodated, a general principle which runs counter to the entire history religious pluralism and pretty much any non-totalitarian government structure. So hooray for general principles.

I’d say the general principle is that you should made any reasonable accommodation. Jehovah’s Witnesses starting a fight over blood transfusions for their employees strikes you as likely only because you know so little about a) how insular their are, b) why they object to blood transfusions and c) how they interact with the secular world [hint they call it the demonic world]. But even they shouldn’t be forced to pay for blood transfusions if they don’t want to. I don’t even understand why it a particularly hard case. But if they don’t provide for important medical care, it should still be available to their employees *but maybe not AS their employees*.

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John Holbo 02.14.12 at 4:43 am

“And you’re arguing for the general principle that conscientious objection can’t be real and shouldn’t be accommodated”

No, this is clearly not what is being said, Sebastian. The point is that conscientious objection is a relatively narrow category, not that it isn’t real. Conscientious objectors refuse positively to commit acts that are deeply repugnant to them. We – I and others in this thread – have now made arguments to the effect that this standard will hardly apply in this case. Now: either you have responses to these arguments or you don’t. Which is it?

“I’d say the general principle is that you should made any reasonable accommodation.”

Yes, and the question is what you think would be reasonable accommodation. The administration has said what they think is reasonable accommodation. You disagree, apparently. So what shall the rule be? The McConnell principle. Are you willing to affirm the consequence of that?

Obviously you wish the whole thing were set up differently. But that is not an excuse not to have a response to the question of how you think things should go, ideally, given that things are basically set up in this non-ideal way. We enforce the laws we’ve got, not the laws we want. (That ideally the whole thing should be set up differently is practically the only point on which everyone in the thread can surely agree.) Your view seems to be that, ideally, the whole thing should be blown up, given that it isn’t set up more ideally, overall. Fair enough. But that’s still not an answer to the ‘reasonable accommodation’ question. We blow up the laws we’ve got, if we don’t want them. But that doesn’t mean ‘blow it up’ is an answer to the question: what is the best way to enforce this law? What do you think the best way to enforce this law is, short of blowing it up?

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Sebastian 02.14.12 at 4:59 am

“Yes, and the question is what you think would be reasonable accommodation. “

It would be reasonable to *continue* the long standing policy of allowing religious exemptions.

“We enforce the laws we’ve got, not the laws we want. “

This isn’t a good argument for a law that the Obama administration just ‘clarified’ into existence last week. They could have continued long standing exemptions implemented by most of the states which adopted similar rules rather than attempting to ignore them.

“Your view seems to be that, ideally, the whole thing should be blown up, given that it isn’t set up more ideally, overall. “

No, the choice to go into policy ‘clarification’ and mandates instead of just setting up straight-forward provision is a decision to try to short circuit important parts of the way buy in to the political system works and to short circuit the important ways of allowing conscientious objection to exist in the political system. You’ll say that you ‘have’ to because you can’t do the work to succeed in the actual political system. Fine. But you should admit that short circuiting the normal political system ends up in awkward places like this where you end up trampling on cherished (to other people, you obviously don’t care much about it–your ox is ungored) values and straining political mechanisms which exist for a good reason.

For all the demands at question answering I haven’t seen anyone deal with Henri’s very insightful comment at 20:

Suppose you’re a pacifist. Yes, you pay taxes and they pay for the military. Yes, you have to put up with that: render unto Caesar, etc.

But you are still free to boycott any private entity that supports the military, that benefits from wars, etc. Right? You could boycott GE, for example.

And now the Caesar tells you (whatever the rationale) to buy stuff from GE. Dontcha think this takes the tension to a whole different level?

I think piglet, MPAvictoria and bexley should all wrestle with that question a bit in the comments, but I’m sure it will just be casually dismissed.

Mandates demand action from people. Mandates demand participation. Therefore mandates end up having harder-to-deal-with conscientious objection problems because you demand that people participate in something they don’t like.

And for all the ‘its just like taxes’, it isn’t just like taxes. If it were just like taxes you damn well would have just done taxes wouldn’t you?

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John Holbo 02.14.12 at 5:27 am

“It would be reasonable to continue the long standing policy of allowing religious exemptions.”

But we’re doing that. There are still religious exemptions. You just don’t think they are broad enough. So how broad should they be?

“They could have continued long standing exemptions implemented by most of the states which adopted similar rules rather than attempting to ignore them.”

Why would that have been more reasonable? Why is the reasonable standard for religious exemptions so broad, rather than narrower? (Don’t use the word ‘bigotry’ in your answer, would be my suggestion.)

“But you should admit that short circuiting the normal political system ends up in awkward places like this where you end up trampling on cherished (to other people, you obviously don’t care much about it—your ox is ungored) values and straining political mechanisms which exist for a good reason.:”

What makes you think I don’t care about them? Seriously, there are arguments here that you are failing to address, Sebastian. It’s not as though this policy was arrived at flippantly, or just to piss off Catholics. So set all that aside. Yes, of course the whole thing is an awkward mess, due to the sausage-making process of politics. But what is the value that is intolerably offended against by the way the Obama folks are going forward? (Don’t say they are forcing Catholics to commit cardinal sins, by their lights. I don’t think that’s really true, for the reasons I’ve given.)

“Suppose you’re a pacifist. Yes, you pay taxes and they pay for the military. Yes, you have to put up with that: render unto Caesar, etc.

But you are still free to boycott any private entity that supports the military, that benefits from wars, etc. Right? You could boycott GE, for example.

And now the Caesar tells you (whatever the rationale) to buy stuff from GE. Dontcha think this takes the tension to a whole different level?”

This is an interesting point, but I don’t see that it really does take the tension to a different level. Requiring taxes is already so bad that I hardly think the GE thing makes it worse, from a conscience point of view. Paying your taxes is something you have to positively do, after all. Just like buying this thing from GE.

“If it were just like taxes you damn well would have just done taxes wouldn’t you?”

But it’s a cardinal sin to raise taxes. So you can’t call ‘em that, even if it is just like. (I’m glad that we finally get at least one thing in evidence that conservatives really do think is a cardinal sin!)

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Henri Vieuxtemps 02.14.12 at 7:26 am

Requiring taxes is already so bad that I hardly think the GE thing makes it worse, from a conscience point of view.

Wow, this is a far reaching generalization. I’m glad it at least has the “from a conscience point of view” condition, otherwise something like the 3rd amendment would’ve been completely superfluous: ‘requiring taxes is already so bad that quartering soldiers in your home can’t make it any worse’.

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John Holbo 02.14.12 at 10:11 am

Well, my view is that the conscientious objection exception doesn’t have a lot of coherence, morally. So it’s not like adding the GE thing would make it less coherent. It’s really an ‘I won’t have blood on my hands’ kind of business. Fair enough. You won’t have blood on your hands, literally, if you buy something from GE.

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bexley 02.14.12 at 11:45 am

But even they shouldn’t be forced to pay for blood transfusions if they don’t want to. I don’t even understand why it a particularly hard case. But if they don’t provide for important medical care, it should still be available to their employees but maybe not AS their employees.

Yes but who is going to provide coverage if not the employer? At the moment Obama has said insurers must do so for free – does this satisfy you? There seems to be little chance of the Government doing so because the Republicans will jump up and down about it. So what’s your policy? Employer provision, out of pocket for employees or insurer does it for free?

And now the Caesar tells you (whatever the rationale) to buy stuff from GE. Dontcha think this takes the tension to a whole different level?

I’m going to disagree with John here. I think Sebastian’s analogy doesn’t work. What the Caesar is actually telling you is to pay a voucher to your employees (health insurance) which the employees can then use to buy something from GE (contraception), but the employees don’t have to buy anything from GE, and if you don’t pay the voucher you pay an extra tax instead. You aren’t being forced to buy from GE, your employee isn’t forced to buy from GE and if you don’t want to even allow your employees the option to buy from GE then you can pay the extra tax.

Really it isn’t different to paying employees money which they can choose to buy something legal but which you find immoral. Should employers have control over how employees spend money?

For example, if a Catholic hospital found out one of its ob/gyns was using his spare time to volunteer for a PP clinic and carrying out abortions for free and also donating money to help the clinic stay open would the hospital be entitled to fire him on the grounds that they think abortion is immoral? Would they be entitled to say to the doctor that they would pay him but only as long as they had control over how he used his money (ie no donating to PP in future)?

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Aulus Gellius 02.14.12 at 12:54 pm

Putting in a point about the real world again: to draw out the conscientious-objector comparison, US employers are, in fact, required to make accomodations for employees who serve in the military (http://www.dol.gov/compliance/guide/userra.htm). I don’t know if any Quakers or other pacifists have ever tried to claim a religious exemption to this sort of thing, though I doubt it.
The comparison isn’t totally exact: employers aren’t directly paying money for military service. But they are required to bear the cost of their employees’ absence.

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chris 02.14.12 at 1:22 pm

And for all the ‘its just like taxes’, it isn’t just like taxes. If it were just like taxes you damn well would have just done taxes wouldn’t you?

Er, they DID just do taxes. The whole government “requirement” is a requirement TO RECEIVE A TAX BREAK. If you don’t meet the requirement you don’t go to prison; you just don’t get the tax break. (Admittedly, if you aren’t legally entitled to the tax break but pay less to the IRS anyway, you *do* go to prison. But that doesn’t just apply to bishops. Prosecuting tax evasion is necessary to a functioning government — just ask the Greeks.) The “mandate” tells you what you have to do to get a tax break. Despite the name, it isn’t actually mandatory. The bishops are unlikely to be doing the perp walk over this, unless they deliberately set themselves up to in order to create a wedge issue.

If Caesar tells me to buy from GE *or pay higher taxes*, and I really really disapprove of GE, I’ll pay the higher taxes, unless they’re really ruinously high (which in this case they’re not). That’s my free choice. Of course I’m not making it in a vacuum, but if Caesar had some kind of good reason and wasn’t just bribed by GE lobbyists (and in fact, the actual policy at issue doesn’t require buying from any particular seller anyway), that’s just the breaks of living in a pluralistic society. As the philosopher Jagger once said, you can’t always get what you want.

If you really want the law to never ever conflict with your religion, move to a theocracy.

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bianca steele 02.14.12 at 2:47 pm

@chris
George Orwell already dealt with that in 1984–if the government claims everyone follows the established religion, where are you going to get the Enemies from who people need to blame everything on?

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Uncle Kvetch 02.14.12 at 2:57 pm

you end up trampling on cherished (to other people, you obviously don’t care much about it—your ox is ungored)

Says the dude who will never, ever need to worry about contraception. Don’t ever change, Sebastian.

It would be reasonable to continue the long standing policy of allowing religious exemptions.

Not that it’ll do any good, but I’ll reiterate: this is not about “religion” in the sense in which you’re using the word, and it’s dishonest to keep pretending it is. John’s original post is about McConnell’s proposal, which quite explicitly states that no one has the right to define another person’s “religion.” So “religious exemptions” is a complete red herring: we are now talking about granting your employer complete control over the content of your health insurance, for any reason or no reason at all, as long as the magic words “religious beliefs” are intoned. Your boss is an anti-vaccination crank? He’s opposed to allopathic medicine and won’t let you get coverage for anything but herbal remedies? As long as he can call it “religious,” you’re SOL. This is the direct and unmistakable conclusion of what McConnell is saying.

Nearly 60 percent of women use birth control pills for something other than, or in addition to, contraception. For example for women at risk for ovarian cancer, taking birth control pills for five years reduces their risk of getting cancer by 50%. Should these women be denied access to medically needed drugs because it offends the sensibilities of some pompous blow hard?

Yet another question that desperately needs answering. I’m not holding my breath.

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mds 02.14.12 at 3:01 pm

It’s occurred to me that there’s a familiar non-religious principle at work here. This is all about what employees of religiously-affiliated institutions are doing with the portion of their compensation that comes in health care coverage. The employees are presumed to be accepting smaller upfront wages in exchange for other benefits. Yet somehow, it morally remains the employer’s money because they’re the ones transferring it directly to the insurance company on the employees’ behalf. Similarly, those “gold-plated” benefits that, say, public schoolteachers get are a generous unearned gift from taxpayers, not a portion of the worker’s previously-agreed compensation, so of course employers can play takesies-backsies with such funds. There’s a common thread about the illegitimacy of ordinary workers’ pay here that the default reactionary misogyny blinded me to at first. Obviously, if employers still paid their employees in company scrip, they could exercise much more control over what rightfully remains the employers’ money. Ah, for those lost heady days of liberty.

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bexley 02.14.12 at 3:39 pm

Obviously, if employers still paid their employees in company scrip, they could exercise much more control over what rightfully remains the employers’ money. Ah, for those lost heady days of liberty.

Exactly mds. I was thinking about making this comparison when asking just how much control an employer should have over how employees spend their pay.

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piglet 02.14.12 at 4:03 pm

Henri’s GE example is nonsense and that is why it has been rightly ignored so far. There is absolutely no analogy to the situation of being forced to buy from a certain company. This is a minimum standards regulation: group health insurance has to meet certain minimum standards. It has to cover blood transfusions, contraception, and viagra, in addition to all the rest. The correct analogy is still my seat-belt example: the law mandates that cars must have seat-belts. It doesn’t prescribe a particular manufacturer. Furthermore, the seat-belt example is actually stronger in terms of how it interferes with personal freedom because you are actually required to wear them while nobody is required to use contraception.

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piglet 02.14.12 at 4:14 pm

Also, the employer opposed to contraception coverage doesn’t intend to boycott some powerful company – their intention is to “boycott” individual choices made by individual employees. Notice that the power relationship is exactly the opposite of what we normally refer to as a boycott. “Devil’s advocate” you are indeed, M. Vieuxtemps.

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piglet 02.14.12 at 4:15 pm

(I see – this didn’t go through moderation)

Henri’s GE example is nonsense and that is why it has been rightly ignored so far. There is absolutely no analogy to the situation of being forced to buy from a certain company. This is a minimum standards regulation: group health insurance has to meet certain minimum standards. It has to cover blood transfusions, contraception, and viaxra, in addition to all the rest. The correct analogy is still my seat-belt example: the law mandates that cars must have seat-belts. It doesn’t prescribe a particular manufacturer. Furthermore, the seat-belt example is actually stronger in terms of how it interferes with personal freedom because you are actually required to wear them while nobody is required to use contraception.

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piglet 02.14.12 at 4:16 pm

130 should be before 129.

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Consumatopia 02.14.12 at 4:17 pm

(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.)

Does this mean to say that there’s a difference between “I will only marry you if you sign this contract obligating you to follow sharia law” and “I will only employ you if you sign this contract obligating you to follow sharia law”?

Also, re: the ACA, while liberals might prefer if the government simply provided all care, that doesn’t mean that having private actors provide it was a “second-best” outcome. Some people believe that private insurers will be more efficient than government bureaucrats. They also believe health care should be available to all, so they’ve required guaranteed issue and community rating. But in order to prevent a race to the bottom, the government must then specify what procedures all health plans must cover–otherwise the sickest people will gravitate to the plans that cover the most. For liberals, like myself, the ACA represents a second-best outcome politically. For someone like Joe Lieberman, there was no political compromise at all–this bill represents the best policy, a balance between the efficiency of the market and the protections of government. So Sebastian’s argument fails–from their perspective, Senate moderates got pretty much their first-best choice of policy. The adverse selection problems that would be caused by insurers choosing not to provide government mandated service are equivalent to the diseases that would be spread by chefs not washing their hands.

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Henri Vieuxtemps 02.14.12 at 5:39 pm

Also, the employer opposed to contraception coverage doesn’t intend to boycott some powerful company – their intention is to “boycott” individual choices made by individual employees.

I don’t think it’s true; I get the impression that indeed the employer intends to boycott insurance companies that provide certain benefits. Which they easily could do, until ACA made those benefits mandatory.

OK, let’s try another analogy, see if you like this one better: suppose some car insurance companies offer the benefit of a free handgun with every policy. So that you can defend your car against carjackers, you see. Because the government has cut down on the police force, you see, and so there are no cops left to watch the streets and confront the criminals. Suppose you really, really object to this benefit, and you refuse to deal with these insurance companies. You boycott them. But then the government passes the law (The Glorious Safe Driving Act) that now requires all the insurance companies to give away a free handgun with every policy.

Do you think there is still no problem here?

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Henri Vieuxtemps 02.14.12 at 5:52 pm

Yes, if you object to seat belts, you’re screwed. Unless you manage buy a pre seat belts model, or something. Very few people do object, though, if any. So, what’s the point?

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MPAVictoria 02.14.12 at 6:23 pm

Just a question Henri, do you always have to play the devils advocate in every thread?
Sheesh.

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piglet 02.14.12 at 7:48 pm

“I get the impression that indeed the employer intends to boycott insurance companies that provide certain benefits.”

Factually wrong. Are you Catholic employers wouldn’t boycott the insurance company, they’d negotiate a contract with it that excludes certain benefits. Also, the logic of the boycott argument would require them to boycott the drug manufacturer, not the insurance company. Now the assumption (as has been stated in this thread) is that the employee who isn’t covered would still get contraception, only they’d pay for it out of pocket. In that scenario, the drug company wouldn’t lose anything (and neither the insurance company) – the only loser would be the individual. If that is a boycott, then Santorum is Gandhi, McConnell is MLK, and Pope Ratzinger is – Giordano Bruno, perhaps?

“Very few people do object [to seat-belts], though, if any.” And that claim is based on what scientific survey? You either have no clue (there are in fact plenty of people who are upset about sea-belt laws, helmet laws etc.) or you deliberately throw around BS. I don’t mind playing devil’s advocate, but the assumption is that the devil is actually a clever guy.

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bay of arizona 02.14.12 at 7:59 pm

I don’t want to interrupt this mostly male circle jerk about angels on pins, but I do want to note that nobody has mentioned that holocaust of abortions which are so horrible that we have to bend over backward to ‘understand’ those principled conservatives. A lot of us have been saying that pro-lifers did not give a shit about life, but were interrupted in shoving their religion down everyone’s throat and fucking over women who have unapproved sex.

And we have basically been proved fucking right.

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piglet 02.14.12 at 8:08 pm

“But then the government passes the law (The Glorious Safe Driving Act) that now requires all the insurance companies to give away a free handgun with every policy.”

More BS but ok. I won’t leave you with the impression that you ave scored a point. This law would be a stupid one but that alone doesn’t make it unconstitutional. It may be unconstitutional for other reasons (because the burden it places on the insurance isn’t really justifiable) but I don’t see how it raises any religious freedom issues.

Here’s a more realistic analogy. A government mandate may require certain employers to pay for employees’ self-defense training. Now the employer may be a pacifist and object to that training. Would they get a religious exemption? Of course not.

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Barry 02.14.12 at 8:20 pm

Here’s another one – since when the f*ck have right-wingers given liberals any religious exemptions?

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ben in el cajon 02.14.12 at 8:32 pm

Okay, so we seem wedded to this conscientious objection principle. I still think it morally repugnant that I must discuss with a straight face someone’s conscientious objection to providing health care that has demonstrably improved the health and living standards of people around the world. Still, here goes:

When the U.S. had a military draft, one could apply for CO status. To do that, the man would need to go before a local tribunal to demonstrate his consistent, religiously grounded beliefs. Usually, a deferment lead to an alternative service–for example, my father, rather than blowing things up in Asia, built things in West Africa.

So, we should have local tribunals of citizens to test each organization’s dedication to its principles. The organizations should demonstrate A) that they are consistently opposed to doing business with companies that provide birth control. If they won’t buy a product that is evil, they shouldn’t make money by holding its stock in their investment portfolios; and B) that the organization’s heirarchy follow the parent religion’s strictures–if Notre Dame is Cathlolic, for example, then clearly it wouldn’t allow its leadership to act outside of Catholic laws. Ideally, all of the faculty would be celibate, but what can you do.

Also, once the organization received its CO status, it would have to provide an aternative benefit. In this case, I suggest that it give every employee a cash bonus every year worth more than the highest probable cost of the benefits it is refusting to provide its employees because its conscience is so important to it.

141

Henri Vieuxtemps 02.14.12 at 8:42 pm

there are in fact plenty of people who are upset about sea-belt laws, helmet laws etc.

They are upset about seat belt and helmet laws being overly paternalistic, but that seems different. True, I don’t have any scientific surveys, but I still do have a brain (even though it used to work much better).

Anyway, what’s with this exasperation? Can’t you have a conversation with someone who disagrees with you on some minor details? Obamacare is so dear to your heart, really?

142

piglet 02.14.12 at 9:03 pm

Low BS-tolerance.

143

Consumatopia 02.14.12 at 9:17 pm

Is chris @ 123 correct? Is it really the case that you could still make an insurance company that didn’t cover birth control, and employers could offer that insurance, and all the employer loses is the tax deduction?

If that’s the case, then this has to be the most disingenuous major political argument I have ever seen in my life. They aren’t objecting because we require them to something immoral. They aren’t objecting because we’re forcing them to pay for something they consider immoral (which, in a democracy, is very common.) They’re objecting because we give other people tax deductions for doing something that they consider immoral.

144

bexley 02.14.12 at 9:29 pm

Correct Consumatopia – my understanding is that if you have at least 50 workers you either provide health insurance of a certain standard or your workers are offered subsidised insurance through an exchange. The company is then taxed $2,000 dollars for each worker that is getting insurance through an exchange. Details may be wrong but that’s the gist I think.

Hence my comment upthread around the General Electric analogy:

“You aren’t being forced to buy from GE, your employee isn’t forced to buy from GE and if you don’t want to even allow your employees the option to buy from GE then you can pay the extra tax.”

145

Ed 02.14.12 at 11:32 pm

The long, rambling John Holbo article and all the comments seem like much ado about nothing. Mitch McConnell is simply saying that the Obama plan takes away freedom of religion.

But Obama’s compromise does not force people to use or not use contraception, so how does it take away their religious freedom.

146

chris 02.14.12 at 11:53 pm

But then the government passes the law (The Glorious Safe Driving Act) that now requires all the insurance companies to give away a free handgun with every policy.

OK, so what? I’d disagree with that law, I’d oppose it politically, but if I lost the political fight I wouldn’t claim that was some kind of violation of fundamental rights; it’s just a dumb law with little or no relation to its intended purpose.

Clearly, demanding that I pull the trigger is way over the line, but the current law isn’t even the equivalent of making me carry the gun in the car, let alone making me load it.

P.S. As you sort of hint at but don’t make explicit, the government does actually require insurance, bought from a private company, that passes certain government-determined standards, for driving — it’s not just a matter of tax breaks, it’s actually against the law to drive without it. But that’s different, because shut up, that’s why.

147

Consumatopia 02.15.12 at 1:02 am

That GE example makes me wonder how this debate would be playing out if the proposal to replace Social Security with mandatory private investment accounts had succeeded. Or if we adopt Paul Ryan’s Medicare reforms which, like ACA, require people to purchase private insurance.

148

Martin James 02.15.12 at 1:23 am

Isn’t there an argument that we’re at the bottom of a slippery slope rather than at the top of one. That is isn’t the catholic church just playing on the feeling of some portion of the electorate that by a perfectly rational process we have come to the point where providing birth control pills with no copay is either provided by an employer or else the employer is subject to a tax penalty is just somehow, someway going to far.

Kind of like the same way that you realize when you kill the last wolf or polar bear or rhino that you’ve somehow gone too far.

Even if you see moral progress in all this expansion of rights and government and equality and federal uniformity, doesn’t it give you any sense of moral vertigo how much things have changed over time?

How can you study conservatism without any feeling of what it means to some people to have a sense of authority or decorum or values change?

Its like trying to study the left without any feeling of what humiliation is. Doesn’t it just sound odd when right wing authors write about the left and you can tell they just just don’t get it at all?

This is why the right can manipulate voters. They get that we’re all culturally endangered. We’re already there. There is no moral voice that has supermajority consent in the world and it creates significant and exploitable anxiety. For the left, this is the realization that on issues like war, torture, labor law, environmental protection, voting, progressive taxation, battles that we’re presumed won have been reopened.

Some left-leaning writers see this and interpret it as fanaticism or irrationality or the death moans of a dying culture. Maybe, they are right. But they are not dead yet. And no one really knows what is like for authority to die in a culture like ours.

149

bjk 02.15.12 at 1:29 am

“Sticking just with the medical case, getting specific: suppose the Muslim owner of a large company that employs Muslims and non-Muslims (or even just Muslims) wants to be exempt from insuring medical stuff except in cases where male employees see male doctors and female employees see female doctors. The owner find it objectionable that ‘his money’ should pay for anything he finds religiously repugnant, and this is his take on sharia law. Would Republicans have any objection?”

This Republican doesn’t. They can pay for whatever they want. Why is that so hard to understand? Freedom. It makes everything so much easier.

150

Sebastian 02.15.12 at 1:34 am

“A government mandate may require certain employers to pay for employees’ self-defense training. Now the employer may be a pacifist and object to that training. Would they get a religious exemption? Of course not.”

Why in the world not?

151

Consumatopia 02.15.12 at 2:47 am

Kind of like the same way that you realize when you kill the last wolf or polar bear or rhino that you’ve somehow gone too far.

Even if you see moral progress in all this expansion of rights and government and equality and federal uniformity, doesn’t it give you any sense of moral vertigo how much things have changed over time?

I guess if someone liked to see rhinos and polar bears die, but didn’t want to see ALL polar bears or rhinos die because that’s “going too far”, then you’d have a point.

Note that there isn’t some generic anti-extinction motivation going on here. I would be very happy to see smallpox, polio, and many other organisms eradicated or confined only to laboratories. I would be absolutely thrilled if unwanted pregnancy was a concept that people only read about in history books.

Authority is good when it upholds good things, bad when it upholds bad things. Conservatives themselves aren’t even willing to stick up for authority itself. They just want the “freedom” to coerce others.

152

Sebastian 02.15.12 at 2:57 am

This side note into ‘authority’ is a little weird considering how the Obama administration precipitated this episode by summarily announcing that all employers without religious exception would be required to have contraception coverage.

153

Consumatopia 02.15.12 at 3:12 am

There was, from the start, a religious exception for churches. Later, another exception for religiously-affiliated schools and hospitals was added. And nobody’s required–you just pay less in taxes if you do. And, of course, the whole ordeal is over whether employers can continue to interfere in employees’ access to contraceptives. So Martin James did get that right–the bishops are on the side of authority, against freedom.

154

Vlad 02.15.12 at 3:17 am

Henri @ 132:

Your new analogy doesn’t encompass what’s really objectionable here, so let’s fix that:

The Glorious Safe Driving Act is passed. Citizen A objects to the act based on his avowedly secular belief that handguns are dangerous and the law is stupid. He refuses to buy the insurance, and goes to jail, pays the fine, whatever the punishment is.

Citizen B objects to the act because it offends his Christian faith. According to you and Sebastian, he can’t go to jail. He gets to ignore the law. Religious freedom!

Except what have we said to Citizen A? Your objection to the law doesn’t count as much as Citizen B’s, because unlike Citizen B’s objection, you don’t claim that your objection is compelled by your belief in a deity. Sorry, kid, but some people’s “conscience” counts more than others.

I don’t know about you, but this seems like a singularly odd, and corrosive, way of thinking things should work in a pluralistic democracy (especially when you realize that as a practical matter, only the dominant religion is going to be able to wrangle these sorts of exemptions for itself). And it seems positively perverse to try to justify it with a lot of moralizing about avoiding “bigotry” and preserving “freedom of consicence,” or by reference to the First Amendment’s prohibition on establishment of religion.

155

Vlad 02.15.12 at 3:26 am

I have to agree with bay of arizona’s take on the male circle jerk quality of much of this discussion (including my contributions!). It seems to me that one of the reasons many people are so worried about the feelings of the Catholic bishops is because they don’t think providing women easy access to contraception is a worthy, or even legitimate, thing for the government can do.

156

Henri Vieuxtemps 02.15.12 at 7:10 am

You have managed to miss the point completely in both 151 and 152, Vlad.

151: my analogy had nothing whatsoever to do with any religions or deities.

152: the government is NOT providing anybody with easy access to contraceptives. If it was, there would’ve been nothing to talk about. Instead, it forces you to buy something (that may not like) from a private for-profit company. That’s the issue.

157

bexley 02.15.12 at 8:33 am

152: the government is NOT providing anybody with easy access to contraceptives. If it was, there would’ve been nothing to talk about. Instead, it forces you to buy something (that may not like) from a private for-profit company. That’s the issue.

No it doesn’t. I’m going to repeat myself but the Church isn’t being forced to buy contraception. Employees aren’t being forced to use contraception. The Church can either buy insurance that covers contraception (which employees don’t have to use) or it can some extra taxes.

Really it isn’t different to paying employees money which they can choose to buy something legal but which you find immoral. Should employers have control over how employees spend money?

For example, if a Catholic hospital found out one of its ob/gyns was using his spare time to volunteer for a PP clinic and carrying out abortions for free and also donating money to help the clinic stay open would the hospital be entitled to fire him on the grounds that they think abortion is immoral? Would they be entitled to say to the doctor that they would pay him but only as long as they had control over how he used his money (ie no donating to PP in future)?

158

Dragon-King Wangchuck 02.15.12 at 9:28 am

Wow this is a long thread.

Do you think there is still no problem here?

I don’t. You aren’t being required to use the gun, just buy one. If your moral convictions are so strong that you can’t bring yourself to funnel money to arms manufacturers, then no driving for you in the dystopian Glorious Safe Driving Act world. Probably for the best since it’s a pretty sick and twisted world that would legally require one to be armed.

Let me expand your analogy. In crazy car-gun world it turns out that having guns in the car actually provides some sort of benefit such as (for some unknown reason) reliably preventing unwanted pregnancies. An exemption is written into the Glorious Safe Driving Act allowing moral objection exemption provided they: a) demonstrate some sort of religious basis for the objection and b) vow never to let anyone other than a member of their religious faith drive their car.

The Cult of All Arms Manufacturers Are The Spawn of Satan objects to the Act because they operate a very large taxi service that employs a lot of non-Cult members as drivers and their taxi service is very lucrative, (for some unknown reason) prestigious and providing public transportation is nominally in line with the tenets of their faith.

This is a closer analogy. Closer still is if it were The Cult of All Arms Manufacturers That Have Four Words or More in Their Legal Names Are The Spawn of Satan and the law further stipulated that the choice of car-gun manufacturer for each vehicle was determined by lottery. – but I’m getting pretty ar into the woods now.

159

bjk 02.15.12 at 9:30 am

“For example, if a Catholic hospital found out one of its ob/gyns was using his spare time to volunteer for a PP clinic and carrying out abortions for free and also donating money to help the clinic stay open would the hospital be entitled to fire him on the grounds that they think abortion is immoral? Would they be entitled to say to the doctor that they would pay him but only as long as they had control over how he used his money (ie no donating to PP in future)?”

Yes. See how simple that is?

http://chronicle.com/article/Supreme-Court-Recognizes-a/130291/

In a decision with major implications for church-affiliated colleges and their employees, the U.S. Supreme Court on Wednesday unanimously held that the First Amendment precludes the application of federal employment-discrimination laws to religious institutions’ personnel decisions involving workers with religious duties.

160

Dragon-King Wangchuck 02.15.12 at 9:39 am

Speaking of seat belts, a less silly analogy would be if a car maker were given a pass on being forced to include seat belts in a specific model of car because it has other safety measures which are shown to be as effective as seat belts. And then that car maker using that exemption to argue that their other cars without the magic safety devices should also be exempt. And then claiming that their being denied this unsupported expansion to their already privileged treatment is part of an intentional and concerted effort by the hedonistic and perverted seat belt lobby to destroy their company.

161

Henri Vieuxtemps 02.15.12 at 9:59 am

With the seat belts analogy, I think what’s missing there is some ethical component. Suppose the only way to manufacture the seat belts is to use cow skin. Seat belts made from anything else are completely ineffective.

So, now you have the situation where animal rights proponents face the choice of supporting cow slaughtering or not driving at all. That’s a close analogy, I believe.

162

Dragon-King Wangchuck 02.15.12 at 10:02 am

Finally, to address the idea of being forced to buy something – it’s insurance.

Insurance, like telephones, is a network good. As more participants enter into it, risk can be spread over a larger group providing increased benefits to all participants (in an idealized world – I concede that in the actual world, a lot of the benefits accrue to executives and whatnot). This provides a legitimate basis for the government to require you to purchase it.

Specifically with regards to individual items covered – i.e. the pill, I fail to see how the final paragraph in the original posting doesn’t address the issue.

Churches are being required to pay for health insurance for their employees, something for which there is a legitimate reason for the government to mandate and in general terms is not objectionable to any parties. What they are objecting to is specific items which they may not like are being included in the mandatory insurance packages. They are not objecting to being forced to pay for insurance – they are only objecting to being forced to pay for insurance for the specific items. Thus it is the specific items that are at issue. Which is a debate that they have lost even with their own congregants, so wev.

163

bjk 02.15.12 at 10:03 am

“So, now you have the situation where animal rights proponents face the choice of supporting cow slaughtering or not driving at all. That’s a close analogy, I believe.”

Practically the same thing.

.

164

bjk 02.15.12 at 10:08 am

“Insurance, like telephones, is a network good.”

Insurance is not a good or a network. Neither are telephones. 0-3.

165

Henri Vieuxtemps 02.15.12 at 10:09 am

No it doesn’t. I’m going to repeat myself but the Church isn’t being forced to buy contraception. Employees aren’t being forced to use contraception. The Church can either buy insurance that covers contraception (which employees don’t have to use) or it can some extra taxes.

Nobody said that anyone is forced to buy contraceptives. You’re forced (be being penalized for not doing it) to associate with and to financially support companies that give away contraceptives for free. Which is something you disapprove of, that you consider immoral.

You are never forced to buy bombs from GE, but you don’t want to buy even a refrigerator from GE, because they also produce bombs. See?

166

Dragon-King Wangchuck 02.15.12 at 10:11 am

So, now you have the situation where animal rights proponents face the choice of supporting cow slaughtering or not driving at all. That’s a close analogy, I believe.

I’m not letting go of the fact that the Churches themselves get an exemption, just none of their ancilliary operations which are non-faith only.

So, in a world where only leather seat belts are effective, but are also very effective, then the analogy is that vegetarians are being given an exemption to having to purchase seat belted cars provided they never take passengers. And then saying that their being denied their Gaia-given right to chauffeur others is primarily an attack on their diet choice.

167

Henri Vieuxtemps 02.15.12 at 10:14 am

Practically the same thing.

Conceptually – yes. One needs to practice some consistency, this is what it’s all about. Right? Otherwise, what’s the point of all that stuff about Sharia?

168

Dragon-King Wangchuck 02.15.12 at 10:15 am

Insurance is not a good or a network

Please pardon my misuse of technical terms that have agreed-upon meanings which I only have a vague understanding of. I’m no economist, heck I don’t even have an mba. The point was that the benefit to participants increases as the number of participants does.

169

bexley 02.15.12 at 10:29 am

@ bjk

Erm quote from the article:

the U.S. Supreme Court on Wednesday unanimously held that the First Amendment precludes the application of federal employment-discrimination laws to religious institutions’ personnel decisions involving workers with religious duties

… the opinion of the majority, which based its decision heavily on its assessment of how much the job duties of the teacher who brought the lawsuit could be considered religious

Bold mine.

The following link makes clear the teacher here was a religious minister who regularly lead students in prayer and worship. So how would this apply to my hypothetical doctor who isn’t a minister?

That case also makes clear the danger of carve-outs for religious entities, it appears that she was fired after she became sick rather than for any religious reasons.

170

DBake 02.15.12 at 10:31 am

@bjk – 156

Doctors are now ministers?

171

bjk 02.15.12 at 10:37 am

First, it was a unanimous decision. How often does that happen? Second, as Thomas points out in his judgment, institutions deserve wide latitude to define religious duties. If caring for the sick is a religious duty, then yes.

172

bjk 02.15.12 at 10:39 am

“That case also makes clear the danger of carve-outs for religious entities, it appears that she was fired after she became sick rather than for any religious reasons.”

She was fired for suing her employer.

173

DBake 02.15.12 at 10:48 am

First, it was a unanimous decision. How often does that happen?

I don’t know. Also not very relevant to the point being made.

Second, as Thomas points out in his judgment, institutions deserve wide latitude to define religious duties.

In his separate opinion. Not the unanimous one.

If caring for the sick is a religious duty, then yes.

Shouldn’t the hospitals take some time to make sure their doctors actually are Catholic, in that case? It seems a bit blasphemous for them to be ordaining so many non-believers. It might also be a good idea if they informed the doctors themselves that they are ministers.

Or you could stop playing games.

174

bexley 02.15.12 at 10:59 am

@ bjk

1. The article I linked to says she sued after being fired. She claims it was because she was ill. Do you have some evidence that she sued before being fired?

2. 6 of 9 Supremes didn’t concur with Thomas. The fact that Thomas thinks that isn’t relevant at the moment as he isn’t in the majority.

From my earlier link:
Chief Justice Roberts concluded that Perich indeed functioned as a minister in her role at Hosanna-Tabor, in part because Hosanna-Tabor held her out as a minister with a role distinct from that of its lay teachers. He also noted that Perich held herself to be a minister by accepting the formal call to religious service required for her position.

None of that would apply to a doctor unless also the doctor is leading prayers etc. However if it makes you feel better the hypothetical doctor can be a Hindu (ie the hospital knew s/he wasn’t Catholic or didn’t ask when they hired him/her). Still think a ministerial exemption would/should allow the hospital to control how s/he spends his/her money and spare time?

175

bjk 02.15.12 at 11:16 am

dbake – “Shouldn’t the hospitals take some time to make sure their doctors actually are Catholic, in that case? It seems a bit blasphemous for them to be ordaining so many non-believers. It might also be a good idea if they informed the doctors themselves that they are ministers.”

That’s up to them, dbake. If they feel strongly about it, then I’ll take their word for it. A little tolerance goes a long way. Give it a try.

bexley – “Still think a ministerial exemption would/should allow the hospital to control how s/he spends his/her money and spare time?”

No, the ministerial exemption allows the hospital to hire and fire according to their conscience. As is their prerogative.

176

bexley 02.15.12 at 11:37 am

Nobody said that anyone is forced to buy contraceptives. You’re forced (be being penalized for not doing it) to associate with and to financially support companies that give away contraceptives for free. Which is something you disapprove of, that you consider immoral.

No you could just not insure your employees. You’d then pay a tax of $2k/employee which would probably be less than the cost of insuring them anyway (I’m in the UK so this is just a guess). That’s not a penalty because you aren’t worse off! You wouldn’ t be paying anything to those immoral companies you hate so much. Or at least no more than you do anyway when your taxes go to all kinds of things you dislike.

You are never forced to buy bombs from GE, but you don’t want to buy even a refrigerator from GE, because they also produce bombs. See?

Nope. This analogy still doesn’t work. Bombs = insurance plan with contraception included. Refrigerator = insurance plan without contraception included. I think the RCC is saying that its affiliated organisations shouldn’t have to buy bombs but they aren’t against buying refrigerators from GE (ie they still will buy insurance from companies that have seperate policy plans that cover contraception).

177

DBake 02.15.12 at 11:49 am

A little tolerance goes a long way. Give it a try.

Sorry, I find myself intolerant of the ‘but who really knows what words *mean*?’ argument in trying to decide matters of policy. Doctors at Catholic hospitals aren’t ministers. At all. If the bishops said they were, everyone familiar with the English language would agree that the bishops are lying.

And I see you’re not even bothering to address the fact that you were caught trying to make it seem as though Thomas’s opinion were unanimously accepted, which is also an example of the sort of thing I have very little tolerance for.

178

bexley 02.15.12 at 11:52 am

@ bjk

1. Still waiting for a source for your claim that she was fired for suing rather than suing for being fired.

2.

No, the ministerial exemption allows the hospital to hire and fire according to their conscience. As is their prerogative.

You need to do more than just assert that. Like I said, 6 of 9 supremes signed onto the opinion that said Perich was a minister because she was a commissioned minister and regularly lead students in prayer.

Which of those would apply to a non-Catholic ob/gyn at a Catholic hospital? Answer: none. Even the current supremes would probably struggle to take seriously a claim that such a doctor functioned as a minister.

179

bjk 02.15.12 at 12:00 pm

dbake and bexley have totally smoked me out. I really do think employers can hire and fire who they like, whenever, for whatever reason. So the niceties of ministerial exceptions and the rest don’t really move me too much. That’s the sort of thing you get into when you really, really want to tell other people what to do and how to do it.

180

Consumatopia 02.15.12 at 2:35 pm

Insurance, like telephones, is a network good. As more participants enter into it, risk can be spread over a larger group providing increased benefits to all participants (in an idealized world – I concede that in the actual world, a lot of the benefits accrue to executives and whatnot). This provides a legitimate basis for the government to require you to purchase it.

I’m not sure there’s any definition of “network good”, but you’re correct that both insurance and telephones have network effects. I mean, look how many pictures of telephones you see here: http://www.wikipedia.org/wiki/Network_effect

But in the case of insurance, the bigger issue is adverse selection. We’re talking about either employer-supplied insurance, or individually-purchased insurance on the ACA exchange. Neither of those are permitted to discriminate against individuals with pre-existing conditions. If the government wants that kind of insurance to continue existing, it needs to mandate that everyone pay into it and that what every insurance company must, at a minimum, provide.

However, no one is actually required to purchase either individual or company insurance. If you choose to do either, you’re required to pay the government instead. However, (correct if I’m wrong) I believe in both cases that penalty is, on average, cheaper than what individuals and companies would typically pay for compliant insurance policies.

Under the logic of the bishops, this represents less freedom than if we charged the mandate penalty to everyone and simply provided single-payer health care. So giving people more options–a way to avoid a tax by going out and purchasing what the tax would have provided on your own–means less freedom.

Except conservatives aren’t, yet, applying that logic consistently. Because it would also apply to Paul Ryan’s Medicare reforms. I mean, what happens when the bishops start objecting to certain kinds of end-of-life care? There’s no employer-purchased Medicare, but individuals demanding exemptions is enough to cause adverse selection. Hey, we just ended Medicare as we know it.

If there is no “conscientious objection” to taxation, but there is one to mandated purchases (even when those mandates are only enforced by taxes fairly close to the cost of purchase), then this pushes those of us who support social and personal freedom towards higher taxation and larger bureaucracy. The moral dilemma that these faith organizations have isn’t that I’ve forced them to pay for something, it’s that I haven’t forced them hard enough that their consciences are clear in complying with it. If I simply ordered them to hand over the money, they would cheerfully render unto Caesar (and perhaps vote against me at the next election). But if I say “either hand me over the money, or go out and do this on your own”, then their religious liberty is supposedly endangered.

181

bianca steele 02.15.12 at 3:04 pm

Sebastian @139
Indeed, it’s almost as if “government” was defined as “what tells you that you don’t have to do what authority expects you to do.”

182

MPAVictoria 02.15.12 at 3:08 pm

“No you could just not insure your employees. You’d then pay a tax of $2k/employee which would probably be less than the cost of insuring them anyway (I’m in the UK so this is just a guess). That’s not a penalty because you aren’t worse off! You wouldn’ t be paying anything to those immoral companies you hate so much. Or at least no more than you do anyway when your taxes go to all kinds of things you dislike.”

Would one of you people please respond to this!

183

Consumatopia 02.15.12 at 3:22 pm

Actually, Henri@153 is correct that this isn’t really about just religion. The amendment that the GOP wants to attach to highway funding would let employers refuse any coverage that violates ““religious beliefs and moral convictions.”

So Sebastian way back @106 completely missed the point with “You seem to be making up religious objections that don’t actually exist.” Nobody has to make up religious objections. Moral objections will, supposedly, suffice. And as the existence of this entire debate proves, making up a moral objection is easy–nobody can prove that you don’t really believe it. Heck, you can make yourself believe it just out of spite for Obama and his dirty Obamacare.

184

MPAVictoria 02.15.12 at 3:27 pm

Sebastian, Henri and bjk you need to read this:

“had a pelvic scan and they found a huge cyst in my uterus. “The size of a grapefruit” the doctor told me, as if it were a thing to behold. They removed the cyst, and prescribed birth control pills to help keep a new cyst from forming. There’s where the trouble started.

I went to the local Walgreens to fill the prescription. I was on my parent’s insurance, and didn’t know the ins and outs of what was and wasn’t covered. When I went to pick up the prescription, it rang up at $80. For a one month supply. “What about insurance?” I asked. The heinous woman behind the counter said, as loudly and as self-righteously has she could, “insurance doesn’t cover BIRTH CONTROL! ! ! !” She didn’t say “you SLUT” but I know that she was thinking it.

There was no way I could afford to spend over $800 a year on this prescription. I was horrified by the way the woman spoke to me. I was going to just have to take my chances that the cysts didn’t return. Thankfully, someone, I don’t know who, told me that there was a Planned Parenthood on campus.

I went there, and the people were so kind that I cried with relief. The pills to help keep me from getting cysts— which also happen to keep me from getting pregnant if I were sexually active— were free.

I will never forget that experience. It taught me a lot about the importance of having access to women’s health care, for my whole body. It taught me first hand about the stupidity of self-righteousness.”

Access to contraception is access to healthcare. Full stop.

185

Henri Vieuxtemps 02.15.12 at 3:46 pm

You’d then pay a tax of $2k/employee which would probably be less than the cost of insuring them anyway

Well, another way to look at it is that the cost of insuring them is just a part of their compensation.

If you give them $5K worth of insurance, you’re probably paying them $7K less in wages, because the insurance is tax deductible. So, if you don’t give them any insurance, you’ll have to pay $7K more in wages, plus $2K penalty.

186

Salient 02.15.12 at 4:32 pm

Instead, it forces you to buy something (that may not like) from a private for-profit company. That’s the issue.

Requiring insurance agencies to provide low-cost contraception coverage if requested by an insured person, and to notify all insured persons that this option exists, is not forcing anyone to buy anything.

It’s true that this policy, like most regulatory policies, raises the cost of doing business for insurance agencies. That would also be true if we, say, fined insurance companies whenever they took longer than 24 hours to process a claim. I guess technically you could get away with calling anything that costs the insurance company money “forcing them to buy” something, as, like, a definition of the phrase “forcing to buy.” But then, with that definition, every regulation we affix to the insurance company we’re forcing insurance companies to buy things, in which case the situation actually boils down to “insurance should not be regulated.”

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bjk 02.15.12 at 4:37 pm

MPAVictoria, you need to read this: Planned Parenthood is privately funded. See how that works?

188

piglet 02.15.12 at 4:43 pm

bjk 169 is a gem. If bjk had his way, any catholic-run business could get exempted pretty much from any regulation that it objects to merely by stating that its employees were fulfilling religious duties, its business activity was religiously inspired, and it had religious objections to the regulation in question. Moreover, any business could start calling itself a church and claiming the same exemptions. What this tells is that there has to be a test based on something more than “bishop X said so”.

This is not a far-fetched scenario at all. At stake in the court decision cited above are employment laws. Churches have been granted very limited exemptions to some anti-discrimination laws based on the rationale that the church can’t be forced to hire a lesbian atheist as Pope just because she happens to be the most qualified candidate. If you start expanding that exemption to non-religious employees, like doctors, employment laws will soon become optional (as bjk 177 openly admits). bjk 147 is also on record saying that yes, an employer should have the right to decide pretty much every detail of the health care available, or not available, to anybody who happens to be employed by him. bjk should be taken seriously. This is what this is really about.

And HV 163, this BS was already refuted in 136. Your way of “argument” I am sorry to say is very similar to what we are used to from the right-wing machine – make up some nonsense claim and when it has been refuted by the opponent, just restate the very same nonsense claim. Stick with your talking points. This is an effective means of propaganda in the right-wing echo chamber, but why do you think you can pull this on CT?

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MPAVictoria 02.15.12 at 4:47 pm

“MPAVictoria, you need to read this: Planned Parenthood is privately funded. See how that works?”

Somehow I think you missed the moral of that story bjk. Not that I am shocked. Republicans have no morals.

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Barry 02.15.12 at 4:52 pm

I’m still waiting for Henri or Sebastian to answer my question about moral exemptions provided to liberals by right-wingers (note – exempting us from things which the right doesn’t want to exempt us from).

191

MPAVictoria 02.15.12 at 5:01 pm

Barry you will be waiting a long time. All three of the members of the Spanish Inquisition posting here seem to be avoiding awkward questions.

192

Manta1976 02.15.12 at 5:05 pm

I don’t ubderstand why liberals defend the insurance for conttraception, while republicans oppose it.
As it is without Obamacare, if you need contraception, you go to the pharmacist, spend, say, 1 $, and buy it. With Obamacare, your employer buys insurance, pays it, and the insurance pays the pharmacist. However, the ultimate payer for the insurance is you (since you will get a lower salary): thus, you pay both the contraception, and the overhead for the insurance company (say, 1 cent): the end result, is that you have a tax (1%) on contraception, which should make democrats unhappy and (some) republicans happy.

Since, however, people have the opposite take on the subject than me, I ask: where do you not agree with the above analysis?

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bexley 02.15.12 at 5:06 pm

1. The government is subsidizing healthcare bought through the exchange for low and medium wage earners. For a large chunk of your workforce both employer and employees will potentially be better off if the employer stops offering insurance.

2. We’ve now moved from people being forced to buy stuff they object to morally to losing a tax break for not buying something they object to. To call this forcing someone to do this is a stretch. I can get a tax break by donating to charity but that doesn’t force me to do so. Employers can get tax breaks by providing a pension plan that satisfies certain criteria (in the UK). That isn’t forcing them to do so either.

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bexley 02.15.12 at 5:08 pm

My comment above was to HV at 185.

195

Henri Vieuxtemps 02.15.12 at 5:21 pm

piglet, you call it bs and you say you refuted it, but I don’t see where you refuted anything, or how this is any more bs than the original post. I’ll gladly agree that all this is bs, in the sense of it being a pure intellectual exercise. But so what. Play by the rules, stay cool. So far all you demonstrated, as far as I’m concerned, is that you have very strong feeling about something (you really hate the wingnuts, I guess?) which is fair enough, but not very interesting: you hate the wingnuts, wingnuts hate you, who cares.

Barry, 190 I’m still waiting for Henri or Sebastian to answer my question about moral exemptions provided to liberals by right-wingers

I missed the question, but how is it relevant to anything here? This post, like any other John’s post of this sort, is dedicated to analyzing a wingnut position, logically. The background, whether the wingnuts are bad people or good people, whether they ever granted anything to the liberals, it’s all irrelevant. The only question is: can their position be logically justified or not. I believe it does have certain merits that are being overlooked, with all this excitement.

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Sebastian H 02.15.12 at 5:29 pm

“Indeed, it’s almost as if “government” was defined as “what tells you that you don’t have to do what authority expects you to do.” “

First, it used to be liberals who understood that the Bill of Rights limited that, and even in countries that didn’t have a Bill of Rights that the moral force of your comment was sharply limited. It is ‘authoritarians’ who believe otherwise.

Second, adherence to the regular political processes is a big part of what gives government that ‘authority’ regarding what it expects you to do. But a recurring theme in this thread has been the complaint that of course you can’t push through what you want in the regular political process because Republicans are so evil. (Setting aside the fact that Catholics aren’t particularly Republican, and that the actual Republican Evangelical basis isn’t anti-contraception–a fact which probably should not be set aside.)

Third, as a function of the second point, you end up opening up a whole can of worms that doesn’t exist if you go through the regular poltical process and actually tax and spend instead of mandating.

Fourth, I’m pretty sure that you don’t even really believe in the legitimacy of major legal changes by administrative fiat unless done by administrations that you like–reinforcing the second point about end-runs around the political process. If this was the Bush administration ordering counseling about an unborn child’s right to life before a late term abortion could be performed or any other major administrative ‘clarification’ touching on abortion, I strongly suspect you wouldn’t be so breezy about letting the regular political process be circumvented.

So the problem is that methods matter. Some methods lend government legitimacy even to those who lost in the poltical process. Others don’t. This administrative method doesn’t lend itself to the moral force of “governments get to tell you what to do so go stuff yourself” nearly as well as going through the necessary work of taxing something and having the government actually provide it.

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Henri Vieuxtemps 02.15.12 at 5:33 pm

We’ve now moved from people being forced to buy stuff they object to morally to losing a tax break for not buying something they object to. To call this forcing someone to do this is a stretch.

Fine. But perhaps not providing health insurance to their employees is also an ethical problem for them. In which case they’re still facing a no-win dilemma.

Again, wouldn’t you all agree that a public insurance financed by taxes would resolve all these dilemmas and concerns, made exceptions unnecessary?

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chris 02.15.12 at 5:38 pm

Since, however, people have the opposite take on the subject than me, I ask: where do you not agree with the above analysis?

Cost sharing. It’s the whole point of insurance.

Contraception costs a lot more than $1, but under an insurance system, the cost is shared by all similarly situated employees, whether they personally need contraception or not (some are men, some are past menopause, some don’t want contraception because they’re trying to get pregnant, etc.) rather than falling entirely on the person who needs it. Since almost everyone accepts that this is a better solution for most other forms of health care (everyone’s premiums pay for chemo, not just the cancer patient, etc.), the only reason to *not* extend the principle to contraception is if you think it’s somehow different from other forms of health care and not deserving of being covered under the same principles.

I have a feeling that if some people on this thread worked in my office, they would be actively resenting the fact that their premiums paid for one coworker’s heart attack treatment and another’s chemo and they’re making slightly less money as a result. I don’t resent that fact, and not just because I like those particular coworkers.

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chris 02.15.12 at 5:41 pm

Again, wouldn’t you all agree that a public insurance financed by taxes would resolve all these dilemmas and concerns, made exceptions unnecessary?

I find it hard to imagine that you are actually ignorant of the huge recent political fight in the U.S. after which the current half-assed compromise barely made it into law, and therefore, that the measure you suggest is politically impossible, likely for decades. So what is your point in raising this scenario — I can’t even call it a hypothetical because it is so obviously impossible?

…and of course it wouldn’t resolve the controversy anyway, the people who are objecting now would just resent their taxes going to Those People even more than they already do.

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Sebastian H 02.15.12 at 5:46 pm

Barry, I’m not sure what you’re saying. I tend to think that we should allow true moral objections to be accommodated whenever possible whether or not they are ‘religiously’ based. I suspect the main reasons we hang onto the religious part of the concept is because it makes it harder for people to just claim moral exemptions for anything that they happen to vaguely dislike. But that is a practical problem, not a general principles problem.

If a Muslim woman comes from a faith where she believes it immoral to be unveiled in front of non-women, we should probably accommodate her by only making her unveil in front of women whenever possible–which should be fairly possible in most situations.

If someone believes it is evil to work on Saturdays, we shouldn’t assign them community service punishment on Saturdays but we won’t let them out of it entirely just because they think that work should never be a punishment. A pluralistic society should be willing to make reasonable accomodations.

The position of many of the people here on this board appears to be “we sort of passed a kind of law so eat it”.

Now one of the things we don’t do, is let people opt out of taxes or ‘write off’ of taxes for things that the government does that they don’t like. Maybe you don’t buy the moral difference of “render unto Caeser”, but it is a distinction of incredibly long standing (more than 2000 years). If you want to mount a full fledged assault on it–arguing that it is impossible to make the distinction of paying taxes to the government and supporting everything it does, feel free. I don’t feel interested in bothering to defend the (obvious to me) moral concept until I’ve seen a darn good attack on it first.

But the more limited case regarding that concept is that taxing and spending is one thing with one understanding about moral agency between tax payors who disagree with policies and the government, while forcing people to do something or pay directly for something that they disagree with is another.

That looks like a pretty darn good distinction to me.

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Manta1976 02.15.12 at 6:06 pm

Chris, I thought that the point of insurance wae RISK sharing, not cost sharing.
I.e.: having a cancer is a a small risk for everybody; the solution to having to pay for cancer cure is either I put away a lot of money in the bank to use in case I have cancer, or
I pool my resources with other people, and pay a much smaller amount to an insurance company to cover me (with an extra premium).

Contraception, instead, is not something with small probability and high price, but something with high probability ans low price: paying for it through insurance makes no sense.
Notice that this in no way would prevent the state from subsidizing contraception for poor women: instead of paying the insurance companies, the money could go directly to either the women, or the pharmacist.

So, again Obamacare introduces a tax on contraception, with no benefits…

202

bexley 02.15.12 at 6:15 pm

Fine. But perhaps not providing health insurance to their employees is also an ethical problem for them. In which case they’re still facing a no-win dilemma.

Hard cheese old boy. If they think insurance provision is also important then they can provide insurance but without contraception coverage and live without the tax breaks. Someone can believe that people of colour are inferior but that doesn’t mean we should let them refuse to serve them at the lunch counter no matter how much it violates their conscience.

I’m willing to make reasonable accomodations ( the RCC should be perfectly free to provide health insurance without coverage for the Pill for its bishops!) but we can’t have the religious ignore any and all laws simply by saying they morally object to it. Otherwise we end up with laws that only apply to atheists and agnostics.

Anyway back to an earlier question HV. If a Catholic Hospital finds out that one of its ob/gyns is using his spare time to carry out abortions at a PP clinic and donating money to the PP clinic to keep it open should they be able to order him to stop donating time and money? How much control over employees should an employer have?

Again, wouldn’t you all agree that a public insurance financed by taxes would resolve all these dilemmas and concerns, made exceptions unnecessary?

Yeah it would. But so what? That isn’t going to happen because the same people who are jumping up and down in Congress about this contraception issue will also block any attempt to provide public insurance. You can wish for public insurance (and a pony too) but that doesn’t mean you’ll get what you want.

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Henri Vieuxtemps 02.15.12 at 6:18 pm

I find it hard to imagine that you are actually ignorant of the huge recent political fight in the U.S. after which the current half-assed compromise barely made it into law

You’re right, I didn’t see any fight or the compromise. All I saw was corrupt politicians giving the big business all it wanted. Just like medicare part d in 2003, when the guy who organized it all, Billy Tauzin, went directly from being a congressman to pharma industry’s chief lobbyist with $2.5 mil/year compensation. You call this “political fight”?

204

ben in el cajon 02.15.12 at 6:31 pm

Sebastian,

Okay, but a point that has gone missing here is that it appears the Bishops are asking for a complete excuse, rather than an accomodation. They want to not participate in a plan that provides contraceptive services while performing no alternative action. When an American concientious objector (durring the period between WW1 and Viet Nam) was allowed to avoid military service, he was given an “alternative service,” ranging from being in a non-combatant role in WW1 to serving in mental hospitals or participating in a peace corps-like organization in the 1960s.

In your examples, a woman would have to expose her face when public safety indicated that she should, and a person serving a sentence would have to serve it, perhaps on a Friday, as you stated yourself.

Would your objections be eased if the state required the church organization to give every employee an annual stipend, equivalent to the cost of annual birth control, in lieu of providing an insurance plan that covered birth control? Do you think the church-related organizations’ objections would be eased?

Henri,

I don’t find it credible that you believe that employees who clean the floors at a retail store such as Walmart (who are without employer provided health insurance) earn $7,000 a year more than employees who clean the floors in a hospital.

205

Henri Vieuxtemps 02.15.12 at 6:31 pm

Someone can believe that people of colour are inferior but that doesn’t mean we should let them refuse to serve them at the lunch counter no matter how much it violates their conscience.

That’s not true either, incidentally. They are perfectly entitled to refuse to serve any group, unless they are open to the general public.

206

Consumatopia 02.15.12 at 6:36 pm

Now one of the things we don’t do, is let people opt out of taxes or ‘write off’ of taxes for things that the government does that they don’t like. Maybe you don’t buy the moral difference of “render unto Caeser”, but it is a distinction of incredibly long standing (more than 2000 years).

No, we buy this distinction. You are trying to overturn it. You just don’t have the honesty to admit it.

The government lets you avoid a tax if you’re willing to perform the action the tax would have paid for. If you don’t want to perform that action, that’s okay–just pay render onto Caesar and we’ll do it for you.

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Henri Vieuxtemps 02.15.12 at 6:41 pm

ben in el cajon: if you don’t believe that health care is a part of compensation, could you explain why employers bother to provide healthcare at all, please. Before the $2k penalty takes effect, that is.

208

Consumatopia 02.15.12 at 6:43 pm

Or to put what I said another way, the tax policy scheduled to go into effect later is exactly the kind of accomodation that ben in el cajon@204 is talking about.

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Vlad 02.15.12 at 6:43 pm

Henri –

Really? So the point this whole time has not been the privileging of religious objections to laws of general applicability, but instead the tyranny of forced participation in insurance markets 0n — gasp — terms set by a government insurance regulator? Do you really not know how utterly ubiquitous state-mandated insurance purchases are, for both individuals (e.g., mandatory auto collision insurance, mandatory professional malpractice insurance) and groups (e.g., mandated liability insurance for just about any public business or gathering)? If I think insurance companies are, as a category, scumbags who manipulate the political system to their benefit (hmmm. . .), “freedom of conscience” requires that I be permitted to ignore these mandates, while still retaining the state-granted privileges to which they’re attached (driving a car, practicing law, etc.)? Who knew.

The notion that the ACA’s regulation of minimum insurance benefits, or even its individual mandate, is some sort of innovation in the law is utterly bogus. Governments in the US have been requiring citizens to buy certain products, or even to do business with certain providers, for a very long time.

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bexley 02.15.12 at 6:48 pm

That’s not true either, incidentally. They are perfectly entitled to refuse to serve any group, unless they are open to the general public.

@HV
Yes thats my point – if you run a business then expect to comply with laws and regs that apply to businesses. Run a hospital (open to the public) then expect to comply with laws that apply to hospitals if you want your tax breaks.

And your answer on the ob/gyn question?

@ Sebastian

If someone believes it is evil to work on Saturdays, we shouldn’t assign them community service punishment on Saturdays but we won’t let them out of it entirely just because they think that work should never be a punishment. A pluralistic society should be willing to make reasonable accomodations.

Yeah and if you think its evil to provide insurance with contraception coverage then you don’t have to. For ministers you still get your tax breaks so long as you provide insurance. For affiliated organisations you can provide insurance without contraception coverage or not provide insurance at all and pay some more taxes. You don’t have to provide contraception coverage to your employees.

This is a far greater accommodation than is made for a racist who doesn’t want to serve people of colour at his business.

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Consumatopia 02.15.12 at 6:50 pm

I thought that the point of insurance wae RISK sharing, not cost sharing.

Well, there you go, that’s exact why the GOP is on one side and the Dems are on the other. We believe in cost sharing. We believe that people should pay the same amount for insurance, even when their costs are predictably different. This is both good policy (because people share the costs of preventative medicine, because we can negotiate for better prices as a group) and fair (our system shouldn’t discriminate against people born with birth abnormalities, for example.)

212

piglet 02.15.12 at 6:56 pm

HV and SebH, you are boring in your repetitiveness. Can’t you try making this thread a little bit interesting?

How about inverting the example: Suppose Republicans pass a law that prohibits group insurance from covering contraception. Now I may be an employer who believes that contraception coverage is not just the right thing to do, it is actually a moral imperative. What now? Do HV, Sebastian H agree that I should get an exemption from the law?

I anticipate your response that if I believe in contraception coverage, I as employer can just provide that coverage myself without going through the insurance. But I also believe in privacy. I think it would be wrong for me to ask employees for their contraception receipts so that I can reimburse them. That is a real dilemma. What do you guys suggest?

Note that the law in question doesn’t prohibit contraception – that would be unconstitutional although Santorum (and I suspect the bishops) disagrees. It only prohibits group insurance from covering contraception. Note also that the example is realistic: “9 states prohibit abortion coverage in the entire private insurance market” (http://www.prochoiceamerica.org/what-is-choice/fast-facts/issues-insurance-prohibition.html).

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Consumatopia 02.15.12 at 7:12 pm

…if you don’t believe that health care is a part of compensation…

It doesn’t matter whether health care is part of compensation.

There’s a $2K tax that you can avoid if you perform a certain service according to our specifications. The actual cost of performing that service is greater than $2K.

BUT, you object, my employees ALSO like that service. They’re willing to forgo so much salary in exchange for receiving that service that performing the service costs, on net, less than $2K. The net cost might even be $0. (It can’t be negative, because you could choose to just continue to provide the non-compliant service. The maximum additional cost you pay with a $2K mandate is $2K.)

This is not a problem! Part of the reason we give tax incentives for that service is because we want employees to have it, because its a good service. It makes no sense to use the fact that employees want the service as compensation as an argument against a tax incentive to use this service as compensation.

To put this another way, suppose instead of adding a $2K penalty, we put equivalent conditions on the current health insurance deduction–your plan has to cover contraception or no deduction for you. I can see why the bishops wouldn’t like that. But I can’t see how that would possibly be a violation of religious liberty, nor do I see how it’s different in principle from the $2K penalty.

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Manta1976 02.15.12 at 7:13 pm

Consumatopia, so essentially you are saying that dems (or, should I say, you?) prefer that people would pay more money in aggregate for the same service, as long as they are forced to share the cost?

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Henri Vieuxtemps 02.15.12 at 7:17 pm

If I think insurance companies are, as a category, scumbags who manipulate the political system to their benefit (hmmm. . .), “freedom of conscience” requires that I be permitted to ignore these mandates

No that’s not the argument. The argument is that at least you should be able to discriminate against insurance (and other) companies that you believe are doing something objectionable. I dunno, cooperating with Burma’s junta, for example, if that’s your interest. But if the US government forces them all to cooperate with Burma’s junta, then you’ve lost this choice. Maybe it doesn’t mean much to you, but then maybe it does to other people.

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bexley 02.15.12 at 7:26 pm

But if the US government forces them all to cooperate with Burma’s junta, then you’ve lost this choice. Maybe it doesn’t mean much to you, but then maybe it does to other people.

Yes and as has been repeatedly pointed out:

1. You don’t have to buy the insurance – you can pay the taxes.

2. Just claiming you have a moral opposition to a law has never been a blanket opt out of complying. eg the racist restaurant owner who really really doesn’t believe he should have to serve non-whites at his restaurant.

I can believe that its morally wrong to give money to charity but that doesn’t mean the Govt is going to give me the same tax breaks as someone who does give to charity.

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Consumatopia 02.15.12 at 7:30 pm

@Manta, they pay less in aggregate. First, it’s preventative medicine. Second, insurance companies can negotiate better prices than individuals.

Mind you, I would still support sharing costs even if that requires a small increase in aggregate costs. You know, Rawls and maximin, and all that. But that’s not what we’re talking about here.

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bexley 02.15.12 at 7:31 pm

Barry, I’m not sure what you’re saying. I tend to think that we should allow true moral objections to be accommodated whenever possible whether or not they are ‘religiously’ based. I suspect the main reasons we hang onto the religious part of the concept is because it makes it harder for people to just claim moral exemptions for anything that they happen to vaguely dislike. But that is a practical problem, not a general principles problem.

@ SebH So are you willing to accommodate women who morally think they should be able to get abortions without waiting periods that various states enforce and women who think they should be able to get an abortion post 20 weeks? Given your arguments on another thread I suspect not.

219

Henri Vieuxtemps 02.15.12 at 7:37 pm

Employers can pay taxes (though obviously they can’t be expected to be happy about it), but individuals do need the insurance.

Just claiming you have a moral opposition to a law has never been a blanket opt out of complying. eg the racist restaurant owner who really really doesn’t believe he should have to serve non-whites at his restaurant.

Also claiming a moral opposition to being a guard in a death camp wouldn’t take you far. What’s your point?

220

bexley 02.15.12 at 7:48 pm

Employers can pay taxes (though obviously they can’t be expected to be happy about it), but individuals do need the insurance.

And they do – they get it subsidized through the Govt!

What’s your point?

My point is – are you going to let people opt out of any and all laws they morally object to? Where do you draw your line. At the moment it looks more like the “well if you say its in your religion we’ll let you off complying” end of things.

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MPAVictoria 02.15.12 at 7:49 pm

“Also claiming a moral opposition to being a guard in a death camp wouldn’t take you far. What’s your point?”

Whats yours?

222

Sebastian H 02.15.12 at 7:53 pm

“I anticipate your response that if I believe in contraception coverage, I as employer can just provide that coverage myself without going through the insurance. But I also believe in privacy. I think it would be wrong for me to ask employees for their contraception receipts so that I can reimburse them. That is a real dilemma. “

First note how quickly you have gone from the government forcing you to do something (the instant case) to the government allowing you to do something (your hypothetical). You’ve completely erased the entire distinction I’m trying to make. That is hardly likely to elucidate anything. But I’ll try to work with you.

You’ve turned the problem from “how do I keep the government from forcing me to do this thing I think is immoral” into “how do I do this additionally moral thing that I want to do”.

Well that is easy. You do what you do with all sorts of things that you positively want to do. You do it. And if those things have countervailing issues in other areas, you decide to work through them–i.e. set up a blinding system, negotiate a flat fee to the pharmacy to cover all of your employees with contraception without you needing to personally identify them, etc. If you have a positive moral imperative which mirrors the negative moral imperative of the actual case, you’ll find a way to do it. And the government won’t stop you. So those who HAVE the moral imperative can do it, those who DON’T won’t.

And that looks a lot like a pluralistic society which respects the fact that different people have different morals and tries to work it out.

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Sebastian H 02.15.12 at 7:59 pm

It looks like my response may have gotten caught in moderation. But I’ll wait to see if it makes it through before reiterating it.

But additionally I want to note that there is an actual history of accomodating conscientious objection in the US. It *seems* that bexley and piget and commentors on their side think that was ridiculous. Do you believe that we should have tried to force Quakers into fighting units and put them in prison for desertion if they didn’t go?

I’m not trying to put words in your mouth, but it sounds like that is what you are arguing for. Is that incorrect?

224

Henri Vieuxtemps 02.15.12 at 8:22 pm

Where do you draw your line.

I have no idea. All I’m saying is that these mandates that require you to buy from private companies can create additional, new problems. Real problems. Compared to the traditional ‘collect taxes – provide services’ method, that is already a well established, accepted (albeit highly imperfect) model. What this has to do with restaurant owning racists I’m not sure.

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bexley 02.15.12 at 8:30 pm

But additionally I want to note that there is an actual history of accomodating conscientious objection in the US. It seems that bexley and piget and commentors on their side think that was ridiculous. Do you believe that we should have tried to force Quakers into fighting units and put them in prison for desertion if they didn’t go?

Christ on a bike. Conscientious objectors in US history have had to serve in non-com roles you realise.

If Catholic Bishops have avoided prison for covering up for paedophile priests they certainly won’t be jailed for failure to provide employee health insurance that complies with the mandate. All that will happen is that employees will get access to govt subsidized insurance seperately and for each employee that takes it up the employer gets charged $2k. And its probably that the $$2k is less than the cost of providing insurance so it isn’t necessarily the case the employer is losing out.

And for the actual church the rules are even laxer you can still refuse to provide your bishops with insurance plans that cover the pill. That isn’t close to jailing someone its far closer to requiring service in a non-com role.

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MPAVictoria 02.15.12 at 8:32 pm

Okay before this goes any further can we at least agree on a few things?

1) No organization is being forced to provide an insurance plan that provides contraception to their employees. As has been pointed out multiple times if an organization truly cannot stomach paying for insurance that will cover contraception they can simply pay the $2000 tax and their employees can get insurance from a non-bigoted source. Everybody wins.

2) The government enforces mandates on businesses all the time. Minimum wage laws, safety regulations, environmental regulations, anti discrimination requirements and so on. I assume that we all agree that a business owner should not be allowed to ignore any of these requirements based on “religious” grounds. Why is contraception different?

3) Everyone should have access to healthcare. In the US (however much I may dislike the current system) the vast majority of people get their healthcare through their employer. And healthcare for women includes access to contraception. To not cover contraception amounts to discrimination against women.

4) The people who are leading this fight are not really concerned with the religious issues. What they are worried about is women having unsanctioned sexy times and not being punished for it.

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ben in el cajon 02.15.12 at 8:33 pm

Henri,

I don’t have time to fully research the origin of employment-based health insurance in the US, but I believe it came about as a result of two factors: a political fight against universal health insurance and a desire to circumvent wage controls to attract workers.

I’m sure someone knows the history off hand.

By the way, my comment about relative wages doesn’t imply that I don’t recognize benefits as compensation for work.

Your earlier post (which I cannot find now) assumed that an employer would have to raise salaries $7K to replace lost health insurance. I was pointing out the absurdity of such a sweeping statement. People at my University who teach less than half time get no health insurance. They also get the same money per class as those who teach more than half time (all non tenure track). There’s no reason to assume that employers, especially in this market, would lose employees if they cut compensation. In fact, for years employees have complained about the reductions in their health insurance benefits, yet somehow employers still find willing workers. In the US, most employees have lost %100 of their employer-sponsored retirement benefits in the last decades. Yet, for some reason, we keep working.

Benefits are compensation, but their convoluted and often unquantifiable nature, compared to the simple number attached to salaries, allow them to be manipulated, often without the full awareness of the employees. In fact, I’m shocked that there hasn’t been more downward trending in benefits in the current labor market. It’s an easy way to quietly reduce compensation.

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piglet 02.15.12 at 8:33 pm

“But additionally I want to note that there is an actual history of accomodating conscientious objection in the US.”

That “actual history” is very very narrow. Conscientious objection has only ever been considered when a person would have been forced to personally commit an act that was totally contrary to their moral beliefs, and that doesn’t even come close to the health insurance case under debate.

“It seems that bexley and piget and commentors on their side think that was ridiculous.” It has been stated many times that that is not the case and it *seems* that you Sebastian H are arguing in bad faith.

Also, 212. Anybody willing to answer that challenge?

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bexley 02.15.12 at 8:39 pm

All I’m saying is that these mandates that require you to buy from private companies can create additional, new problems. Real problems. Compared to the traditional ‘collect taxes – provide services’ method, that is already a well established, accepted (albeit highly imperfect) model. What this has to do with restaurant owning racists I’m not sure.

I can only assume that’s because you’re trolling.

1. You’re repeating the claim that you are being forced to buy insurance. You aren’t as has been stated several times. If you don’t then for each employee who buys cover through an exchange you pay $2k in taxes. If no employees take it up you pay nowt. If you have less than 50 employees you also pay nowt.

2. The racist restaurant analogy shows that the US already potentially compels business owners to violate their morals. The civil rights act 1964 forced business owners to serve people of colour even if they held deep-seated moral objections against doing so. So forcing people to do things they may object to morally is hardly unprecedented and in the case with contraception nobody is even being forced to provide cover if they don’t want to. Do people who are wailing about the burden this places on the RCC also think the Civil Rights Act shouldn’t have been passed for similar reasons?

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piglet 02.15.12 at 8:49 pm

HV 219: I’m seconding 221.
HV 195: do the words “factually wrong” ring a bell? Maybe you think that showing your claims to be factually wrong isn’t a refutation but most of us actually believe in logic and such.
HV 207: “could you explain why employers bother to provide healthcare at all, please.” Again, I call BS on you. Employers do NOT provide health care. Do you ever care at all what you are saying?

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piglet 02.15.12 at 8:50 pm

HV 197: Again, wouldn’t you all agree that a public insurance financed by taxes would resolve all these dilemmas and concerns, made exceptions unnecessary?

You got me. Finally, I have to concede the superior logic of your argument. You are right, regulations and standards are the wrong way. If the government really badly wants to enforce certain standards in an industry, it better nationalize that industry and run it itself, thereby implementing the right standards. That way, no private business owner will ever be forced to comply with a government regulation that he finds objectionable.

A good example are those lunch counters. How absurd an idea to legally force lunch counters to serve blacks. What a coercive measure that was! All these business owners forced to violate their most sacred moral convictions day by day! That wasn’t necessary at all. Instead, the government should simply have taken over those lunch counters and run them as state-owned businesses. That way, nobody’s feelings would have had to be hurt.

Yes Henri, you have convinced me.

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Vlad 02.15.12 at 9:03 pm

Sebastian H-

I’ll take a crack at it. I don’t think claims for religious exemptions (because that’s almost always what “conscientious objections” really are) are always ridiculous. I do think they’re always, inherently, problematic, and should be granted only grudgingly.

Quakers who don’t want to fight a war obviously present a strong, maybe the strongest, case for allowing objection, but that’s largely because the burden the state is otherwise imposing is so extreme. Forced conscription is the state telling an individual that you’ll go HERE and kill THAT person, or you’ll go to jail. It’s easy to see the basis for wanting to accommodate that kind of objection, although even there the fundamental problem with going this route comes up: why should only Quakers get to take a pass on moral grounds? Why isn’t a devoutly pacifist atheist entitled to the same consideration? And if you’re going to allow anyone to object on personal moral grounds, what do you do when you suddenly have a draft full of conscientious objectors? There’s no easy answer, but I can at least respect that when the stakes are so high, a kind of muddling through approach based on whether the objector is a member of an established belief system is a reasonable solution.

None of that applies to the current insurance “controversy,” in which I think the idea of “conscientious objection” is, indeed, ridiculous. If you’re a Catholic bishop and you don’t want to be involved in contraception, you have a very easy way out: don’t be involved in the health care industry, on the hospital or insurance end. Really, it’s that simple. Not being permitted to be in the business of providing medical care, or medical insurance, really isn’t an extraordinary burden; the state heavily regulates both activities, and in fact usually makes it a crime to do either without state approval, which requires all sorts of state-mandated things. Catholic or not, being in the healthcare industry is a state-granted privilege, not a right. No one’s “freedom of conscience” is being trampled merely because they’re asked to do the same things to earn that privilege that everyone else is required to do.

Making this all the more ridiculous is that the Catholic bishops weren’t even presented with a choice as stark as the one discussed aboeve. Instead, they just had to choose between offering insurance that covered contraception, or receiving tax breaks. And that was before Obama’s accommodation. Now, they just have to choose between doing business with an insurance company that will offer their employees contraception coverage, or receiving tax breaks. A fundamental imposition on their “freedom of conscience,” this is not.

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bianca steele 02.15.12 at 9:15 pm

I think Sebastian’s very early comments made good points. Suppose an employer has strong moral beliefs about the way things should go in the business, say w/r/t human resources issues. In the course of things the employer hires business graduates with expertise in human resources issues, a corporate counsel, and so forth. They advise him on how he should run his business, as a matter of regulation, avoiding lawsuits, and just the way things generally go in the corporate world. These offend his sensibilities, including his religious and moral sensibilities. Does he follow their advice, accepting that this is what he has to do if he wants to run a business? Or does he take their advice as representative of attempts to make him violate his religious beliefs? And those may be regarding issues that are very closely tied to employment, not second- or third-degree removed issues like the one described in the OP (i.e., is it okay for an employer to control how employees use the money that kind-of sort-of comes from the employer if there are all these other things going on?). But even this doesn’t seem very serious, because no one really thinks that running a business is like doing whatever pleases you regardless of others’ expectations (that’s called being a politician).

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piglet 02.15.12 at 9:27 pm

One final remark, then I think I’ll be done. The argument in favor of religious exemptions is premised on the idea that such exemptions enhance religious liberty and are therefore mandated by the first amendment: more exemptions, more religious liberty. Right?

In fact, wrong. The First Amendment also contains the establishment clause, which is really a universality principle: the laws should be made for and binding for everyone regardless of their religion. No set of beliefs shall be favored by the state. This principle requires that religious exemptions must be rare *exceptions* granted in a narrow class of cases. A proliferation of religious exemptions on spurious grounds is not enhancing religious liberty – in fact it endangers religious liberty by violating the neutrality and universality principle of the establishment clause. If the state allowed vocal and powerful religious communities to pick and choose which laws to abide by, it would really result in favoring those religions.

The contraception case is a very good case in point. The exemption demanded by the bishops is not about whether or not Catholics can be forced to violate their beliefs – it is about whether the bishops can force their beliefs on church employees who may not share them. That is what is really at issue and nobody in this thread among the defenders of the church, except bjk who must be commended for his honesty, has really addressed it.

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Henri Vieuxtemps 02.15.12 at 9:27 pm

@226, sorry, I have no idea what you’re on about. Medical insurance provided by employers is a part of compensation. If they could cut compensation, they would. If they don’t, it means that they can’t. You don’t like the $7K number? I don’t insist; you have my permission to replace it with any number you like.

@228
1. Forget the employers. Individuals are forced to buy it; that’s why it’s called a ‘mandate’.
2. with your 1 why do you need 2? Anyway, this has been said right from the beginning: just simply taxing you and then spending your taxes on objectionable things does violence to you. Your example doesn’t add anything new. I’m sure most people believe that this is a very unfortunate situation that should be avoided wherever possible. So, if you agree with the above, again: what’s your point? How does the Civil Rights Act justify the ACA? Because violence had to be used (unfortunately) against racist business owners, Catholic wingnuts are a fair game too – is that it? And when next time it’s used against you – are you going to be just as cheerful about it as you are now?

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Sebastian H 02.15.12 at 9:29 pm

MPAVictoria, “The government enforces mandates on businesses all the time. Minimum wage laws, safety regulations, environmental regulations, anti discrimination requirements and so on. I assume that we all agree that a business owner should not be allowed to ignore any of these requirements based on “religious” grounds. Why is contraception different?”

And as I’ve said above (repeatedly but as early as comment 8), when you are making laws about the employer-employee relationship where the employer is a necessary party, you can’t easily exempt the employer.

But here the employer is not a necessary party to the aim of the law. If you want to provide contraception to women, there are hundreds of ways to do that which don’t involve an employer. Because there are hundreds of ways to do that which don’t involve an employer, it isn’t ridiculous to be a bit freer with religious exemptions (especially to long-before-the-rule-was-administratively-clarified objections).

Vlad, thank you for taking a crack at it. I see where you are coming from on the Quaker issue, but I want to explore it a little further. It is not only such an extreme case because of the extremity of the action required [go shoot that person] but also in light of the governmental importance [surviving a war is considered one of the more important things for a government]. The government required actions from a very large number of people, *on a very important issue*, and still offered religious exemptions.

I don’t want to get bogged down in whether or not the Constitution *requires* exemptions. But it seems intuitive that if the nation can make religious exemptions even at a time of serious war, it can probably make them for less serious issues. This is especially true when a) the employer is not a necessary party, b) there are various alternatives available already [Planned Parenthood for example], and c) the government could easily replace the ‘need’ to use the employer if the government wanted to.

I also don’t want to get bogged down in the difficulty of telling a ‘real’ objection from a ‘fake’ objection unless we can at least agree that ‘real’ objections might have some claim to accomodation.

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MPAVictoria 02.15.12 at 9:33 pm

“And as I’ve said above (repeatedly but as early as comment 8), when you are making laws about the employer-employee relationship where the employer is a necessary party, you can’t easily exempt the employer.

But here the employer is not a necessary party to the aim of the law. If you want to provide contraception to women, there are hundreds of ways to do that which don’t involve an employer. Because there are hundreds of ways to do that which don’t involve an employer, it isn’t ridiculous to be a bit freer with religious exemptions (especially to long-before-the-rule-was-administratively-clarified objections).”

Sebastian I responded to both those points in my post:
“1) No organization is being forced to provide an insurance plan that provides contraception to their employees. As has been pointed out multiple times if an organization truly cannot stomach paying for insurance that will cover contraception they can simply pay the $2000 tax and their employees can get insurance from a non-bigoted source. Everybody wins.”

And

“3) Everyone should have access to healthcare. In the US (however much I may dislike the current system) the vast majority of people get their healthcare through their employer. And healthcare for women includes access to contraception. To not cover contraception amounts to discrimination against women.”

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bexley 02.15.12 at 9:58 pm

Individuals are forced to buy it; that’s why it’s called a ‘mandate’.

No they aren’t they just pay a tax if they don’t buy insurance. In addition there are the following exemptions for individuals (amongst others):

1. Individuals who cannot afford coverage.
2. Taxpayers with income below the filing threshold
3. People with insurance that features only small coverage gaps.

There is also an exemption for members of religions that have an objection to insurance in any form btw.

Look at number 3. If you are an individual purchasing health insurance then you can go out and buy a plan without contraception covered if you want to. Since that’s a choice you have made for yourself I suspect it will fall under the third exemption. Even if it doesn’t then you can pay the tax instead.

Again you aren’t being forced to buy insurance that covers contraception.

239

Jeffrey Kramer 02.16.12 at 1:41 am

The position of many of the people here on this board appears to be “we sort of passed a kind of law so eat it”. – Sebastian H

It seems to me more like:

“You don’t have to eat it; you don’t have to serve it to employees in your cafeteria; you don’t have to buy certificates for restaurants that have it on their menus; we’ll buy the certificates, and they can chose whether they want to order it for take-home.”

“No! I can still smell it!”

I find it hard to classify this as a “serious moral objection.”

240

lorimakesquilts 02.16.12 at 2:07 am

If the catholic church wants to play in the public sector sandbox then they have to follow the rules. They don’t get to come in and insist they don’t have to follow the rules they don’t like. All the other stuff is just obfuscation. If they don’t like it then they should pack up their stuff and go home.

Honestly trying to change the rules for everyone I could respect, but hiding behind religion when the businesses in question are not religious in nature is despicable and dishonest, not exactly christian virtues.

241

piglet 02.16.12 at 5:29 am

Should anybody still pay attention, here’s a fascinating data point from my favorite state, Arkansas: Apparently Arkansas has had a contraception mandate since 2005, signed into law by the very same Republican governor Huckabee who is now among the outraged about Obama’s assault on religious freedom. Nobody complained at the time.

Oh sure, this fight is about moral principles.

http://www.arktimes.com/ArkansasBlog/archives/2012/02/15/huckabee-for-contraception-mandate-before-he-opposed-it

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piglet 02.16.12 at 5:48 am

243

Henri Vieuxtemps 02.16.12 at 7:07 am

@237 No they aren’t

So, there is no mandate in the universe where you live? Why didn’t you say so from the beginning? In this universe the individual mandate is an essential part of the ACA. If you have access to our universe’s google (it’s a search engine) you can check it out.

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bexley 02.16.12 at 9:03 am

@241 did you not even read what I wrote!

If you don’t buy insurance (of a certain standard) you pay more taxes. With exemptions. You aren’t forced to buy it.

If I make contributions into a pension plan i pay less tax – that doesn’t force me to actually pay towards a pension though.

How hard is that to understand.

245

Adrian Kelleher 02.16.12 at 10:18 am

One thing that’s always struck me about the Republican Party’s use of wedge issues is that it’s surprising that the party base never gets upset at being exploited. The wedge issues get them worked up, but once the election is out of the way they’re forgotten about and the voters never seem to notice that nothing’s changed.

These are talking points. The purpose of their promotion is neither legislative nor administrative but psychological: their asymmetrical impact across the political spectrum. Targetted voters are stimulated into activism while non-targetted ones are left quiescent.

This controversy is surely Obama’s very own wedge issue. Although not as potent as abortion, it nonetheless engages liberals far more effectively than conservatives. Doctrinaire Catholics, the only conservatives concerned with this specific point, are a small minority even within the conservative movement itself.

A small, politically responsive and instinctively conservative country like Ireland where these issues seldom get an airing could do with more of the sort of reproductive health debates that have dominated this site (at least in terms of comment) over the past months. In the USA on the other hand, the culture wars have been raging furiously for more than a generation without noticeable progress being made on either side. Each time there’s a change of party in the White House the same batch of executive orders are implemented and that’s about it. Everybody knows the other side will reverse the lot once they’re back in office.

The political transformation underway across the Western world is without precedent in the post-war world. Everywhere the disputes concern what governement programmes to slash rather than how the revenue raising powers of governments might be restored to historic norms. The terms of debate are defined entirely according to right-wing precepts.

In this context, any victories in the culture wars will prove illusory, just as they have always proven for the right. The difference between right and left is that the general context strongly favours the right; continued motion rightwards is the default outcome.

246

Manta1976 02.16.12 at 11:39 am

Adrian, I completely agree: today’s culture war is mostly smoke and mirrors to distract from the reactionary policies in economy and foreign affairs enacted by both the Reps and the Dems.
In this context, Obama’s big give away to insurance companies is defended in the name of reproductive rights…

247

Barry 02.16.12 at 12:09 pm

Sebastian: “Do you believe that we should have tried to force Quakers into fighting units and put them in prison for desertion if they didn’t go?”

Actually, a whole bunch of such people did go to prison. By the time that religious exemptions were more common, the system was granting vast numbers of opt-outs (see GOP, modern, chicken-hawkishness of).

248

chris 02.16.12 at 1:38 pm

@241: The mandate isn’t mandatory, as has been explained multiple times on this very thread. It’s a prerequisite to receive a tax break, and that’s all.

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Salient 02.16.12 at 2:17 pm

One thing that’s always struck me about the Republican Party’s use of wedge issues is that it’s surprising that the party base never gets upset at being exploited.

They have never been exploited. Voting social-issues wedge is about voting for values, not policies. It’s not even voting for people who uphold those values, necessarily, as failure to live up to standard is understood and accepted; it’s voting for people who both insist everybody should be trying to live up to the standard and advocate, in a vague and moralistic sense, for harsh consequences for those who don’t try to live up to the standard. Simple as that.

Thinking that social issues voters are looking to get some specific laws passed is, like, the first thing that’s the matter with What’s the Matter With Kansas-style analysis. When you vote on social issues, you’re voting on who the country’s parents should be. You want the country to have good upstanding parents, who are trying to do the right thing. (The ‘trying’ part is absolutely key. I wrote that sentence in iambic pentameter so that it would stick out as much as it should.)

But parenting isn’t legislating. You don’t have to get a certain amount of certain kinds of paperwork done correctly in order to be a good parent. That’s just not how we judge the goodness of caretakers in pretty much any other context (excepting contexts where we’re terribly cynical and never get the chance to even make that kind of evaluation, for fear of breaking something).

And to be honest, the non-cynical side of myself says that’s exactly how it should be. I would like to be able to vote for people I consider to be ‘good parents’ who will take good care of the country. I don’t actually want to have to come up with, or even defend the merits of, specific legislation; I want to be able to trust that the person in charge is going to ‘do the right thing’ and have their ‘heart in the right place.’

Maybe what’s wrong isn’t that conservative social-values voters vote for people they feel they can trust to ‘do the right thing’ in Washington; I’d say what’s wrong, fundamentally, is that people like you and I never get the chance to do that.

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Henri Vieuxtemps 02.16.12 at 3:47 pm

The mandate is mandatory: you’re penalized for not buying. Why the sophistry? If they wanted to to give you a tax break for buying, then they should’ve implemented a new tax and give you a break for buying, but that is not how it’s legislated. The mandate is a big issue and a subject of many lawsuits; a tax break wouldn’t be.

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bianca steele 02.16.12 at 4:06 pm

When you vote on social issues, you’re voting on who the country’s parents should be.

But you mean this in a metaphorical sense. You mean that because the President’s job is similar to that of a parent. He runs the Administration the way a parent might be considered to run a family. You don’t mean that while the President is in office, you think of him as your father.

When you say the President “sets the tone,” you don’t mean that he literarally sets the tone for everyone in the country, that on his inauguration everyone suddenly behaves as if they had to obey and please the new President (whether or not they think his values are good).

It just doesn’t have the same “metaphysical” significance for you, I think, that it does for the group of conservatives you’re saying think of it the same way as you.

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MPAVictoria 02.16.12 at 4:58 pm

“The mandate is mandatory”

This word… I do not think it means what you think it means.

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Henri Vieuxtemps 02.16.12 at 5:01 pm

Tell it to Chris, 246

254

MPAVictoria 02.16.12 at 5:04 pm

“Tell it to Chris, 246″

Rather tell it to you Henri.

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Sebastian 02.16.12 at 5:13 pm

“One thing that’s always struck me about the Republican Party’s use of wedge issues is that it’s surprising that the party base never gets upset at being exploited.”

Catholics aren’t generally Republicans. Evangelical Christians (the actual religious Republican base that you hate, you really should bother to get them straight) are generally not against contraception.

I don’t know if your theories require the actual facts, but those are the actual facts.

But you’re right that this particular case is Obama playing politics for the wedge issue more than Republicans. Of course noticing that would tend to hurt the ‘neutral evenhanded regulation’ concept at least a bit, but whatever.

256

mds 02.16.12 at 5:18 pm

Do you believe that we should have tried to force Quakers into fighting units and put them in prison for desertion if they didn’t go?

Since individual conscientious objection isn’t magically becoming any less of a red herring with repetition, a more realistic analogy would be granting Friends Hospital the right to violate USERRA for non-Quaker employees who join fighting units.

257

bianca steele 02.16.12 at 5:20 pm

@253
Okay, but I would guess that lots of Catholics (say, in a blue state like Massachusetts that has several distinctly red regions) are “independents” who have actually voted for a Republican in every national election since 1980 at the earliest, and increasingly vote for Republicans locally too.

258

piglet 02.16.12 at 5:28 pm

“Forget the employers. Duh, HV changes the subject. Can you believe that! After arguing ad nauseam that employers should have the moral and legal right to boycott their employees’ personal choices, suddenly it’s not about employers any more.

Don’t you think it’s time to stop feeding the troll?

259

piglet 02.16.12 at 5:33 pm

“Evangelical Christians … are generally not against contraception.”

Neither are Catholic Christians, generally speaking. Catholics are, in fact, more likely to use contraception than evangelicals. Apparently that doesn’t matter in the grand scheme of things. When big issues like religious liberty are at stake, who cares what believers actually believe.

260

Uncle Kvetch 02.16.12 at 5:42 pm

261

subdoxastic 02.16.12 at 5:50 pm

@ Sebastian 235

C.O. to killing other people (the ultimate infringement on another’s liberty) ” at times of serious (sic) war” means we should provide C.O. for less serious issues like Bishops getting tax breaks for not providing contraception coverage for women?

This thought process is serious– seriously deluded.

262

Adrian Kelleher 02.16.12 at 5:52 pm

@Sebastian

I wrote that “doctrinaire Catholics, the only conservatives concerned with this specific point, are a small minority even within the conservative movement itself”, and didn’t mention evangelicals at all. As you say yourself “I don’t know if your theories require the actual facts, but those are the actual facts”.

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Sebastian 02.16.12 at 5:54 pm

“Okay, but I would guess that lots of Catholics (say, in a blue state like Massachusetts that has several distinctly red regions) are “independents” who have actually voted for a Republican in every national election since 1980 at the earliest”

I’d like to see some facts on a supposition as enormous as that one. Everything I’ve seen suggests that Catholics are fairly reliable Democratic Party voters. (Which is to say that like all statistical facts, that means something like if you were to know that someone was Catholic, the chances of them being registered to vote Democratic Party and say that they regularly vote that way are both higher than 50% and much higher than a similar cross-section of the population).

Is it possible that you’ve seen headlines like “more Catholics vote Republican [than before]” and misinterpreted that as “a majority of Catholics vote Republican”? Or are you interpreting a single election (2010) as being a permanent shift of Catholics toward Republican voting?

264

Sebastian 02.16.12 at 6:01 pm

“I wrote that “doctrinaire Catholics, the only conservatives concerned with this specific point, are a small minority even within the conservative movement itself”, and didn’t mention evangelicals at all.”

Yes, and I’m saying that those ‘conservatives’ aren’t even Republicans in many cases. So chalking this all up to Republican craziness is seriously misunderstanding the issue.

Catholics tend to be Democrats and tend to vote for Democrats. Catholics also have a very long standing issue about contraception. (Which I think is foolish, and not even particularly biblical, but Catholics don’t care what I think). So the fact that Obama decided to play games with the contraception ‘clarifications’, can’t be blamed on Republicans. Catholics made political issues about contraception well before they even flirted with the idea of voting for Republicans.

This is a Catholics vs. the world issue, not a Republicans vs. Democrats issue. Which makes it MUCH more open to conscientious objection compromises than purer partisan issues in my opinion. Which opinion is clearly not shared here. But analyzing it purely through the “I hate bad Republicans” lens here isn’t obscuring far more than it reveals.

265

Sebastian 02.16.12 at 6:01 pm

ugh is obscuring…. sigh

266

Bruce Wilder 02.16.12 at 6:03 pm

Of course, if the employer “self-insures”, the employer can pretty much do as they please, anyway. In the absence of collective bargaining, the employer, like your bank, is free to change its “contract” with you, the employee, at will, and, as a practical matter, without even the courtesy of prior notice. Extending this institutional pattern is the agenda of the political Right, abetted by the corrupt center represented by Obama.

Coming up with a one-two rhetorical punch of libertarian and theocratic dogma to justify advancing this neo-feudal institutional order is quite clever. The libertarians want you to respect the efforts of the theocrats to create a taboo around contraception. Isn’t that sweet? A rational ethics, in which the moral thing is to take personal responsibility for reproduction and human health, in a society that actively and institutionally supports such exercise of personal responsibility, is put into shadow by such rhetorical distortions.

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Bruce Wilder 02.16.12 at 6:05 pm

Sebastian @ 262

Actually, at least since the 1970s, American Catholics have mirrored the partisan division of the country as a whole, and over the last decade at least, practicing Catholics are more likely to vote Republican.

268

Henri Vieuxtemps 02.16.12 at 6:08 pm

After arguing ad nauseam that employers should have the moral and legal right to boycott their employees’ personal choices

Not only have I never argued anything like that, I don’t even understand what the hell this means.

Incidentally, there is an employer mandate in ACA as well, I just don’t think it’s as problematic as the individual one.

269

bianca steele 02.16.12 at 6:19 pm

@261 I am basing this in part on the solidly red towns in a state that is arguably more than 50% Catholic (the percentage about 10 years ago, it is lower now, and I find it difficult to imagine those who left the Catholic Church as a result of the recent crisis were mostly the Republicans), in part on anecdotal evidence of people whose positions I may well have misinterpreted, and in part on anecdotal evidence that the “Reagan Democrat” trend (one-time Democrats, union members, and lower-middle class people who won’t vote for the Democrats being put up except in exceptional circumstances) is an epidemic that is not going to be reversed.

My hunch is that middle class Catholics increasingly vote Republican, and left-leaning Catholics increasingly leave the Catholic Church, though I don’t have the statistics at hand, and the dynamic in the Northeast may well be different than elsewhere. Scott Brown left the Catholic Church and he’s a Republican, so there’s an anecdote for the other side. I personally don’t understand what kind of support for the Democrats, other than votes, is being obtained in the form of people who (based on my admittedly limited and somewhat biased observation) are at least center-left-ish and pro-choice but submit to being preached at in church every Sunday that they have to hate pro-choice politicians and abhor the prominence in public life of “secularists.”

My own state rep endorsed Obama, and I believe he is Catholic, as are almost all the candidates around here, in both parties. It would be a shame if he were to lose to a Republican because the “base” didn’t like this policy, but it would also be a mistake, I think, to base national politics on what’s true in one of the only states in the country that is majority Catholic.

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bexley 02.16.12 at 7:53 pm

Incidentally, there is an employer mandate in ACA as well, I just don’t think it’s as problematic as the individual one.

Yes and the RCC have been whining about the employer mandate not the individual mandate. The OP is about the employer mandate and everyone has been talking about the employer mandate here. Right until you suddenly switch tack and start talking about the individual mandate – which is why everyone else is bemused.

However since you now want to talk about the individual mandate I will:

The mandate is mandatory: you’re penalized for not buying. Why the sophistry? If they wanted to to give you a tax break for buying, then they should’ve implemented a new tax and give you a break for buying, but that is not how it’s legislated. The mandate is a big issue and a subject of many lawsuits; a tax break wouldn’t be.

The individual mandate is sooo mandatory it isn’t illegal not to buy insurance. If you refuse to buy insurance and don’t fall into an exemption you pay 2.5% of your income up to a maximum of around $2k. Crazy – that sounds like some kind of income tax. You aren’t prosecuted, no criminal record, nothing.

Moreover one of the exemptions is for those who have a religious objection to purchasing any insurance of any kind (some Amish)! People who believe insurance of any kind is wrong are exempted – they aren’t being forced to buy any damn insurance. I don’t know how to say this simply enough that you can understand.

As I said before another exemption is for people with insurance that features only small coverage gaps. So if you want to buy insurance that doesn’t cover contraception for yourself then it looks like you will be exempt. (Since this isn’t in force yet I’m not actually sure whether this falls into the exemption but it seems likely).

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Henri Vieuxtemps 02.16.12 at 8:32 pm

Bexley. Last month my daughter jumped into a tram without a ticket. Ticket inspectors caught her and fined her the equivalent of about $90.

Should we say, in your opinion, that she forfeited a tax break?

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MPAVictoria 02.16.12 at 8:49 pm

“Bexley. Last month my daughter jumped into a tram without a ticket. Ticket inspectors caught her and fined her the equivalent of about $90.
Should we say, in your opinion, that she forfeited a tax break?”

Oh Henri… Just after I was so impressed by your comments in the Greece thread. Could you try a little bit harder please? Do it for me.

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bexley 02.16.12 at 9:31 pm

And you’re accusing me of sophistry? Ticket dodging is a prosecutable offence (at least where I live). Not buying insurance is not. Not buying insurance is not in any way illegal. There is the difference.

Moreover you (as usual) fail to address the fact that if you have a religious objection to insurance you don’t have to pay the tax. So again – people with religious objections to buying insurance as a product aren’t forced to do so.

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bexley 02.16.12 at 9:35 pm

Btw if I earn more than a certain amount of money in a year then I have to pay some money to the Government. I might call these payments “taxes” but by your own logic it must be because people aren’t allowed to earn above this threshold.

Similarly if I die my estate is taxed – presumably because dying isn’t actually allowed in the UK.

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Henri Vieuxtemps 02.16.12 at 10:00 pm

What, riding the tram without a ticket is a prosecutable offense? Seriously?

I might call these payments “taxes” but by your own logic it must be because people aren’t allowed to earn above this threshold.

These are taxes. The ACA has penalties, fines. It penalizing those who don’t buy an insurance. That’s why it’s called the mandate, and that’s why it’s contested in courts.

Again: this is not something new or controversial, it’s in the newspapers. Everybody knows it. Again: if this was as plain and simple “you pay tax or get a break by buying insurance” as you believe (or pretend to believe) it is, there would’ve been no reason for a single court case, let alone this being decided by SCOTUS, which is where it’s headed.

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piglet 02.16.12 at 10:24 pm

“Seriously?” Seriously.

Don’t. Feed. The. Troll.

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Martin James 02.16.12 at 10:32 pm

I think the religious liberty is a bit Roe-like but with the other side making the case . Roe found abortion to be a fundamental right. I think the people who oppose the contraceptives mandate would like their to be a fundamental religious right in these areas.

They aren’t the same argument but there are similarities in that both positions were a change from the way things had been done in the past.

The point of my earlier post is that I think for a fair number of people, moral arguments are tests of the moral axioms not support for the conclusions. In other words, if the result of health care reform means requiring catholic directed employers to include contraception in their health care package then something is wrong with health care reform.

It is a major turning point because for this group of people, a minority of people but a significant one, the developing notions of human rights and equality and freedom just can’t be right if they produce the “wrong’ results like Islam or Mexicans or Mandated Contraceptives or Flag-burning or Gay Marriage or Tatoos or Mormon Candidates or whatever else.

I believe the arguments that this is just the death throws of the losers but I’m really curious about how the right will “go down swinging”. Will it be a relative non-issue where the kids get used to it like women and blacks having the vote, or will it get all nasty like the civil war and Koresh.

Right now the sides are even enough that nobody has to get desperate. But what happens when the right wingers can’t win at all anymore?

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bexley 02.16.12 at 10:36 pm

What, riding the tram without a ticket is a prosecutable offense? Seriously?

Yes. Brought to you by easy answers to easy questions.

http://www.tfl.gov.uk/assets/downloads/tickets/Revenue-enforcement-and-prosecutions-policy.pdf

See section 2.

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Sebastian H 02.17.12 at 3:29 am

BTW, everyone realizes that the ‘compromise’ is completely theoretical at this point, and the HHS finalized the original rule without change, right?

rule as actually finalized

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piglet 02.17.12 at 5:29 am

p. 10: “For the reasons discussed below, the Departments are adopting the definition in the amended interim final regulations for purposes of these final regulations while also creating a temporary enforcement safe harbor, discussed below. During the temporary enforcement safe harbor, the Departments plan to develop and propose changes to these final regulations that would meet two goals – *providing contraceptive coverage without cost-sharing to individuals who want it and
accommodating non-exempted, non-profit organizations’ religious objections to covering contraceptive services as also discussed below*.

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Sebastian H 02.17.12 at 5:34 am

Yes, they discussed all of those thing prior to the final rulemaking, and didn’t change them. Now they are promising to do something about it, though they don’t say what. The compromise is theoretical at this point, and speculating about its final form–especially considering the fact that the very same concerns were raised and rejected last year, is cold comfort at best.

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piglet 02.17.12 at 5:59 am

Sebastian H: we’ll talk when the first batch of Catholic “conscientious objectors” is marched off to prison. Until then, spare us your whining about the terrible injustice being done to hospital owners through a rule that has already existed in many states for years but that now won’t even be enforced.

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Patrick 02.17.12 at 6:05 am

Boys, boys, boys:
Contraceptives do more than keep the harlots from concieving: they save women’s lives in circumstances that have nothing to do with sex. Ask a doctor. In fact, asking a doctor, and the person involved, rather than some guy in a hat, is what health care is about. If a woman needs contraceptives, I do not want some psuedo-Jesuit to decide whether she gets what she needs. I do not want anyone other than her and her doctor to decide what is best for her. That is why we had the Enlightnment: we are empowered to make our own decisions; the imperfect but critically responsive practice of science is the best source of “fact” we got. We live in this world, not some medieval “angels dancing on the head of a pin” fantasy.
Unless, of course, you believe in Sarah P.

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Henri Vieuxtemps 02.17.12 at 7:14 am

Bexley, so, fine, you live in a police state. Where I live now, if you don’t buy the ticket, and they catch you, they take your name and send you a bill. If you do have the ticket, they say ‘thank you’, and no bill. Same as the ACA.

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Barry 02.17.12 at 12:18 pm

Sebastian H 02.17.12 at 3:29 am

” BTW, everyone realizes that the ‘compromise’ is completely theoretical at this point, and the HHS finalized the original rule without change, right?”

Somehow I don’t recall such whining from a moral high horse when the Bush administration ruled.

And as said, I’ll give a rat’s *ss when the first group of Catholic ‘martyrs’ go to prison.

Except that I never will, because any *real* martyrs would have already been excommunicated and stripped of leadership positions after they confronted the bishops over the child molestation scandals.

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bjk 02.17.12 at 1:09 pm

@283
“I do not want anyone other than her and her doctor to decide what is best for her.”

So where does that leave Sebelius and the insurance company? I’m pretty sure the only things that get covered are what Sebelius and the insurance company mandate. If you want the patient and doctor in charge, Obamacare is not your plan.

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Uncle Kvetch 02.17.12 at 3:04 pm

Contraceptives do more than keep the harlots from concieving: they save women’s lives in circumstances that have nothing to do with sex.

This has already been raised multiple times upthread, Patrick, by myself and others. There has been no response from the “boys” and I don’t expect there will be.

Now let’s just be quiet and enjoy the pretty angels dancing on the head of the pin.

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piglet 02.17.12 at 3:59 pm

Boy, rarely have I encountered a horde of trolls as hungry as these.

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mds 02.17.12 at 4:46 pm

BTW, everyone realizes that the ‘compromise’ is completely theoretical at this point, and the HHS finalized the original rule without change, right?

Good Lord, they didn’t end up including an exemption from all federal employment laws for Quaker hospitals which fire employees who join the National Guard? Release the liberty hounds, and pray that Congress passes a law establishing religion to protect the First Amendment before it’s too late.

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mds 02.17.12 at 4:50 pm

BTW, everyone realizes that the ‘compromise’ is completely theoretical at this point, and the HHS finalized the original rule without change, right?

Good Lord, they didn’t end up including an exemption from all federal labor laws for Quaker hospitals which fire employees who join the National Guard? Release the liberty hounds, and pray that Congress passes a law establishing religion to protect the First Amendment before it’s too late.

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mds 02.17.12 at 5:58 pm

… Stupid 503 errors. I hate them almost as much as religious liberty.

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Vladimir 02.18.12 at 12:07 am

I think that the bishops should get a litle bit more concerned about certain thinks that people from inside of it are doing than to make all this ado about nothing. That is the most polite answer that they deserve after all this faux outrage.

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