Health care and religious liberty

A letter to the Reverend John I. Jenkins, C.S.C., President, University of Notre Dame

Dear Father Jenkins:

I have read your response to Notre Dame alumni who have written a well-reasoned critique of the University’s decision to join a lawsuit of Catholic bishops challenging the Patient Protection and Affordable Care Act (PPACA). You are convinced that the bishops are rightly concerned about religious liberty. In addition, you believe that if the PPACA goes unchallenged there is no limit to what government can require of religious institutions.

I find your defense unpersuasive.

In fact, I am surprised that the bishops and Notre Dame should seemingly overlook the distinction between morality and law. As even Aquinas explained, it is difficult to translate what we deem good morality into good laws that secure the common welfare. This is obviously more true today in our pluralist and democratic society than it was in medieval times.

The distinction is this: a moral stance regards right and wrong; laws seek the common welfare and, for that reason, attempt to accommodate as wide a spectrum as possible of moral visions. They do not necessarily enshrine or even protect a particular moral position. It would be folly, for example, for legislatures or Congress to try to translate the moral objections of Catholic bishops to birth control into legislative or Constitutional prohibitions of that practice.

Consider examples of what you refer to as the limits of what government can require of religious organizations. Some religious sects believe that it is wrong to school their children beyond a certain age. Because this moral stance involves minors and because a democracy depends on its citizens being educated, courts have not protected this conviction. Some Bible churches have considered that it is a sinful lack of faith in God to take their children to doctors or hospitals. Again, because this moral stance involves minors and because society has an over-riding interest in the good health of its members, courts have been reluctant to protect this moral stance. Some parents have claimed a quasi-religious objection to having their children vaccinated. As long as the numbers of these parents were small and there was no significant danger to other children, authorities having public health jurisdiction in the various states have been reluctant to enforce regulations and laws. However, as more and more children go unvaccinated and the risk to other children and all members of society increases in direct proportion, those jurisdictions have begun to abandon any protection for this moral abstention.

Some Christian denominations, the so-called “peace churches,” maintain that military service is sinful. This issue is an illustrative variation on examples already mentioned. Because the moral teaching of these congregations involves adults and poses no significant threat to the common welfare, the government has exempted their members from service in the armed forces. The government has reserved, however, the right to require them to perform alternative service and to pay taxes, even though both of those burdens could be construed as engaging indirectly in warfare’s evil and their imposition an infringement of religious liberty.

We should note, parenthetically, that Catholics may not claim an exemption from military service as Catholics, i.e., as members of a professedly peace church, but only as individuals whose consciences have been formed by a minority position that is not part of mainstream Catholicism. The numbers of such Catholics being so miniscule, the government has extended protection to them on the same basis as it has been extended to members of the peace churches.

Government accommodations on the issue of universal conscription highlight what I believe was Aristotle’s comment when he described good laws as following the rule of Lesbos; that is, they are flexible and accommodate as many diverse moral viewpoints as possible in the search for the common good.

Now to my argument. If the government legitimately protects the common welfare by restricting claimed rights in the realm of medical care, then all the more may the government legitimately protect the common welfare by limiting opt-outs from insurance, insurance that makes medical procedures and services accessible for all. If the government should allow some church institutions to opt out of the national insurance plan because it covers inoculations, and other church institutions to opt out because it covers birth control, and still other church institutions to opt out because it covers child health care, we soon would have no national insurance program. We would also infringe the liberties of those who see moral good rather than moral evil in child health care, inoculations and birth control.

In light of the Aristotelian dictum about the flexibility of good laws, I am impressed that the Obama administration has been willing to have insurance companies, rather than Catholic universities or hospitals, pay for birth control services as long as the insurance plans they offer their employees make those services available. It seems to me that this concession is even more accommodating than the government’s policy in regard to conscientious objection to military service. The insurance programs of Catholic institutions don’t even have to pay for birth control services, and, in view of the insignificant number of women who might object to birth control services being on the menu of covered services—only about 5 percent of Catholic women, to say nothing of the population at large—this concession certainly secures the common welfare.

It seems that the Catholic bishops, joined by Notre Dame and other Catholic universities, find the Obama administration’s accommodation inadequate. This is as surprising and even more curious than the failure to grapple with the distinction between morality and law. As Notre Dame law professor Cathleen Kaveny points out, this seems to represent a departure from the historical self-understanding of the Catholic church. It commits the bishops and Catholic institutions to the model of a sect rather than a church.

Sects want only to be left alone in their pursuit of a particular ethical vision; they don’t seek a say in societal discussions and efforts to obtain welfare and justice for all. Churches, by contrast, desire to be a leaven in society by influencing society’s debate about how to translate moral visions into good laws.

When it comes to medical insurance, the bishops and heads of Catholic institutions have a choice between acting as members of a sect or of a church. If they choose the path of a sect then they can’t participate in society’s attempts to achieve the common welfare through government grants to religion-based hospitals and universities or government subsidies of religion-based insurance plans. On the other hand, if they choose to be a church, then they must attempt to persuade others citizens that their teachings, such as that on the morality of birth control, are, first of all, correct and, secondly, worthy of being protected by law. Only if a majority of citizens agree that such teaching makes both for good ethics and for good law, may their teaching inform specific laws, regulations and policies having to do with health care. And maybe not even then: a majority of citizens evidently believed that the prohibition of alcohol was not only good morality but could be written in the law. They were wrong.

Finally, short of achieving a national consensus that birth control is immoral and that this belief can and must be protected by laws allowing religious adherents to opt out of an insurance plan that covers birth control services, the bishops have no right to subvert the decision of the Congressional majority about what constitutes good law in service of the common welfare. But that is precisely what they are trying to do when they demand that an important component of the so-called mandate be struck from the PPACA.

As a matter of simple fact, it is clear that presently the bishops are woefully short of convincing our society, even their own co-believers, that banning birth control procedures and insurance coverage for those procedures is either good morality or good law. Because of that, the moral vision of the bishops on birth control cannot be translated into law at this time. Though I doubt it, their day may come, but this certainly is not it.

Sincerely yours,