[Vision2020] Whose Conscience?

[Art Deco]

[image: Opinionator - A Gathering of Opinion From Around the
Web]<http://opinionator.blogs.nytimes.com/>
February 8, 2012, 9:00 pmWhose Conscience?By LINDA
GREENHOUSE<http://opinionator.blogs.nytimes.com/author/linda-greenhouse/>

Linda Greenhouse<http://opinionator.blogs.nytimes.com/category/linda-greenhouse/>on
the Supreme Court and the law.
Tags:

birth control <http://opinionator.blogs.nytimes.com/tag/birth-control/>, Roman
Catholic Church<http://opinionator.blogs.nytimes.com/tag/roman-catholic-church/>

In the escalating conflict over the new federal requirement that employers
include contraception coverage without a co-pay in the insurance plans they
make available to their employees, opposition from the Catholic church and
its allies is making headway with a powerfully appealing claim: that when
conscience and government policy collide, conscience must prevail.

The rhetoric in which this claim is put forward grows more inflammatory by
the day. “The Obama administration has just told the Catholics of the
United States, ‘To Hell with you!’ ” according to Bishop David A.
Zubik<http://www.diopitt.org/hhs-delays-rule-contraceptive-coverage>of
the Diocese of Pittsburgh. TheBecket Fund for Religious
Liberty<http://www.becketfund.org/>,
a nondenominational organization that litigates on behalf of religious
interests, is circulating a petition under the heading: “The Obama
Administration is giving you one year to stop believing” (a reference to
the one-year delay the regulation offers to religious employers). Mitt
Romney, the likely Republican presidential nominee, joined the chorus this
week, calling the regulation “a violation of conscience.”

This aggressive claiming of the moral high ground is close to drowning out
the regulation’s supporters, inside and outside of the Obama
administration. Maybe I’m missing something, but I haven’t seen a
comparably full-throated defense of the regulation, issued last month by
the Department of Health and Human Services, except on pure policy grounds.
(And there are indications this week that even some in the administration,
or at least in President Obama’s campaign apparatus, may be getting cold
feet<http://www.nytimes.com/2012/02/08/health/policy/obama-addresses-ire-on-health-insurance-contraception-rule.html?ref=us>.)
While the policy grounds are fully persuasive – the ability to prevent or
space pregnancy being an essential part of women’s health care, one that
shouldn’t be withheld simply because a woman’s employer is
church-affiliated – the purpose of this column is to examine the conscience
claim itself, directly, to see whether it holds up.

An obvious starting point is with the 98 percent of sexually active
Catholic women who, just like other American women, have exercised their
own consciences and availed themselves of birth control at some point
during their reproductive lives. So it’s important to be clear that
the conscientious
objection<http://www.guttmacher.org/pubs/Religion-and-Contraceptive-Use.pdf>to
the regulation comes from an institution rather than from those whose
consciences it purports to represent. (Catholic women actually have a higher
rate of abortion<http://www.beliefnet.com/Faiths/Catholic/2001/01/The-Catholic-Abortion-Paradox.aspx>than
other American women, but I’ll stick to birth control for now.) While
most Catholics dissent in the privacy of their bedrooms from the church’s
position, some are pushing back in public. The organization Catholics for
Choice<http://www.catholicsforchoice.org/actioncenter/alerts/TellYourLocalMedia.asp>,
whose magazine is pointedly entitled Conscience, is calling on its
supporters to “tell our local media that the bishops are out of touch with
the lived reality of the Catholic people” and “do not speak for us on this
decision.”

But suppose the counter-factual – that only half, or one-quarter, or five
percent of Catholic women use birth control. The question would remain:
Whose conscience is it? The regulation doesn’t require anyone to use birth
control. It exempts any religious employer that primarily hires and serves
its own faithful, the same exclusion offered by New York and California
from the contraception mandate in state insurance laws. (Of the other
states that require such coverage, 15 offer a broader opt-out provision,
while eight provide no exemption at all.) Permitting Catholic hospitals to
withhold contraception coverage from their 765,000 employees would blow a
gaping hole in the regulation. The 629-hospital Catholic health care
system<http://www.chausa.org/>is a major and respected health care
provider, serving one in every six
hospital patients and employing nearly 14 percent of all hospital staff in
the country. Of the top 10 revenue-producing hospital systems in 2010, four
were Catholic. The San Francisco-based Catholic Healthcare West, the fifth
biggest hospital system in the country, had $11 billion in revenue last
year and treated 6.2 million patients.

*These institutions, as well as Catholic universities – not seminaries, but
colleges and universities whose doors are open to all – are full
participants in the public square, receiving a steady stream of federal
dollars. They assert – indeed, have earned – the right to the same benefits
that flow to their secular peers. What they now claim is a right to special
treatment: to conscience that trumps law.*

But in fact, that is not a principle that our legal system embraces. Just
ask Alfred Smith and Galen Black, two members of the Native American Church
who were fired from their state jobs in Oregon for using the illegal
hallucinogen peyote in a religious ceremony and who were then deemed
ineligible for unemployment compensation because they had lost their jobs
for “misconduct.” They argued that their First Amendment right to free
exercise of religion trumped the state’s unemployment law.

In a 1990 decision, Employment Division v.
Smith<http://supreme.justia.com/cases/federal/us/494/872/case.html>,
the Supreme Court disagreed. Even a sincere religious motivation, in the
absence of some special circumstance like proof of government animus, does
not merit exemption from a “valid and neutral law of general
applicability,” the court held. Justice Antonin Scalia wrote the opinion,
which was joined by, among others, the notoriously left wing Chief Justice
William H. Rehnquist.

A broad coalition of conservative and progressive religious groups pushed
back hard, leading to congressional passage of the tendentiously titled
Religious Freedom Restoration Act. It provided that a free exercise claim
would prevail unless the government could show a “compelling” reason for
holding a religious group to the same legal requirements that applied to
everyone else. After a Catholic church in Texas invoked that law in an
effort to expand into a landmark zone where no new building was permitted,
the Supreme Court
<http://supreme.justia.com/cases/federal/us/521/507/>declared the
Religious Freedom Restoration Act unconstitutional as applied
to the states. The law remains in effect as applied to the federal
government, although its full dimension remains untested.

Senator Rob Portman, an Ohio Republican, sent a letter to Attorney General
Eric Holder on Monday asserting that the contraception regulation violates
the Religious Freedom Restoration Act, and it’s not unlikely that one or
more lawsuits may soon test that proposition. The question would then be
whether the case for the mandate, without the broad exemption the church is
demanding, is sufficiently “compelling.” Such a case would pit the
well-rehearsed public health arguments (half of all pregnancies in the
United States are unintended, and nearly half of those end in abortion – a
case for expanded access to birth control if there ever was one ) against
religious doctrine.

The court has recently been active on the religion front. In a unanimous
decision last month, the justices for the first time recognized a
constitutionally-based “ministerial exception” from laws concerning
employment discrimination. An employee deemed by a church to be a
“minister” – in this case, a kindergarten teacher in a Lutheran school who
had received ministerial training and taught some religion classes – cannot
sue the church <http://www.supremecourt.gov/opinions/11pdf/10-553.pdf> over
an adverse employment decision, the court held in Hosanna-Tabor Evangelical
Lutheran Church and School v. Equal Employment Opportunity Commission.

The plaintiff, supported by the federal government, had argued that the
1990 Employment Division v. Smith decision precluded the recognition of a
ministerial exception from generally applicable employment laws. Rejecting
that argument in his opinion for the court, Chief Justice John G. Roberts
Jr. explained: “But a church’s selection of its ministers is unlike an
individual’s ingestion of peyote. Smith involved government regulation of
only outward physical acts. The present case, in contrast, concerns
government interference with an internal church decision that affects the
faith and mission of the church itself.”

That language is certainly suggestive of deference, beyond the employment
area, to a church’s doctrinal claims to special treatment. But while all
nine justices signed the opinion, that doesn’t necessarily mean that all
nine would agree on its application to the contraception requirement. The
question would be whether a church that has failed to persuade its own
flock of the rightness of its position could persuade at least five
justices.

-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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