February 18, 2012

Contraception Coniption

In response to my earlier post on the subject of the extent to which religious expression has to engage with a larger social world, one correspondent expressed astonishment that I did not see what he believes to be the point: that a constitutional right is being infringed by a merely civil action.

My point, of course, in that post, and now, is that there are in fact limits to the free exercise of religion, and many of them are parts of statutory law. These regulations do not prohibit free exercise of religion, to use the language of the Constitution, and they provide some separation between the religious doctrine and the civil provisions.

Some Roman Catholics are upset at having to provide health insurance to employees in church-related institutions that includes coverage for procedures or prescriptions to which they are opposed on religious grounds. I do understand their opposition. They do not understand the legal principles at play, and have come up with analogies — such as Bishop Lori's Kosher Deli required to serve ham — that go far to revealing their lack of understanding.

What they fail to grasp is that health insurance is but one part of employee benefits. Some of these benefits have long been mandated by law, as, for example, minimum wage. The provision of health care insurance is now similarly mandated. But the fact that the health insurance includes coverage for contraception is ultimately no different — ethically speaking in regard to the employer's responsibility or agency either for the provision or the use of contraceptives — from the salary itself being spent on things of which the employer might disapprove on religious grounds. To take the Bishop's example, there is nothing to prevent a Kosher deli-worker from spending his wages on ham, or even bacon-and-swiss, sandwiches. Neither the deli nor the church is responsible for the religiously objectionable act. They may not like it, but they are not morally responsible for it.

To take an extreme example, imagine a Roman Catholic priest who uses a portion of his stipend to pay for his sister's abortion. This is, needless to say, a very grave matter and carries a very serious penalty, which the church is by all means free to impose. But for that very reason it would be absurd to suggest that the church itself was "providing for the abortion" simply on the basis of the fact that its funds, paid as a stipend, were used to that end, and by one of its officials at that.

No individual's religious rights are being abridged or impeded by the provision of health care insurance — nor is the church's collective right to teach as it chooses to teach. There are several degrees of separation between the teaching and the insurance, any one of which is sufficient to insulate the church from any moral responsibility. It is as simple as that.

Tobias Stanislas Haller BSG


Bradley said...

I wonder if these same health insurance benefits that the RCC is squawking about include vasectomies for males, that are never made issue of. This then becomes sexual discrimination.

Tobias Stanislas Haller BSG said...

Bradley, I have heard, though I can't point it out at the moment, of objections on that grounds as well.

Ultimately the real lack of clarity is a response to the question, "What religious freedom is being prohibited?"

Lionel Deimel said...


We are in complete agreement this time.

John B. Chilton said...

Tobias, I've been sure you can run ring around me on points like this, but on your argument here I am not convinced.

As far as the church is concerned the mandate is like a Muslim being mandated by the state to eat pork. Would we not be appalled if the state did that? To the church it's a red herring to ask what if it were salary and the employee used the salary to buy contraceptives. The state is making the church be a party to a transaction in which it buys contraceptives.

On top that you have the case of those employees who absent the mandate do not buy contraceptives but under mandated provision would use them. I fail to see why the church does not have reason to object.

That said, I find the Catholic church's teaching on contraceptives to be immoral. But that's another matter. And I'm not about to advocate the state do something about it.

Marshall Scott said...

If I recall correctly, the Roman Church is as opposed to vasectomy as it is to tubal ligation; and while I'm not sure, I believe they are none to happy about drugs for erectile dysfunction. It's not so much that the Church's position is inconsistent on the principle. It is that the consequences and the risks of pregnancy are so much greater for women than for men (yeah, that would seem to go without saying; but apparently not) - not to mention for the newborn children - and there is no flexibility in the principle

Tim said...

In the minds of many of the RC laity, the religious freedom which is jeopardy here is the Primacy of Conscience. That said, those who wish to quash such conscience are the celibate men in lace.

Tobias Stanislas Haller BSG said...

Thanks, Marshall, Tim, Lionel.

John, no one is being forced to _use_ contraception -- which is the actual violation of a religious teaching. The church is not itself "buying" contraception, either, any more than it is buying contraceptives when an employee uses salary to buy contraceptives. This is a well understood principle in ethics concerning agency. So your analogy to a Muslim forced to eat port is entirely missing the actual case at hand.

Tobias Stanislas Haller BSG said...

Moreover, John, given the President's "compromise" the church-related institution isn't even paying for the provision of contraceptives at this point -- and that settlement was broadly accepted by many of the affected institutions themselves; it is the hierarchs who appear to be unwilling to accept that solution. We are in a realm of "taint" and infection by association, not sound ethical thinking, here.

Anonymous said...

It seems to me that, having failed to persuade its followers to obey the rules, the Church is trying to use the government to coerce them to do so--as well as coerce those who do not share their beliefs.

interesting that the only "conscience" that matters appears to be that of those in authority.

For the rest, it's pray, pay, and obey.


Tobias Stanislas Haller BSG said...

Indeed so, IT. The disconnect is appalling. Ideology is a jealous god...

Anonymous said...

Dear Fr. Tobias--

No sense speaking about the "compromise." It is simply a speech by the President and doesn't carry the force of law. What was placed in the Federal Register was HHS Secretary Sibelius' original decision.

There's a lot to object to in your argument, but I think I can best respond by pointing out your argument by authority, "The provision of health care insurance is now similarly mandated." Then a brief look at your take on moral agency.

1) By where does this power to mandate a curb, even if it wasn't intended, on the First Amendment come from? It doesn't come from Articles I or II of the Constitution. There is no enumerated power of Congress to establish a national health care system. It comes from an administrative decision, in effect an Executive Order, issuing from the HHS Secretary with the full approval of the President. Since when can decrees of a Cabinet Secretary trump a duly ratified amendment to the Constituion? There is no constitutional mandate to have a national health care system: there is a constitutional mandate for the Federal Government not to prohibit the free exercise of religion. If the Catholic Church paying for policies that contain doctrinally objectional provisions isn't a curb on the free exercise of religion, just what would constitute a transgression in your opinion?

2) I don't see that you accurately describe the moral agency called for by the HHS decision. Party A (the Catholic Church) pays Party B (a medical insurance company) for a package of services that include the offensive items to Party A for the employees of Party A. You don't see ANY moral agency on the part of Party A making those payments to Party B?


Anonymous said...


The term "sterilization" as used by the RCC in this debate certainly includes vasectomies.

Marshall Scott--

"...and while I'm not sure, I believe they are none to happy about drugs for erectile dysfunction."

I appreciate you you adding the the caveat in the above statement and credit you for seeing the consistency of the RCC position. The RCC is not against erectile disfunction drugs per se, since they exist to restore a natural condition. Obviously some situations giving them to people can lead to sin: for example, to men for the purpose of fornication. These drugs are classified as a good that can be perverted to evil. Of course, in RCC moral theology most moral goods can be perverted into evil, so these drugs are not unique in being considered as such.

Vasectomies, hysterectomies, and tied fallopian tubes: these things are considered mutilation of the body in RC moral theology. You are allowed to mutilate the body for some greater good of physical health (e.g. amputating a gangrenous leg to prevent death) but it's a high bar to meet. "Not wanting more kids" does not meet the bar by a long shot.


Tobias Stanislas Haller BSG said...

Thank you, Fr. Michael. I do understand that the president's offer is not yet the law of the land -- but given the wide support it has received, even from some who were opposed to the "current" requirement, I imagine it will likely be adopted.

Your point (1) is, as I see it, simply a repeat of your assertion that the HHS action "trumps" the Constitution. You keep asserting that the requirement to pay for insurance is a "curb on the free exercise of religion," but have not explained how it is so, beyond expressing opposition to it. The "free exercise of religion" does not mean "living in a society in which one never has to do things of which one disapproves." No Roman Catholic is being forced to use birth control, which would indeed be a violation of free exercise -- so there is your example, in a nutshell. Having to provide an employee benefit that will allow an employee to do something of which one disapproves, is, as I noted, more like my having to pay taxes to support policies and activities with which I disagree. My freedom to disagree with those policies is in no way curbed, whether my disagreement has a religious or a secular basis. The free exercise of religion does not mean having all do as I think they should.

2) There is an additional step in the chain of agency, which you are leaving out, and that is the choice of the individual to make use of the provided contraception -- which is the actual violation. I realize that the RCC doesn't apply the "double effect" to matters it judges to be intrinsic evils (which is part of the problem in the whole contraception debate, even involving the use of condoms to prevent HIV transmission) -- but in this case the separation of agents is at least fourfold: church > related institution > insurance company > employee. It is not like Fr Joe is being required to go to the druggist to buy contraceptives -- or to use them.

Anonymous said...

Dear Fr. Tobias--

I think this debate of ideas is finally going somewhere. If I could continue with the dual moral cases:

1) Your comment: "The 'free exercise of religion' does not mean 'living in a society in which one NEVER has to do things of which one disapproves.'" (my emphasis on never) Agreed. If there are other constitutional rights or obligations that might conflict with untrammelled religious freedom-- your case of paying taxes is a classic example-- then we have a tangle in which pure religious freedom might be curtailed. The Federal Government has the ability to levy income taxes on American citizens. Even though some of those monies go to expenses I find immoral, you won't find me calling the taxes illegitimate. If the ACA funded a single-payer system, I feel confident that the RCC would complain but not withhold taxes. The problem here is that the payments are from one private entity to another.

But ACA is not a function of the Constitution, it is not rooted in any Constitutional right of the American citizen or obligation of the Federal Government. IMHO it has all the moral and legal suasion as a city ordinance that would close a Catholic church on Sunday so that the NFL stadium down the street wouldn't be impacted by the traffic congestion created by the church.


Anonymous said...

Case 2)

Your chain is informative:

church > related institution > insurance company > employee

May I break this down?

a) church > related institution

Relationship (a) does not even exist in RC ecclesiology, at least as concerns Catholic Charities, Catholic hospitals, and Catholic social services. They are as much the "Catholic Church" as "St. Mary Parish on Main St., Anytown, California," and subject to the oversight of the bishop.

b) related institution > insurance company

You don't locate any evil at this relationship, but we certainly do. Substitute "kill black men at random" for "contraception, sterilization, and Plan B" in a medical policy and see if there any moral consequence at this level.

c) insurance company > employee

Here you locate "the" actual violation. You can see from the above that the RCC considers it "an" actual violation, but not the only one.

God bless, FrMichael

Tobias Stanislas Haller BSG said...

Fr. M., I do think this is some progress. However, just to refine the dilemma, the "single-payer" solution ultimately only adds one more step of removal to the already distant agency the church is entangled with in regard to the provision of health insurance that provides a service of which the church disapproves. The President's proposed solution similarly moves the connection one more step away than it already is.

Once again, you have not demonstrated how the actual case reflects a "prohibition of the free exercise of religion" -- which is what the Constitution says. What is being "prohibited" by the ACA requirement?

I do not find your analogy of forcing a church to close to be truly analogous. Forcing a church to close is actually "prohibiting" something.

You may say I am reading the Constitution too narrowly, but it seems to me that "prohibiting the free exercise" of religion must entail more than the requirement of compliance with disagreeable statutes, especially when the compliance is, as I've noted, several steps removed from the actual object of repugnance.

Tobias Stanislas Haller BSG said...

Fr. M., my last note crossed your second post in the ether.

There seems to be a bit of confusion here. The issue is not hospitals dispensing contraceptives of the Plan B variety -- which Catholic hospitals are free not to provide (and I believe do not provide). The issue is the provision of health insurance benefits which might include the provision of such things -- but which the individual who wished to avail herself of them would have to go elsewhere to obtain. At least that is how I understand the situation.

So let's set the killing random black people to one side and ust accept that late-term abortion might be an aspect of a covered procedure. I do understand the queasiness of Catholics on this issue, so please do not misunderstand me -- as the provision itself might well come under the canonical understanding of "procuring" an abortion even if not actually performing it. The "benefit" given to the insured person is thus seen as a kind of "procuring" the repugnant procedure. I do understand that.

But I also believe that the removals I mention from the actual agency -- which is ultimately the woman making use of the procedure or the drug -- is sufficient to provide the necessary moral insulation. As I say, it would be better for the church to expend its energies on teaching against contraception than in a politicized battle that it is unlikely to win.

My point in all of this is that being placed in the position of having to do something repugnant to ones beliefs is not in and of itself a "prohibition of the free exercise" of religion. It is the claim of unconstitutionality and the politicizing of the discussion that I am addressing. I can certainly understand that many Roman Catholics do not like this law; any more than I like seeing my taxes go to support things I oppose. But there is no "right not to be offended."

musculars said...

There is an option that the Bishops may be intent on provoking which is that of non violent resistance and civil disobedience.

This may not be a constitutional matter per se but still an unjust law that they may wish to oppose. Does the removal of the moral agency undercut this option?

Tobias Stanislas Haller BSG said...

Musculars, out of respect for individual conscience, civil disobedience is always permissible. At this point, however, it does not seem that most of the objections to the regs (esp. in the modified form the Prez proposed) is coming from those actually touched by them, but from the hierarchy. That hierarchy has not been very successful in promulgating its teaching to the general membership, who, it seems to me, have been exercising their own form of civil disobedience by making use of contraceptives.

You would have to say more about the issue of "unjustice" for me to understand that characterization. Unjust to whom? It seems to me the non-RC employees denied an otherwise universally available benefit might be the ones to consider the withholding of that benefit as unjust; and as has been pointed out time and again, no Roman Catholic will be directly forced either to use or to provide contraceptives. Contraceptives are prescribed by doctors and provided by pharmacies; the insurance company covers [part of] the cost; the employer, and in some cases the employee, pays the premiums for the health insurance coverage. There is less connection between "the church" and "the use of contraceptives" than there is between me, my taxes, and drone strikes killing schoolchildren in Afghanistan.

This is not a moral issue, but a political one that has been picked up by social conservatives in an effort to create the impression of a war on religion. The fact that many RC institutions have been providing this sort of coverage for years without making a fuss is the evidence.

Sid said...


You repeat the trope that, "non-RC employees denied an otherwise universally available benefit might be the ones to consider the withholding of that benefit as unjust." But we should be clear that no employee is being denied anything. Contraceptive drugs are freely available to every employee, even to somebody directly in the employee of a Catholic church.

Tobias Stanislas Haller BSG said...

No, Sid. I'm not referring to the drugs or procedures, but to the benefit coverage. The fact that you do not make the distinction is in fact at the root of the problem. No drugs or procedures contrary to RC teaching are being provided by any RC-related institution. The whole point of insurance coverage as an employee benefit is that the individual employee does not have to pay out of pocket, or receives a discount, for covered benefits.

The church has every right to demand that its members abide by its rules and teachings. It does not have the right to insist that others do so. It is precisely the denial of coverage that is at issue.

Sid said...

I’m afraid that won’t wash, Tobias. I know you prefer to speak only of the coverage; only by hand-waving thus can you avoid the issue. The end point here is to get the contraceptives. Ignoring that goal is the root of the problem. There is no RC teaching on the morality of being covered by a health insurance policy that happens to include contraception; therefore, that isn’t the issue.

Contraceptives are legally available to anybody who wants them – including Catholic nuns, even nuns who work for the USCCB itself. What bothers you, apparently, is that the State hasn’t yet forced every last employer to provide them for “free.” On the other hand, given the nominal cost of The Pill, that’s true now even for the many, many thousands of employees with high-deductible insurance plans for whom contraception is technically covered but will never exceed the deductible. Somehow, the Republic has survived. And somehow, employees of Catholic hospitals, and so forth, have survived, with no clamor on their part that I’ve ever heard for this “benefit.”

(It’s an interesting view into the psychology of the statists, by the way, that the one category of drugs that we must pretend is “free” for the masses is contraceptives, not anti-cholesterol drugs, not drugs used to ease the suffering of Parkinson’s patients, not pain medication, none of them.)

Of course, many institutions self-insure, and so you’re wrong, also (save for the present tense), in this: “No drugs or procedures contrary to RC teaching are being provided by any RC-related institution.”

I wonder, though, how would you feel if the government forced you to provide your parishioners with tracts explaining the evils of gay marriage? Would it ease your concern if you were simply forced to write a check to the National Organization for Marriage and open your doors for their personnel to distribute the pamphlets?

Be careful what you wish for. As the saying goes, a government big enough to give you everything you want is big enough to take everything you have. And we never know how the ball will bounce in real life. President Santorum may look unlikely now, but stranger things have happened. I wonder how he might gore your ox with the unfettered rulemaking handed to the executive by the geniuses who wrote Obamacare?

Tobias Stanislas Haller BSG said...

Thanks, Sid, for the further explanation, which makes it abundantly clear that you POV is entirely political, and based on some kind of concern about government regulation, not the actual issue at hand. Again, the analogies you present simply aren't analogous to what is happening in the health insurance issue.

You are also misrepresenting my views, or at least misunderstanding them. I have no interest in seeing contraceptions being provided, for free or otherwise. What I am objecting to is the allegation that these provisions represent a prohibition of the free exercise of religion. I am far from being a "statist" and am in fact a "small government libertarian." I have expressed no opinion about whether I favor the health care plan or not. (As a matter of fact I think the whole thing is a mess.) But I don't think it violates anyone's religious rights.

That is the point of my concern. It waters down or distorts real religious freedom issues to have this sort of false claim being made.

Tobias Stanislas Haller BSG said...

Let me also add, that one reason you haven't heard a "clamor" is that many or the RC-related institutions to which you refer already included this in medical coverage.

No, this is a politically motivated fuss, stirring up an imagined base against "Obamacare." And very likely to backfire with a large segment of the voting population!

Sid said...


I’ll stop here, but I do want to close by acknowledging that, you’re right, there’s an issue of “government regulation” here, which doesn’t remove the issue of religious freedom – both problems exist, and both are intertwined, almost by the nature of the thing. (I also propose that, religious freedom being guaranteed by the Constitution, both of these are “political” issues. You seem to use that descriptor as a pejorative, but I’m not sure why.)

I did address the religious exercise aspect of this, both by asking what’s to become of the organization that self-insures and by posing the hypothetical of you being forced to pay for and allow the NOM to spread its views within your ambit. I note that you chose not to address either. In either case, both of which directly or by direct analogy apply here, I think it’s clear there’s a serious imposition on the religious believer’s conscience, at the coercive insistence of the State.

Tobias Stanislas Haller BSG said...

Sid, stop if you like, that's up to you, but you have not offered what I regard as a telling case for the claim that the provision of health coverage constitutes a "prohibition of the free exercise of religion" -- which is what the constitution protects. Could you answer the simple question, What "exercise" is being "prohibited" by this legal requirement? You have not addressed that at all. Having to obey laws about which one has moral qualms is not a "prohibition of the free exercise of religion."

I didn't respond the the question about self-insurance because I don't actually know the extent to which RCC-related institutions self-insure, and some of them may be among the institutions already providing the benefits that are being contested. Do you have any specific information on this? I went to an RC site and while they said as you do, were very vague and provided no examples, just an assertion about "many" institutions. I think the President's "compromise" proposal also addresses the issue, in an arrangment that would bring in another insurer to provide coverage in those cases, many or few.

As to your suggestion regarding NOM, as I said, I don't think that is analogous. The government is not forcing the RCC to teach, or support the teaching, that contraceptives are acceptable or otherwise to provide such information. On the contrary, as I've said time and again, the RCC is free to continue to teach that use of contraceptives is morally wrong. And, as a matter of fact, as I've pointed out -- and which you choose to ignore -- many tax dollars go to things of which people disapprove in the strongest possible terms.

Finally, I'm not using "political" as a pejorative. I'm simply noting that you appear to have a political agenda against government-sponsored health care, and I think that informs your argument, as I believe it informs the argument in the political arena. RCC institutions have been dealing with this for years -- why is it only creating a tempest now? Because it comes out of a national health-care context -- and that is what some people are upset about.

musculars said...

Thank you Fr. Haller for the time you have dedicated to this discussion focused on the argumentation (or lack thereof) concerning the free exercise clause of the constitution vis a vis the HHS mandate.

You've raised the possibility as to whether you have defined the free exercise clause too narrowly and the implications of not defining it as such. I wonder about this possibility as well, which is why I inquired if the moral agency issues you brought up undercut the objections of the Roman Catholic Church.

A distinguishing factor of the US democracy has not been solely the religious liberty of individuals but the institutional liberty of the churches. The mission of the church is not confined to the altar but extends into the educational and health services it provides to the public at large.
. While they operate at a more secular level as non profits independant from their associated churches, they are not secular institutions divorced from the church. I really do wonder if they operate at a more exceptional level from government interference due to the free exercise clause. That is not to say they have limitless exemption from law but that the scrutiny level is greatly elevated, more so then what you have suggested. So whereas I as an individual can object without much effect to paying taxes for uses I deem immoral the churches have greater standing to more materially and constitutionally object because of a broader interpretation of the free exercise clause.
So though the Catholic Church is imposing its moral theology on non believers in apparent contravention of public accommodation law it may be doing so constitutionally because its institutional outreach extends to its hospitals and universities as well as its churches and monasteries.
That said, given the incoherence of its moral stance within its own institution, it seems a weak position to advance a constitutional objection without a a partisan objective.

In many ways this is a fascinating discussion as it brings into play the historical battle and resolution that led to the founding of the national Anglican churches amidst the historical claims of independence from national governments of the Roman Catholic Church.

Tobias Stanislas Haller BSG said...

Thank you Musculars, for recognizing the complexity and nuance of the freedom of religion. My whole point in all of this is that it is not absolute. A cult that believes in human sacrifice will not find protection for that view in the Constitution's application, though they could argue it on the basis of the plain text.

There was an instructive story on NPR this morning about New Hampshire, where the state law has required contraception coverage for over a decade, voted in by a Republican legislature, and not objected to by the RC institutions affected by it. Suddenly there is a tempest of outrage. It seems evident to me that this is part of the current political foment, and has little to do with the actual issue of "religious freedom."

Frankly, I find the position of Rick Santorum, that a woman who has been raped must accept this "tragic gift" is an example of the limit of his religious belief's protection. People are free to believe as they like, but not to impose those beliefs on others. No one, under the current regime, is being force to use contraception -- which is the "intrinsic evil" to which the RCC takes exception. In all the cloud of discussion, that is the reality, and if the RCC were more effective in teaching its own people and requiring their conformity, the matter would be even less on the front burner.

I am still not convinced that the limit on the "prohibition of the free exercise of religion" applies to the current matter; as nothing is being "prohibited." There is no protection in the constitution guaranteeing that the state will protect your private or corporate conscience from taking offense -- and that is I think the heart of the debate.

Anonymous said...

Is this pretty much an American Catholic problem? Does the RCC provide this coverage to their employees in other countries? Just curious.

Tobias Stanislas Haller BSG said...

Tracie, I think the heat is on in the US -- in part because of the political climate. I do recall there was quite a bit of upset in Ireland a few years back when the laws against contraception were repealed. My guess is that much of Europe, with national health plans, present much less of an issue.

IT said...

Re. the "nominal" cost of contraception: only the most basic formulation is "cheap". However, many women find there to be fewer side effects and easier usage with newer formulations, which are far from nominal in expense.

The fact that many RC hospitals etc have provided this coverage in many states for years, shows that this is a manufactured outrage. However, I do think the bishops have overplayed their hand as the "religious freedom" meme is not working any more, and young women are angry and fearful that access to something they take for granted will be rendered much more difficult. Since the Bishops have had such little luck persuading their own flock of the evils of contraception, I think they may well be surprised at the anger this engenders--both politically, and within the church.

Tracie, I think the US is unique in the degree to which medical care is provided at the whim of an employer.

Anonymous said...

First of all, I would like to thank Sid for his contributions on this comment thread and for your good faith effort in having a conversation here. For the record, I followed Sid's parallels quite well and thought them quite appropriate to this HHS issue.

I would like to look at your statement "But I also believe that the removals I mention from the actual agency -- which is ultimately the woman making use of the procedure or the drug -- is sufficient to provide the necessary moral insulation."

You switched my use of "random killing of black men" to "partial birth abortion." I wish you had not done that. Imagine TEC charitable institutions being forced to buy into medical insurance with the "black man" proviso in it. I would like to think that TEC would not be satisfied with what you consider a distant level of moral culpability in buying such medical insurance but would rather be arguing about religious freedom as we Catholics are in the present case.

I'll have another comment shortly regarding your free exercise argument, which I think I finally understand.


Anonymous said...

"Could you answer the simple question, What 'exercise' is being 'prohibited' by this legal requirement? You have not addressed that at all. Having to obey laws about which one has moral qualms is not a 'prohibition of the free exercise of religion.'"

Fr. Tobias, I would like to answer this question you addressed to Sid. The exercise of religion being addressed here is the doctrine of the RCC that Catholics and Catholic institutions should "Do good and avoid evil." Funding access to evil procedures when one has the ability not to makes one complicit in the evil, as I discussed above in the chain of agency comment. Paying a private party (the medical insurance company) for a policy that funds evil actions on behalf of a third party (the employee) if the third party so chooses is being complicit.

I do say that having to obey laws about which one has moral qualms IS a "prohibition of the free exercise of religion." At least, I would say it if your somewhat ambiguous "has moral qualms" is changed to the stronger "knows to be evil."

The question for me is what limits are placed on the free exercise of religion? Since the First Amendment is part of the Constitution, then other constitutional duties and rights could potential curb the unlimited exercise of religion. For example, the Federal Government has the constitutional power to tax. As I mentioned before, if ACA was a single-payer system I think this debate would be significantly different on the RCC side, as we recognize both a natural law and a constitutional ability of the government to tax its citizens and private institutions. The problem here is that ACA is neither a constitutional amendment nor enumerated power of the Congress or the Executive Branch. It should operate only where constitutional rights are not being abridged.

One last comment about self-insurance coming up.


Anonymous said...

Self-insurance among RCC institutions is fairly extensive. In the local case, all the RC dioceses of Northern California self-insure in a large combine known as RETA. I would estimate that we are speaking of the employees of around 500 parishes, a couple hundred parochial schools, a dozen or more diocesan-owned high schools, and the chancery staffs (usually 50-100 for each diocese). It started for the buying power such a large group of employees provides, but with the added feature in the past 15 years of being free of mandates of the State of California similar to what HHS has decreed. To my knowledge the Catholic colleges and Catholic Charities are not part of RETA, although I'm open to being proved wrong on this point. Indeed, one effect of this debate is a systematic study of what non-diocesan Catholic institutions are doing and the early results are mixed.


Tobias Stanislas Haller BSG said...

Thank you, Fr. Michael, for the additional info.

I have to say I only switched to partial birth abortion as an issue because it is a real issue. As to your analogy of "killing random black men" I think I could safely say that there is some reality to that as well, though I hadn't thought of it that way: and it comes under the issue I've raised several times, but which you have not addressed, concerning the fact that a portion of my tax money goes directly to support programs or activities that I find morally repugnant -- and in this case it applies specifically to death penalty enforcement and warfare. My point is that there is no "culpability" in this because the exercise of my moral agency is circumstantial, not deliberate. Funds are pooled -- and if I like I can pretend that none of my money goes to support things of which I disapprove. This is the reason your argument breaks down: there is no specific "funding of contraceptives" -- only the purchase of insurance which MAY eventuate in the purchase of contraceptives, and MAY lead to their use.

This also answers your assertion about free exercise: you are not actually "doing evil" even if you believe that acts you "know to be evil" are done -- the point is that you are neither doing nor _directly_ supporting them. And you still have the freedom to urge every insured person not to make use of the troublesome coverage you oppose in specifics.

Congress has the Constitutional right to make laws -- and it is up to the courts to decide if any such law is unconstitutional. You my well view the ACA as outside the enumerated Powers, but that seems hard to demonstrate, given the historic flexibility of what Congress has done through the years. The extent to which health insurance falls under the ambit of "Commerce" may be at issue.

Thanks for the info on self-insurance. To what extent does RETA provide its secular employees with access to health coverage including contraceptives? Also, to what extent do Catholic Charities and or the universities do so already? This, it seems to me is at issue, and I am glad a study is going forward, since it is precisely the non-diocesan entities that are at issue, at least as far as I can see.

Anonymous said...

RETA offers a range of different medical policies, some HMO, some PPO and the like, but these policies do not pay for the morally troublesome procedures, nor is an optional rider afor the procedures available for employees. This is true for all employees.


Anonymous said...

"the issue I've raised several times, but which you have not addressed, concerning the fact that a portion of my tax money goes directly to support programs or activities that I find morally repugnant..."

The difference (at least from the RCC point of view) is that we have a moral obligation to pay taxes to a legitimate government, since its authority comes from God (Romans 13:1). Even if the government uses some of the money in evil ways, we avoid moral culpability if we avoid formal and immediate material cooperation in the evil acts and seek to use whatever influence we have to limit or end the evil acts (e.g. the Hyde Amendment).

Medical insurance agencies have no God-given authority. We owe them nothing, much less should we pay them to buy policies that might allow our employees to conduct evil acts for free.


Tobias Stanislas Haller BSG said...

Fr. M., thanks for the clarification on RETA -- that was mu understanding, but I wanted to be sure.

On the other point, I understand your distinction, but the mandate in the present case is not coming from the insurance companies, but from the government -- which is the nub of the problem and the protest. You are challenging the government's authority to mandate the health coverage in question. If the RCC chose to apply the Rom 13:1 principle to this mandate, that would provide a solution to the moral dilemma.

Please understand that in all of this I have a good deal of sympathy for the opposition of the RCC to the requirement. My concern is with the arguments presented against the mandate -- and I think the RCC would be better served not by attempting to raise a constitutional issue, but by continuing to focus on its view of the moral wrong of contraception itself -- which to my mind is the appropriate way to work to change what one perceives as unjust or immoral laws, as indeed has been done with moral issues such as the death penalty and warfare.

Anonymous said...

Dear Fr. Tobias--

Your comment:
"You are challenging the government's authority to mandate the health coverage in question. If the RCC chose to apply the Rom 13:1 principle to this mandate, that would provide a solution to the moral dilemma."

An unjust civil law, which can be defined as a decree against divine revelation or natural law, is not a law at all in RC moral theology. It has no more validity that a lunatic raving at a street corner. Legitimate governments can pass unjust laws, which have no binding force on the conscience since the government is misusing its God-given authority. The present HHS decree falls into the category.


Tobias Stanislas Haller BSG said...

And so we are back to the unassailable fortress of conscience, which I agree, is a place to stand. But as you must realize, this is, in argument form, merely a case of circular reasoning, or at best "he said, she said." Ultimately the government, through its judiciary, will rule. At that point civil disobedience, and continued pressure to change the laws, is the best response, in my opinion.

Erika Baker said...

"An unjust civil law, which can be defined as a decree against divine revelation or natural law, is not a law at all in RC moral theology."

Does that not apply even more to the death penalty and the Military?
Why is the strong opposition so selective?

Anonymous said...


The death penalty is not immoral, whether by divine revelation or by the natural law. Plus I'm not aware of a private American corporation being allowed to conduct executions, so I'm not sure what the parallel is you are trying to make with the HHS controversy.

A nation-state is allowed to defend itself, once again by the natural law. No parallel exists here.


Anonymous said...

Civil disobedience and continued pressure is indeed the gameplan should the next Congress and Supreme Court not strike down ACA, either in toto or in the morally objectional parts.

Thanks for the forum for debate.

God bless, FrMichael

Tobias Stanislas Haller BSG said...

And to you, Fr. Michael. A Holy Lent and glorious Eastertide. I am glad to provide a place to explore these issues, and always learn something.