By Frederick Mark Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University School of Law
The “contraception mandate” of the
Patient Protection and Affordable Care Act of 2010 poses a
straightforward question for religious liberty jurisprudence: Must
government excuse a believer from complying with
a religiously burdensome law, when doing so would violate the liberty of
others by imposing on them the costs and consequences of religious
beliefs that they do not share? To ask this question is to answer it:
One's religious liberty does not include the right
to interfere with the liberty of others, and thus religious liberty may
not be used by a religious employer to force employees to pay the costs
of anti-contraception beliefs that they do not share.
That the free exercise of religion is fundamental constitutional right is not in doubt. But access to contraceptives is also fundamental. Such access, moreover, is a critical component of the well-being and advancement of women, enabling them to time and space their pregnancies, thereby enhancing their own health (and that of their new-born children) and facilitating their participation in the workforce on more equal terms with men.
Contraception nevertheless remains a significant expense beyond the reach of many women who lack insurance coverage or whose health insurance plans do not cover contraceptives or do so only with substantial patient cost-sharing. This is a financial obstacle to the use of contraception by working-class and lower-income women, and simple economics suggests that women of all but the highest income levels are likely to use contraceptives more often and more consistently when they can obtain them at no cost.
The rhetoric of those challenging the mandate charges federal violation of the free exercise rights of religious employers, usually without mentioning the substantial federal interests in protecting the religious liberty and enlarging the access to contraceptives of employees who do not share their employer’s religious values. The contraception mandate strikes a sensible balance of these competing liberty interests by generally exempting only religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them.
The contraception mandate does not violate the rights of religious employers under either the Religion Clauses of the First Amendment or the Religious Freedom Restoration Act. The mandate is a “religiously neutral, generally applicable” law that does not discriminate against religious employers, does not entangle government in disputes about theology or internal church governance, and does not “substantially” burden the free exercise of religion by nonexempt religious employers. The mandate is additionally justified as the least restrictive means of protecting compelling government interests in public health and gender equity. Finally, while all these conclusions apply fully to religious nonprofit organizations, they apply with special force to religious owners of for-profit businesses operating in commercial markets.
Paper downloadable here.
Life matters. From conception to natural death, it matters. This is a principle Catholics must carry with them into the voting booth.
But it is not a simple binary equation. It is not an either/or proposition. In the end, determining which candidate better serves the interests of life is a prudential judgment. A simple promise to overturn Roe v. Wade does not automatically make one the pro-life candidate.
In my estimation, Barack Obama is the more seriously pro-life candidate in this year's presidential contest. Voters should not forget his early connections to the Catholic Church. He attended St. Francis of Assisi Catholic School in Jakarta for three years. His mother, Ann Dunham, assisted Fr. A.M. Kaderman, S.J., in managing an English-language training school during this time. When Barack Obama worked as a community organizer in the middle 1980s, he did so out of the rectory of Holy Rosary Catholic Church on the South Side of Chicago, where he helped to coordinate the efforts of eight Catholic parishes and numerous other religious organizations to improve the lives of unemployed steel workers and others whom the financialized economy was leaving in the dust. He still considers the late Joseph Cardinal Bernardin of Chicago an inspiration. (On this background, see the wonderful new book by the Catholic legal scholars Douglas Kmiec and Ed Gaffney, and the Harvard Medical School Professor of Pediatrics, Dr. Patrick Whelan, "America Undecided: Catholic, Independent, and Social Justice Perspectives on Election 2012.")
Kmiec, Gaffney and Whelan stress that there is no more powerful abortifacient in this country than poverty. It may be difficult for the comfortable, upper-middle class conservative Catholics who support Mitt Romney for "pro-life" reasons to associate with this reality. But imagine for a moment a young woman, 18 or 20, 25 or even 30 years old. She comes from a broken, impoverished family and has little real economic future. She's gone through a bad relationship or two, and faces a soul-crushing existence being nickel-and-dimed through a series of dead-end jobs in America's service economy. She is poor, desperate, alone and maybe even threatened by her boyfriend. The jobs are so haphazard, the poverty so shattering, that family formation is impossible. A powerful description of the plight of women who lead these lives of invisible suffering can be found in Barbara Ehrenreich's "Nickel-and-Dimed: On (Not) Getting By in America" (2001). Conditions have only grown more acute in the decade since Ehrenreich wrote her book.
In fear, in humiliation, in aching isolation, she seeks an abortion. This bleak portrait depicts the tragic dimensions of the abortion crisis in America. It is a crisis born not of the selfish pursuit of the glittering baubles of American materialism, but of the panic-stricken sense of having nowhere to turn. And it is fed at the top by politicians who prize Randian individualism and the unfettered quest for riches above every human value.
The Netherlands and Germany have abortion rates less than one-third of the United States. Why? Because those nations address the cause of abortion at its root -- poverty. They provide pre-natal and post-natal care, and a social system that genuinely assists the new mother who chooses life.
President Obama's Affordable Care Act represents a small, measured step in the direction of maternal assistance for women in crisis. It does not go nearly far enough, in my judgment, but in our present political environment it is probably the best that can be achieved. It is grounded on the basic premise of Catholic social thought, reiterated time and again by the popes, from Leo XIII to Benedict XVI, that health care is a fundamental right. It is the indispensable starting point of a seamless ethic of life.
The Affordable Care Act legislatively recognizes this fundamental moral right. Among its provisions, the ACA creates a Pregnancy Assistance Fund. Specifically on the issue of crisis pregnancy, this fund assists in several ways. It can cover the salary of counselors who point young women in the direction of social services. It supports parenting classes and aids with day-care costs at colleges and universities. It teaches and supports and, in sum, helps equip panicked, pregnant young women to become responsible, future-directed young mothers.
The Affordable Care Act helps save unborn lives in other ways as well. It increases tax credits for adoptions, making this loving alternative more affordable and more readily available. It recognizes that Medicaid currently pays for one-third of all live births in America and promises to maintain adequate funding for this vital service. Abortion is a serious wrong, but it is better, as the proverbial saying goes, to light a candle than to curse the darkness.
And what do the Republicans, that ostensible pro-life party, offer in return? They deny that health care is a basic right, describing it instead as a matter of "personal responsibility," thereby repudiating a foundational principle of Catholic social thought. They promise the repeal of the Affordable Care Act, including presumably the Pregnancy Assistance Fund and the adoption credits. They solemnly pledge to slash budgetary allocations to Medicaid, thus fueling the ever-deepening desperation of the pregnant poor. And in life's final years, the Republicans will voucherize Medicare, putting at risk the health and well-being of millions of senior citizens.
Well, one might retort, perhaps the Republicans will at last reverse Roe v. Wade. The reversal of Roe v. Wade has been a part of every Republican platform since 1980. Hasn't happened yet. Catholics who cling to this thin reed should prepare for disappointment. The Supreme Court will perpetually be one vote short of reversal.
A recent poll shows that Catholics prefer candidates who give attention to the poor than abortion (see Chicago Tribune, "Catholics Want More Focus on Poverty Than Abortion, Survey Finds," October 24, 2012). In reality, it is not one or the other. Fight poverty, and you fight abortion. So, I am voting for life -- Obama-Biden 2012.
[Charles J. Reid, Jr., has degrees in canon law and civil law from the Catholic University of America; and a Ph.D. in medieval history from Cornell University. He was raised in a union household in Milwaukee, Wisconsin and graduated from the University of Milwaukee with degrees in classical languages and history.]
Former New Hampshire Governor John Sununu suggested this is the case. See here. He said: “Frankly, when you take a look at Colin Powell, you have to wonder whether that’s an endorsement based on issues or whether he’s got a slightly different reason for preferring President Obama.” When asked what that slightly different reason might be, he said Powell was proud that someone of his own race was President of the United States.
This leads me to wonder whether John Sununu supports Mitt Romney because he is white.
I am very disappointed in Rev. Billy Graham. As a Catholic, I do not share all of his theology, but I have generally held him in high regard as a Christian leader. If, as a matter of conscience, he has decided to endorse Governor Romney, that is fine. If, as a matter of theology, he holds the conviction that Mormonism is a cult (a view he has publicly maintained for decades), that is his right. However, hiding/denying the latter in order give greater credibility to the former strikes me as hypocritical. If this effective endorsement represents a shift in his theology, it would be far more meaningful to publish a statement indicating that Rev. Graham no longer believes that Mormonism is a cult.
An archived version of the characterization of Mormonism as a cult, pulled from the Billy Graham website after it became obvious that it was in tension with the effective endorsement, may be found here...
Neesa and I are in the Grand Canyon National Park. Given the Republican's views of government and the market, I wonder if there would be such a park if the Republicans had their way or would developers run rampant creating another tragedy of the commons. In hearing the debate, I noticed that Romney does not think the government should take AK47's out of the hands of potential mass killers. I wonder if he thinks every citizen should have the right to carry such weapons in our national parks. Wouldn't that make us feel safe?
Of course, the Romney-Ryan duo believe that government can do something right, namely prevent women from having abortions except in the case of rape, incest, or the life of the mother is at stake. Abortions to protect the health of the mother would apparently be wrong in ways not present in the other three cases. I am mainly out of touch on this trip, but I know that Biden has veen criticised by at least one Bishop for his position on abortion and told he would not be welcome to take the Eucharist in some diocese somewhere. Given that Ryan's position departs from the Bishops' teachings, I have been waiting for some Bishop or Bishops to lay a similar whammy on Ryan. He was criticized by the Bishops for abandoning social justice in his budget. If he has not been criticized by the Bishops for his position on abortion, I wonder if it could have something to so with the fact that he is now on the Bishops' favorite Presidential ticket.
Cathleen Kaveny, a distinguished professor of theology and law at Notre Dame and a regular contributor to Commonweal, says yes (though there are limits) in a book that is hot off the press. The book, Law's Virtues, should be a special treat. Her writing is always smart, imaginative, lively, and independent.
The book is available here at Georgetown University Press (at the same price offered by Amazon). The site has some powerful endorsements and this summary of the book: "Can the law promote moral values even in pluralistic societies such as the United States? Drawing upon important federal legislation such as the Americans with Disabilities Act, legal scholar and moral theologian Cathleen Kaveny argues that it can. In conversation with thinkers as diverse as Thomas Aquinas, Pope John Paul II, and Joseph Raz, she argues that the law rightly promotes the values of autonomy and solidarity. At the same time, she cautions that wise lawmakers will not enact mandates that are too far out of step with the lived moral values of the actual community.
"According to Kaveny, the law is best understood as a moral teacher encouraging people to act virtuously, rather than a police officer requiring them to do so. In Law's Virtues Kaveny expertly applies this theoretical framework to the controversial moral-legal issues of abortion, genetics, and euthanasia. In addition, she proposes a moral analysis of the act of voting, in dialogue with the election guides issued by the US bishops. Moving beyond the culture wars, this bold and provocative volume proposes a vision of the relationship of law and morality that is realistic without being relativistic and optimistic without being utopian."
A central premise of the First Amendment is that our nation has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Proceeding from that commitment, the Court ruled in 1964 that a public official could not recover in a defamation case without showing that the defendant had published a defamatory falsehood either knowing that it was false or in reckless disregard of the truth.
Opponents of this ruling have argued that it shows insufficient respect for the value of reputation and that it could discourage people from running for public office. I have long believed that we should encourage dissent against those in positions of authority and that persons are not discouraged from running for office on the ground that they might not win a defamation law suit if they are defamed.
On the other hand, I do think that persons might be discouraged from running for public office for fear of being defamed, regardless of the defamation rules, in ways that are far more problematic than was the case in 1964. I refer to what I think of as the culture of lying. Despite the Court’s chamber music about truth emerging in the marketplace of ideas, in more sober moments, the Court has said that the truth rarely catches up with a lie. Perhaps it is just my imagination, and, of course, there has never been a golden age, but I cannot recall a time in which lies have been so constant, so tolerated, and so effective in the political sphere. Clearly the legal structure is doing little to preclude the blizzard of malicious falsehoods. I doubt there is a legal solution. But the case for our “profound national commitment” is not as strong today as it was in 1964.
Placing particular emphasis on the gay marriage issue, John J. Myers, the Archbishop of Newark, New Jersey, maintained in a pastoral letter here that Catholics who cannot assent to the Church’s teachings on marriage and the family “must in all honesty and humility refrain from receiving Holy Communion until they can do so with integrity.” Many reacted to the letter as if it were unprecedented, but I do not believe it is.
The U.S. Conference of Catholic Bishops in 2006 here insisted that “If a Catholic in his or her personal or professional life were knowingly and obstinately to reject the defined doctrines of the Church, or knowingly and obstinately to repudiate her definitive teaching on moral issues, however, he or she would seriously diminish his or her communion with the Church. Reception of Holy Communion in such a situation would not accord with the nature of the Eucharistic celebration, so that he or she should refrain.” In context, as I read it, a Catholic is obstinately rejecting doctrines of the Church if he or she has given up trying to believe that the Church’s moral teaching is correct. What distinguishes the letter of Myers from the statement of the Bishops is that Myers identifies the failure to assent to a specific moral teaching as bringing about separation from the Church. If Myers is right about this, it seems to me that the overwhelming majority of American Catholics should not be receiving Communion. To reject the Church’s teaching on contraception is to reject the teaching authority of the Church, and the overwhelming majority of American Catholics do exactly that. My guess is that relatively few of American Catholics who reject the contraception teaching are still trying to accept Church teaching on the issue.
It is not surprising that the Conference of Bishops is more circumspect about what causes separation from the Church than Archbishop Myers. Nonetheless, the same day the Bishops stated that the failure to accept the teaching of the Church on moral issues should cause one to refrain from receiving Communion, the Bishops in separate documents reaffirmed their teachings on contraception and same sex relations. There is already a crisis in the teaching authority of the Bishops. If they follow the lead of Archbishop Myers in being specific about which moral teachings cannot be rejected while continuing to receive communion, Catholics will either leave the Church or contumaciously receive Communion anyway. In other words, the Emperor will lose whatever clothes are left.
“Once again it is manifest that the economic system’s operations must be analysed both historically, as a phase and not the end of history, and realistically, i.e., not in terms of an ideal market equilibrium, but of a built-in mechanism that generates potentially system-changing periodic crises. The present one may be one of these. Once again it is evident that even between major crises, ‘the market’ has no answer to the major problems confronting the twenty-first century: that unlimited and increasingly high-tech economic growth in the pursuit of unsustainable profit produces global wealth, but at the cost of an increasingly dispensable factor of production, human labour, and, one might add, of the globe’s natural resources. Economic and political liberalism, singly or in combination, cannot provide the solution to the problems of the twenty-first century. Once again the time has come to take Marx seriously.”—Eric Hobsbawm
From the Wikipedia entry (albeit edited):
Eric (John Ernest) Hobsbawm (9 June 1917 - 1 October 2012) was a British Marxist historian, public intellectual, and author. His best known works include the trilogy about the long 19th century: The Age of Revolution: Europe 1789–1848, The Age of Capital: 1848-1875 and The Age of Empire: 1875–1914; and an edited volume which introduced the influential idea of ‘invented traditions.’ [….]
He was a Marxist and was a long-standing member of the now defunct Communist Party of Great Britain (CPGB) and the associated Communist Party Historians Group. He was president of Birkbeck, University of London. He was appointed a Companion of Honour in 1998, a high-ranking British honour for outstanding achievement in the arts, literature, music, science, politics, industry or religion . In 2003 he was awarded the Balzan Prize for European History since 1900, ‘For his brilliant analysis of the troubled history of twentieth-century Europe and for his ability to combine in-depth historical research with great literary talent.’ [….]
In 1994, Neal Ascherson said of Hobsbawm: ‘No historian now writing in English can match his overwhelming command of fact and source. But the key word is “command.” Hobsbawm’s capacity to store and retrieve detail has now reached a scale normally approached only by large archives with big staffs.’ In 2002, Hobsbawm was described by right-leaning magazine The Spectator as ‘arguably our greatest living historian—not only Britain’s, but the world’s,’ while Niall Ferguson wrote: ‘That Hobsbawm is one of the great historians of his generation is undeniable. . . . His quartet of books beginning with The Age of Revolution and ending with The Age of Extremes constitute the best starting point I know for anyone who wishes to begin studying modern history. Nothing else produced by the British Marxist historians will endure as these books will.’ In 2003, The New York Times described him as ‘one of the great British historians of his age, an unapologetic Communist and a polymath whose erudite, elegantly written histories are still widely read in schools here and abroad.’ James Joll wrote in The New York Review of Books that ‘Eric Hobsbawm’s nineteenth century trilogy is one of the great achievements of historical writing in recent decades.’ Ian Kershaw said that Hobsbawm’s take on the twentieth century, his 1994 book, The Age of Extremes, consisted of ‘masterly analysis’….” [….]
* * *
Hobsbawm was once a member of a remarkable fraternity of historians: the Communist Party Historians Group, that included such luminaries as Maurice Dobb, Christopher Hill, Victor Kiernan, George Rudé, Dorothy Thompson (née Towers), and E.P. Thompson. This group (sans some members after 1956) continued until the dissolution of the Communist Party of Great Britain in 1991. “In early 1992 it reconstituted itself as the Socialist History Society, and made full membership available to anybody regardless of party affiliation. The SHS now publishes a twice-yearly journal ‘Socialist History’ and a series of monographs called ‘Occasional Papers.’”
In addition the those cited above, among Hobsbawm’s many books I recommend: