Which principles of conscience should the law make exceptions for?

2012-02-15 (Wednesday) § 8 Comments

At first glance I was sympathetic to the position of the Catholic Church in this recent issue about requiring Catholic employers to include contraception among the benefits covered in health care plans that they subsidize for their employees. But on further thought it seems wrong to me that principles of religious conscience should be respected in this matter in a way that irreligious conscience wouldn’t be.

Furthermore, if there’s to be any force in the idea of government requirements on employers to include certain benefits among those covered in health care plans that they subsidize for their employees, then how can exceptions be made for the employers’ conscientious principles?

It seems to me that there are only the following possible positions to take on this:

  1. Government should be able to place requirements on employers to include certain benefits among those covered in health care plans that they subsidize for their employees.  No exceptions.  Catholic employers have to cover contraception if they cover anything.  This forces Catholic employers to choose between offering no medical benefits or subsidizing services that they consider immoral.
  2. Government should not be able to place any requirements on employers to include certain benefits among those covered in health care plans that they subsidize for their employees. Catholic employers don’t have to cover contraception.  This could have a lot of dangerous consequences by allowing employers to select what benefits they cover based on interests other than the medical needs of those covered.
  3. Government should be able to place requirements on employers to include certain benefits among those covered in health care plans that they subsidize for their employees.  Exceptions for benefits that violate the conscientious principles of the employers.  Any employer can refuse to cover anything on this basis.  So the requirements have force only insofar as a) the government can show that a given employer really doesn’t have the conscientious principles they say they have (burden of proof on the government), or b) the employer fails to show that they really have to the conscientious principles they say they have (burden of proof on the employer).  It might be pretty hard to come up with any reasonable way of showing either thing.
  4. Government should be able to place requirements on employers to include certain benefits among those covered in health care plans that they subsidize for their employees. Exceptions for benefits that violate the religious principles of the employers, but not for principles outside of religion.  This strikes me as a government endorsement of religion.  It implies that religious moral principles are more important than irreligious ones.  I’m definitely not okay with this on the basis of my own conception of how government should work, and I think it also violates the 1st Amendment as the Supreme Court has so far interpreted it.

Comparing the downsides of each of these, I’m inclined to go with #1.  Maybe #3 if a workable test could be devised.

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§ 8 Responses to Which principles of conscience should the law make exceptions for?

  • Anonymous says:

    it seems you need to address the medical necessity of contraception though.

    Put another way, do you think that an organization that offers health insurance should be required to cover elective cosmetic surgery of a non-corrective or restorative nature?

    If not, then why? And to cut to the chase, if not then what makes it different from contraception?

    • paginavorus says:

      Right, an issue that will become key here pretty quickly is what health services are essential. A provisional definition that appeals to me is that a health service is essential if it’s necessary for a person to live a normal life. Then we have to define a normal life.

      One principle I’d use to start working on that definition is that a normal life has to be defined relative to the society the person actually lives in. It’s not the same thing for all times and places.

  • I think #3 is more workable than non-lawyers instinctively imagine. Even the most objective seeming legal tests very often come down to what the decision-maker subjectively thinks of the evidence they have seen and heard.

    Establishing that you have a “conscientious principle” would just be a matter of giving oral evidence about how and why it is that you hold the principle. In practice it would be easier for religious principles, because you can back it up with outside evidence of the accepted doctrines of your belief. Take, say, a clause that reads “(a) an employer may make an application for exemption from this requirement to the extent to which satisfying it would infringe on the employer’s genuinely held conscientious moral, ethical or religious principles; (b) in an application made under (a), it is for the employer to establish that it genuinely holds a relevant conscientious moral, ethical or religious principle and that such principle would be infringed.” That’s no more vague and uncertain than any other typical law of its type.

    I am still uncomfortable with it though. Why should the conscientious principles of an employer trump the employee’s entitlement to benefits? I think at the least, an employer who relied on that sort of exception should be obligated to compensate with an equivalent (eg. cash) benefit.

    • jasonburbage says:

      Is contraception really an expensive portion of a health care plan? How much is this expected to cost the church?

    • paginavorus says:

      Wouldn’t an equivalent cash benefit defeat the point of the exception? It would probably be spent on the services that the employers was trying to avoid subsidizing in the first place.

      Where does the employee’s entitlement to benefits originate? Is it just a legal fact, such that changing the law would by definition change the entitlement? Or is it some kind of ethical or moral desert which the law can correctly or incorrectly recognize?

      • I don’t think it would defeat the point. To take a fanciful example, imagine if there was some scheme under which everyone was obligated to buy a Republican Party membership for each of their employees. Wouldn’t you feel better just giving them the cash value of the membership? Sure, some might choose to spend it on the membership anyway, but that would be fundamentally different from your point of view wouldn’t it?

        In this context, the obligation to compensate employees who miss out arises only because other employees have the benefit. It’s not so much the benefit itself I’m concerned about as the inequality of treatment.

  • jasonburbage says:

    Sorry, I meant for my comment to be on the main blog entry and not a reply to Daniel’s comment.

    Not to have a conversation with myself, but I do realize they have moral reservations about contraception and not just fiscal concerns. I had originally typed a reply asking why it’s a problem — after all, if the catholic church conscientiously objects to the use of contraception then none of their constituents will use it whether it’s offered or not. One would think that their own employees know the church’s values sufficiently well that they don’t need to make inferences to that effect from the coverages offered by the church’s health care plan. In other words, nobody that works for the church is going to think that the church approves of birth control just because it’s covered by the plan.

    I assumed the obvious answer was that forcing them to offer something they won’t use will cost them some amount of money which they shouldn’t be forced to spend. So I deleted that comment and posted the above. Now I feel like the comment I ended up posting sounds as if I have no idea there might be some reason other than money.

    I’m not sure what their actual problem is with it; maybe a combination of both. I have a hard time sympathizing with either. The cost should be minimal and the church is free to explicitly state that the coverage is only offered because the law requires it and not because the church approves.

    • paginavorus says:

      I can pretty easily understand the problem they have with it because it kind of parallels the way that I’m vegetarian. I don’t want to commit any act that makes the infliction of suffering on an animal more likely. Buying meat would constitute doing that. Similarly, I think the view of these Catholic employers is that they don’t want to make contraception more likely to happen, and they estimate that if they subsidize contraceptive services for their employees, their employees will use contraception more than otherwise. If that’s their objection – the results, not the symbolic statement – then it’s clear why they would object to subsidizing contraceptive services regardless of what spin was put on it.

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