MSW Responds to Bowman & Garnett on HHS Mandates

My previous arguments against the idea that any individual or business should be able to exempt themselves from the HHS contraception mandates by citing religious liberty concerns has come under criticism, some of it thoughtless, some of it not.

The thoughtless criticism comes from Matt Bowman at the blog He writes that a recent text from the Pontifical Council for Justice and Peace decries the “split between faith and daily business practice” and that the HHS mandate requires precisely such a split. And, he says that I have no regard for the conscience rights of individuals. He also lumps me together with CUA’s Professor Stephen Schneck and the writers at Commonweal, and I am delighted to be lumped together with such thoughtful Catholics.

While it is a welcome sign to see someone at the site recognizing the value of statements from the Pontifical Council for Justice and Peace, instead of their usual snarky attacks that mimic the demeaning and derogatory attitude towards the Council expressed by George Weigel et al., the stance of a corporation or an individual towards public law should not be one that permits unlimited exemptions based on conscience. With religious organizations, I think the level of exemption should be nearly absolute: It is not the business of government to tell churches how to conduct their own business. But, if any owner of any business can avoid a government mandate by citing religious exemptions, than government mandates have little efficacy.

The thoughtful criticism comes from Notre Dame’s law professor Rick Garnett in a post at “Mirror of Justice.” Garnett replies not only to me but to Bowman, and rightly points out that Bowman takes some liberties with the positions I have articulated. But, Garnett also chides me for noting that the argument recently put forward by those advocating individual conscience exemptions is akin to the arguments put forward by segregationists who also sought to evade government mandates. He writes, regarding my segregationist analogy, “Yes, of course it's true that, throughout history, bad people have misused good arguments and misappropriated sound principles for bad ends.” He continues, “The Bishops are entirely right -- and entirely in the spirit of Dignitatis humanae, to remind readers that the right to religious liberty belongs to all, and always -- even when persons are engaged in ‘non-religious’ activities like doing business and buying insurance. This is not misguided individualism, it's a Declaration of the Second Vatican Council.” I agree that religious liberty is not the sole provenance of churches, although I deeply regret our American view of rights as exclusively individual possessions and which our U.S. jurisprudence recognized the libertas ecclesiae in ways it does not.

My point in drawing the analogy was not to suggest that our bishops today are like segregationists in the 1950s. It was to point out the limits of the argument that individuals should, by citing religious reasons, be able to exempt themselves from public laws. That right must be balanced by the government’s interest in pursuing the common good and maintaining public order. Garnett seems to agree when he writes, “…Dignitatis humanae does not say that the human-dignity-based right to religious freedom, which every person enjoys, will always warrant an exemption from a general law. Whether an exemption is required, or justified, depends on the extent to which the law in question actually serves the common good, and the extent to which an exemption would undermine it.”

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Garnett has hit precisely on what disturbed many of us about the stance of the USCCB in recent weeks. They had been rightly voicing their concern about religious liberty, and were supported by a broad spectrum of Catholic opinion. But, when the conversation shifts from the rights of churches and church-run organizations to the rights of individuals and corporations with no religious affiliation, the argument is not so clearly one of religious liberty. It “depends” as Garnett points on, on whether the underlying law serves the common good. Obviously, the bishops do not think the contraceptive mandates serve the common good. I tend to agree but I also tend to think that we – and by we I mean the whole Church – has to do a much better job explaining and thinking and praying about why the Church is opposed to contraception, why the Church’s teachings in sexual matters are true, and then persuade people of the truth, and the beauty, of the Church’s vision. Fighting a government mandate may not be the best way to start that discussion.

To be clear, it is not so much that the USCCB shifted the goalposts, as that they shifted from emphasizing the religious liberty rights of the Church to emphasizing an argument that is not exclusively one about religious liberty. In the current cultural and political landscape, I think they are right to go to the mat for the conscience rights of our churches but that they are ill-advised to go to the mat for the right of individual employers to exempt themselves from the HHS mandates. It is enough, in my mind, for a church to say – no way, we won’t do that – but that a secular employer has a higher bar to clear in seeking an exemption.

The issue here is entirely distinct from the issue before the Supreme Court: They are deciding the constitutionality of the individual mandate to purchase insurance. The issues are distinct, but related, touching on the extent of government involvement in the lives of citizens. Of course, Bowman, Garnett and I probably disagree on the constitutionality of the individual mandate, but we agree that it is inadvisable, albeit for different reasons. I regret the individual mandate because I would have preferred a single payer system which still seems to me to be the best way to address both the shocking immorality of having so many millions of our fellow citizens without access to basic health care, improving the health outcomes of those who do have access and restraining the explosive costs of health care which, more than anything else, is the reason for the exploding federal debt.
I thank Mr. Garnett for his thoughtful comments and Mr. Bowman for his less thoughtful comments which, nonetheless, provoked clarifications from both Garnett and myself. I think it is key that all of us who are party to this debate resist the election-year tendency to histrionics and, instead of digging in, seek a way to dig out of the mess we are in. There are solutions to be had to these issues, solutions that balance the different conscience rights and interests of those involved. But, only if good will prevails and the presumption of good faith is extended to those who see these issues differently.

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June 16-29, 2017