Contraception and Religious Liberty

February 20, 2012

As everyone is aware, the Catholic Church and some other religious institutions have argued that the Obama administration’s rule requiring employers to include contraceptive care within the scope of their health insurance plans violates the freedom of conscience of “individuals and organizations.”  This argument distorts the First Amendment guarantees of religious liberty and makes use of a flawed and tendentious interpretation of the concept of conscientious objection.

Before addressing the current controversy, I want you to consider a hypothetical situation.  Imagine a situation where the cab drivers at your home airport are predominantly Muslim. Imagine also that they refuse to take passengers who are carrying bottles of alcohol (not an unusual occurrence, especially after an international flight).  Can the law force these cab drivers to pick up all passengers, including the ones with bottles of booze?  Or would this be an unconstitutional abridgement of constitutional liberty? 

This hypothetical is based on a real situation.  A few years ago, many of the Muslim cab drivers at the Minneapolis-St. Paul airport refused to accept passengers carrying alcohol.  The local authorities intervened, rejected the drivers’ claim of “conscientious objection,” and directed them to take all fares.  Their reasoning: there is no compulsion to become a taxicab driver.  If you want to be a taxicab driver, then you are obliged to carry out the essential functions associated with this position.  One such function is accepting passengers when you are on duty regardless of their own personal lifestyle choices. 

There is no law in the United States compelling the Catholic Church or any religious institution to engage in secular activities and operate hospitals, schools, or other secular institutions.  Of course, the Church is free to establish hospitals and schools, if it wants to.  But if the Church decides to operate a hospital, it must abide by the same rules that govern the operation of other, nonreligious hospitals.  There is absolutely no abridgment of religious liberty when religiously affiliated secular institutions are instructed to abide by the same regulations that apply to other secular institutions of the same type. 

Certainly, when the Catholic Church has held its hands out for federal and state subsidies for its hospitals, it has never warned the government, “Oh, be careful, we are a pervasively sectarian institution and religious dogma will govern our healthcare decisions.”  To the contrary, from the earliest days, Catholic hospitals have obtained government funding on the premise that their institutions were intended to provide non-sectarian care.  One of the few Establishment Clause cases decided prior to the 1940s (when the Establishment Clause was first held applicable to the states) was the 1899 ruling in Bradfield v Roberts, which considered a challenge to a grant of public money to Providence Hospital in the District of Columbia.  The Supreme Court ruled that the grant was permissible.  The fact that the hospital was owned by a corporation affiliated with the Catholic Church was “wholly immaterial” as there is “nothing sectarian in the corporation” and its “specific and limited” purpose is to care for “such sick and invalid persons as may place themselves under the treatment and care of the corporation.” 

Given the facts as presented to the Bradfield Court, this ruling was correct.  If the hospital is going to operate as a purely secular healthcare institution, its ownership is immaterial. 

The problem now is that the Catholic Church is claiming that its ownership of hospitals, schools and other secular institutions, is material, and that a regulation that would require them (or their insurers) to include contraceptive coverage within a comprehensive health insurance plan violates “their” conscience and constitutes a serious abridgement of religious liberty. 

But whose conscience are we talking about?  The bishops?  The bishops are not required to pay for health insurance, or to run hospitals or schools, so their conscience isn’t being violated.  The rhetoric from the bishops and some on the Religious Right often appeals to the supposed right of conscientious objection by organizations and institutions such as hospitals.  This is just plain nonsense and reflects a tortured interpretation of the First Amendment.  Institutions providing secular services have no conscience; they have no religion. 

The Muslim cab drivers in Minneapolis actually had a stronger argument that their religious liberty was being violated as they are individuals who do have a conscience and an identifiable set of religious beliefs.

Last week I commented on the absurdity of granting corporations free speech rights based on their supposed status as “persons.”  It is even more absurd to grant a corporation rights of conscientious objection under the First Amendment’s religion clauses. 

Who knows?  Maybe the next step will be to say that corporations can stockpile weapons under the Second Amendment. 

The bishops’ unwarranted and illogical appeal to religious liberty makes for good political rhetoric, but I hope at the end of the day, most of the American people will see through the flaws in this argument.  The appeal to religious liberty is nothing more than a fig leaf barely masking the Catholic hierarchy’s driving desire to make access to birth control as difficult as possible. For the Church—to quote a sermon delivered at St. Patrick’s a week ago—birth control is “a poison for our souls.” The First Amendment protects the Church’s right to spew this nonsense—based on psychotic taboos about human sexuality— from its pulpits; it does not grant the Church the right to impose its dogma on the employees of organizations providing secular services.