A Win for Opponents of the HHS Contraception Rule?

Score one for Hercules, but the hydra lives on.  The Wall Street Journal reports: “a federal judge on Friday granted a temporary injunction sought by Catholic owners of a Colorado heating-and-cooling company who had objected to new federal requirements that they provide contraception coverage in workers’ health-insurance plans.”  A final ruling has yet to be made, but this could mean that private companies owned and operated by Catholic individuals, such as Hercules Industries, would not have to comply with the HHS ruling that employers cover contraception in their health care plan.  Obviously this is big news, at least for now, as it may set the groundwork for broader exemptions than what the Obama administration has been so far willing to concede.  It may also place a few stones on the path to single payer.

The ACLU’s Sarah Lipton-Lubet isn’t pleased with the injunction.  In a statement, she says, “We are disappointed with today’s decision. It is unacceptable for employers – especially for-profit companies – to use their personal beliefs as an excuse to deny critical health coverage to the people who work for them,” adding, “this is not religious freedom, this is discrimination. Real religious liberty gives everyone the right to make their own decisions about their own health, including whether and when to use birth control. It doesn’t give anyone the right to impose their beliefs on others.”

Since the start of this controversy, I’ve argued for understanding it as an irresolvable conflict of values.   Obama and company pushed for the contraception ruling because they include contraceptives among the healthcare goods and services to which all U.S. citizens have a right and which should be universally covered.  Catholic employers have objected vociferously to the HHS ruling because the official teachings of their religion prohibit not only the use of contraceptives, but also their providing them for others through a form of proximate material cooperation.

Lipton-Lubet, like many critics of the Catholic Church’s position here, fails to acknowledge and appreciate the conception of religious freedom under which the Church and its fully-assenting members live: offering a healthcare plan that covers contraceptives or other healthcare goods and services deemed sinful is itself a sin, an act, according to Catholicism, that’s contrary to the moral law.  If Lipton-Lubet understands this, she sees it as a non-issue.  From her standpoint, the owners of Hercules Industries want the right to impose their beliefs on their employees.  In this, she’s arguably right, if the owners, by denying coverage of contraceptives, hinder or prevent any employees from obtaining birth control.

Considering both standpoints, then, what we have here is an irresolvable conflict, one that won’t be going away any time soon regardless of what courts decide in the near future.  The emergence of this sort of conflict shouldn’t surprise anyone, least of all the Catholic Church.  Given the controversy surrounding the morality of some particular healthcare goods and services, any attempt to achieve universal healthcare was bound to erupt heated moral conflicts.

Kyle Cupp

Kyle Cupp is a freelance writer who blogs about culture, philosophy, politics, postmodernism, and religion. He is a contributor to the group Catholic blog Vox Nova. Kyle lives with his wife, son, and daughter in North Texas. Follow him on Facebook and Twitter.

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64 Responses

  1. greginak says:

    I’m not trying to be inflammatory but could you flesh out how far the religious exemption can/should go. I know this was discussed a bit when it first came up.

    No coverage of blood transfusions for Christian Scientists employers?
    No coverage of out of wedlock births? Interracial weddings?
    Vaccinations for anti-vax believers?

    • Kazzy says:

      This is a really important point. I wonder if Muslims will be extended the same protections of their 1st Amendment rights.

    • Kyle Cupp says:

      Not easy to say, but I’ll suggest a way forward. First, we need to recognize that religious freedom, while vital and fundamental to a free society, isn’t absolute. Therefore, it is possible to limit religious freedom without unjustly violating someone’s rights. Second, we have to ask what justly limits religious freedom. This is where it gets really difficult. “Causing harm” would seem to serve as a good starting basis, but determining what causes harm depends on beliefs and interpretations. The Catholic Church sees contraceptives as harmful; society in general sees them as beneficial and their unavailability as a source of harm. From the standpoint of contemporary society, the Catholic Church causes harm with its anti-contraceptive teachings and actions. Is this harm serious enough to warrant the curtailing of Catholic people’s religious freedom? The Obama administrations thinks so. The Catholic bishops disagree, obviously, as do many Catholics and people of other faiths.

      So what to so in challenging cases like this? I see at least two ways to get around this difficult. One is single-payer, which distances Catholics and people of other faiths from close material cooperation with things they deem sinful. That’s not a viable option at present, though. Another way may be a broad exemption from the HHS mandate coupled with a government program to provide coverage for healthcare goods and services that religious employers refuse to cover in their plans.

      • Tom Van Dyke says:

        Uh, yeah.

        “Another way may be a broad exemption from the HHS mandate coupled with a government program to provide coverage for healthcare goods and services that religious employers refuse to cover in their plans.”

        • Rodak says:

          Why should the employer who doesn’t want to buy into ACA be able to fob off the cost of his employees’ health insurance onto me, the tax-payer? If the employer doesn’t want to go along with what society requires of employers in his position, then let him sell out to one that does.
          In short, I don’t believe that the law should protect such a concept as a “religious employer” unless, of course, we’re talking about a business run by a church, or other religious institution, solely as a religious institution. I.e. — I would not included universities and hospitals in that category.

      • Kazzy says:

        “Another way may be a broad exemption from the HHS mandate coupled with a government program to provide coverage for healthcare goods and services that religious employers refuse to cover in their plans.”

        I fully support this. I wonder if the majority party in the House would. What do you think, Kyle?

        Of course, there is the plan that is currently in place for faith-based businesses, wherein those organizations could opt out of the mandate at which point their insurer would offer the coverage of their own accord, at no expense to the business. This, too, was opposed.

        • Kyle Cupp says:

          Yes, the compromise put forth by the Obama administration was also opposed. If I recall, the opposition was on the basis that, according to those opposed, the plan amounted to an accounting trick that didn’t change the moral calculus. There may have been more to it than that, though. In any case, they still felt themselves complicit.

          • Kazzy says:

            That is my recollection as well. And I think their opposition was on far thinner ice at that point, since they seemed to then be insisting that their insurance provider defer to their faith.

            If the faith-based businesses don’t want to pay for contraception coverage? Fine. But how can they argue that insurance companies can’t engage in a business practice because they find it objectionable? At that point, I say the onus is on the business to find an insurance company that comports with their beliefs.

            Joe’s Insurance tells God’s Hospital, “Fine. You don’t have to pay for contraception coverage. We’ll negotiate a rate with you to offer contraception-free plans. Separately, we’ll make contraception coverage available to your employees who seek it and won’t charge you a dime for it.”
            God’s Hospital replies, “No, no, no. You might fudge those rates such that our money is going towards the coverage.”
            Joe’s Insurance says, “Well, in reality, all premiums from all companies get pooled. So your money is probably paying for contraception coverage regardless, just for folks at other businesses.”
            God’s Hospital replies, “But that’s different.”
            Joe’s Insurance says, “Whatever. Do you accept our rates? Don’t bother with what we may or may not offer of our own volition to your employees, a decision which you will not be involved in directly in any way, shape, or form. No more so than you are involved in our decision to offer contraception coverage to employees at Heathen Hospital.”
            God’s Hospital replies, “Not good enough. Our employees must not have contraception coverage.”
            Joe’s Insurance says, “Fine. Get your insurance elsewhere.”
            God’s Hospital replies, “No.”

            We are well beyond the 1st Amendment at that point.

      • Nob Akimoto says:

        Another way may be a broad exemption from the HHS mandate coupled with a government program to provide coverage for healthcare goods and services that religious employers refuse to cover in their plans.

        But that’s already what the system basically is. It’s just that government program (state health insurance exchanges partly financed by assessments from companies who don’t provide health insurance to their employees) isn’t supportable if you know, you get a religious exemption to opt not to pay for it.

    • GordonHide says:

      Yes, and this basis should the society of friends, (the Quakers), be able to opt out of that proportion of their taxes that finance the defense budget?

      If I start a religion tomorrow that deems taxation immoral should I be excused all taxation?

  2. Tom Van Dyke says:

    Why is the Obama admin forcing this? At worst, it’s a gray area, and we should err in the direction of the First Amendment. There are other ways to get contraceptives to the people.

    And don’t think abortion isn’t around the corner. Oh, that could never happen here, Tom!

    Uh huh. Right now, it’s in the law but is stayed only by executive order, which presidents can dissolve anytime they want.


    • greginak says:

      Then R’s could solve this all by doing those “other” ways of getting contraceptives to people. And they haven’t done so because…??? Single payer??

      • Tom Van Dyke says:

        Because it’s not the government’s job. If the D’s are going to make it the government’s job, then let them do it without violating the First Amendment rights of innocent bystanders.



        • Kazzy says:

          You completely dodged greginak’s question. You said there are other ways to get people contraception. Greginak offered one solution: single payer. You then denied this as a viable option since it falls outside of governments purview while simultaneously insisting that should it fall under the government’s purview, they must exercise it without violating the 1st, a condition that single payer absolutely meets.

          If the President’s proposal is invalid and single payer is invalid, what other mechanism does the government have to ensure that all folks have access to contraception? You’ve shot down the first two offerings and now the onus is on you to provide an alternative.

          • Tom Van Dyke says:

            I did answer his question.

            Then R’s could solve this all by doing those “other” ways of getting contraceptives to people. And they haven’t done so because…???

            Please stop harassing me.

          • Kazzy says:

            So you ignored the part where he said “Single payer???”, I suppose. How convenient.

            As to your point that I am “harassing” you… well, what can I say? Should I point out how truly weak you must be that you consider someone pointing out the flaws in your argument on a blog that “exists for the purpose of advancing debate and understanding of any number of issues” to be “harassment”? Or should I point out that your slanderous charge of harassment feels awfully like “nothing more than a blanket personal attack directed at … another commenter”.

            I’m sorry that you so struggle to realize the point of this blog of which you yourself are an author and are so quick to make unwarranted attacks about the character and actions of your fellow authors who seek nothing more than intelligent, respectful, gentlemanly discourse. My condolences.

          • Tom Van Dyke says:

            Yes, I ignored “single payer” because there is no necessary link between religious freedom under the first Amendment and a socialistic health care scheme.

            I know what the purpose of a blog is, and it’s not to address every asinine thought or question, or persons who are unpleasant and unhelpful. If you have a point of disagreement with me, say what’s on your mind. We need not maintain the fiction of Socratic dialogue, because there isn’t one.

            It’s not the government’s constitutional purview to supply free contraceptives. It is the federal government’s job to observe and protect our religious liberty under the First Amendment. That is my answer from the very first, and requires no further clarification.

            If your party can constitutionally institute single payer and free contraceptives—and I have no doubt, government-financed abortion is in the cards under Obamacare or single-payer as well—then all I can do is object. It’s politics, and sometimes you lose.

            But if your party and this administration is going to violate religious freedom under the First Amendment, we have a much bigger problem than mere politics and policy. We have tyranny.

            So far the courts are standing up for religious liberty, and the unanimous 9-0 Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission gives me hope that this tyranny is not immanent.

            But it won’t stop this administration, its allies, and their successors from trying and trying and trying. Rust never sleeps.

            So if there’s nothing else, let’s dispense with the asking of disingenuous questions and the pretense of dialogue. If you have something to say, just say it, and skip the question marks.

    • GordonHide says:

      @Tom Van Dyke
      “Why is the Obama admin forcing this? At worst, it’s a gray area, and we should err in the direction of the First Amendment.”

      The Obama administration is firm on this because they are right. As long as a religious group is denied the freedoms of others in the community they have a first amendment gripe. What is being asked for here is a religious exemption from the law that applies to everyone else. That is a special privilege. In general, governments should seek to grant religious privileges. But it is the government’s duty to deny such privilege where by granting same they would have an unacceptable impact on others rights under the law.

      I can’t see this as even a little bit grey. What those seeking this privilege should do is work out a way of achieving what they want without disadvantaging other citizens who do not support their position. If they can do this I’m sure the Obama administration will give them what they want.

      • Tom Van Dyke says:

        No gray areas for you, clearly. And we see what happens when Leviathan wraps its arms around health care. Contraception equals “health care?” Why? Because the government says so, that’s why. Is abortion “health care?” By the same logic, yes. Will churches be forced to pay for them? Eventually, yes, by the same logic. The “Stupak Amendment” isn’t an amendment atall: it’s an Executive Order that can be reversed with the president’s morning coffee.

        Religious conscience is steamrolled by this agenda: the modern left’s colors are now revealed. Perhaps they’ll get away with this capricious if not malicious tyranny, but perhaps it will be their undoing.

        For now we see that “tolerance” is a door that swings only one way in the modern mind, and that its willingness to use the force of law to compel people to act against their religious beliefs is incompatible with any concept of liberty or rights. Hopefully our rulers—the courts—will agree, or the next administration will, and abolish this monstrosity.

        Because, y’see, this high-handedness against Catholicism is completely unnecessary. They could pass a bill to hand out free contraceptives like food stamps and that’s that. Instead, we get this bullying, this agenda, this assault on liberty of conscience, under the cover of women’s “health.” Some applaud in the name of “progress.” Others know better.

        • GordonHide says:

          @Tom Van Dyke,

          ” They could pass a bill to hand out free contraceptives like food stamps and that’s that.”

          If they did that then all taxpayers would pay for it including the Catholic Church. It’s true they would pay less but they would still pay.

          • Tom Van Dyke says:

            Not when churches are exempt from taxes. In fact, Judge Roberts’ ruling that Obamacare is a tax rather rebounds onto this, eh?

            Individual Quakers can’t cut and paste their tax bill to exclude the part that goes to the war in Afghanistan. OTOH, we’d hardly tax a Quaker church directly for a war.

            Probably a necessary distinction. I don’t think the Hercules, Inc. case is a slam dunk. And I also think Obama admin pushing this is bad governance. This whole thing could be circumvented.

      • James Hanley says:

        The Obama administration is firm on this because they are right.

        Can we agree that there is a fair amount of question begging here? If I said George W. Bush was dim on invading Iraq, would you look at me skeptically?

        What is being asked for here is a religious exemption from the law that applies to everyone else. That is a special privilege.

        That’s what the Supreme Court said in Oregon v. Smith, a case that is widely panned by constitutional law experts. It’s easy to make generally applicable laws that have disproportionate impacts on one group. I remain uncertain where I stand on this particular issue, but I do find the easy dismissal of the religious interest by the law’s supporters very unnerving.

        • Ryan Noonan says:

          I think you overestimate the “easiness” of the dismissal here. A lot of us have made fairly long and detailed arguments about how to make sense of what gets counted under the First Amendment and what doesn’t. For the most part, the response has been entirely of the form of Tom shouting “FIRST AMENDMENT!! TYRANNY!!!11!1” as if that’s an argument.

          My own position remains that paying for insurance provided by someone else to employees of a non-religious business owned by a Catholic is not even plausibly an exercise of religion, although I would like for someone, at least once, to point out how it might be.

          My own other position is that single payer is manifestly better than repeatedly having these inane arguments.

          • Tom Van Dyke says:

            Of course the First Amendment is the argument, Ryan. Turning churches into agents of the state is a no-no.

            As for individual [Catholic] business owners being forced to cooperate in violation of their religious conscience, a closer call.

            A gray area, as I originally put it.

          • Ryan Noonan says:

            Okay, well, I don’t think “First Amendment” is much of an argument unless we do the hard work to demonstrate that this is an exercise of religion. That’s where I’m going with this. I really, really don’t think the opposition has done that, and in most cases they haven’t even tried.

            But I don’t really feel like getting into that, because I don’t care enough. I’m not going to fight over something that doesn’t mean all that much to me. As you’ve said a dozen or more times, the government can get around this by just paying for the contraception itself. I consider that a superior outcome anyway, so let’s all just agree that that’s what Congress should have done.

            That said, is there a limiting principle in this case? I’m not asking as a “gotcha”; I’m legitimately curious. Does the Church of Scientology have the right not to cover mental health drugs? (Or whatever you want to talk about that’s similar.) Is there some place where we draw a line and say, “Sorry, the state’s interest overrides your religious freedom here?” Or is the religious freedom you envision totally absolute?

            Here’s why I ask: I think there are certain parts of the Constitution that are genuinely unhelpful at this point, but that are still the law of the land and ought to be enforced. The 2nd Amendment, for instance, although the logic of what the 2nd really means seems to have escaped its right-wing supporters. Does the 1st similarly constrain the state in ways that are probably totally absurd?

          • James Hanley says:

            Ryan, I don’t think the detailed arguments are especially compelling, in light of the SupCrt’s egregious Smith decision.

            I’m not even religious anymore, but I’m very dubious about any argument that works really hard to explain why action X isn’t really an exercise of religious freedom. It all seems driven by a disinterest in, if not outright antipathy to, religion that seeks to minimize any inconvenience it might cause for accomplishing our public policy goals. Which, of course, was exactly what happened in the Smith case.

          • Don Zeko says:

            I don’t think that the litigants in this case are making any effort whatsoever to minimize the policy inconvenience they cause. Given that their argument seems to truly have a problem with the fungibility of money and the concept of health insurance, I don’t think they’re earned the benefit of the doubt.

          • Ryan Noonan says:

            The fact that you personally don’t find the arguments compelling for still un-documented reasons other than you don’t seem to feel like actually confronting them does not establish any kind of “easy dismissal” other than the one you’re making.

            You still have not even attempted to establish that the owner of an air conditioning company having to pay someone else to pay a second person to provide a third person birth control constitutes a religious practice. I suspect I know why this is, but you’re welcome to start trying any time.

          • Tom Van Dyke says:

            Exactly, Ryan: Scientology is our reductio ad absurdum for First Amendment issues.

            First of all, law is only a reflection of reality, and we get abstract about our principles. Germany doesn’t give a damn—it decrees Scientology is a bogus religion and suppresses it. But that’s not the American Way.

            The winning argument in the historic Virginia assessments battle of 1785 was not the secularist “religion out of government,” but the Baptists’ support for “government out of religion,” that the dominant Episcopalians and Presbyterians could define Baptists out of Christianity. [The Calvinists eventually joined in against the Anglicans.]

            And so, to this day, we let Scientology slide as a religion, although we doubt it is one. We err on the side of the First Amendment, on the side of accommodation, not confrontation, even if the results are sometimes absurd.

            And rest assured, this case is being made in all these legal proceedings. That you haven’t heard is because the media aren’t interested, either out of agenda-setting or just plain ignorance and laziness. But as we see in the over 35 amicus briefs filed in


            the arguments are out there.

            In fact, I wish Kyle wouldn’t give up so easily. Religious freedom is a big deal, especially when you’ve no dog in the fight.

            Does the 1st similarly constrain the state in ways that are probably totally absurd?

            My long way of answering yes to this, and to Scientology abstaining from paying for mental health drugs. There was no way of answering cogently without subjecting you and the gentle reader to an unwanted history lesson.


            Sorry about that, but we wouldn’t want anyone thinking I dodged your question. We are not Germany—yet—and this is why. The government may not arbitrate questions of religion. Punkt.

            “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects.”—Madison

            “Madison’s Memorial [and Remonstrance] circulated as a petition during the summer and fall of 1785 and was eventually signed by over 1500 Virginians, an impressive figure but less than one-fifth of all signatories of anti-assessment petitions.

            The most popular petitions came from the pens of Baptists, who agreed with Madison’s position on the total separation of church and state but argued for it from different premises, from their traditional scriptural view that Christ’s kingdom was not of this world rather than from a Lockean theory of the social compact. The Baptists did not scruple to arouse anxiety and jealousy of the general assessment bill, suggesting as Madison had done, that it might set the commonwealth on the path to the Inquisition and conjuring up visions of bonfires for heretics.

            According to a recent authority, the joint efforts of Madison and the Baptists would have been in vain had the commonwealth’s Presbyterians, who had appeared to be gravitating toward support of the general assessment bill in 1784, not returned to the opposition’s fold in 1785. The joint efforts of these denominations and Madison’s civil libertarian allies led to the decisive defeat of the general assessment bill, in the October 1785 session of the General Assembly, thus ending the decade long battle over issue of whether the state would be permitted to offer financial support, on an impartial basis, to its Christian religious denominations.”

          • Ryan Noonan says:

            Also, as I indicated to Tom, I’m only being punchy on general principle. I think the contraception mandate is a morally good idea that makes for terrible politics, and it could have been handled much more easily.

            I’m just opposed the basic metaphysical approach taken by the mandate opponents here, which would essentially subsume all human activity under the rubric of religion. It’s utter nonsense to claim that a society, acting through its representatives, has no power to decide what constitutes religious activity and what doesn’t. That kind of reading makes the First Amendment so broad that it effectively disintegrates the state. It’s prima facie absurd.

          • Tom Van Dyke says:

            Ryan, I’m stuck in moderation queue. Watch the space above for a lengthy reply, an admission that it’s quite absurd, and a cheerful defense of its wisdom and necessity nevertheless.

          • Ryan Noonan says:

            Tom, that was a really excellent reply. I maintain that this understanding of the 1st Amendment ultimately reduces the state to a fiction, but at least you’re owning that.

            Now I’m off to found a religion that considers the payment of taxes a mortal sin. Cheers. 😛

          • Tom Van Dyke says:

            Thx for reading, Ryan.

          • James Hanley says:

            Ryan, you haven’t demonstrated that the individual claiming a religious liberty has the burden of proof.

            As a matter of fact, I doubt i’d find in favor of the private business owner, but when we were talking about Catholic hospitals there were easy dismissals galore.

            Yes, liberty is a bitch for formulating public policy, but in a liberal democracy, that’s a feature, not a bug. The evident irritation with people who would obstruct policy goals by having the gall to put forth a liberty claim is a bit unnerving. To me it demonstrates how fundamentally uh-liberal politics is.

          • Ryan Noonan says:

            James, let me state explicitly that the state has the burden of proof. I think that’s totally uncontroversial. The fact is that I, and others, have made arguments on the state’s behalf to the effect that the state has this authority. We have attempted to meet the burden of proof. Rather than make even a cursory attempt to counter those arguments, your response has been, “Oh yeah? You just hate religion!” That is not an argument.

            How bizarre is it that this thread features Tom making a reasoned, sober argument and you spouting assertions about the motivations of your political opponents?

          • Patrick Cahalan says:

            Tom, I finally caught up to this part of the thread and I’ve been thinking very hard and long about what you wrote.

            If I’m reading you correctly, it would seem that a deference to religious sensibility is a measurable good, as far as you’re concerned. Thus, while the “they already have an out” argument that I’m presenting may be valid, it’s not really relevant: the government’s job, essentially, is to be deferential to religion unless a substantive case can be made that it’s doing an actual significant harm.

            This line: “The government may not arbitrate questions of religion. Punkt.”… that gives me some trouble with consistency, though.

            If it is the case that the government may not arbitrate questions of religion, and in *this* instance it leads you to the conclusion that HHS should butt out of insurance coverage offered by a religious employer (whatever that means), how do you support a defense of “man and a woman” marriage? There are churches that recognize same-sex marriage. Isn’t a “defense of tradition marriage” pretty much by definition an arbitration of questions of religion?

  3. Scott says:

    Sorry I have little sympathy. My mom was a social worker who for a time worked for Catholic Charities. She really needed the job but didn’t like many of their restrictions on how she could counsel folks and so she kept her tongue.

    • Kazzy says:

      If you can’t see the difference between this and that… well…

      • scott says:

        Why don’t you explain it to us ignant folks like you explained gov’t and parenting as opposed to making snarky comments.

        • Kazzy says:

          Please show me where I explained government and parenting. I remember making a post on an observation and how I made sense of it.

  4. Nob Akimoto says:

    How about if people with “religious objections” just pony up and pay the tax assessment instead of whining that the government won’t let them shaft their employees?

    • Nob Akimoto says:


      This isn’t a “religious freedom” issue, because it has nothing to do with exercising your religion. Again, there’s nothing that prohibits large employers from simply NOT offering health insurance coverage in the law. They’d simply be given an assessment that for better or for ill is rather small.

      It’s asinine and absurd to frame this as being a religious freedom issue, when it’s a preference for religious doctrine issue. Those are separate things. Forcing the government to privilege your doctrinal views in public policy isn’t the same as prohibiting exercise of religious views.

      • Kyle Cupp says:

        Yes, there is a difference between not privileging and prohibiting doctrinal views, but you’re wrong to frame this as only one and not also the other. The ruling requires Catholic employers to act against the teachings of their religion or penalizes them if they refuse. Under it, Catholic employers are not free to practice their religion because practicing it in full conformity with the religious doctrine means more than not personally using contraceptives, but also not providing them for others. The ruling tells Catholics to act against the teachings of their faith or pay a penalty; that’s clearly a religious freedom curtailment. You may think it’s perfectly justified because these Catholic employers should not be able to impose their values on their employees, but a just limitation of freedom is still a limitation.

        • Patrick Cahalan says:


          I’m still waiting for someone to explain to me how the Catholic Church can’t just take BYU’s stance.

          “We’re a religious employer. We require that you refrain from using contraception during your employment. Sign here.”

          And then offer them coverage that includes contraceptive care. They won’t use it (or you can fire them).

          This is an exception – one only available to religious employers – that already exists in law, by my understanding.

          I see two outs for religious employers: don’t provide coverage and pay the tax, or don’t employ people who use contraception -> which, really… if you have an objection to contraception and money is fungible, I just don’t see any difference between “we pay you money which you can use to buy contraception” and “we offer you health insurance with which you can procure contraception”. They’re at the same level of abstraction, really.

          Whether it’s good politics (no) or uncouth (yes, rather rude of the government to force them to take this step), it still seems to meet the moral obligations of all parties involved.

          • Rod says:

            The thing is the case Kyle references isn’t even about a religious employer–i.e., a church or church-sponsored hospital. It’s about a friggin’ air conditioner and heating company that happens to be run by religious people.

          • Patrick Cahalan says:

            Let’s worry about what does or doesn’t constitute a religious employer after we figure out how many exceptions to the rules we are required to allow to them, given their First Amendment rights.

            I’m not entirely certain I see a difference between a devout Catholic and the Baptist Church, when it comes to how their rights deserve protection.

          • Kyle Cupp says:

            Good question, Patrick. I wondered the same myself when this issue started simmering. I don’t have an answer. There may be legal issues that would affect these institutions that don’t affect BYU? Or perhaps they would view such as exercising more control over their employees’ lives than they think is justified?

            Do you know if this question has been put to any bishop?

          • Patrick Cahalan says:

            > Do you know if this question has been put to any bishop?

            No, I don’t, and I’ve looked.

            > Or perhaps they would view such as exercising more
            > control over their employees’ lives than they think is
            > justified?

            I think this is probably an implicit counter-argument but it doesn’t carry much water for me. This sounds an awful lot like, “We want to be protected from the implications of actually exercising our religious freedom”.

        • Nob Akimoto says:

          I just don’t see why Catholics should get special treatment for taxation purposes by being allowed to pay their employees with a substandard health insurance program in lieu of simply not providing it.

          It’s not a penalty for not acting against their religious beliefs. That’s incidental to the practice. The reality is that their religious beliefs run afoul of a minimum standard of compensation.

          If the Church of Scientology tomorrow said that forcing health insurance to exempt all prescriptions for anti-depressants and mental health coverage, or if say my religious beliefs (say I’m Church of Rand) makes it immoral to have to follow minimum wage laws, is that also an acceptable justification to demand exemption from generalizable laws of compensation?

          Moreover, why is the onus on the EMPLOYEES to accept substandard health insurance under the rubric of religious freedom rather than employers to pay some sort of cost for imposing their religious views upon their employees? The BYU stance has been accepted as legal. The only reason it wouldn’t sell is because honestly the church’s stance on this is both unreasonable and completely out of the mainstream.

          If employers were going around requiring forms where employees had to sign an affidavit saying they’d never use contraception during their employment, suddenly the implicit becomes explicit and they can no longer hide that forced curtailment of the employee’s rights under the veil of “religious freedom”.

          Anything else is just moral irresponsibility and an attempt to obscure the fact that the employers are trying to force employees to be Catholic without explicitly saying so. And that’s not religious freedom.

          • Kyle Cupp says:

            If members of the Church of Scientology or the Church of Rand were/are being required by law to act contrary to their religious beliefs or pay a penalty, then I would expect them to put up a fight. Their freedom to practice their religion would be being curtailed. Whether or not they (or the Catholic Church) should win is a fair question. If you want to say that the winners are privileged, I don’t really have a problem with that, but then you always have winners and losers in trying to balance religious freedom with other rights.

          • Don Zeko says:

            The trouble for me is that I don’t think it’s reasonable to view a health care plan as a service that an employer is providing to its employees; it’s a non-cash form of compensation. So this objections reads to me like the catholic church (or various catholic business owners) asserting a right to attach conditions to how their employees can spend the money that they pay them. That’s crazy! It’s as if liberal business owners were trying to pay their employees with currency that can’t be used to make donations to Mitt Romney’s campaign and crying about free speech when people complained.

          • GordonHide says:

            @Nob Akimoto,

            I agree. Americans have to make up their mind who runs the country, the duly elected representatives or the priesthood. The electorate, including the Catholic electorate, has already pronounced on this issue by voting with their feet, (or other more personal appendages).

            If this religious privilege is allowed then you open the floodgates of non-compliance with the law for “conscience” reasons.

  5. Rodak says:

    Single-payer would solve the whole issue, and many others. But that would cost the insurance industry, big-time. And those folks write big checks for small-hearted politicians. The First Amendment ensures that no Catholic will be forced to use birth control. It does not ensure that any Catholic can tell a non-Catholic not to use birth control, any more than the Constitution protects the right of a restaurant owner not to serve members of an ethnic group that he feels to be undesirable. There is protection both OF and FROM religion. Catholic businessmen who feel that they can’t provide what the larger society deems proper should relocate their businesses elsewhere. San Marino, maybe?

  6. Morat20 says:

    Just to be sure here: No one is forcing anyone to take the Pill? Just that Catholic affiliated (but not actual Church organizations) insurance plans have to COVER the Pill?

    So it’s up to each and every employee to avail themselves, or not, as they will?

    • Don Zeko says:

      Yes, that’s exactly it. Nobody anywhere is being forced to use contraception by HHS. But the Catholic church is worried that some of the dollar bills that pass through their hands might have some sinful residue, owing to the fact that in the future they might go into a pool of money that is used to pay for birth control.

      • Morat20 says:

        But if I worked for them and bought it out of pocket, it’d be the same thing. Insurance as benefit is identical to wages.

        • Don Zeko says:

          That’s true, but the Catholic Church doesn’t seem to agree. Otherwise we either A)wouldn’t be having this stupid fight in the first place or B)they would be paying their employees in pro-life bucks that can’t be used to pay for all sorts of sinful things.

          • Morat20 says:

            I’m afraid I really can’t see an imposition by government here. Employees will either buy BC or won’t, and it’s identical whether they pay entirely out of pocket with wages paid for by the Catholic-affiliated group, or partially through benefits paid for by the Catholic-affiliated group.

            I’m afraid I simply can’t be sympathetic to the Catholics argument here.

            Especially since a little googling shows multiple US states already require this.

          • Kazzy says:

            Furthermore, these private, non-religious businesses likely were paying for the contraception prior. That thy cry 1st Amendment now seems… Convenient.

  7. Ryan Noonan says:

    Ha, when I first read the post, I didn’t follow the link on “place a few stones” because the argument just seemed obvious to me. Now that I’ve followed it, I guess I can see why.

  8. Rodak says:

    It would seem to me that where there is a irresolvable conflict between “religious freedom and other rights” in a multicultural, secular society the secular (which is presumably the majority) side should prevail. If those with the religious scruples can’t live with what the majority has decided, they are also free to leave, or otherwise make arrangements to avoid the conflict altogether–such as, in this case, going out of business.

  9. hazemyth says:

    What if the employee merely used their wages to buy birth control? Could the employer fire that employee on the grounds that they do not want to subsidize such expenditures, via payroll? I understand that has, thus far, argued for a right to do so. Certainly, it would place any possible complicity at a further remove. On the other hand, employer-provided health insurance and payroll are ultimately both forms of compensation, so the argument is not without merit.

    As a thought experiment, it illustrates that, in a highly diverse society, it would be hard to avoid any shadow complicity whatsoever without becoming utterly cloistered (and probably not even then). As you note, the conflict is irresolvable. So, at what point does someone’s earnest concern regarding such complicity simply become too burdensome to accommodate?

    • hazemyth says:

      On rereading your post, I realize that this is a question that you’ve already essentially asked.

  10. Doug Indeap says:

    The entire argument that the ACA abridges religious liberty is predicated on a falsehood. Contrary to assertions or suppositions to the contrary, the ACA does not force employers to act contrary to their consciences. Under the law, employers have the option of not providing any health insurance plans whatsoever and instead paying assessments to the government (in amounts, by the way, that are far less than the cost of health insurance plans). Unless one supposes that the employers’ religion forbids payments of money to government, the law does not compel them to act contrary to their beliefs.

    Lest someone object that payment of the assessments is not a real option because it would put religious employers at a competitive disadvantage or even drive them out of business, take note of two items, one legal and one factual. First, it has long been recognized that in providing exemptions for or otherwise accommodating conscientious objectors, the government need not give such objectors a “free” pass to disregard the law. Hence, we once required those with conscientious objections to military service to provide alternative service in noncombatant roles or useful civilian work. Second, roughly 30% of employers currently do not provide health insurance plans and, according, to two recent studies 10-30% of employers are considering dropping their plans after 2014 and paying the assessments instead because that may be economically advantageous.