Douglas Kmiec on Birth Control, Bishops, Religious Liberty, and ‘Obamacare’

All this hoopla from the Catholic Bishops Conference on birth control, and from the Vatican on religious liberty, and from everybody on “Obamacare” can leave one wanting to ignore the papers, radio, and TV and just bury one’s head in the sand. But, in the end, all that really gets you is a sandy head and grit in your lashes.

If you’ve got 15 minutes to read and think (and I ask that seriously because most of us don’t), then I’d commend to you Douglas Kmiec’s essay War No More … Or, At Least, Peace With Obama published this week in the National Catholic Reporter.

Kmiec, a constitutional law professor at Pepperdine, carefully thinks through the forces surrounding the contraceptive debate, health care, religious liberty, the Supreme Court deliberations, Obama and the Catholic bishops, and frames them with American jurisprudence and Catholic moral teaching. It’s worth reading the whole thing. But here’s an excerpt to get you started:

When the president chose to not grant an exemption from the mandate that employer-provided insurance should include contraceptive coverage, some bishops called the decision an act of war on the church and religious freedom.

With due respect, I believe this overstated matters considerably. This is especially so, since the president responded promptly to begin discussions on how the ethical concerns of the church might be met more satisfactorily. In particular, the president proposed that no Catholic employer would be directly asked to supply contraceptive coverage; instead, that coverage would be provided by the employer’s insurance company.

To a good many theologians, this worked well enough to avoid formal cooperation with evil, but left unanswered how the problem could be avoided where a Catholic employer did not use a third-party insurer, but was self-insured. Discussions continue, with some now suggesting that it might be possible to create a public entity by implementing regulation to offer the contraceptive benefit in this self-insured context in a way that similarly separates a Catholic employer.

To date, the matter is unresolved. The president has gone a good distance to make certain the Catholic church and its auxiliaries are not the provider of contraceptive care. It is fair to ask whether our demanded exemption, built as it is on an ethical analysis of remotely cooperating with evil, is what we are called to defend given the entire context.

And the entirety of the context includes bringing 32 million people into the health care system. These men, women and children, prior to the Affordable Care Act, were left to rely on the happenstance of very expensive emergency room care. It is quite obvious by their campaign rhetoric that the president’s political opponents view the religious freedom/contraceptive mandate issue as another chance to repeal universal health care. Should we?

Whatever one thinks of the bona fides of the dispute over religious freedom, it should not excuse us from addressing the claim of distributive justice. Said the Holy Father: “It is necessary to work with greater commitment at all levels so that the right to health is rendered effective, favoring access to primary health care.” Benedict continued: “Health justice should be among the priorities of governments and international institutions.”

Formally, in three days of unprecedented argument, the redistribution issue was left unspoken — unless, that is, you read between the lines of the Supreme Court seeming more befuddled than necessary in light of the last 60 years of case opinion. More than $100 billion in health costs annually is imposed on the present system by the uninsured, and but for some obscuring footwork behind the high court lectern, that is a commercial problem of truly national scope. Nevertheless, the opponents of the law argued, and distressingly seemed at times to have a majority seriously listening, that a confessedly commercial decision (for example, I am young, healthy and would rather not buy health insurance I likely won’t use personally) not to enter the marketplace cannot be regulated.

To not put too fine a point on it, this is nuts. All the advocates and justices concede Congress has the power to tax us and, if it had wanted to, could then supply medical care through a single-payer government provider with our tax money. If freedom and liberty survive having money subtracted from one’s paycheck to support a benefit through a government monopoly, why exactly is freedom devastated when the government just requires us to buy insurance in a semi-competitive private marketplace so that the costs we cannot escape from imposing on the system are covered whenever they unwantedly and unexpectedly occur. That the mandate also results in more balanced risk pools and lower premiums is, as Justice Ruth Bader Ginsburg noted, just the nature of insurance.

When someone who can afford to purchase insurance instead decides to not obtain it, he or she is making a choice of economic significance for himself and others. For himself, the presently healthy self-insurer is exhibiting a preference for assuming risk while manifesting no empathy for other citizens whose costs increase by his remaining out of the insurance pool.
Even if we cannot be certain of the outcome until June, when the court’s opinion is expected, are we at least assured — seeing as how there is the small matter of a presidential election — to get a definitive ruling then, one way or the other? …–Douglas W. Kmiec

Read Douglas Kmiec’s complete articleWar No More … Or, At Least, Peace With Obama.


    • Why not? I am a pro-life Catholic and I can engage profoundly with the careful and orthodox presentation of theological reasoning that Kmiec puts forth.


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