Freedom of Conscience -- or Free Contraceptives?

by Melissa Moschella

The Catholic bishops remain deeply critical of HHS’s contraceptive-coverage mandate, even with the new accommodations for religiously affiliated employers. This unrelenting opposition is puzzling to many, including many Catholics who opposed the original policy. After all, wasn’t the initial outcry fueled primarily by the overly narrow exemption for religious organizations? And doesn’t the new proposal address that concern? Maybe the skeptics were right that the moral outrage was simply a veneer for political opportunism.

But maybe not. Maybe puzzlement at the bishops’ recalcitrance reflects not the insincerity of their motives, but popular misunderstanding of their concerns. Their worry was never primarily about religious organizations, but about the protection of individual consciences against the coercive power of the state.

This is a point that neither the Obama administration nor many of it critics appear to grasp. Obama’s new proposal — according to which employees of religiously affiliated organizations will be offered contraceptive coverage directly by the insurance company — is oblivious to the concern about individual conscientious objectors. Individuals have consciences, not organizations. The new plan does nothing for employers at non-religiously-affiliated businesses or non-profits, for insurers who have to offer contraceptive coverage, or for employees who have to buy it. Even for religiously affiliated organizations, the accommodation seems to be a distinction without a difference — the objectionable coverage is still provided by the employer’s insurance plan, financed in the same way as the rest of the coverage. The new policy still forces individuals to cooperate in what they consider to be gravely immoral actions — either because they object to contraception itself, or because they believe that certain contraceptives sometimes work by inducing early abortions.

Perhaps the misunderstanding results from conflating two related, but distinct, principles. The first is that government ought to avoid entanglement in the internal affairs of religious organizations, exemplified in the Obama Justice Department’s arguments about employment discrimination, rejected by the Supreme Court’s recent Hosanna-Tabor decision . The second is that government ought not to force individuals to act contrary to their consciences. The religious exemption in the initial HHS mandate, and the new accommodation, are essentially attempts (arguably unsuccessful) to respect the first principle. Despite all the talk of conscience protection, however, the second principle is ignored by the HHS policy, even in its revised version. 

But why are conscience rights so important? And why should they outweigh the interests in public health (for those who consider contraception and abortion to be health care) and women’s equality that free access to contraceptive services purportedly forwards? 

Conscience rights go to the core of what is to be a human person: the capacity to act based not only on desires or instincts, but on judgments about what is good and bad, right and wrong — and the moral responsibility that is inseparable from that capacity. To force a person to act contrary to conscience is to force him to violate his moral integrity. It is an assault on the person at his core, much worse than any merely physical harm. That is why heroic individuals — including our nation’s founders — have chosen to risk or suffer deprivation, imprisonment, and even death rather than compromise on matters of conscience. Such individuals are inspirations to us all. But the governments they lived under are not. 

There may be instances in which conscience rights conflict with equally fundamental rights of others, or with the prerequisites of public order and a free society. In such cases, the government must protect the safety and security of all, even if that means, for example, disregarding the conscience rights of the terrorist motivated by sincere religious belief.

There are many goods which the government has reason to foster, including public health and women’s equality. But there are limits to the means for legitimately pursuing those goods. Those limits are individual rights — something that both liberals and conservatives see easily enough when not blinded by their own particular passions (regarding say, sexual freedom or private property).  

Forcing employers or insurers to fund an activity that they believe to be gravely wrong is a denial of individual conscience rights. Is free access to contraceptives an equally fundamental moral right to be protected even at the cost of others’ conscience rights? Is it a prerequisite for a free and ordered society? Anyone inclined to say yes should consider the following question: Would it be worth risking one’s life or livelihood, emigrating to an unknown land, or fighting a revolution to secure all-expenses-paid access to contraceptive services? Only for those who have made sexual expression their religion.

Advocates of the HHS mandate claim that free contraceptive services would be beneficial to individuals, to the cause of women’s equality, and to public health. Maybe those claims are true; maybe they’re not. But even if they are, they’re beside the point.  To justify a violation of conscience rights, much more would have to be stake.

As Thomas Jefferson declared in 1809, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” It is a danger to the liberty of all when the government is thought to have the right to coerce individuals to act against their consciences in order to forward any public-policy goal. That is why the bar against such coercion needs to be set uncompromisingly high.

Obama did get one thing right in his statement announcing the modified policy: This should not be a “wedge issue.” Regardless of political allegiances, views about sexual morality, or religious beliefs, all should take a stand to ensure that the conscience rights of each individual — and especially of those whose views are not shared by the majority — are securely protected. Such rights constitute the very essence of a free society. “Rights” to free contraceptive services do not.

The Catholic bishops are not defending Catholic organizations, individual Catholics, or even individual opponents of contraception and abortion — they are defending the prerequisites for a free society.

— Melissa Moschella is a doctoral candidate in political philosophy at Princeton University, specializing in parental rights in education.

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