In Praise of (Some of) John L. Kane’s Reasoning

As Sarah Posner has already posted, federal judge John L. Kane granted a preliminary injunction to Hercules Industries, a family-owned HVAC company that had filed suit claiming that the contraception requirement of the Affordable Care Act violated their Catholic beliefs. Under the ruling, the company doesn’t have to comply with the contraception mandate of the Patient Protection and Affordable Care Act—for now. The requirement that Hercules provide contraception coverage, which would otherwise go into effect on August 1, is now blocked while the rest of the case is decided.

Kane’s conclusion doesn’t read like that of an ideologue. And there are elements of his other writing which are really spot-on, even at points inspiring.

In a 2002 speech to the Denver Bar Association (opens as .doc), Kane called for far-reaching reform to the legal system:

The legal system’s stubborn adherence to antiquated, unworkable rules of civil procedure, the imposition of mandatory sentences in criminal cases, the surrender of individual rights and responsibilities to administrative agency discretion, and the conquest of form over substance are but the first steps into a vortex of depression.

Shortly thereafter, in the same speech, Kane defines justice this way:

Justice, I think, is the result of a creative process in individual circumstances. It is not the result of a program, nor can it be described by statistics. In much the same way, ethical conduct is determined in individual performance rather than in organized behavior.

It’s not Kane’s job to rule on religious groups’ doctrines, and rightly so. That said, can I just point out that it’s precisely this attention to initiative and individual circumstance—the attention Kane calls for in his speech—which theologically-motivated proscriptions of contraception arguably disallow? When sexual ethics is conducted almost exhaustively in terms of what The Sex Act is for, what the purpose is of people’s sex organs and gametes considered theologically from a distance, then certain factors drop out of the analysis. Which sex act? Involving which people? What organs are we talking about here, and whose bodies are they a part of? Does one of those bodies have endometriosis (a condition for which a woman might take hormonal contraception even if she isn’t trying to avoid pregnancy)? Does this sex act take place between a married couple with good reason to worry about a serious heritable genetic disorder? Does it involve someone who just wants a break between pregnancies and isn’t in a position to make or trust cervical mucus/temperature charts? Does it involve someone who is being abused and knows if she gets pregnant it will tie her even more to her abuser? Above all, do the people whose bodies and lives are actually involved get to exercise any sort of discretion and initiative, or must that decision-making be wholly referred to the administrative parties with the authority to decide?

Leave a Reply

Your email address will not be published. Required fields are marked *