Matthew Boudway makes a thoughtful argument in Commonweal that the Patient Protection and Affordable Care Act violates religious freedom by requiring religious employers to provide health coverage that includes contraception with copay; I respectfully disagree that the analogy he offers is a valid one, and in a moment I’ll try to float my own. But it, too, will be imperfect—which I think just goes to show some of the absurdity of employer-sponsored health care in the United States.
Boudway writes:
Imagine a large institution that provides free meals to the poor, and imagine that the institution is run by Jains, who are vegetarians. None of the meals offered by this institution include meat, though many of the people to whom the meals are offered are neither Jains nor non-Jainist vegetarians. Now imagine that the federal government (never mind under which agency) issues a rule that requires any organization that offers the poor free meals to include meat on its menu, with the single exception of religious organizations that offer only coreligionists free meals. In the statement announcing the new requirement, the government points out that most people do eat meat, and that most doctors believe meat is good for you in the right amounts, since it provides important nutrients that are difficult to find in other foods.
I see this analogy failing in a number of important ways, not least in the way it suggests that the two parties involved are, first, a large institution doing charity work; and, second, the government—which may or may not be funding the Jain institution; Boudway doesn’t say—which imposes rules upon it. That’s far simpler than the situation we have for health care in the United States.
On the healthcare institution side, you have to contend with the many health care system mergers that have taken place, such that previously non-Catholic institutions have suddenly found themselves in positions where they’re potentially answering to bishops. You would also have to contend with the fact that Catholic-affiliated hospitals are both essential to health care delivery in the United States (they’re about a fifth of US hospitals) and, meanwhile, receive a high percentage of their budgets from the government.
Then there’s the idiosyncratic situation in the United States whereby health coverage, for a lot of people, comes through their employer. Employers who provide health coverage in the U.S. aren’t doing charity. In the United States it’s how most people get health coverage. That’s the system we have. Catholic institutions employ non-Catholics, and contraception is a part of basic health care for most people, for good reason: overall, it improves health.
Because of these points of dissimilarity, in my opinion, it doesn’t follow when Boudway concludes:
Now, does one have to believe it’s wrong to eat meat—for the reasons adduced by Jains or for any other reason—to believe that the government should not force Jainist soup kitchens to offer it? I don’t think so. I don’t agree with Jains about vegetarianism (though I do think there are formidable moral arguments against eating meat), just I am not persuaded by the reasons offered by my own church for its teaching about contraception (though I think there are formidable non-moral arguments against the pill). But I also don’t believe it’s the federal government’s job to decide whether Jainism’s arguments for vegetarianism or the Catholic Church’s arguments against artificial contraception are worthy of respect or accommodation. Nor does it matter how small a part of the general population is vegetarian, or even how many Jains quietly ignore their religious community’s doctrine.
Except that in this situation the federal government isn’t deciding whether Jainism’s arguments for vegetarianism or the Catholic Church’s arguments against artificial contraception are worthy of respect or accommodation. Rather, architects of health care reform are contending with several things that don’t make a lot of sense together, yet are all true: Most people get health care through their employers. Most people treat contraception as a basic part of health care. Meanwhile, there is a Catholic teaching against birth control, but Catholic institutions employ non-Catholics. Also, Catholic hospital systems are an essential part of healthcare. They receive significant amounts of reimbursement money from the government, they have merged with non-Catholic systems, and they participate in a wider nonsectarian system wherein insurance companies negotiate with them and ambulance companies work with them and medical students do residencies in their hospitals and so forth.
So if one had to bring Boudway’s original analogy up to code, one would have to say this: Imagine you live in a country where the default way to buy food is buying it from your employer. You get a job, and your employer negotiates with companies who in turn have agreements with grocery stores and growers, shipping companies and meat processing plants, and so on. The end result of all this is that you get a card, which you present when you buy groceries at one of the stores where an agreement has been negotiated on behalf of your employer.
In this scenario, Jains run a number of large institutions with many employees, a high number of whom are not Jain. At some point, a number of people realize that the current system is a complicated and inefficient way to feed people, and so there are attempts at reforming the system. One of the questions that the would-be reformers have to consider is: What do most people, in fact, eat? That’s important, because they are trying to craft a system that takes into account the people who actually live in the country currently.
They also need to give at least some consideration to what it would be good for people to eat, but of course this is much trickier. One wouldn’t want one’s reform effort to be seen as a social engineering program. At the same time, there’s certainly a low bar that needs to be cleared. If you come up with a new system that can only deliver gummy worms and vegemite to people’s cupboards, that won’t do. You can’t live on gummy worms and vegemite. So although the reformers can’t set out to re-engineer all people to eat just as they’d like, they also need to avoid situations where they can’t even provide a basic variety of wholesome and tasty food.
Where meat is concerned, the answer to the first question is obvious. Almost everybody in this country eats meat, often every day. But the second question is more tricky: should people be eating meat? Well, goodness. I mean, who gets to decide? Eating meat isn’t illegal. Moreover, it turns out there are a whole host of scenarios in which individuals deem that their best option is to eat meat. They hear from people who have trouble digesting non-meat sources of protein. They hear from people who are professional athletes and consume large amounts of protein in order to build muscle. They hear from people recovering from anorexia nervosa who desire the caloric density of meat. They hear about the benefits of high-protein diets after surgery. They hear from people whose lives are just not arranged in such a way that cooking tofu and mung beans is a realistic prospect. Some people, to be sure, just like meat and aren’t morally troubled by it in the slightest. For some people, it’s the way they have grown up, and they can no more imagine a world without bratwurst than one without sunsets. Which, again, is not illegal, though it may earn them reproach from principled vegetarians and animal rights activists… who, incidentally, the would-be reformers also hear from.
Now, let’s be clear: Some of these meat enthusiasts might make bad Jains. But should that matter where the government is concerned? Is it the government’s job to make sure that they’re not facilitating anyone’s being a bad Jain? Well, no. And that might not be a huge problem… except for the inconvenient fact that wholesale reform of the grocery system isn’t achieved. At least not right away. In the inevitable compromise, employers will still need to have a role. And so when the federal government says “Hey, we’re going to try to make sure that all Americans get the groceries they use, but we still need to work through the employers,” it becomes very complicated.
Advocates for some Jain institutions say, “Wait, now we have to facilitate the meat-getting by our non-Jain employees? This is an outrage! We’re being forced to violate our religious principles!” Their critics reply, “Oh, please. Nobody’s asking you personally to eat meat. Anyway, you didn’t have any qualms about hiring these people, and you’ve entered into contracts with lots of non-Jain companies. If you want to be a religious organization, fine, but then do it across the board. Almost everyone eats meat here, and there’s no conceivable sense in which it isn’t part of the national diet.” The grocery reformers suggest a religious exemption but only for religious organizations that employ and serve adherents to the religion. But this compromise pleases almost nobody.
Of course, that scenario’s pretty far-fetched. So I would submit another analogy, one which I think gets at some of these considerations better, if not perfectly.
There’s a town whose civic center burns down. Thankfully, nobody is hurt, but as the presidential election draws near, people realize there’s a problem: Where should the polling place be? The obvious choice is a very very conservative independent fundamentalist church. It’s on Main Street, it’s easy to get to, it’s wheelchair accessible, and no other facility in the precinct would really work at all.
As it happens, this church teaches that women shouldn’t vote.
Its members hold this belief sincerely, for it is a well-attested and important part of their church’s tradition. They can cite scripture in support of their belief. They point out that for most of the history of the United States, their practice was absolutely the norm. They suggest that widespread moral decline began or increased when women began voting. And they share testimonies of families whose lives improved when women stopped voting. “It facilitates communication between spouses,” they argue. “A husband, who knows that he will be voting on behalf of two people, and not just himself, becomes less selfish. He learns to listen, because he has to. Meanwhile, a wife is not just encouraged, but required to make her concerns known to her husband. If a wife has her vote and a husband his, it introduces strife and self-interest into the marriage.”
When others point out that this seems awfully sexist, the members of this church say that the husband’s domination of the wife is entirely at odds with the spirit of the teaching. “People who think it’s the husband’s vote misunderstand the teaching entirely,” they say. “It’s the couple’s vote, hers as much as his, and the only reason that he is the one who casts it is because of the God-given differences between men and women. Men are designed to take more initiative and to be more active in the public sphere, and women’s bodies make it easier for them to stay closer to home, especially when they have young children. But both sexes are equal, and if a man is disregarding his wife’s input into elections, then he isn’t following what we teach.” Of course, this does nothing to assuage the critics of the practice. “Yes, that’s lovely that you think so. But outside of Pretend Happy Land, robbing women of the vote is disempowering, and I can’t even believe we’re having this conversation.”
Anyway, the municipal government, for many compelling practical reasons, wants the church to serve as the polling place. The church insists that it cannot, in good conscience, allow its sincerely-held teachings to be violated on its watch. The elders take a vote and come back with a decision: They’ll be HAPPY to let the church be the polling place, and serve the common good, but only if they can restrict voting to men. Their critics protest: “Women have a right to vote in this country, for heaven’s sake! What is wrong with you people? If you strike this arrangement you’ll be violating our rights!” The church protests: “We can’t be forced to violate our religious principles by the government! If you don’t strike this arrangement, you’ll violate our rights!”
If the church changed its teaching, or all of the women in the town suddenly ceased to want to vote, or the government was able to find another facility, then at least the fight would stop. (The underlying questions would, of course, persist.) But, in this scenario, none of those workarounds are feasible. Everyone is stuck, nursing their anger and… well… dreading the election.
