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In a religious freedom/liberty conflict among religious
employers, employees, and students, who wins?

The "Fortnight for Freedom" campaign (Cont'd).
Conscience clauses.

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This topic is continued from the previous essay

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U.S. Conference of Catholic Bishop's bulletin insert:

In association with their "Fortnight of Freedom" campaign during late 2012-JUN and early JUL,, 1 the U.S. Conference of Catholic Bishops (USCCB) issued a bulletin insert for use by Catholic Churches nationwide. It deals with the Health and Human Services mandate affecting all secular employers and some religious employers concerning contraceptive supplies and devices. It said in part:

"The church does not ask for special treatment, simply the rights of religious freedom for all citizens. Rev. King also explained that the church is neither the master nor the servant of the state, but its conscience, guide, and critic."

"Catholics and many other Americans have strongly criticized the recent Department of Health and Human Services (HHS) mandate requiring almost all private health plans to cover contraception, sterilization and abortion-inducing drugs. For the first time in our history, the federal government will force religious institutions to fund and facilitate coverage of a drug or procedure contrary to their moral teaching, and purport to define which religious institutions are 'religious enough' to merit an exemption. This is a matter of whether religious people and institutions may be forced by the government to provide such coverage even when it violates our consciences.

"What we ask is nothing more than the right to follow our consciences as we live out our teaching. This right is not only about our ability to go to Mass on Sunday or pray the Rosary at home. It is about whether we can make our contribution to the common good of all Americans. Can we do the good works our faith calls us to do, without having to compromise that very same faith? Without religious liberty properly understood, all Americans suffer, deprived of the essential contribution in education, health care, feeding the hungry, civil rights, and social services that religious Americans make every day."

"What is at stake is whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it." 2

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An analysis of the USCCB bulletin insert:

  • Paragraph 1: The reference to Ref. King relates to his "Letter from Birmingham Jail" in 1963 during the civil rights battle for racial equality.

    It would seem that the Catholic Church is not really asking for "the rights of religious freedom for all citizens." (Emphasis ours) In fact, it is attempting to control and limit the wishes of some of its employees who have studied contraceptive medication, devices, and procedures from their personal religious, moral and ethical beliefs, and decided to make use of birth control in order to regulate or prevent their pregnancies.

    It would appear that the Catholic Church is going beyond being the "conscience, guide and critic of the state." It is trying to interpose itself between the government and the Church's multi-faith employees by denying the latter access to what many if not most of the employees regard as required health insurance coverage.

  • Paragraph 2: The reference to "abortion inducing drugs" may be an error, or a misrepresentation of medical findings, or an attempt to bias pro-life readers who are opposed to abortion:

    • The author of the bulletin insert may be referring to actual "abortion-inducing drugs: like RU-486 that can terminate a pregnancy if taken within 49 days (7 weeks) after the start of the woman's last menstrual period." These are not included in the HHS directive and would not be covered in an insurance plan.

    • The author might be referring to Plan B or other emergency contraceptives (EC). When the initial regulations were established for EC, the method(s) by which EC worked were not clearly known. It was generally accepted that EC mainly acted as a contraceptive. It could inhibit ovulation -- the release of an ovum from an ovary -- and thus terminate any chance of pregnancy. It was also agreed that EC did inhibit fertilization -- again terminating any chance of pregnancy. But it was unclear whether EC could also work in a third way: to interfere with the implantation of the blastocyst or pre-embryo -- the products of conception -- in the wall of the uterus.

      The Catholic Church and many other pro-life groups concentrated on this third path; some even implied that it was the only way in which EC worked. Under the definitions of terms that many pro-life groups used, pregnancy starts at conception. By interfering with implantation, this would have made EC into an abortifacient -- a medication that caused an abortion. Subsequently, medical research revealed that this third path was extremely unlikely and probably impossible. But many pro-life continued to refer to EC as an abortifacient. By mid-2012, the consensus of medical researchers is that EC operates purely a contraceptive. However, pro-life groups are still making references to EC as an abortifacient, and this bulletin insert may include one of them.

    • The paragraph continues: "the federal government will force religious institutions to fund and facilitate coverage of a drug or procedure contrary to their moral teaching." This appears to be an error. A Roman Catholic hospital, university or other employer of multi-faith employees will pay exactly the same premium for the health insurance of an employee who elects to take advantage of the birth control services included in the plan, as for an employee who elects to not take advantage of the services. It is difficult to see how the Catholic institution or agency will "facilitate coverage" of the employee, because the employee deals only with the insurance company and not with the employee.

    • The basic conflict is among the hierarchy of the Catholic Church, the Catholic employers and the employees of the Catholic institution or agency. Some, probably most, employee have examined the moral, ethical and religious aspects of birth control services in their insurance plans and decided to take advantage of the included services. The Catholic Church has examined the moral ethical and religious aspects of birth control services and wants to forbid the employee from taking advantage of them. The employer might wish to support either their Church or their employees. This is the crux of the matter: In a case where religious liberties and freedoms are in conflict, who wins -- the Church or the individual employee?

      One estimate is that contraceptive services cost about $18,000 over an employees' life time. If they are not are provided free, then many employees will not be able to afford them out of their personal budget. This will often lead to unwanted pregnancies of which 40% are terminated by abortion. Since both pro-life and pro-choice advocates as well as the Catholic Church and government are anxious to minimize the number abortions, perhaps the religious freedom and liberty of the employee should rule in this case. Unfortunately, the proper course of action when the religious freedom of a church and of a number of individuals are in conflict is unclear. It is not even being widely discussed. All the media emphasis appears to be in support of the Catholic Church as the only group whose religious freedoms may be abridged. It is worth noting that surveys have shown that 98% of Roman Catholic women have used a birth control method, medication or device that is opposed by the church; 70% are currently using one of them. The non-Catholic employees who probably form the majority of employees affected by the mandate, use birth control to approximately the same degree as do the Catholic employees. 3,4

    • The HHS mandate is not attempting to determine which group is "religious enough" to merit an exemption. Any religious group, like a Roman Catholic diocese, who employs only its own members would be exempt from the regulation. It is religious organizations and agencies who hire employees who follow religions other than the Church or who follow no religion at all that are affected by the HHS regulation.

  • Paragraph 3: The insert states that the what the Church asks: "... is nothing more than the right to follow our consciences as we live out our teaching." This is surprisingly close to what the Church's employees ask, which is nothing more than the right to follow their consciences as they live out our moral, ethical and religious beliefs." This highlights the basic problem: Who wins in a conflict over religious freedom and liberty. This case is not about the Government trying to impede the religious freedom of the Catholic Church. It is about the Government trying to facilitate the religious freedom of a large group of employees. Again: what should happen if two groups' freedoms conflict? What are the criteria that should be used to reach a compromise?

  • Paragraph 4: It states: "What is at stake is whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it." We would suggest that there are a number of items at stake:

    • In a case where the religious/moral/ethical freedoms of two groups are in conflict, who wins?

    • What are the criteria for deciding who wins?

    • Who is to make decisions to control the employee's fertility: the employee or the religious employer?

    • Do the people of the United States and the government have a legitimate interest in reducing unwanted pregnancies and both the abortions and mental/physical problems that they trigger?

Unfortunately, these items are not being adequately addressed.

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This topic continues in the next essay: More reaction to the HHS mandate

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References:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Fortnight for Freedom, "United States Conference of Catholic Bishops, undated, at: http://www.usccb.org/
  2. "Protecting Consciences," USCCB bulletin insert, 2012-JUN, at: http://www.usccb.org/
  3. "Most Catholic women use birth control banned by church," Reuters, 2011-APR-13, at: http://www.reuters.com/
  4. Rachel K. Jones and Joerg Dreweke, "Countering conventional wisdom: New evidence on religion and contraceptive use," Guttmacher Institute, 2011-APR, at: http://www.guttmacher.org/

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Copyright © 2012 by Ontario Consultants on Religious Tolerance 
Originally written: 2012-JUN-27
Latest update: 2012-JUN-27
Author: B.A. Robinson

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