When Society's Interests Clash With Religious Freedom

Via LOG, a "libertarian" argument positing that "Liberals Must Oppose the Contraception Mandate". The essay gets off to a weak start with an argument about coercion,

Defenders of the mandate insist that a woman’s reproductive liberty is significantly restricted if her employer refuses to pay for contraception. This is false. To see why, abstract. Is A’s liberty to X restricted if A’s boss refuses to pay for X? Especially when X is cheap and readily available? And when A can choose another employer? And when A’s government could provide X directly without using force against a voluntary association? No, no, no, and no.

The most obvious response to the author's position is that he is displaying tunnel vision. He sees this as an issue relating only to birth control and is concerned only with the rights of Roman Catholic employers. Given how thoroughly the religious liberty issue has been discussed, I am surprised that the author has yet to consider the bigger picture: The Christian Scientist employer who doesn't want insurance to cover eyeglasses, blood transfusions or antibiotics. The sincere fundamentalist of any number of religious faiths who doesn't want to pay for insurance that would allow health care practitioners to treat people of the opposite gender, or perhaps suffers genuine distress at the fact that hospitals aren't gender-segregated and wants to rule out any treatment of a person at a mixed-gender hospital. Why do we not respect their religious freedoms?

Once you accept that any form of comprehensive health insurance coverage is going to violate somebody's religious beliefs. If we're actually talking about sincerely held religious beliefs, the question of how many people hold the belief or how strongly other religious groups disagree with the belief should be irrelevant. Once we cross the threshold and decide that we can draw a line between where an employer's religious freedom ends and where an employee's right to comprehensive insurance coverage begins, there's absolutely no reason to privilege one set of religious beliefs over another.

We have drawn a line that favors religious organizations in relation to their actual religious operations, where they are free to engage in a broad range of actions in the name of religion that would be forbidden in the public sphere, but have found it reasonable to hold that when a religious organization extends its operations into the secular world that exemption no longer applies. That's a perfectly reasonable, defensible compromise position, balancing the rights of religious organizations with those of the secular world. If a religious organization find the accommodation of the secular world to be too onerous, it may choose to restrict its actions to the religious sphere and not be affected by the greater society's rules and norms. Or it can enter the secular world, but choose not to offer health insurance to its employees.

Further, from a logical standpoint, we're not actually talking about a boss being forced to pay for contraception. We're talking about an employer that is voluntarily offering health insurance as part of an employee's compensation (and getting a tax break as part of that bargain). A libertarian should, by all rights, object to an employer attempting to attach strings to how an employee spends her wages - what business is that of the employer's? Similarly, the fact that insurance covers birth control does not translate into every employee's obtaining and using birth control. It simply means that, along with other prescription medications, birth control is covered by the insurance plan and available to employees who want it on the same terms as other prescriptions covered by the plan.

It is rather attenuated to argue that the employer is somehow directly paying for benefits that are offered through the employee's health insurance plan. For that matter, by the very nature of insurance, it's not actually true. Let's say that we're talking about a five person store, with insurance costing $8,000 per year for the employees. One employee is diagnosed with a devastating cancer, resulting in a seven figure medical bill. Is the employer "paying" that bill by virtue of having provided health insurance as an employee benefit?

Also, unless the employer is offering health insurance with no copays or coinsurance, and is turning down all government subsidies, and ignoring the fact that any health insurance offered would remain part of the employee's compensation, why is it not at least as honest to say that any particular treatment or medication an employee receives is "paid for" by the employee, the government or by taxpayers? Why is it only the employer's contribution th. at counts?

The question of whether a medication or procedure is "cheap" or is available through other sources is a red herring. Many antibiotics are cheap. Many vaccinations are available through subsidized programs at a cost significantly below what would be billed to an insurance company. I could walk into an urgent care clinic and get a DPT shot for a relatively modest price. And if you're going to argue that the cost to the insured is so trivial that it makes no material difference to her that a particular medication or treatment is or is not covered by insurance, you need to drop the pretense that the impact of including that medication or treatment in an insurance plan is material to the cost of the plan.

Even in a good economy, the idea that an employee can simply quit and find a new job every time an insurance plan fails to cover a particular medical need is risible. As if jobs are simply "there for the taking", particularly at the bottom end of the job market where this is most likely to be an issue. As if a prospective employee has the opportunity to scrutinize the full range of benefits that may or may not be offered by any given employer's health insurance plan before being hired. As if employers and employees have anything approaching equality in their bargaining power.

Given that the criticism is offered as a libertarian argument, it's difficult to know what to make of the suggestion that instead of "using force against a voluntary association" the government should create it's own insurance program to offer medical benefits that offend any given employer's religious sensitivities. Should the government have responded to housing discrimination, some of which is defended by landlords as being predicated upon their genuine religious beliefs, by building rental housing and places of public accommodation across the nation, or at least those parts where certain minority groups found themselves excluded from the "free market"?

Really, though, if we ignore the history of the Affordable Care Act and pretend that some form of "public option" insurance or a national supplemental insurance plan are politically realistic, does the author expect that the debate would disappear? Would it not be far more realistic to anticipate that the same people who are objecting to the inclusion of birth control in employee health benefits would be complaining that their taxes are being used to provide birth control to women? Would it not be fair to infer that libertarians would decry any such insurance program as violative of libertarian principles, likely using the pretty much the same set of objections offered in objection to the inclusion of birth control in employment-based health plans?

The author concludes by conflating a tweet by Cher (yes, really, she is apparently his best example) to the effect that this is part of a "Right wing’s effort to Subjugate women", with the contention that "Authoritarians contend that if A refuses to buy X for B, that A uses coercion to prevent B from buying X." As should be needless to say, he's missing the forest for the trees. Cher's tweet is not about this particular issue, but is about her perception of a significant push by the religious right to subvert women's rights and equality. Also, it's a non sequitur to leap from Cher's statement to the implication that she is some sort of "authoritarian", let alone the hollow man argument that "authoritarians" as a class hold the belief described.

The author continues by taking issue with the very idea that there can be a "collective imperative" - the recognition of a collective interest of society - that outweighs the wishes of an individual. That's true to libertarianism, but is the sort of argument that helps explain libertarian's failure in the marketplace of ideas. Virtually everybody in a society recognizes that there are societal needs and imperatives that require individual compromise. Those who don't, frankly, haven't given the issue any amount of mature thought. You can find good thinkers who are heavily influenced by libertarianism in how they approach the question of where lines should be drawn, but you won't find a single good thinker who believes you can have a society that draws no lines. Note that the author presents out his rejection of "a collective imperative" as a fundamental truth, but if you reject the author's conceit - as pretty much every liberal or conservative is going to do - his argument collapses.

Again referring only to the Roman Catholic Church, the author complains,

[Harvard College administrator Erika] Christakis downplays the significance of the RCC’s religious liberty on the grounds that people have to do things they don’t like all the time. But she fails to distinguish between coercing people into doing things they dislike and forcing them to engage in serious immorality.

Again, nobody is forcing a religious organization to enter the secular marketplace. If a religion is so uncomfortable with the secular world that it chooses to restrict its operations to the purely religious, it has that right. And within that sphere it can discriminate against prospective employees of different faiths, use its bona fide religious beliefs to engage in race and gender discrimination, and refuse to offer insurance coverage for medications and treatments it finds objectionable. We were previously asked to pretend that employees have complete freedom to pick and choose employers that offer the full set of health benefits they desire, with no externalities that influence their employment opportunities or choices. Now we're to pretend that religious organizations have no choice but to enter secular markets in which their religious beliefs will be tested.

Also, the measure of what constitutes "serious immorality" varies by religion. By focusing solely upon one issue and one church, it's easy to pretend that this is a minor issue and that ceding to the beliefs of a religious organization imposes no significant cost upon either society or the women affected by the policy. But if you are sincere in the argument that this is a matter of religious freedom, and are sincere in the belief that society has no interest that can be asserted, let alone one that can overcome a religious belief, you will cause significant hardship to certain members of society, and will marginalize other individuals and groups. It's libertarianism in action, certainly, but anathematic to a healthy, inclusive society.

The author objects to the notion that an employer's religious-based choice not to offer coverage for contraception constitutes the imposition of its religious values on its employees. The author engages in weak manning here, seeking out an obscure argument that's easy to challenge in lieu of addressing the larger issues. But it is fair to observe that you can reach a threshold in a society at which point a gender or minority group can be deprived of basic rights and liberties by virtue of the majority's exercise of its religious beliefs. While it is fair to focus on the tree - that it's not per se coercive for an employer to offer an insurance plan that does not include contraception - when you take off your blinders and start considering the full range of religions and religious beliefs you can easily see how the author's argument supports the very coercion he contends does not exist in this narrow context.

The author concludes again by missing the forest for the trees, arguing that if it's acceptable for employers to discriminate based upon their religious beliefs within the context of their religious operations, it should be equally legitimate for them to discriminate within the context of their secular operations. Needless to say, the case law that supports the former position does not support the latter.

The LOG author poses the question of,

...whether it is within the bounds of acceptable discourse to say that liberals must oppose something that most actual liberals fail to oppose. I of course do think so.

Of course it is within the bounds of acceptable discourse to encourage people to reconsider their beliefs - to suggest that if they believe X, Y, and Z, it should follow that they believe W. But let's just say, there's a huge gulf between the implication that somebody has not thought through their position or is being hypocritical, and making the case that they are in fact being inconsistent or hypocritical. And it is more than fair to point out that in this context, the case was not made. Heck, the author can't even make up his mind whether he's talking about liberals or authoritarians, and it's not clear that he is attaching any greater meaning to either term than "people who disagree with me".