Thursday, February 9, 2012

Do People Have A Right to Substantially Burden the Church Over Birth Control ( Positive Versus Negative Liberty )

Yesterday over at National review has an interview with Prof Rienzi who is senior counsel at the Becket Fund for Religious Liberty and a professor of constitutional law at the Catholic University of America. See HHS Mandate 101

In part of that interview :

LOPEZ: Is this about birth control or religious freedom?

RIENZI: The only issue here is whether the government will force unwilling religious objectors to give up their religious beliefs. There is no problem of access to birth control in this country. As the administration never stops saying, the stuff is popular and provided by most private employers. And when private employers don’t provide it, the federal government already gives it out to people who want it through Title X funding.

Let me give you an example. At the Becket Fund for Religious Liberty, we represent the monks at Belmont Abbey College in North Carolina. They are Catholic, and they have religious objections to providing these drugs. According to the Alan Guttmacher Institute, the federal government already provides contraception to more than 100,000 people in North Carolina, from more than 100 federally funded Title X clinics. There is simply no reason that the government can’t provide contraception to any employee of Belmont Abbey who happens to want it.

So the question is not whether people will be able to get birth control — they can, and they will. People get plenty of contraception today without making Catholic monks give it out. The question is whether the government will use the issue to force a small religious minority to conform to the government’s view that birth control is a great idea. And that’s something the Constitution and federal law clearly forbid
.

As Prof Garnett pointed out

substantially
The question is whether the burden is justified -- is it necessary to secure public order, for example? -- or whether, given our traditions, the better course is to accommodate them....

The point is, a society that is constitutionally committed to religious liberty is willing to pay some "costs" for accommodating religious objections, because religious liberty is valued (it's worth "paying for"). And here, the cost, all things considered, is low; it would not be (that) hard to accommodate the objections while still achieving the state's public-policy goal

Because it would not be (that) hard, the refusal to accommodate -- when so many accommodations are being granted to those who object to other burdensome provisions of the mandate -- is revealed, I think, as what it is: A cynical imposition that transfers the cost of the government's policy goal (one that Congress did not vote on) to (primarily) Catholic institutions.

To put it legal law school jargon we are dealing with a “substantial burden” test .

It does seem that Governement can less burden religion by well just expanding Title X. If this is a matter of such concern the GOVT can pay for it and not expect the Church to save it some money. Again we are dealing with that whole positive versus negative liberty thing.

As Prof Vischer noted about one year to this date at Professor Vischer on New Conscience Regs :

The second question: how did rolling back – or at least holding the line on – conscience protections become a hallmark of a progressive political agenda? This is a much trickier inquiry than parsing regulatory language. One relevant development is progressives’ tendency to conceive of freedom – and the government’s responsibility to safeguard that freedom – in terms of positive liberty, not just negative liberty. Negative liberty requires protection against interference with the pursuit of basic goods; positive liberty requires affirmative assistance in securing basic goods. As progressives have tended to expand the range of goods for which the government’s affirmative assistance is required, the potential for conflict with a provider’s liberty becomes greater. Nowhere is this trend more pronounced than in the debates over reproductive rights. Arguments for conscience protection emerge from a long tradition of negative liberty; arguments for guaranteed access to a particular good or service – backed up in many cases by state power – emerge from a much more recent tradition of positive liberty.

The issues here of the first amendment that is at issue with the Church is much more in the negative liberty camp ( the older one). If people have a right for affirmative assistance in getting birth control ( a much newer tradition) may I suggest they look to the GOVT not the Church to affirm that.

5 comments:

Anonymous said...

If we let the Catholics get away with this dishonest back door outlaw of birth control, then we will have to contend with the Jehovah Witness objection to blood transfusion, the Scientology objection to psychiatric treatment, the Christian Scientists objection to all medicine. Every religion in the country will be trying to force it on others. And the whole thing is one big lie, there is nobody even trying to force any Catholics to use birth control. They are just liars who have been using birth control without anybody forcing them, just look at the number of children they have now compared to when Rose Kennedy did not use birth control.

James H said...

There is no Catholic back door outlawing of birth control here. This is maintaining the usual state of affairs

SJ Reidhead said...

I'm working on a Pink Flamingo post about all of this. It seems to me that we are on a slippery slope here. There are two things going on here.

1. Washington has right telling everyone what they they can and cannot do on an hourly basis.

2. What happens when radical Islam demands the right to tell the Feds that they have the right to have their daughters brutally circumcised?

3. Why can't people pay for their own durn birth control and quit asking for handouts? How expensive is a box of well, you know. If every male in high school proudly displays theirs in their wallet, how expensive can it be?

I suspect #3 would solve the whole problem.

SJR
The Pink Flamingo

Anonymous said...

Yeah, most people could probably pay for birth control, but most people would likely die from relatively common illness like appendicitis if they did not have medical insurance or freeload at LSU. People are not thinking about how far-reaching this "conscience" thing is that the Catholics are trying to claim. I saw a debate on TV last night between a Catholic spokesman on the issue, and a woman from a United Methodist womens group. The moderator was shocked when the Catholic said something that indicated that any employer that just happens to be Catholic would be claiming the right to refuse to pay for medical insurance that covers anything he finds objectionable. The moderator asked him if he did not mean just the employees of the Catholic hospitals and Catholic schools would be affected, and the man assured him that he did not mispeak, that he is claiming that it violates the conscience of a Catholic to work in any capacity for a company which furnished insurance which pays for birth control. This means that Roman Catholics are claiming the right to dictate to the rest of us the terms and conditions of our own employment if we work for the same company as ANY Catholic. If the Catholics get away with this, the Jehovah Witnesses, the Mormons, the Scientologists, the Moonies, and every other loony will be right behind them.

Anonymous said...

Yeah, most people could probably pay for birth control, but most people would likely die from relatively common illness like appendicitis if they did not have medical insurance or freeload at LSU. People are not thinking about how far-reaching this "conscience" thing is that the Catholics are trying to claim. I saw a debate on TV last night between a Catholic spokesman on the issue, and a woman from a United Methodist womens group. The moderator was shocked when the Catholic said something that indicated that any employer that just happens to be Catholic would be claiming the right to refuse to pay for medical insurance that covers anything he finds objectionable. The moderator asked him if he did not mean just the employees of the Catholic hospitals and Catholic schools would be affected, and the man assured him that he did not mispeak, that he is claiming that it violates the conscience of a Catholic to work in any capacity for a company which furnished insurance which pays for birth control. This means that Roman Catholics are claiming the right to dictate to the rest of us the terms and conditions of our own employment if we work for the same company as ANY Catholic. If the Catholics get away with this, the Jehovah Witnesses, the Mormons, the Scientologists, the Moonies, and every other loony will be right behind them.