When the Department of Health and Human Services (HHS) announced recently that it would require all private employers to provide free contraception to their employees, the Obama administration no doubt thought that the requirement would be objectionable only to a small number of very devout Catholics. Most Americans, including most American Catholics, have no moral objection to the use of contraception. The administration miscalculated, however. The requirement has become enormously controversial, and briefly united left- and right-wing Catholics in opposition to the administration like no other issue in decades. Many prominent Catholic supporters of Obama's signature legislative accomplishment, the Patient Protection and Affordable Care Act of 2010, felt betrayed. Even non-Catholics and many progressive writers have criticized the requirement, not because they oppose contraception, but because they recognize that an important principle is at stake: that citizens should not to be coerced into performing actions they believe to be wrong.
The administration’s critics have since lost their initial unity, but the fact that voices from such disparate perspectives ever achieved it is remarkable. It suggests a hitherto implicit principle has now been recognized explicitly. Moreover, it is clear that almost everyone assents to it in theory, since it is impossible to imagine proponents of the mandate rejecting the principle were the substance of the controversy reversed—for instance, if a conservative administration were proposing to mandate that every household purchase a copy of The Road to Serfdom.
Though a number of zealots will, on any public question, prefer to see their particular notion of the common good trump every principle of democratic governance, the American center usually insists that the procedure is more important than the outcome. And consequently, despite its indifference to Catholic moral claims about contraception, the center opposed the mandate. Particularly notable were the voices from the left that remarked that, had Congress passed a more aggressively statist healthcare reform bill than the Affordable Care Act of 2010, the current controversy would have been avoided. No private actors would be compelled to provide what the administration believes to be the common good because the state would provide all.
For anyone who takes the project of the liberal state seriously, this ought to be considered an advance of great importance. New principles to distinguish liberal laws from illiberal ones are rarely discovered, but they are important, as the moral basis of a liberal democracy cannot be exhaustively supplied by a constitution. In fact, a constitution itself relies for its effect on the ongoing legitimacy of state institutions, which is constituted in part by universally affirmed but unwritten principles. Consequently the opportunity should be seized to encode the newly revealed principle as a guide for all laws, regulations, and policies.
As a matter of prudence, the state should never force anyone to perform an action he or she believes to be wrong, unless it has a good reason, not merely to have the action performed, but to insist that even those who find it wrong perform it. The principle is far from indefeasible, however. It is obvious that if individuals were exempted from paying whatever taxes they believed unjust to pay, many citizens would be tempted by scrupulousness. In general, three criteria should be met before a state should consider mandating that its citizens perform an action without allowing exceptions for individual conscience. The criteria are not meant to be a legal test, but a moral one.
1. First, the belief cannot be ad hoc. That is, the belief cannot be invented for the purpose of escaping the law. Determining whether this is the case for particular individuals who claim a right of exemption might seem to be a difficult task, but in practice an exemption could be granted both to groups with well-recognized histories of opposition to the action and also to individuals who followed a procedure designed to satisfy the state of the validity of their claim.
The Supreme Court recognized the usefulness of the long-practice test in Yoder v. Wisconsin, a case that gave Amish parents the right to keep their children out of school after the 8th grade. The court recognizes specifically the historical claim of Amish to their beliefs. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs.
The procedure test also has precedent. When allowing conscientious objectors to avoid combat duty during times of general conscription, the federal government has traditionally required the objectors to furnish some proof, or at least avow, that their belief is of longstanding and stands on principled grounds, not merely a desire to avoid fighting. That the Catholic Church should be exempted from the HHS contraception mandate on these grounds, incidentally, is clear. The Church has opposed contraception quite explicitly for nearly two thousand years.
2. Second, the belief cannot have as its manifest aim the material interest of the objector. It might be thought that if the state allows its citizens to exempt themselves from any mandate, a moral hazard is created, and many citizens will discover reasons of conscience, which over time will gain credibility as sincere beliefs, to fail to perform the most materially costly tasks required by the state. This moral hazard can be protected against, however, by adding as a criterion that the reason for wanting to avoid the mandated action cannot be connected to the material interest of the objector. This is one of the strongest arguments against granting combat exemptions to conscientious objectors. It is not, however, an argument against granting a contraception exemption to Catholic-affiliated institutions. In many cases a material advantage to the objector will coincide with nonetheless entirely sincere belief. Legislatures can easily avoid doubt in these cases by requiring that some alternative action, acceptable to the objector, be performed. The locus classicus of such alternatives is the requirement that conscientious objectors perform non-combat duties as dangerous as combat, such as stretcher-carrying.
3. Third, exemption cannot undermine the basis of government or civil order. No matter how strongly an individual feels that performing a particular action is unjust, some mandates are necessary for the ordinary functioning of civil society, and exempting certain individuals would amount to allowing them to hold the entire polity hostage. Declining to respond to subpoenas, for instance, would be ruled out by this criterion. Needless to say, declining to pay for the birth control pills of one’s fellow citizens is compatible with the mechanisms of democracy and the rule of law.
It is worth noting that these criteria only apply to situations in which an adult citizen is required to perform some action. Situations where someone is required to perform an action on another’s behalf when his or her conscience forbids it are more complicated. For instance, states frequently require parents to provide some generally accepted standard of care for their children even when meeting the generally accepted standard would violate the parents’ conscience. Even in these cases, however, usually only extremely harmful omissions are forbidden by the state. Whether Jehovah’s Witnesses have the right to forbid hospitals from performing blood transfusions on their children has at times been a live political question in the United States, for example.
Legislatures that abide by this guiding principle and grant exemptions when allowed by these three criteria will do well—not only morally, but for the health of American society, which has always been composed of many diverse groups, some with strong metaphysical commitments, some without, pursuing the public good in the manner they see best. Historically the Catholic Church has pursued the public good in the United States by opening schools, hospitals, homeless centers, and other institutions. Over time these institutions have become part of the fabric of American life. The new HHS regulations are an attack on the structure of this fabric. They amount to a declaration that only one view of the public good is now acceptable for private institutions that choose to serve all citizens: the view of the current Congress and presidential administration.
David Schaengold lives in New York.