Thursday, November 7, 2013

HHS contraception mandate

I am one of the signatories of an amicus brief by Catholic theologians and ethicists in the Gilardi case against the HHS contraception mandate. The DC Circuit Court recently ruled against the HHS in this case. The main line of thought in our brief was that a Catholic employer's providing coverage for contraception makes the employer cooperate in the employee's use of contraception. Now, Catholic moral thought not only takes (marital) contraception to be wrong, but also takes cooperation in someone else's sin to be morally problematic. Whether the cooperation is not just problematic but wrong depends on questions about the degree and kind of cooperation involved.

Reflecting on these issues makes me think there is a second really crucial thing going on, besides making employers complicit in employees' sin (and we touch on this in the brief, though I think it can be developed). One of the reasons for the HHS mandate is precisely to encourage women to use contraception (this is certainly not denied). But this means that the employer is made complicit in what the employer conscientiously takes to be the government's morally wrongful promotion of wrongdoing. And this cooperation is even closer, and thus far even more morally problematic, than cooperation with the employee's use of contraception. For the employer here acts as the government's instrument in its policy of promotion of contraception. Note that promotion does not require success: in this case, governmental promotion of contraception occurs whether or not any employees actually use the contraception.


John Moore said...

How much control should a business owner have over his employees' lives? Obviously the boss can set conditions relating to job performance, but it would set a bad precedent to let the boss dictate things in the worker's private life.

Do you want Christian businesses who only hire Christians? Black businesses that only cater to blacks? Gay businesses? How far do you want to go with this?

Alexander R Pruss said...

That's not the question here. The question here is: How much should the business owner be required to financially support aspects of her employees' private lives that she conscientiously takes to be immoral?

It's one question to ask whether an employer can prohibit her employees from joining the KKK and another to ask whether the employer can be required to fund the employees' Klan regalia.

Likewise, it is one question to ask whether a Quaker employer can prohibit her employees from buying guns and another to ask whether the Quaker employer can be required to fund her employees' membership in a gun range.

John Moore said...

That's the same question. If the employer can choose not to "financially support aspects of her employees' private lives," that means the employer has some control over those private aspects. Should this be allowed?

There should be a wall of separation between business transactions and private moral decisions. The worker sells labor and the employer pays money. After that, the worker should be free to use the money anyway she likes.

Alexander R Pruss said...

What you propose would be a very different model from what the government proposes. What you propose is a more libertarian model on which it's up to the employee to choose what, if any, insurance plan to spend the pay on.

But the government is instead requiring that the employer, instead of giving more cash to the employee for the employee to do with as she sees fit, is required instead to buy an insurance policy for the employee, and that the insurance policy have specific provisions that neither the employer nor the employee can opt out of paying for.

As we say in our brief, there is a world of difference between giving an underage person some cash that he can spend as he sees fit and giving him a gift certificate for beer.

Heath White said...

It is perhaps worth pointing out that the whole problem arises from the extremely odd method this country uses of supplying health insurance. If it were either single-payer government provided, or bought by individuals in a free market, the employer wouldn't be involved.

But we do have this system, so there is this problem.

Dagmara Lizlovs said...

I'll throw in my two cents worth. I am originally from Dearborn Heights Michigan, which is next to Dearborn. My mother still lives there and I visit on the holidays. The neighborhood is very Middle Eastern with a high Muslim population and Muslim owned businesses. We like the goods being sold in their bakeries and grocery store with a Halal butcher and shop there all the time. We would not even think about going in to the Halal butcher and asking him for pork chops. I know it is against his religion, and I know that he has the perfect Constitutional right to his beliefs. It's the First Amendment. He also has a right to operate his business as he sees right. He is under no obligation to sell pork if it is against his religious beliefs. If I want to get pork chops, there is a Kroger grocery store across the street I can go there to get pork chops. If I want to get the best kababs perfectly seasoned and coffee with Cardamom I know exactly where to go.

Here is the text of the First Amentment:

Congress shall make no law respecting an establishment of religion, or PROHIBITING THE FREE EXERCISE THEREOF; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Now what part of the 1st Amendment don't some people get?