Insurance coverage for contraceptives?

This article appeared May 1, 2002 in the opinion page of the Philadelphia Inquirer. Leslie Anastasio, the executive director of the Pennsylvania chapter of the National Abortion Rights Action League, responded a few days later. In most states, the American Civil Liberties Union is leading the legal offensive to force Catholic institutions to pay for the contraceptives of their employees. This campaign is an important part of their Reproductive Freedom Project. See the ACLU's report entitled "Religious refusals and reproductive rights", which outlines their position on the subject. They later issued another document specifically addressing the issue of pharmacists refusal to dispense contraceptives.

Legislation has been introduced in a number of State Houses across America to force insurers to pay for the contraceptives of their workers. Politicians argue that failure to cover these services constitutes a needless burden on women. But don’t be fooled. Concern about providing more comprehensive health insurance is hardly the issue. The disturbing thread running through these bills is the intent to purge from existing law any possible recourse to conscientious objection in matters of human reproduction. And since today the Catholic Church stands alone in her opposition to contraception, one could argue that Catholic health care professionals and Catholic institutions are being singled out for harassment.

The primacy of individual conscience over the authority of the state is a foundational principle of Western culture. In the United States, this principle was challenged by the legalization of abortion in 1973. Within months of the Roe v. Wade decision, the late Senator Frank Church of Idaho passed an amendment to Federal health care legislation recognizing the right of doctors and hospitals to refrain from doing procedures felt to be morally reprehensible. The so-called “Church amendment” served as a template for state “conscience” laws that were subsequently enacted, and that currently stand in most States. These laws were hardly a legal novelty. They simply made explicit an uncontested principle implicit in legal practice for centuries.

Restriction of existing “conscience clause” laws has been attempted with varying success in the District of Columbia, California, New York, Louisiana, Illinois, Massachusetts, Maryland, Texas and other states. They are simply attempts to chip away at the integrity of individual conscience as a legal principle. Under a new, highly restrictive California law for example, the only entities allowed to object in conscience to contraceptive coverage are organizations of explicitly religious character that hire only persons of the same faith, and that devote themselves only to religious training or indoctrination. This law effectively forces Catholic hospitals, educational and charitable institutions to provide contraception to their employees, and would force them to violate state and federal anti-discrimination laws in order to qualify for an exemption. A bill with similar restrictions may soon pass in New York.

The ACLU has been a leading force in the push to restrict conscience laws around the country. Their views are clearly expressed in the document “Religious Refusals and Reproductive Rights” published this past January as part of their ongoing “Reproductive Freedom Project”. They ask, not without a stiff dose of hubris, whether or not an individual or an institution “should be allowed to refuse to provide or cover a health service based on a religious objection,” and argue that to do so in many cases can pose a health risk to the population. What they fail to recognize is that trampling on conscience is itself a cause of serious pathology. It causes schizophrenia: the split personality that results from severing the natural connection that should always exist between moral character and professional competence.

By forcing someone to perform actions that are morally repugnant to them, an unnatural split is introduced between “competence” – the technical ability to perform actions well – and “character” – the moral disposition of the person performing the action. If the legal recognition of conscientious objection is abolished, then the disintegration of the human person is the inevitable result, because conscience is the glue that holds moral character and professional competence together. To respect personal conscience is the only way to promote personal integrity. Only if a government fosters this unity of life can its citizens prosper.

The ACLU also argues that the “right to refuse” prescription of contraceptives –- or for that matter, to refuse sterilizations or abortions -- implies a pre-existing duty to provide these interventions. So according to the ACLU, “conscientious objection” is merely the benevolent state granting some religiously-minded citizens permission to be negligent. To them, “morality” is an arbitrary and malleable legal construct determined by the ruling majority, and a minority opinion may be tolerated as long as it does not inconvenience others.

While the Catholic Church is bearing the brunt of these not-so-subtle assaults on conscience, we need to recognize that this is not “just a religious issue”. It is a universal, human issue with broad implications for all of us. The state does not confer on its citizens the “right” to follow the dictates of conscience. To follow one’s conscience is a duty founded on the inherent moral nature of the human person. When our conscience makes a judgment regarding the morality of an action, we are bound by the verdict. In allowing for conscientious objection, the state merely acknowledges that the moral duty imposed on us by our conscience cannot be violated. It’s not that private conscience is infallible. It is not. Conscience must always refer to an objective truth that transcends the individual, applies to all, and points the way to personal fulfillment. The well-formed conscience, not “majority rules”, is the best moral guide we have. Respect for conscientious objection is simply the acknowledgement of the inalienable right of citizens to be free from external constraint by political authority in religious matters. Safeguarding conscientious objection, especially in matters of faith and morals, is never an obstacle to civil liberty.