Monday, February 10, 2014

Little Sisters, Big Issues

This post is in response to an essay on the Conservative News and Views blog regarding the pending Supreme Court case with the Little Sisters of the Poor.

The short version is that RoseAnn Salanitri, like the Little Sisters of the Poor, believes that religious freedom in the USA includes the right of groups to claim that their religious principles justify overriding civil law, even when the group in question is not directly engaged in operating a place of worship.

The Little Sisters run a nursing home operation, and do not want the health care plans offered to their employees to include birth control coverage as required under the Affordable Care Act.  What makes their case interesting is that they're declining the option to apply for a direct-coverage waiver for this requirement, because they consider that anything short of prohibiting birth control coverage for their employees, directly or indirectly, is the same as condoning birth control.

The thought that the government is somehow forcing the Little Sisters to endorse contraception by not allowing them to block it as a covered benefit, paid by others, is what they regard as an imposition on their religious freedom.

Let's recap that, because it's important.  The Little Sisters believe that if you work for them in their nursing home, then they have the right as your employer to decide what is and isn't covered under your health insurance plan; it doesn't matter that the plan is run by a third party, it doesn't matter if there's no cost to them for the benefit to be covered, and it doesn't matter if the benefit is required by law.  If they object to the benefit on religious grounds, that is reason enough and anything else is religious persecution.

Ms. Salinitri picks up on this and takes it to the extreme.  If the Little Sisters don't prevail on this issue of "religious freedom", then we're heading down the slippery slope of Mt. Godwin to being hauled away to a concentration camp by anti-religious forces.


I wrote to Ms. Salinitri several weeks ago on this but never received a reply, so I'll put my thoughts out here for anyone else to reply to, including her.

Like RoseAnn, I see this as a clear issue of religious freedom, but from the exact opposite side in terms of whose religious freedom needs protection.  The Bill of Rights was focused on defining and protecting those rights at the personal level, not the group level, and when we're talking about a secular activity like operating a place of public accommodation the rights of the individual come first.

If we were talking about running a church or whether the Little Sisters could prohibit what members of their order can and cannot do, that's their right because the context is how they worship.  Running a nursing home is different - no matter how valuable the service is, it's still a secular service that can be provided by anyone regardless of faith.  Even if the religious mission of a groups drives "why" they run a business like a nursing home or hospital, the businesses themselves are not places of worship and being a member of that faith is not a condition of employment.

If you want to be a cook, janitor or bookkeeper at their nursing home they cannot refuse employment based your faith, along with your race or gender.  They aren't seeking to do that, but they are seeking to impose a faith-based denial of medical-plan benefits their business' employees are entitled to under U.S. law.

That approach is wrong for four reasons.
  • First, it is an unwarranted intrusion between an employer and the privacy & personal medical decisions of the employees, which have no bearing on the execution of the jobs they are being hired for.
  • Second, entities like the Little Sisters are not operating churches or similar places of worship, but are religious groups providing services that are essentially secular in nature.  
  • Third, the rules for when and how the tenets of a given faith should apply to medical coverage provisions are completely arbitrary, and can put the quality of medical care at risk.  Can a nursing home run by Jehovah's Witnesses forbid coverage for blood transfusions?  Can an employer specify whether you can give a hospital Do-Not-Resuscitate instructions?  What about conditions like ectopic pregnancies, where religious influences restrict treatment options in some countries?
  • Finally, there is a lack of consistency in the decision of the Little Sisters to object to the contraception provision of the ACA on religious grounds, while not making a similar issue of other behaviors even more clearly banned by their Catholic faith.  Frankly, this is just cherry-picking a single issue while ignoring others that have been and still are condoned.
Let's look at these issues in more depth.

Regarding privacy, to what degree should an employer be allowed to pry into your personal life, and the privacy of the doctor-patient relationship, as a condition of employment?  No one is forcing the Sisters themselves to use a given benefit, but they are passing judgment on the morals and lifestyles of their employees by assuming that the only medical use of contraception is for family planning.  I have one friend who uses the pill to control uterine cysts, and another who uses an IUD to stabilize the frequency & severity of her menstrual cycle.  Both of these women are happily married and have already had three children each, and are using these options for medical treatment rather than for family planning.  Why should they be denied coverage for these medical treatments in a health care plan that other women would be covered for under the law, when the only objection the Little Sisters have is an assumption about lifestyle?  Should an employee have to surrender her privacy to an employer to appeal denied coverage?

As for the second point, the Little Sisters are not running a church, and unlike their Order itself, they are not requiring one to be a devout, practicing Catholic as a condition for employment in their place of business.  If you don't have to be a devout Catholic to be a cook, janitor or bookkeeper at their facility, how is it not an infringement on the staff's freedom of religion to have the employer deny them a legal, covered healthcare benefit based on a religion they don't practice, when the coverage has no bearing on job performance and comes at no added cost to the employer?  This isn't about Hobby Lobby deciding that they won't be open on Sundays or that they won't sell Hanukkah decorations - those are legitimate business decisions related to the business itself.  The policy comes from Catholic nuns employing others who may not even be Catholic.  Denial of a legal benefit based on religion, when religion is not a condition of employment, is against the principles of the First Amendment.

As an extreme example you can even turn the premise around.  Imagine a chain of well-run, high-quality nursing homes owned by a devout Islamic organization.  They hire staff of all faiths, but as a condition of employment they require all hires to sign a contract agreeing to have any workplace disputes resolved under Sharia Law, rather than the secular court system.  This fictional entity could claim that their faith requires this, and that forcing them to follow civil law before Sharia Law is a violation of their group's religious freedom.  Pretty ridiculous, and I can only imagine how this would go over in the Bible Belt.  I don't how the Little Sisters case is any different in principle, though.

The third point overlaps with the doctor-patient privacy issue.  Quality medical care in a free country like ours should allow a physician to apply any legal option or treatment that's in the best interest of the patient, in accordance with the wishes of the patient.  There are Catholic hospitals that require ectopic pregnancies to be treated by removing the fallopian tube rather than terminating the embryo and leaving the tube intact for future pregnancies.  The former is considered acceptable and the latter considered abortion because of semantics; the pregnancy is lost in either case, and yet the "acceptable" option cuts the opportunities for future conception in half.  If I'm employed in a secular job by Christian Scientists, should they be able to prohibit my medical plan from covering blood transfusions because condoning that would be a violation of their faith?  Is the use of a do-not-resuscitate order a violation of pro-life values?

If we have to decide to let these personal choices be driven by person affected by them or the company employing that person, isn't the best default position the one that favors individual liberty?

The final point above ties to one of my strongest objections to the lawsuit.  I can certainly understand the values driving the motion by the Little Sisters, since I was raised as a conservative Roman Catholic myself.  However, why does the concern about compliance with faith and the refusal to condone sin stop with contraception coverage?

The most obvious example is in providing spousal coverage for their staff under the ACA.  In the Catholic context, the only  valid "spouse" is the partner from the first marriage performed in a Catholic ceremony.  Anything else, including remarriage after civil divorce or someone only married at City Hall, would be considered adultery in the Catholic faith.  If the Little Sisters extend spousal coverage in these cases that isn't just turning a blind eye to adultery, but extending material benefits of Catholic marriage to adulterers.

The whole premise of wanting to drop the contraceptive coverage requirement is based on the idea that the Little Sisters should not endorse immoral behavior by making it affordable for their secular employees.  If any of the staff want to obtain contraception they are free to do so, but at their own cost without a subsidy.  That's a very focused, hand-picked example of trying to punish outside-employment behavior, and it's discriminatory because it denies women a benefit over bias regardless of the reasons one might use these treatments.  If the policy was consistently applied, then all claims for all treatments would have to be reviewed for circumstance to make sure that paying for them in part or full wasn't condoning behavior considered immoral, like:
  • Covering the prescription to treat a STD, which is rewarding adultery if the patient is single or married-and-cheating.
  • Covering lap-band surgery, which rewards gluttony.
  • Covering the prenatal care and birth of a child to a couple married in city hall, or to a single unwed mother, which is rewarding that "adulterous" behavior.
  • Covering the chemotherapy for a seriously-ill woman that in turn causes a miscarriage.
We wouldn't condone letting any employer scrutinize our private medical history and then pass subjective moral judgment on what is considered acceptable to cover, but allowing the Little Sisters to prevail in this case is a step in that direction.  This doesn't lead to the vision of the Founding Founders - it actually leads 150 years further backwards in civil rights to Puritan Massachusetts.  The problems of that era drove the thinking of men like Roger Williams and William Penn to define freedom of conscience as a critical right of the individual, not of the state, and not of an employer either.

If individual liberty, privacy and freedom matter, then we should not be saying "We are all Little Sisters", we should be saying "We are all William Penn", and put those words into action.


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