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Conscience Clause…. Why Opting Out is Not an Option

One of the commenters at Beth’s post on the HHS decision regarding contraception asks:

How consistent or heathy is it for a religion like Catholicism, which views persons and personhood differently from a secular American government, to expect to be an integral part of American society and to not be at odds with the government? To what extent should Catholics and the Catholic Church expect to pay no price at all for their outlook, which is quite different from that of secular government.

The commenter goes on to mention the Amish as a case of people who have “opted out” of certain kinds of government regulations; is health care, done secular-style, one of those points where Catholics need to opt out?

I think these are all good questions, deserving of their own post, and so I am writing here. I’m trying to think through this myself, so much of what I say may be redundant, but I want people to see how I’m thinking about this in my own arguments.

I will say, on one hand, I’m sympathetic to the idea that Catholicism is, well, to put it baldly, odd and weird especially when it is compared to purported contemporary secular values like those held by the United States government. And, I think further that Catholics can and should be prepared to be “out of step” with culture on occasion, or even often. Witnessing to our world about who Jesus is – the impossibly crazy fact of the God-man – is not something that is an easy fit for many and it may well be that our particular view of a person’s life and dignity “from natural birth to natural death” is too ill-fitting for us to accept the health care law and its sanctions.

My worry, however, is that to focus on the question of personhood as at odds with the government fails to take into account that in fact, Catholicism ALSO has a long-standing tradition of respect for and, often, collaboration with governments precisely because of its understanding of political authority as being part of God’s order. (Romans 12 and 13 come to mind on this, but so also does Ambrose’s call on the Emperor Theodosius to repent after he massacred people at Thessalonika; we could name many others – some great and others not-so-great or even evil – but the point remains that there is that tradition.) That understanding of political authority goes hand in hand with the understanding of what it means to be a person. It is hard to say that we humans are made in the image of God, with all the dignity that accords, and not also see that as related to the maintenance of human dignity via ordering human society in political and economic ways.

This long-standing concern with what the government does, of course, has bearing on the present question of health care. For one, Catholics have long, long been proponents of making sure that all people have good medical care, again out of concern for human dignity. If we wanted to see insurance coverage and health care change in this country, based on that concern, that needed collaboration, which the bishops and others provided. Now that the health care act has passed, and with provisions that are opposed to church teaching, what has happened is that the church finds itself facing a dilemma. It still has an interest in getting people adequate health care; it also has concerns about the long-term affects of using contraception on our understanding of peoples’ dignity.

At this juncture, it would seem that “opting out” in the sense of “doing our own thing” might be the way to go. In the relatively recent past, when the Catholic Church saw itself at odds with political authorities it did opt out: without getting into the finer points of the history here, the creation of Catholic schools and hospitals in the United States often have their roots in an understanding that Catholics did things differently. While they cared deeply about education and health care, as their Protestant or secular counterparts did, they also recognized they did it differently. Such hospitals and schools have a long history of being granted religious exemptions, and they often did quite well with that kind of development (and so did schools and hospitals related to other religious insitutions).

The thing is, in this case there is no option to “opt out” in that way because the HHS has effectively denied it by too narrowly construing the exemption clause. If Catholicism were only about what we do on Sunday mornings, it would make sense to say that the exemption clause should only apply to employers at houses of worship that only serve people within that tradition. But Catholics rarely, if ever “only” serve “co-religionists” even in their houses of worship. For example, my parish operates a soup kitchen that largely serves non-Catholics and non-Christians. It is currently running inquiry classes for more than forty people who are not Christian but wonder about becoming Catholic. Under the current exemption clause, it would seem possible that even my parish could not qualify for an exemption.

So the other way I see that Catholics could “opt out” would be to forego giving health care coverage at all, to all employees at Catholic-related institutions. But this option would deny Catholics the opportunity to do what they have done on a long-standing basis (that is, provide health care, in a variety of times, places and ways), since well before the United States became a nation. That is, it seems to deny Catholics the very freedom to practice their own religious tradition. It would seem further that the state here has taken the very problematic step of restricting “religion” to only what happens in houses of worship.

To see the problem in this kind of move, I wonder about a possible analogy in kosher and halal butchering, which is also a religious practice not done in the confines of houses of worship and which also has direct cousins in secular society. I could imagine a time when the United States might be concerned about butchering practices to the point that it would regulate meat-packing facilities much more tightly than it does so now (would that this were the case!) I could also see that in attempting to define new butchering practices, it might develop (perhaps based on new technology) an ideal butchering practice that was proven to be environmentally efficient. I could also see that those involved in kosher and halal practices might have a stake in encouraging the state to so regulate its meat. If, however, the state were to say that only its own butchering practices would be allowed (because it presumes such practices are newer and more scientific) and that kosher and halal practices would not because they would deny people the right to access to “healthy meat,” I think we could rightly say that the state has there “established” its own secular “religion”.

That most self-professing Jews do not routinely keep Kosher (for example) would be irrelevant to whether the state has the right to make that kind of rule, just as is the fact that most Catholics do not follow the Church’s teachings on contraception. Such questions are internal debates. (Of course, they are often influenced by secular politics – as we see in the fact that many Christian denominations now have statements saying they do not discriminate on the basis of race, class, gender and so on – but such statements do not have their basis in the long-standing traditions of those churches.)

My main point here is that religion cannot be merely “confined” to houses of worship – despite the best efforts of secular politicians (and here I hasten to say BOTH Republican AND Democrat – for example the case of immigration reform in Alabama). And this, too, is why the Catholic Church cannot simply “opt out”, either positively or negatively here. No, we’re stuck, good. And I think we’ve all got to figure out some good ways forward if we wish to preserve both the concern for health care and the concern for religious exemptions.



  1. Jana,

    This is a question pertaining to Catholic moral theology. The church has no official teaching about contraceptive use outside of a marriage, but only that inside of one.

    In this case, how would contraceptive use by non-catholics have an impact on Catholic principles?

    Wouldn’t it be better for the Bishops to encourage married Catholics to give up contraception, than to worry about other people contracepting?

  2. I’m definitely no moral theologian, but it seems that contraceptive use anywhere, by anyone, is a bad thing. The Church shouldn’t choose between “worrying” about either, they should address both. And in regard to encouraging married couples to give up contraception…obviously this is important, but it won’t be anywhere near as effective for larger institutions like hospitals compared to not offering contraceptives at all.

  3. SRDC,

    What I think Jana is highlighting is that it isn’t really about contraception, it is about the identity and nature of the Catholic Church’s organizations, social services, and participation in the larger community that makes opting out not an option. This is the point I tried to make in my earlier post on the HHS ruling concerning grants to serve human trafficking victims.

  4. SRDC – From a Catholic Moral Theology point of view, I’d argue that the church does have an official teaching about contraceptive use outside of marriage because its official teaching is that sex outside of marriage is not good; contraception is related to sex, so the teaching is that likewise, contraception is not good. Now I’ll grant, Humanae Vitae does not explictly state that; it is only implied.

    Your question about contraceptive use by non-Catholics is actually a separate question from the question about contraceptive use outside of marriage. For example, marriages between non-Catholic Christians are seen as sacramental, so that the idea about sex and contraception still applies.

    But all of these questions about other people contracepting seem here to me to be beside the point. The question for me is more: “Why does a secular state have such a stake in asking a religious group, especially one with a long-standing history of being against contraception, to provide contraception for people in federally-mandated insurance plans?” That seems rather coercive of the state to expect that. It would seem better, indeed, for the state to create its own “National Health Organization for Women” to dispense contraception free of charge, if the secular principle is of such importance. (Indeed, if THIS were the kind of thing the bishops were questioning, then I think David Nickol’s question in Beth’s post would be a more pressing question Of course, the church would continue to be concerned about contraception, but in this kind of scenario, the debate and discussion operate on a different kind of argument, which is an argument about what fosters the best kind of human society.)

    But in the present scenario, that’s not the problem or the debate- at least as insofar as I understand it, and I do recognize that I probably don’t understand large aspects of it because it’s so complex.

    Indeed, when the bishops raised the questions about the exemption clause back in August, they were not mandating that ALL insurers, regardless of religious or secular background, should NOT provide contraception.

    They were instead asking that the exemption clause be expanded to include Catholic schools, hospitals and charities – which, by the way, are PRECISELY those organizations that the Catholic Church has traditionally relied upon to “encourage married Catholics to give up contraception”. So I suppose I would say: yes, it would be good for the bishops to encourage married Catholics to give up contraception, in light of the church’s teaching about this – but the current mandate does not allow for the bishops to do so. Unless, that is, one understands religion as merely about something that happens for an hour or two once a week at a worship service – but that’s not at all what what is thought, from a Catholic moral theology perspective.

  5. Jana,
    Thank you for this post. I too have been wondering how best to respond to the original comment on my post.

    The first thing that needs to be emphasized is that the Catholic views on personhood do not differ from the implicit views of personhood operating in the work of the founding fathers. John Courtney Murray in his We Hold These Truths writes that the Founding Fathers built a better consensus than they new explicitly they were building, and that only natural law is adequately equipped to reflect substantively on that consensus. Public debate has moved more to an attributed view of human dignity (to use Daniel Sulmasy’s use of the term) because it has lost the ability to reflect on a deeper consensus of what constitutes intrinsic dignity of the person, but this simply means that Catholic participation in the public debate on personhood is even more critical now in calling Americans back to fundamental truths on personhood that this nation was built on–that all people are created equal.

    The participation of Catholics in public debate is not only consistent with Catholicism, it is also good for America in that it helps Americans deepen the moral commitments on which the country was founded and safeguard critical American freedoms like the freedom of religion. As such, it is absolutely important that Catholics not develop a sectarian mindset in response to the HHS mandate, but rather, vigorously engage in public debate on the freedoms that are so critical not only to Catholics as Americans, but also Americans as Americans. In this sense, your Halal/Kosher meat analogy is an excellent one.

  6. Beth – I think that your points about personhood deserve whole other post! 😉 I’m not sure, myself, that John Courtney Murray is right but I think that a more detailed discussion of America and personhood would be worthwhile since that’s obviously not the focus I took here.

  7. Right, Jana. I wasn’t trying to sidetrack the discussion and the question of personhood was not my main point either. Rather, I was trying to say that I don’t think the Catholic Church and the broader American public is as much at odds with each other as David Nichols’ original comment implied, and moreover, I think the secular public benefits from the distinctly Catholic contribution to the public square discussion, whether it is on the nature of healthcare, the particular question of artificial contraception, the broad question or personhood, or the specific question on immigration legislation. If faith and reason are compatible, and Catholics believe that they are, then vigorous engagement in public life is not only necessary (which is why opting out isn’t an option), such engagement is also good–both for the “secular public” and for Catholics. So not only do I agree with you that for Catholics “religion cannot be confined to houses of worship only,” I also think the federal government should want to support the work Catholic organizations do (like Catholic Charities which is motivated by religious commitments but not serving only co-religionists), even if they disagree with some of the religiously-motivated lines such organizations draw (like opposing artificial contraception), because these organizations are serving both the common good and contributing positively to the broader conversations in the public square. In other words, even if an organization like Catholic Charities is distinctly Catholic, it need not necessarily be at odds with the secular public. Or even if a Halal butcher is distinctly Muslim, that too need not be at odds with the secular public. The diversity of contributions to the public square, whether motivated by religion or not, is what keeps the conversation in the public square alive. What HHS has done in this recent ruling is to say that on this question of artificial contraception (and the recent decision pertaining to trafficking that Meghan referred to), the conversation has stopped. This is, I think, simply un-American, not to mention anti-Catholic.

  8. I just want to thank Michael, Meghan, and Jana, for answering my question and trying to help me out with this issue.

  9. “Opting out” is precisely what the Church is fighting in these circumstances. It is the desire and objective of some to work towards the privatization and marginalization of the Catholic community in civil society. The Church can never support this. This strikes at the heart of a Catholic understanding of civil society, the nature of law and the common good. The good has both a private and social dimension. Law exists for the proper ordering of society towards the good and peace. One of the desired outcomes of those who oppose the Church’s social vision is to guarantee freedom of worship but not of conscience or religion. If this were to come to pass, you would be free to worship wherever you choose but your faith would be a private matter not unlike any other private hobby you may have.

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