Saturday, April 2, 2016

Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor by M. Cathleen Kaveny :: SSRN

Prof. Cathleen Kaveny (Boston College - Law and Theology) dissects the claims of the Little Sisters of the Poor.  Operators of a chain of nursing homes, the optimally named Little Sisters claim that it would violate their consciences even to fill out a form saying they claim exemption from the contraceptive mandate imposed on insurers by  the Affordable Care Act.
The result of seeking exemption would be clearing the way for insurers to offer medical care forbidden by Roman Catholic doctrine which bars artificial birth control.
A key legal issue is whether such a notice requirement compels them to violate their conscience by complicity in contraceptive use and is therefore a "substantial burden" on their religious exercise.  Such a burden is so slight says Kaveny that  the nuns' position (as framed by the Becket Fund for Religious Liberty) distorts Catholic doctrine on cooperation with evil.  Proportionality is a key determinant abandoned by the Little Sisters rigid formulation.  More importantly they fail to respect the rights of their employees to use contraceptives - something done by American Catholics at the same rate as other Americans.
At oral argument in the Supreme Court even Justice Anthony Kennedy seemed to accept the argument that the ACA "hijacks" the Little Sisters health insurance plan.  But the health insurance benefit is a wage earned by the employees,  who are not bound by Catholic doctrine (unless they choose to be).
- gwc

Update: - an adversary's commentary by the irredentist Kevin Walsh at Mirror of Justice the conservative Catholic law professors blog. - gwc

Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor by M. Cathleen Kaveny :: SSRN
In their participation as plaintiffs in Zubik v. Burwell, the Little Sisters of the Poor have appealed to the moral teachings of the Catholic Church in order to argue that the Affordable Care Act requires the organization to act against its conscience and in complicity with evil. However, this Article argues that the exigencies of litigation have required the plaintiffs to distort Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others. John Rawls’ concept of ‘civic respect’ and Mario Cuomo’s invocation of the Golden Rule provide a framework for understanding the moral requirement to respect the conscience of others. Examining the role of the Little Sisters of the Poor as an employer and institutional citizen clarifies the moral issues surrounding this case and demonstrates the ways in which the adversarial nature of the legal process has pressed them to understand both their own obligations and those of the government in a binary manner. This distortion has prevented them from helping to discern what sorts of conscience protection are appropriate for all of us in an interdependent and pluralistic constitutional democracy.

1 comment:

  1. According to The Supreme Court, the health insurance mandate is a tax.
    The Little Sisters of the poor are being subjected to an obscene tax that is a violation of the principle of proportionality, in an attempt to influence them into condoning the use of contraception. The HHS Mandate is the means the Administration is using to distort Religious Liberty making it appear as if a non existing right to free contraception coverage trumps our inherent Right to not be coerced into violating a tenet of our Catholic Faith.