Catholics Made to Provide Contraception

March 3, 2004 | 12 comments

I’ve decided to stay in touch with my sexually-obsessed inner Puritan. Mormon texts, Mormon shmexts, what about birth control? More to the point, what about religious freedom?

California law requires employers to pay for contraception through health plans. Catholics think contraception is wrong, so Catholic charities and Catholic hospitals resisted the rule. Now the California Supreme Court has ruled that the Catholics must comply. Apparently, it mattered to the Court that the charities and hospitals employed non-Catholics and treated non-Catholics. Segregation marches on.

Religious belief is no longer allowed to influence legislation, post-Lawrence. In California, it is no longer allowed to enterprises and businesses that aren’t completely inward-looking. The day comes when religion will only be a matter of private, unrespectable belief. Go ye out from Babylon . . .

You can find the text of the decision at

Richard Garnett, a Catholic professor at Notre Dame, has a long commentary.

Here’s the view from David Bernstein, a Volokh Conspirator with the typical libertarian and professional qualifications.

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12 Responses to Catholics Made to Provide Contraception

  1. sid on March 3, 2004 at 11:09 am

    I am not a lawyer, but, isnt the decision of the California Court a gross violation of the spirit of the First Amendment? Isnt t he Court essentially forcing the Catholic Agency in question to conform to secular mores, which are totally against what the Catholic Church and Catholic Doctrine stands for? Andif taken further, would this precedent affect our Church? Would the California Court, for example rule against out Church, if, say, a member was disfellowshipped for, say, refusing to give up drinking alcohol, or if a member insisted in remaining a homosexual?

  2. lyle on March 3, 2004 at 11:16 am

    Welcome to yet another sex is sacred-obsessed, Mormon viewpoint. Just as a follow-up to this…the CA Court’s decision is just another nail in the coffin of religious liberty…

    brought to you by…yes, the Conservative Justices of the Supreme Court. Go figure.

    My favorite previous “nail” was the decision that Catholic hospitals have to provide abortions and that Catholic teaching hospitals MUST teach medical students how to perform abortions in order to retain their funding/accreditation.

    And you wonder why there is no BYU Medical school…(besides cost of course…)

  3. Brent on March 3, 2004 at 11:30 am

    Sid, I don’t think, under current laws and court decisions anyone could force a church, including our church and its internal disciplinary actions. However, the California court’s ruling could affect how the corporate church or related organizations does business in California. For instance, could the Church refuse to hire employees in California who are practicing homosexuals who are to receive special protection under California law. That is the harm caused by the decision–the loss of ability of religious organizations to be part of society and carry out the business or charity of such religious organizations on their own terms.

  4. Charles on March 3, 2004 at 1:26 pm

    There were some discussions on this subject at my wife’s blog,
    The concern that we were addressing is; is it reasonable to provide birth control as a part of a health care system, ie isnsurance.

    Insurance plans often distinguish between necessary treatments and proceedures that are for lifestyle choices. Birth control is clearly a lifestyle choice. Except for some of the caveats we discussed, it is mostly designed to effect negative changes on the human body. Essentially, birth control breaks the body’s natural design to procreate. Medicine is supposed to fix a body’s health deficit not encourage it. For this reason I believe that birth control should not be part of an insurance plan except in the cases where other medicine does not provide relief.

    As for the courts requiring the Catholic church to curtail to its demands in the name of segregation, this does set a dangerous precident. However, if there is one thing we have learned from the media, its that the California courts don’t have the same interpretation of the law or thier own role in government as courts in the rest of the country.

  5. brayden on March 3, 2004 at 1:30 pm

    I haven’t read much about this decision but I think you could frame the problem of contraception and Catholic high schools as a kind of market failure. There is a demand (contraception) that is not being met due to moral claims. That is fine in a perfectly competitive market, but this isn’t a perfectly competitive market. The costs of entering the hospital market (even if Catholic hospitals are non-profit, we are still talking about a market here) are excessive. In rural areas, the entry costs would discourage any potential providers from entering. So the demand goes unmet.

    The court’s decision might be seen as a way to satisfy the public good in a situation of market failure.

  6. Brent on March 3, 2004 at 1:45 pm

    But, brayden, there is no true market failure. Individuals who want contraception can pay for it. It is not as if the Catholic Hospitals have removed the ability for their employees to access contraception, they simply have refused to pay for it. They should not be forced to pay for contraception when the employees who want it have not been denied access to it.

  7. Greg Call on March 3, 2004 at 2:11 pm

    Catholic Charities are not really “forced to pay for contraception,” because they can simply choose not provide any prescription drug coverage. As I understand it, the law at issue only says that if a company elects to provide prescription drug coverage, it cannot preclude access to contraceptives. It seems to me that the law in general is not a terrible compromise between all the interests in conflict here. The real problem with the law is that it defined “religious employers” so narrowly. How many religious organizations *only* serve members of its own religion? And why would we want to incentivize that?

  8. Adam Greenwood on March 3, 2004 at 2:45 pm

    The Catholic Charities chose to challenge the law because they feel morally bound to provide health coverage as part of just wage. I have a hard time seeing what the legitimate interests in conflict here are–the interest in religious freedom versus the interest in not paying for birth control out of one’s own pocket? The interest in a public statement that contraception use is favored (make not mistake, that’s what’s driving these laws)?

    Of course, as you point out, the law would be less objectionable if it were different, but it isn’t. Even with the difference you propose, it doesn’t recognize any role for private individuals to live out their religious beliefs. I imagine that some Catholics are employers.

  9. brayden on March 3, 2004 at 2:47 pm

    Brent – I should have read the article before commenting. You’re right, there is no market failure in the same sense I described. I was actually thinking of a different problem involving Catholic hospitals – when rural Catholic hospitals refuse to provide certain services although they are the only source of medical care in a reasonable distance.

    Anyway, my bad.

    After reading the article it occurred to me that this ruling puts a different light on the President’s charitable choice plan. The opinion of the court was that Catholic charities cannot be considered pure religious organizations because they engage in other secular welfare services. If this court ruling stands, some churches might think twice (as has the LDS church) before taking federal money for faith-based welfare provision.

  10. Greg Call on March 3, 2004 at 3:28 pm


    Couldn’t Catholic Charities provide health coverage without providing prescription drug coverage? If CC feels obligated to provide access to non-contraceptive prescription drugs to its employees, couldn’t they give everyone a raise to pay for those? Maybe not an ideal solution, but still a choice.

    As for the competing interests, the California legislature decided that reducing the male/female inequality in out-of-pocket medical costs was an important interest that justified this intervention in the employee insurance market. (I recognize you probably don’t think this is a legitimate interest, but the duly elected representive of the people of California apparently do.) The legislature attempted (inadequately, I think) to address the conflicting value of free exercise by establishing a “religious employer” exemption. My point is that there was some bad line-drawing here, but it is not the end of free exercise as we know it.

    I’m curious about your suggestion that to require a any Catholic employer to provide insurance coverage for contraception prevents them from living out their religious beliefs. I certainly see the constitutional implications in requiring an organization like CC to provide contraception coverage. But are you suggesting that all individual employers who are Catholic should be exempt from this type of law?

  11. lyle on March 3, 2004 at 3:30 pm

    i hope the duly elected representatives of any other governments don’t try to dictate religious belief to other groups, like those pesky Mormons, anytime soon.

  12. Adam Greenwood on March 3, 2004 at 4:06 pm

    Yes, Greg, you’re right, I’m saying that respect for religion should include something more than merely refraining from punishing belief. Good governments should also leave room for people to do good, and to not do evil. In this situation, the legislature should have known that there were a number of Catholics in their state and that Catholics have particular religious commitments.

    Notice what I am not saying: I am not saying that the Constituion *requires* this heightened religious freedom, nor am I saying carte blanche, but the interests just seem so trivial here. The legislature has traded working out salvation with fear and trembling for a mess of morning-after pills.


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