06/01/2012 05:06 pm ET Updated Aug 01, 2012

The Irony of the Bishops' Opposition to Providing Contraceptive Services

Is it possible that the U.S. Roman Catholic bishops will one day be credited with having significantly advanced, albeit unintentionally, the argument for a single-payer health care system in the United States? In their opposition to having to make contraceptive services available to their employees through institutionally provided health care, they have contributed an important argument as to why groups or corporations and other agencies ought not to be in the business of providing health care to their employees.

If a single-payer system were inaugurated, Roman Catholic institutions (e.g., churches, church owned and run hospitals, schools, etc.) would no longer be put in the position of directly providing something that they find morally objectionable such as contraceptive and other family planning services, including access to abortion. Instead, through a tax-based system of "neutral laws of general applicability," such as Medicare, Medicaid and Social Security, health care would be provided through a single payer (i.e., government) mechanism even though the services would be delivered by a mix of private and public persons and agencies. According to a New York Times editorial on May 27, "The Politics of Religion," "the First Amendment ... does not exempt religious entities or individuals claiming a sincere religious objection from neutral laws of general applicability, a category the new contraception rule plainly fits." The editorial goes on to note that in 1990, "Justice Scalia reminded us that making 'the professed doctrines of religious belief superior to the law of the land' would mean allowing 'every citizen to become a law unto himself.' In 1993, Congress required government actions that 'substantially burden a person's exercise of religion' to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women's health and autonomy."

Catholicism has often carried the banner for laws seeking to advance the common good, sometimes in tension with more individualistic and libertarian inflected laws that focus on advancing primarily the good of individuals, often at the expense of the collective as a whole. By embracing a single-payer health care delivery system that would provide health care to everyone in the society, the Catholic hierarchy could make a strong statement showing a "preferential option for the poor" (from their own Economic Justice for All pastoral letter of 1986). Of course, as a religious institution they would be completely free to warn their members not to take advantage of the contraceptive or abortive services available through a national health care system. But they as institutions would not be directly complicit in providing those services. Catholics as individuals pay taxes and those taxes presently help to pay for the services available through Medicare and Medicaid which sometimes include contraceptives for those choosing them. Taxes also help to pay for military weapons, the use of some of which (e.g., nuclear weapons) the Catholic Church has been deeply skeptical of (see the National Conference of Catholic Bishops' 1983 pastoral letter, "The Challenge of Peace"). But the Catholic Church has not tried to claim that its members should be exempt from paying taxes to the government even though some of that tax money goes in part to the provision of medical services and nuclear weapons it finds morally objectionable. This is where the notion of "neutral principles of law" is important. If a society, in its collective political wisdom, finds it beneficial for the common weal to provide certain public services, it does so through a public tax system from which individuals do not have a legal right to exempt themselves on grounds of conscience. A pacifist cannot legally choose to withhold her taxes because a portion of them go to the budget of the military.

If a service is publicly provided and funded the rights of conscience against that service revert to individuals or groups speaking on their behalf to exhort themselves and their members not to take advantage of that service but they don't have a right to unilaterally choose to defund that service by withholding their taxes. Abortion services are legally available in the United States and some tax monies provide indirect support for those services. This fact has led those who are sincerely and in conscience opposed to abortion to demand that the faithful never use them and even to protest legally and peacefully at those locations where the services are being provided. This right to protest against a law they regard as morally unjustified is the way to protect freedom of conscience. Conscientious objectors to current laws also retain the right, within the political process, to try to overthrow objectionable laws.

The Catholic Church is right to protest that its institutions ought not to have to provide contraceptive services themselves through their insurance policies which they give to their employees. But a neutral principles of law position would require them (as individuals, not as Churches) to pay taxes that support a publicly provided service such as health care which is regarded as in the national interest and welfare of the citizens. And this can be most efficiently, fairly, and simply done through a single-payer system. So Catholic leaders should be promoting a single-payer system since it would not only advance the common good but also relieve them of the burden of having their consciences bruised by having to provide contraceptive services to their employees. President Obama should be making this argument himself and it is disappointing to hear such silence from church leaders and the president on an issue that is essentially one of morality and fairness.