2/16/2012—There is a law professor blog in which the discussion has gone on very heavily in the last few days about the proper legal analysis to use for someone, perhaps a Catholic business person, to challenge the contraception requirement in health care coverage. Surprisingly, the discussion has centered around whether the very exceptions in the law—-for abortion, for example, or for others not to pay for contraception—-might invalidate forcing anyone to pay for any healthcare provision that violates religious conscience.
This discussion caused me to revisit first principles. First, let me say that as a policy I favor exemptions in laws for religious conscience, whether they are required by the Constitution or not.
But as a matter of constitutional law, or even statutory protections like the Religious Freedom Restoration Act (RFRA), there cannot be a recognition of a legal right not to pay money for activities by someone else that violate what I believe other people should do. In other words, it is conceivable that a society not force pacifists to fight. But no society can recognize a constitutional right for a pacifist not to pay federal taxes. Recognition of religious conscience must stop at the point of paying money that allows others to engage in behavior that violates my religious beliefs.
In the case of contraception coverage in healthcare, imagine that we had a single-payer system. The government would offer health coverage, including contraception, and pay for the system by general taxes. In that case, there could not be a religious exemption for the same reason that pacifists must pay their taxes, all their taxes, without allowing a small deduction for the part going to war.
Now I suppose a difference might arise in our healthcare because the business itself is offering the healthcare, but I think the payment of money by a business to cover healthcare costs of employees is basically like a tax. Certainly that would be the case if all businesses paid a small portion of their healthcare bill to cover all employer omissions of coverage (to fund individual healthcare offerings for employees missing some coverage).
These examples do not support eliminating conscience exemptions for government programs. But they do suggest that we are only debating all this because of underlying opposition to Obamacare. What is being called a threat to religious liberty—-forcing someone to pay money to allow others to engage in behavior of which the person does not approve—-cannot really be a principle of religious liberty.