Obama's Contraception Coverage

Recently, the Obama administration declared that all employers, including Catholic institutions, will be required to offer free insurance coverage for birth control to their employees. In the weeks since the declaration, the controversy that it stirred up caused the administration to revise its decision, putting in place "accommodations" by which it hopes to quell the furor.The accommodations, however, do not really address the objection that the Conference of Catholic Bishops, among other groups, has raised to the mandate. For one thing, self-insuring organizations, such as many Catholic dioceses, would still probably be required to fund birth control directly. For another, employers who buy group insurance, by their purchase of plans which themselves are required to cover birth control, would still be financially supporting their employees’ access to it. In a recent piece, Washington Post columnist Sally Blount describes this as a "pure mental accounting move, not actual substantive change."[note]Sally Blount, “In Birth Control, a Sacred Question.” Washington Post (Feb.13, 2012). Avail. http://www.washingtonpost.com/national/on-leadership/in-birth-control-debate-a-sacred-question-for-religious-leaders/2012/02/13/gIQAp1bABR_story.html.[/note] In the face of this debate, many have argued that the only acceptable action by the Obama administration at this point would be to rescind the declaration altogether.Much has been written in the past several weeks about the legal and moral issues involved. But among the most interesting aspects of the decision and the debate surrounding it is its phenomenal imprudence. Examining the nature and history of this imprudence draws us in to a greater understanding not only of this specific issue, but also of the nature of the modern state.Just how imprudent is the decision? Well, many commentators even in the traditionally left-leaning parts of the media surprised the Obama administration with the vehemence of their objections to it. Chris Matthews, for example, called the rule "frightening;" the Washington Post columnist E.J. Dionne wrote that Obama had "utterly botched" the issue. The New York Times claimed that, indeed, the "accommodation" decision by Obama was "never really driven by a desire to mollify Roman Catholic bishops,"[note] Helene Cooper and Laurie Goldstein, “Rule Shift on Birth Control is Concession to Obama Allies.” New York Times, Feb. 10, 2012. Avail. http://www.nytimes.com/2012/02/11/health/policy/obama-to-offer-accommodation-on-birth-control-rule-officials-say.html.[/note] and not in response to the conservative critiques, but rather in response to the objections of left-leaning Catholic supporters of the Obama administration's health plan. It was the outrage of his allies, not that of his enemies, that changed Obama's mind.To make sense of all this, there are really two questions that have to be answered. First, what are the philosophical issues involved, how have they been presented in media coverage, and how has that coverage gotten them wrong? Second, how—how on earth—could Obama have misjudged the situation so badly, and what could have motivated him to take such a radical, imprudent, and (in the event) unpopular step—especially in an election year?Answering the first question is a matter of philosophical and rhetorical analysis; answering the second will take a bit of digging into the ways that nation states have, in the past, felt drawn to assert themselves against alternate sources of authority, and against the Catholic Church in particular.

Journalism, Policy, and the Rhetorical Flight from Philosophy

One of the original Times articles reporting the initial mandate presented the clash as taking place between the "medical case for birth control," on the one hand, and "deeply held religious and cultural belief" on the other.[note] Denise Grady, “Ruling on Contraception Draws Battle-Lines at Catholic Colleges.” New York Times (Jan. 29, 2012). Avail. http://www.nytimes.com/2012/01/30/health/policy/law-fuels-contraception-controversy-on-catholic-campuses.html?pagewanted=all.[/note] In other words, rather than portraying the contest as a philosophical one, taking place between two principles of social order (obedience to a legitimately constituted state versus obedience to the Church), or between two metaphysical statements (the embryo is or is not a human person), the contest is recast as one between "science" and "faith."This opposition is, for the worldview of the Times, rhetorical penicillin: good for what ails you. An expansive gesture towards natural science will always trump philosophy, which is of course not considered to be a science in its own right. Related to the appeal to natural science is an appeal to a naturalistic "social science," which regards public policy as a philosophy-free zone. Sally Blount's Washington Post column comes close to pinning this issue down when she looks at the tendency of most policymakers (and journalists) to "skirt the real thesis behind the Catholic and other churches’ stance on birth control. That is, the act of intercourse, because of its potential to create a new life, is quite special and should not be engaged in or treated lightly."This is an assertion about reality, and it is one which much public policy discussion simply refuses to address. Modern public policy does its absolute best to escape from metaphysics, and fantasizes that it can succeed at this attempt through sticking to utilitarian approaches. That is, it finds questions about the proper ends of society and human lives too difficult, and concentrates on the means by which undiscussed ends can be achieved. As Blount says, "[F]or now, the social policy arguments seem to be winning out, namely that reproductive freedom and the affordability thereof are critical to women’s health and to controlling overall health-care costs."It is of course only a fantasy that framing the question in this way, as policymakers want to do, does not contain ends-related metaphysical assumptions. Among these assumptions are that maximizing individual freedom of action is always a good (which many, both on the right and the anti-libertarian left might disagree with); that it is better for women to be healthy than to be sick (which few people of any stripe would disagree with); and that being pregnant constitutes sickness (an assumption embedded in this discourse that very few people would actually agree with, if it were presented to them baldly).In discussions such as that surrounding Obama's recent decision, the above metaphysical assertions are often dressed up in a sort of Halloween costume of philosophically neutral science; attempts to actually bring the philosophical issues to the foreground are labeled as publicly inadmissible faith-talk, and policymakers and journalists mouse on over to File>Save, feeling that they have been very tidy in their analysis. The origin of the effectiveness of this gesture lies in the eighteenth century triumph of positivism. Eric Voegelin's analysis of the historical transition in which, under the glamor of Newtonian quantifiability, positivism swept the field of public discussion, is useful here. It was positivism, as Voegelin noted, that set up our familiar dichotomy between "value-judgments" and judgments about facts. This dichotomy was "created through the positivistic conceit that only propositions concerning facts of the phenomenal world were "objective," while judgments concerning the right order of the soul and society were "subjective." Only propositions of the first type could be considered "scientific," while propositions of the second type expressed personal preferences and decisions, incapable of critical verification and therefore devoid of objective validity."[note]Eric Voegelin, The New Science of Politics (Chicago: The University of Chicago Press, 1952). 11.[/note] And so the Times sets up its opposition between the "medical case for birth control" and the "deeply held beliefs" of Catholics, and considers the matter settled.But there is actually lurking in the question of birth control a fact of the phenomenal world which will make this decision by the Obama administration somewhat more explosive than the administration anticipated. It's not, it turns out, just a "Catholic" issue—or rather, not just an issue for those who oppose contraception. The reason for this is that the contraceptives that are required to be covered by the insurance plans includes chemical contraceptives such as the birth control pill. Evangelicals generally accept contraception in principle, and many of them use the birth control pill. What most don't know is that virtually all forms of chemical contraception have, as their third layer of protection against a live birth, an agent that is designed to act as an abortifacient. Generally the Pill operates to prevent conception, but it has, as a backup mechanism, the effect of thinning the uterine lining, discouraging implantation of the embryo should fertilization take place. Those who oppose abortion, even if they don't reject contraception per se, should, therefore, be at least thoughtful about the decision to require any institution, Catholic or not, to pay for birth control that can have this effect.

Conscience Protections, the Clash of Loyalties, and the Fabric of Society

This blow against the consciences of those who would now be required to fund women’s access to birth control is neither an isolated attack nor an unprecedented one. When the Patient Protection and Affordable Care Act was originally passed, commentators noted its lack of adequate conscience protections for healthcare workers. In an article in the August/September 2011 issue of First Things, Ryan T. Anderson wrote that "[W]hen the Senate was drafting the bill, it explicitly rejected the Weldon Amendment, long-accepted language that provides conscience protection for those opposed to abortion.... That the Senate refused to include this long-standing language should give pro-lifers pause."[note]Ryan Anderson, “Protected in Law, Cared for in Life.” First Things (August/September 2011).[/note] Anderson calls his readers' attention to what the lack of adequate conscience protections might mean "given an increased role for federally funded health care." In the decision under discussion here, we are seeing another aspect of what the original inadequacy of conscience protections pointed towards.So, what are some of the issues involved? What is the bind that some in leadership, human resources, and management positions in religious organizations will be finding themselves in? I am not going to focus on the philosophical or moral case against either birth control in general or abortifacient birth control in particular. These things are where the center of this issue lies; they are where the real battles of conscience and understanding take place; but they are covered extensively elsewhere. Rather, I'm going to focus on the impact on society that Obama's decision, if he does not rescind it, is likely to have.The primary impact from this perspective is, of course, the fact that the decision, with an almost experimental deliberateness, pits the loyalty of Catholics to the Church against their loyalty to the state. This is what much of the press coverage has focused on, and rightly so. If anything will tend to destroy the coherence of a society, it is the pitting of two institutions, both of which claim obedience and loyalty, against each other. It's as though a law were passed that forced people to choose between taking care of their parents and taking care of their children, or between keeping their word to their friends and honoring the terms of a business contract. The law could scarcely be calculated to be more destructive; such destructiveness is obviously newsworthy.It was, as the original Times article that covered it phrased it, a "politically charged" decision. One might think that such a political explosive is the kind of thing that a state might, in general, want to avoid. But in the case of states that are becoming deformed, hypertrophied, this kind of pushing of the envelope is in fact necessary to the logic of the deformation.To see this more clearly, consider how a non-deformed state might conduct itself with regard to such hot-button issues. Generally, the course of wisdom would be for a state to be prudent in its demands on the loyalty of its citizens or subjects. A wisely governed state would go out of its way to avoid placing its people in a position where their loyalties to it are tested. An imperfect analogy is to the family: St. Paul enjoins fathers not to "exasperate" their children, as well as enjoining children to obey their parents. States should, in parallel, avoid making it difficult or impossible for their people to continue to behave with loyalty towards them. Prudence in politics is an acknowledgment of the multiplicity of human loyalties.The prudent politician knows that to force some kind of showdown between a loyalty to the state and a loyalty to anything else will inevitably damage the filaments that bind  society together. Such showdowns will even damage the state itself, ultimately, though they are designed to aggrandize it. This is because the state is meant to be one authority among many, just as the family is meant to be one authority among many. It distorts its own telos when it insists on an absolute loyalty that should be reserved only for God: it is like a beaver that refuses to build a dam and tries instead to build the Empire State Building. Not only will such an animal not do a good job (and the state has shown that it does not make a very good family, church, market, school, or god)—it won't even have a particularly good time.I don't have any real interest in denouncing my country or even the current government. But I do think that it's appropriate to try to look for the sources of the ideas that led the leaders of our government, half-consciously, to force the showdown that, by the ruling about birth control, they are precipitating.It's not as though there's no tradition of limited government in America. We do have a set of ideas that acknowledge the limits that government should place on its own demands for loyalty. This liberal democratic tradition tends to focus on the fact that the government should not encroach on the freedom of choice of the individual. Those using its language talk in terms of rights, as did Sr. Mary Ann Walsh, when, speaking for the United States Conference of Catholic Bishops in response to Obama's initial decision, she said that the Conference could not just "lie down and die and let religious freedom go."This tradition—the one that speaks in terms of religious freedom—was, however, originally erected on the scaffolding of an earlier tradition, and is (even as it distorts it) dependent on it. This undergirding points us to a slightly different analysis of the wrong done in a decision like Obama's. This transgression of the limits on state power can be seen, in the older tradition, as infringing not only on individual rights, but on the claims of other institutions that justly, and simultaneously, demand our loyalty.It's not that the state should not command our loyalty. It should: the "powers that be are instituted of God," as St. Paul said, and we court anarchy at our peril. But states that are straying from their telos show their hand when they undermine other institutions that we're meant to obey: the family, the church, and so forth. Authority, when it is acting legitimately, supports other legitimate authority. When  it's acting illegitimately, it places its subjects into situations that are literally impossible, such that the same subject is torn apart as he hears multiple, irreconcilable calls to obedience. The same subject, you might say, suffers from an incompatibility of predicates.It's precisely this multiplicity of institutional claims on our loyalty that some modern theories of the state reject. Henry Sedgwick, whose 1891 Elements of Politics provided a major summary of a Utilitarian view of the state, wrote that "when we speak of the state, we can mean nothing else than an apparatus of government, empowered to command the exclusive allegiance of those living under it." [my emphasis] This government cannot allow any competitors to its claims, and must constantly be measuring itself against them, trying to extinguish them in their roles as extra-governmental checks and balances to its own authority.

Kulturkampf and Nation-Building: The Experience of the Second Reich

We've seen the kind of showdown that the Obama administration is provoking. Representative of many modern states' attempt to impose a single total institutional loyalty to themselves is the experience of Germany during the Second Reich. When, in the 1870s, Bismarck was engaged in forging Germany into a paradigm of the unitary national state, the institution that he felt was most threatening to his task was the Catholic Church. The phrase culture war—now so familiar to us in the context of things like the issue of abortion—is in fact a translation of the German kulturkampf, the word that the physician and public health crusader Rudolph Virchow coined to describe the struggle that Bismarck was carrying on against the Catholic Church.This struggle was often, both at the time and in historical memory,  framed in traditional Protestant anti-Catholic terms, but, as historian Michael B. Gross argues in his 2005 study The War Against Catholicism, this was a bit of a smokescreen. It was the authoritarian liberal nationalism of people like Virchow, dedicated to using the state as an instrument for the secularization of society, and not the more conservative cultural Protestantism of Bismarck himself, that was the real source of the anti-Catholic animus during the kulturkampf.These liberal anti-Catholic beliefs had been gathering steam for some decades. Anti-Catholicism often first rears its head as anti-Jesuitism, and since the 1850s, Prussian authorities had been arguing more and more strongly that the existence of the order was a threat to the authority of the state. In December 1858, Cologne District Governor Möller wrote of the Jesuits that "it is desirable to be rid of them ... their removal is gladly seen as altogether necessary by all sensible patriots" (ital. in original)[note] Quoted in Michael Gross, The War Against Catholicism (Ann Arbor : The University of Michigan Press, 2005), 70-71.[/note] Part of the problem, as people like Möller saw it, was that the Catholic Church was a drain on capital. People would give large bequests to the Church, and then the Church would irritatingly refuse to build factories with the money. These were the bequests to the "so-called dead hand—religious orders, monasteries, churches, hospitals, and orphanages administered by religious orders," which Prussian bureaucrats regarded as nothing more than "sinkholes for otherwise productive capital."[note]Ibid., 69.[/note]Monasticism had been under tremendous suspicion in the decades leading up to the establishment of the Second Reich: an 1859 report to the Aachen Provincial Governor argued that "the vows of poverty, chastity, and unqualified obedience established ... the abdication of all personal freedom and independence, impossible in a mere association." In other words, those committed to monastic life could not be proper Kantian subjects, free in an absolute way to give or withhold consent. Although Prussia had laws mandating freedom of association, by 1860 most Prussian authorities did not believe that these laws applied to monastic orders in general and to the Jesuits in particular.[note]Ibid., 72.[/note]This belief set the stage for the acceptance of the Kulturkampf laws that began to appear just after the establishment of the Second Reich under Prussian dominance in 1871. In the early 1870s, monks and nuns were forbidden from teaching in public schools and religious schools were commanded to be open to official government inspection; the education of Catholic clergy was put under the authority of the government and a special state court was set up to hear cases involving the clergy. Most stringently, in 1871, under the notorious Kanzelparagraph which was added to the  criminal law code, priests who discussed politics from the pulpit were subject to sentence of up to two years in prison. During the worst period of the persecutions, half the bishops in Prussia were in exile or in prison; almost 2000 parish priests were imprisoned, along with thousands of laymen and women; and a quarter of Prussia's parishes had no priest.In 1848, during the failed nationalist revolution that whetted the Germans' appetite for Bismarck's later unification, a song written by a man called Hoffman von Fallersleben got adopted as a sort of ballad of German nationalism. During Bismarck's era, it was picked up as the unofficial national anthem of the new Second Reich; in 1922 it was put on a more official footing. Its 20th century meaning was somewhat different from the meaning that it originally—in 1848 and 1870—possessed.  The alles that Deutschland was originally supposed to be über were not the other nations of Europe. The Germans who sang the song during Bismarck's time were not thinking about setting Germany over France, over Holland, over England.  Rather, the song meant originally that Germany was over Bavaria, was over Prussia, was over the Catholic Church and the Protestant churches: was over all the alternate internal loyalties that its citizens had, for so many centuries, managed one way or another to negotiate into an amiable rapprochement.Eventually, even the Protestant churches in Germany saw the danger of the kulturkampf, saw the true face of the militant secularism that disguised itself as more traditional Protestant anti-Catholicism. According to Gross, "Protestant leaders could agree that lack of Christian faith, rather than the power of Roman Catholicism...was the most serious threat to society...Religious leaders, Catholic and Protestant, argued at the same time that the churches must be left free from state regulations in order to attend to their respective evangelical responsibilities."[note]Ibid., 87.[/note]In his discussion of earlier treatments of the kulturkampf, Michael Gross notes that historians have tended to see it as an aberration, a betrayal of the central liberal ideal of universal rights, a "moment of liberal absentmindedness or acquiescence to Bismarckian manipulation during which liberals abandoned their cherished principles."[note]Ibid., 21.[/note] Gross, however, rejects this. "Modern liberal ideology," he argues,

masks a deeply authoritarian strain that can be traced to the totalizing utopian project of the Enlightenment... the liberal hatred of Catholics that culminated in the Kulturkampf was too deep, too intense, to be simply a mistake... The Kulturkampf was not due to the liberals' insufficient commitment to their own creed. Nor was it the case that German liberals were endowed with an inadequate Enlightenment legacy. On the contrary, the German liberals who were Kulturkampfer (culture warriors) against the Catholic Church  and Catholicism were passionately dedicated to their ideals and incessantly referenced the Enlightenment for inspiration and orientation... The Kulturkampf emerges in this light not as an exception to liberal principles but as the culmination of liberal demands for a modern German political, economic, social, and sexual order. Anti-Catholic intolerance was not derivative but constitutive of liberalism; it was not an ancillary expression but, on the contrary, at the core of liberalism in Germany.[note]Ibid., 20-21.[/note]

Arguably, Christians in general are in a similar position in the present-day United States that Catholics were in Bismarck's Germany. Both Catholics and Protestants acknowledge a primary loyalty to the Kingdom of God, which is a loyalty that must always stick in the craw of a totalizing state. Catholics first and most obviously, but Protestants soon enough, may feel a real pinch as the state begins to turn the screws on this loyalty.We may be in a similar position—but we are not an identical one. The recent Supreme Court decision in favor of the "ministerial exception" that confirms religious institutions' right to make their own decisions about hiring and firing is a hopeful sign, and one that militates against reading too close a parallel between the Bismarckian era and our own.Despite this, however, it's difficult to read the Obama administration's decision to require Catholic institutions to fund birth control as anything other than a deliberate attempt to provoke a showdown of loyalties. Judging from history, there seems to be a kind of instinct on the part of states that are trying, as Bismarck was trying, to take a major step in the consolidation of national authority, to create test-cases, to force showdowns. This may simply be the tendency of anyone who has power to try to absolutize that power. Though the administration has stepped back from its original hard-line position, it may be that future showdowns are in the offing.If they are, we cannot respond to this by despising the authority of the state. It would be wrong for us to be anarchists. It would be wrong to reject the authority of the state wholesale. What we must do is call the national state back to itself: to try to preserve the independence of alternate institutions both for their own sake, and for the sake of the state. When one source of authority attacks all others, it will eventually end in its own destruction, as a cancer destroys its host. If we reject anarchy, we must strengthen alternate sources of authority, bring social institutions back into some kind of balance, so that the people who live among them and whose fulfillment is found partly in them (we are, after all, political animals) are not tormented by conflicting calls of loyalty. We’ve got to pray for our national leaders. And we've got to pray that we ourselves aren't brought to the time of trial.