Limits to Business Conscience Rights?

Reaction to the HHS rule regarding requiring businesses (including religious-related businesses) that offer prescription drug coverage to cover birth control as part of that has been interesting. There seems to be a real split in how the issue is framed:

For liberals, this is about fair access to important medicine – contraception is vital to the ability of a woman to control her own life, and access to it shouldn’t be dependent on the personal feelings of the woman’s employer.

For conservatives and the Catholic Church, this is about the religious freedom from government overreach – businesses should not to be forced by the government to offer health care that they find morally objectionable (this framing was brought full to the front in this morning’s Congressional hearing, in which Rep. Issa called no women to a debate on the rules because he considers women’s birth control access incidental to the rules).

Let’s look more at that second notion:

Imagine there were a racist business owner who truly and deeply felt that mixed-race marriages were a moral evil. Should that business owner be allowed to exclude from his company’s health and prescription services any care for the children that result from mixed-race marriages?

In this case, the owner has a religious objection to race mixing and doesn’t feel that he should be forced to offer health care to cover the birth and later health costs of such children.

Does this owner have a point under the principles being stated? Does the government have any role in determining whether this behavior is legal and acceptable? Can the government force a racist business to treat his employees fairly in this case?

Would government action in this case be creating an exclusive ‘right’ to health care for mixed-race children? Or would it be ensuring equal treatment?

If you think that the government is overstepping its bounds to make sure that birth control is not exclusively rejected (a practice that has been against EEOC policies since 2000 based on gender equality), by what principle would the government be overstepping its bounds to ensure that mixed-race children must be considered equally to other children?

Note: By using this example, I am not attempting to call conservatives or the GOP or Issa or the church or anyone else in real life a racist – it’s just a thought experiment to inquire how the principles apply.

About Lance Finney

Father of two boys, Angular/TypeScript developer, Ethical Humanist, and world traveler (when I can sneak it in). Contributor to Grounded Parents.
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23 Responses to Limits to Business Conscience Rights?

  1. rropers says:

    Discriminating against someone on the basis of race is and should be illegal (i.e. I’m going to cover something for one race but not another). Such is the case with purely gender-related discrimination. Since birth control isn’t covered across the board–for men or women—it is not solely a gender issue. Similarly, not all policies cover childbirth…and I don’t know of any that cover abortion (both of which could follow in your same logic—along with the logic used by the left in this political debate). These are practical, costly, and morally complex issues that go beyond the simple gender discrimination that you’re attempting to frame it as.

    • Lance Finney says:

      Medicine that is used by men is covered, but some of the medicine used by women isn’t covered. I see that as a violation of equal protection, as did the EEOC in 2000.

      That not all policies cover childbirth or abortion is irrelevant to my thought experiment – I’m asking about a hypothetical policy that covers childbirth and childcare, but only when the employer likes it.

      I’m fully aware that these are complicated issues, but that doesn’t mean that gender discrimination isn’t a factor in the debate.

    • Lance Finney says:

      Also, I’m glad to see you acknowledge that the property and religious rights of the business owner do not extend so far as to allow illegal discrimination. I agree that the freedom of the employer does not extend that far.

      I guess that just leaves us disagreeing whether targeting birth control for exclusion constitutes illegal discrimination. I (and the EEOC) say yes. You say no.

      That’s progress.

  2. johnmcg says:

    I guess another way of thinking about it is what outcome for this business wold be preferable?

    1.) The government compels the business to amend its policy. It does so, grudgingly, murmuring about “Obamacare,” “big government,” and stepping up its contributions to Tea Party SuperPACs. The owner of the business sees himself as a persecuted minority suffering under the tyranny of the government. Employees and customers see this business as little different from other businesses, and continue to do business with it.

    2.) The business finds it more and more difficult to attract quality employees, and to retain the ones it has. Groups organize boycotts against both the business and those who do business with it. The owner is confronted with a choice — change its policy, or work in an ever-shrinking universe of people willing to go along with his views. He either does relent and adopt a more enlightened policy, or sees his business shrink and ultimately fail.

    In my opinion, Option 2 is preferable. It’s tempting to use whatever tools are at our disposal to force people to get in line, but I think victories won that way are hollow.

    I’m aware that market forces are not always sufficient to establish justice, the power in the employer-employee relationship is often tilted in favor of the employee, and sometimes the government needs to act. One might point to the Jim Crow South as an example, although I think that was also enabled by the governments there. I still think the default position should be in favor of letting companies manage who they are. If who they are is abhorrent to the surrounding community, then they won’t be in business long.

    I guess the fundamental thing I don’t see is why we have a better society if the government makes it easier for employees to work for companies with values they loathe.

    • Lance Finney says:

      You’re right, I’ll point to Jim Crow as an example of Option 2 that I think worked. Desegregation took an active effort by the federal government to stop businesses (and local governments) from actively discriminating.

      I think that example points out the problem I have with your analysis. The companies using Jim Crow weren’t acting in a way that was abhorrent to the surrounding community; at the time, those communities were strongly in favor of the discriminatory policies in place (at least, the powers-that-be in those communities).

      The interesting thing about the effect of the end of Jim Crow is that many of the communities that actively supported Jim Crow wouldn’t do so now if they were allowed to (probably a few would, unfortunately). Fighting Jim Crow actively was a powerful tool in making Jim Crow abhorrent.

      My point is that companies with the loathsome values often change their tune after they see that the alternative isn’t so bad.

      So, I see it as we have a better society if the government makes it harder for employers to make society worse.

      • rropers says:

        “So, I see it as we have a better society if the government makes it harder for employers to make society worse.” That’s the same argument I heard from a right-winger the other night who opposed gay marriage—government’s job is to stem the tide of immorality. The only problem is that your morality, Lance, isn’t the same as my friend’s morality. “But I’m right—that’s the difference,” was his claim. Perhaps it’s yours as well…?

      • Lance Finney says:

        I was using the phrasing “better society” and “society worse” to mirror John’s statement. Of course it’s imprecise by itself, but I think that it’s clear from context that I meant non-discriminatory.

        Non-discrimination is a proper government role, based on the Equal Protection Clause. Enforcing morality isn’t.

      • rropers says:

        “Non-discrimination” is a broad term, so I assume you mean illegal discrimination…but your interpretation of what falls under that is shaped by your morality (and politics). A right-winger would say that defending the timeless, fundamental social unit is a proper role of government while giving out free birth control on a private company’s dime is not. I’m just sayin’.

      • Lance Finney says:

        I pointed out that my argument is based on a specific Constitutional principle. Your counter didn’t dispute my reasoning or provide a contrary Constitutional principle; instead, it was just an observation that people who disagree with me… disagree with me.

        Well, yeah. So? That an argument exists isn’t a defense of it being reasonable.

        Anyway, once again, you’ve taken our discussions into the post-modernist style of argument where all conclusions are just based on our presuppositions, etc. Those don’t really go anywhere, unfortunately.

    • rropers says:

      This isn’t deconstruction, it’s the application of both Constitutional principles and legal precedent. The Supreme Court has ruled that the First Amendment’s free exercise clause “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability,'” but forcing a company to give away a product for free is neither neutral nor valid.

      The Equal Employment Opportunity Commission issued an opinion on behalf of mandated inclusion in 2000, and this opinion led to many lawsuits against non-religious employers who refused to cover prescription contraceptives.” But the federal district courts have split over the issue of whether the PDA requires employers to provide contraception, and the only federal court of appeals to reach the issue held that the PDA did not include a contraceptive mandate.

      And beyond that, what you call deconstruction, I call appealing to principles that run deeper than our tradition of laws and precedents…which is exactly what progressives like you do all the time, lest there would never be changes to our laws at all.

      • Lance Finney says:

        ‘neutral’ in this context means that it applies equally to religious and non-religious context. It does not mean that “Roy likes it”. Thus, the word ‘neutral’ applies here. Your opinion that it’s not valid is noted.

        And beyond that, what you call deconstruction

        I’m not sure how to respond to this part since I didn’t use the word “deconstruction”.

  3. johnmcg says:

    We don’t (or shouldn’t) abandon fundamental principles simply because they either lead to bad outcomes in fact or or we could construct a hypothetical in which they could, We don’t (or shouldn’t) abandon due process because it might result in a guilty person going free. We don’t (or shouldn’t) abandon free speech because it enables hateful speech that causes real anguish.

    Religious freedom is a fundamental founding principle of this country. It’s the first right listed in the Bill of Rights. It’s the reason many came here in the first place.

    So, I don’t think we should abandon religious freedom because it could lead to what almost everyone would recognize as the bad outcome of a child being denied health insurance, or what you and a significant others deem a bad outcome of employees of Catholic organizations not having contraceptives covered.

    The case for the mandate cannot rest on possible bad outcomes that result from recognizing religious freedom, since we don’t do that in other contexts, but on some combination of these premises:

    1. The mandate does not represent an abandonment or significant erosion of religious freedom.
    2. Access to contraceptives (or in the hypothetical, non-discrimination in benefits) is now more fundamental than religious freedom.

    Premise 2 could be a possibility, thought not one I think most people would sign off on. Our principles can shift over time, and just because religious liberty has been fundamental before does not mean it must be going forward. But if we’re going to change something like that, we better know pretty damn well what we’re doing, and I’d like to see it done in a more open way than an executive decision.

    Which brings us to Premise 1. Is instructing groups that they must provide coverage for something their religion teaches against an affront to religious freedom? I’m inclined to think so, but I can’t prove it, which is why there’s a debate.

    • Lance Finney says:

      Yes, religious freedom of the individual is one of the founding principles of the country. That doesn’t mean I understand the impulse to infringe on the religious freedom rights of individual women involved here by imposing the religious preferences of their employers.

      Premise 1 succeeds because religious freedom is the right to preach, teach, and individually practice as one wishes. In no way is the religious freedom of the leadership of the Catholic Church being abridged here – they can still preach their view from the pulpit, teach their views in the schools, and practice their views in their personal lives.

      Religious freedom is the right to practice and persuade, not the right to impose.

      That they shouldn’t get to inject their personal lives into the bedrooms of others they haven’t persuaded is not an infringement of their rights; it’s a protection of the rights of others.

      If you really think that requiring them to treat women’s sexual health as equal to men’s sexual health is a problem, then how does that not also excuse the racist in my example who has a religious objection to interracial marriage who thinks that providing childbirth and childcare coverage to mixed-race children is an affront to his religious freedom? By what principle can you defend the Catholic Church in the birth control case without defending the case I propose? (And despite your claims, argument to consequences is part of the legal and judicial process)

      I don’t think that this is an example of abandoning a fundamental principle (religious freedom) because there might be a bad consequence – I think it’s clarifying that the Catholic Church’s attempt to defend bad policy by painting it as religious freedom is inappropriate application of a principle that is good when applied correctly.

      • rropers says:

        “Practicing” religious freedom includes not practicing or supporting what is prohibited by it.

        So, let me get this straight. It’s not infringing on the religious freedom of an organization to force them provide health insurance that provides for free birth control (which they consider equivalent to murder). But it is infringing on a woman’s rights not to pay for her birth control and give it to her for free?

        @johnmcg, you’re right on. Catholic churches don’t have a right to be racist (to treat races differently), but they do have a right to treat men and women the same (which denying birth control coverage across the board does).

      • Lance Finney says:


        Once again, paying for men’s sexual health while refusing to pay for women’s sexual health is not treating men and women the same.

      • johnmcg says:

        My preferred remedy for both those objecting to the child coverage policy is social and economic marginalization. I am not here to “defend” either policy, though I obviously believe on is defensible and the other is not.

        If there is systematic harm, then the government may need to act. I just don’t see how the fact that people who agreed to work for a an organization do not have a product provided by that organization (which, until the day before yesterday, wasn’t provided by anybody) is such a harm that it justifies eroding the rights of those organizations to act according to their values.

        The vision of religious liberty you offer is very thin – do what you want in your churches on Sunday morning, but don’t act on those values when you come in to the public square. Don’t practice what you preach. Say one thing and do another. Preach the Gospel, but only use words.

        I understand why some might prefer that, but it isn’t worth a damn.

      • Lance Finney says:

        You misunderstand, then. I am saying practice what you preach, any place you want and any day of the week you want. However, that doesn’t extend to coercing others to practice what they themselves don’t preach.

        I think that the right to preach, persuade, and practice is worth quite a bit more than a damn even without the ability to coerce.

        I also think that the right to swing one’s fist is worth a damn even without the right to hit someone else’s nose.

  4. johnmcg says:

    If this is the “Viagra but not birth control” line, I have some responses:

    1. As far as I can tell, all Catholic plans have specific exceptions for theraputic use of contraceptive medications.

    2. Catholic organizations are also objecting to being required to cover sterilizations as well, with vasectomies being among the most common, which would be applied to me, so it is not a matter of covering men and women differently.

    3. Medications like Viagra treat a medical disorder, whereas as non-theraputic contraceptive use does not.

    But heck, if dropping coverage for Viagra and similar medications would stop the mandate, I’d be fine with it. But I doubt that is the case.

    • Lance Finney says:

      I agree with Amanda Marcotte on this:

      I see no difference in an employer telling you that a health care package you earned can’t be used for birth control because of his moral beliefs than an employer telling you that you can’t buy condoms with your own money because of his moral beliefs. Once they sign the check, either to you directly or to a service provider that processes your benefits, they should not be allowed to control the money as an attempt to control you.

      • johnmcg says:

        Much as it pains me to find myself on the other side of an issue from Amanda Marcotte, I think the principle she’s asserting would bar all non-cash benefits.

        By providing me a health benefit, my employer has entered into paternalistic control over a portion of my income, saying that it must be used for health care expenses, and that they and the insurance company get to define what those are. Even if I think some expense might be healthy, that doesn’t mean I can use my health benefit for it. I have a hard enough time using my HSA (my own money!) to pay for my daughter’s medication.

        The same thing goes for dental benefits, 401(k) matches, vision care, life and disability insurance, etc. — in each case my employer is specifying that a portion of my income will be spent in a certain category, and that they get to define the boundaries of those categories.

      • Lance Finney says:

        Sure, there’s a bureaucracy inherent in administering benefits that makes it harder than we would like to get HSA’s reimbursed, etc. However, I see that as fundamentally different than, say, a Jehovah’s Witness employer deciding that my blood transfusions shouldn’t be covered based on his preferences about how he thinks he wants to lead his own life. There’s some paternalism involved in business, but I don’t think that should be extendable to Jewish or Muslim employers being able to exclude insulin and heart valve surgeries because of the use of pigs in manufacture.

        Bureaucracy sucks, but that shouldn’t be used as a cover for an employer treating me like a child incapable of my own moral choices in my own health care.

      • rropers says:

        “Bureaucracy sucks, but that shouldn’t be used as a cover for an employer treating me like a child incapable of my own moral choices” Lance, isn’t that exactly the government is treating us with increasing regularity? The difference is that our control over our employment and healthcare coverage is at least greater than that over the federal government “as the secretary shall determine” and so forth.

        The “fundamental difference” I hear you voice again and again about this freedom or application of religion—among others—is the origin of the values behind such decisions and thus their validity, not the logic or consistency of their application.

      • Lance Finney says:

        A business saying “I don’t like something, so I’m making the choice to take away your access” is infantilizing.

        The government saying “You’re an adult capable of making your own decisions, so here’s the access you need in order to make your own choice” isn’t.

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