Katie Geleris: Current arguments against the HHS mandate might win the battle, but they concede the very ground for which conservatives should be fighting.
Two relatively predictable camps have emerged in the controversy over the contraceptive mandate. Those who traditionally lean to the left of center fall into the “women’s health” camp that sees this issue as primarily about women’s access to a certain set of healthcare products. Those who tend right are generally in the “religious liberty” camp that holds free exercise to be the crux of this issue.
For the purposes of this article, I will simply assert my belief that the former position is completely untenable; much has already been written arguing that that is the case, and I need not rehash those arguments. I would like to highlight a subtler problem with the present state of this controversy. The problem is that the conservative position is not really conservative at all.
Consistency and Compromise
Before I proceed, I must highlight an inherent difficulty in what I want to say. Conservatives have two responsibilities in responding to the contraceptive mandate: First, they must seek to understand the real nature of the situation, taking into account everything they know to be true (including religious truths that are generally unwelcome in the public square). This must be done consistently and without compromise.
Second, conservatives have to get things done—file lawsuits, pass legislation, publish in the popular media, amass public support—to minimize the damage that this administrative rule will produce. This must be done shrewdly and might require that they make some strategic concessions in their rhetoric. The compromise that is permissible where unavoidable should not, however, cause conservatives to abandon an unflinching commitment to the underlying truth.
My purpose here is to address this first aspect of the conservative response—the consistent and unalloyed truth of the matter. Nevertheless, my focus should not be taken to imply that the second aspect is anything less than completely indispensable.
Conservatism and the Common Good
In describing a truly conservative approach to the contraceptive mandate, let’s start at the beginning. In the beginning, God created everything, including humans. God made humans in His own image and gave them a commission, a set of duties. He gave them duties, not rights.
What we now call rights did not enter the political scene until the seventeenth century, when the modern era dawned with more (Hobbes) or less (Locke) secular social contract theories. Liberalism and libertarianism are the contemporary heirs of this momentous philosophical shift. Rights are a modern fiction that was promulgated to counter abuses of duty that resulted in oppression, but that fiction has been taken far beyond those original good intentions. (Patrick Deneen has written more on this here.)
Governments are instituted by God and are natural to human society. Like individual humans, these coercive institutions have a special role to play in the world, a duty toward those they serve. A government’s duty is to seek to effect the common good in ways that are appropriate to its nature. The preamble to the American Constitution lists several elements of the common good that, in this country, constitute the very law of the land. The government’s responsibilities are both positive (establish justice, provide for the common defense, etc.) and implicitly negative (don’t overstep the job description, the enumerated powers).
Contraception and Conscience
With regard to the contraceptive mandate, the relevant facts are as follows:
- Humans are responsible to protect human life rather than destroy it;
- The government is responsible to protect human life rather than destroy it, and to foster (at least not inhibit) the ability of individuals and institutions to do the same;
- Sometimes, other people’s lives interfere with our own lives, yet the human responsibility to protect human life remains in effect (stated in reverse, we have no right to be free from intrusion into our comfort by others);
- Some FDA-approved contraceptive drugs and devices can kill very young humans.
Anyone who accepts these premises must repudiate the HHS rule in the strongest terms.[1] Indeed, everyone, regardless of whether they accept these premises, ought to repudiate the rule, because the premises are true regardless of whether they are believed.
Nevertheless, conservatives have failed to assert and defend the truth of these facts, and are instead attempting to fight the mandate on terms set out for them by modern liberalism. Consider the testimony of Dr. William K. Thierfelder, the President of Belmont Abbey College, at the recent hearing on the HHS mandate:
We are unwavering in our belief that contraception, sterilization, and abortion are against God’s law. This is what we teach our students. We believe it is a sin for us to facilitate access to these services through the funds of our religious college. Providing contraceptive services, abortifacients, and sterilization… is a violation of our conscience. [emphasis added]
This statement makes no claim on anyone but the president and his institution. Does Dr. Thierfelder really think that this mandate is wrong because it forces his institution to do something it thinks is immoral? Or, rather, does he oppose it because it forces his institution to do something that is immoral? Is this controversy about his right to religious freedom? Or is it about his—and the government’s—duty to protect human life?[2]
Most conservatives, like Dr. Thierfelder, have been using this alternate set of “facts” to arrive at the conclusion that the HHS mandate is wrong:
- American citizens have an inviolable right to believe and practice whichever religion they choose;
- Some Americans believe in religions that tell them that:
- Humans are responsible to protect human life rather than destroy it;
- Some FDA-approved contraceptive drugs and devices can kill very young humans;
- The government cannot violate the rights of American citizens to believe and practice whatever religion they want unless it has a compelling interest in doing so;
- Providing free emergency contraception to employees of religious organizations is not a sufficiently compelling reason to justify the government’s forcing religious organizations to violate their deeply held religious beliefs.
These premises still lead to a rejection of the HHS mandate, but what do they concede? By using this argument, conservatives have conceded that the moral duty to protect life and not destroy it obligates only those who accept that responsibility, not every person. Even if this argument succeeds, conservatives will merely have defended subjective, privatized religion—so-called “conscience”—of an acceptably tame modern variety, rather than a worldview that is objectively true and universally binding.
Conservatives should not content themselves with fighting for a larger religious exemption that protects their “right to free exercise” if the government is still able to eschew any notion of its duty toward the good of the society it governs. Freedom of conscience—religious liberty—is an instrumental good, not an end in itself nor a natural right. Appeals to fictional fundamental rights will only take conservatives so far; what will they do the next time such an issue arises?
Conservatives must take their moral convictions seriously if their ideas are to gain any long-term traction in the public square. Taking them seriously involves recognizing that they obligate everyone, regardless of whether everyone acknowledges their validity. Conservatives must aim to free conscience from government coercion so that people can seek truth and live morally, for the good of individuals and of society as a whole.
Katie Geleris, a 2011 John Jay Fellow, is a graduate of Biola University. She currently provides research for the Alliance Defense Fund.
[1] Catholics and Protestants agree on abortion and, therefore, on these terms. Catholic moral theology, however, prohibits all forms of contraception, not just abortive ones, so Catholics may expand this reasoning to cover the whole range of FDA-approved contraceptive drugs and devices.
[2] To his credit, I think it likely that Dr. Thierfelder, in fact, opposes it on the latter ground, although he recognizes the reality of testifying before a committee steeped in modern liberalism.
Katie,
With respect, the Hobbesian and Lockean traditions that you (rightly) assert ushered in the era of “rights” are nonetheless the traditions upon which our founders framed and authored the Constitution. There is a reason that we have a “Bill of Rights,” not a “Bill of Duties;” There is also a reason why free exercise is one of those “rights” outlined in the First Amendment.
Perhaps this is the primary reason why conservatives are finding that they must turn this into a battle of free exercise and religious conscience. Although you claim that such a position is untenable (or at least ultimately self-destructive), the alternative that you suggest is one that does not speak the language of classical liberalism, and can therefore have no significant or credible place in a public forum. The argument, while a more comprehensive one, is only tenable in academic circles of political philosophy.
The question then is not one of conviction, but of prudence. Dr. Thierfelder most certainly is against the HHS mandate because it is wrong. He necessarily frames his conviction as a belief so as not to be dismissed as a “radical,” “zealot,” or “bigot.” His decision to do so provides him an avenue for civic dialogue.
Is this necessity ideal? No. But prudence dictates that conservatives work within the confines of our Constitutional tradition of rights. It doesn’t mean that conservatism has forgotten all about duty.
-Zachary
http://www.zacharycrippen.com
Thanks for the response, Zachary.
You correctly note that there are two streams of argument in this issue, as I point out in the section on consistency and compromise. We disagree, however, on the forums in which these two arguments are appropriate.
On the one hand, it is true, for example, that the attorneys filing lawsuits against the mandate must speak the language of the Constitution and classical liberalism– language that is grounded in rights. As I point out in my footnote, Dr. Thierfelder’s testimony was understandable and perhaps appropriate in its context.
Nevertheless, such arguments are surely not the only ones that are appropriate in a democratic public square. A comprehensive, conservative argument should not be limited to academic circles, as you suggest, but should take its place in public discussions of what is true and good. Conservatives need to win more than court cases; they need to win over the hearts and minds of the people. These will not be won without at least some representation of unadulterated conservative arguments in the public square, particularly at the popular level where they are almost totally absent right now. Most conservatives do not even know what the comprehensive conservative argument is, and those who would like to see a conservative worldview worked out in the culture must acknowledge the dire implications of this fact for their project.
Conservatives who hope to advance their ideals through such avenues as the courts and the legislature must consider what is expedient, as you say. But if conservatism is true, then those who would declare the truth in public need not– should not– impose the same restraints upon themselves. Civic dialogue in a pluralistic society is not enhanced by compromise, but by the (gracious) expression of differences in an attempt to persuade others of what is true. Conservatives, in this instance, need to hold up their end of the conversation.
A government’s duty is to seek to effect the common good in ways that are appropriate to its nature. The preamble to the American Constitution lists several elements of the common good that, in this country, constitute the very law of the land. The government’s responsibilities are both positive (establish justice, provide for the common defense, etc.) and implicitly negative (don’t overstep the job description, the enumerated powers).
Are “negative responsibilities” inherent in government by nature or are they only present in particular governments that have been constituted in particular ways, such as in the U.S. federal government through the Constitution?
In other words, is a government’s “job description” limited in principle or only insofar as its particular constitution (written or unwritten) determines?
You have an interesting approach, Katie.
I like many of your points. For example, you’re absolutely correct to say that rights are a political fiction. In point of fact, nobody ever has any rights that extend beyond what those in power choose to give them (i.e. you can claim you have an inherent right to free speech, but that doesn’t mean anything when someone’s got a gun to your head).
I also appreciated your point that we need to understand the “real nature” of the situation. This is true, and the starting point for any conservative (and, I would argue, any effective human being) must be to understand the reality that we have to work within.
Your approach reminds me of presuppositional apologetics (i.e. your argument flows from the assumption that the truths you hold are self-evident and not open to question). This is most apparent in your statement that “everyone, regardless of whether they accept these premises, ought to repudiate the rule, because the premises are true regardless of whether they are believed.”
My concern is that the majority of the population does not share your axioms—i.e. I don’t think you could get a viable political coalition to agree to a definition of human life that included “very young humans,” or to agree on the proper role of government in protecting such persons, etc. Dr. Thierfelder’s milder argument, I think, has greater coalition-building potential: he doesn’t ask that you agree with him, just that you empathize with him.
Your first-principles approach certainly has a place. The Center will never move to the Right unless there’s a Right to move to, and everybody likes the idea of a “principled politician.” I just think that we’re better off adopting a friendlier (but not weaker) tone on controversial issues—Reagan did this better than anyone. It’s all about making more friends than the other side. :]
I like many of your points. For example, you’re absolutely correct to say that rights are a political fiction. In point of fact, nobody ever has any rights that extend beyond what those in power choose to give them (i.e. you can claim you have an inherent right to free speech, but that doesn’t mean anything when someone’s got a gun to your head).
Likewise, duties are a political fiction. You can claim that you have a duty to care for your children, but that doesn’t mean anything when someone’s got you locked in his cellar.
I agree, Ryan. It seems to me that the key similarity in our two analogies (gun to the head and locked cellar) is that both recognize that the rules and concepts that we use to rationalize and legitimize society go out the window in the face of force. You can insist on unshakeable duties or inalienable rights… but they’re not really unshakeable or inalienable, because someone with more power can always shake/alienate them.
Of course, in day to day discourse, we can treat them these values as constants because we have a reasonable expectation that the rights and duties our government imposes/bestows on us today will be more or less the same ones they give us a year from now. Douglas Hyde (ex-communist turned Catholic) claimed that the first rule of Communist agitprop was “Don’t believe your own propaganda.” Got to hand it to the Marxists, they had the right idea on that score. We can respect rights and duties as good things, we can work to uphold them, but we should never forget where they actually come from, or the fact that they are humanly mutable.
But keep in mind, Mr. Settle, that this line of thinking debunks only a superficial notion of duty (or right) to which people do not usually refer when they use the word. When your average Joe says that Mr. Smith has a duty to care for his children, he does not mean simply that Mr. Smith is able to care for his children and that such activity is appealing in some way (that is, in whatever way would render it a duty instead of just a possibility), but rather that Mr. Smith ought to care for his children, that it would be right of Mr. Smith to care for them and wrong of him purposely to refrain from caring for them. It is to miss the point to respond to Joe that Mr. Smith is currently unconscious (whether due to his own action or circumstances beyond his control, including coercion) and, since he is thus unable to care for his children, that talk of such a duty, for the time being, “does not mean anything.” Likewise, when Joe says that Mr. Smith has a right to free speech, it is to miss the point to claim that such talk “does not mean anything” when he is unconscious and thus unable to speak willfully. These distinctions apply not only to the claims of your average Joe but also to the claims of many, probably most, of those who defend in a more formal manner the reality of duties and rights.
Please, call me Samuel—“Mr. Settle” disorients me.
“but rather that Mr. Smith ought to care for his children, that it would be right of Mr. Smith to care for them and wrong of him purposely to refrain from caring for them”
I agree that this is what most people would say they mean when they speak of “duty.” My contention, however, is that the key question in any discussion of duty—or rights, or morality for that matter—is not “what” but “who.” In other words, it doesn’t boil down to “What is right?” it boils down to “Who says it’s right (and what can they do to enforce their viewpoint)?”
So, using the “Mr. Smith” example, when his neighbors say that he has a duty to care for his children, what they really mean is, “Society says he should care for his children, otherwise he will face social repercussions; meanwhile, I can feel free to condemn him for not taking care of his children, without fearing retaliation for doing so.” Smith’s duty is grounded in the rules and expectations set up by those with power and influence in the society. Whether or not those rules are good is irrelevant; whether or not the rulers are godly is irrelevant. Power is what it is, and it is must be the beginning and the end of any real discussion of policy. What you should do is wholly determined by what you can do.
This isn’t inconsistent with a conservative Christian view of the world; it just requires us to embrace the “divine command theory” view of ethics.*
I get the feeling that this discussion is drifting into the abstract, so I’d like to reemphasize my major point of objection to Katie’s argument: it is not sufficient for conservatives to assert our morality, even if we are “right” (whatever that means). What other people believe does matter; having a correct premise is near useless unless you can get a significant percentage of the population to share the premise, and then mobilize them to seize the reins of government. I think that a nice-and-friendly empathy-focused argument is the most likely way to build this winning coalition.
*Namely, that right and wrong are what they are because God said so; if He wanted to, he could declare wearing mismatched socks the blackest evil and we’d all just basically have to accept that. After all, who’s going to argue with the omnipotent guy sitting on the Throne of Judgment?
Power is what it is, and it is must be the beginning and the end of any real discussion of policy.
Is there any human action that affects someone who is not the one acting and whose aim cannot be derived from or reduced to a desire, whether overt or latent, to exert power? If there is, then can such an aim reasonably play a role in a “real discussion of policy”–perhaps not at the beginning or end, but at least somewhere in the middle?
What you should do is wholly determined by what you can do.
(Bold mine.) It seems that this cannot be true. If “what you can do” is limited to one option, then there is no “what you should do”–because there is no choice involved. If “what you can do” involves at least two options (e.g., obey or disobey the more powerful person), the mere existence of these two options does not in itself determine “what you should do.” Some further principle is required.
That Mr. Smith can expect to “face social repercussions” due to child neglect does not indicate what he ought to do, only what some people desire of him and what they intend to do if he acts in a certain way. Some further principle is required to establish that their desire and intention determine how he should act.
This isn’t inconsistent with a conservative Christian view of the world; it just requires us to embrace the “divine command theory” view of ethics.*
Can a divine command contradict the commands of those people who exercise power over other people? If it can, then wouldn’t ethics under the “divine command theory” consist of following the divine command rather than the commands of the powerful?
—
By the way, I agree with you Ms. Geleris’s proposed method of argumentation leaves much to be desired. I think it unwise to ignore the common ground available–in the present case, the belief in religious liberty as expressed by Dr. Thierfelder and to which many, if not most, Americans hold. To write off the concept as extrabiblical (“[God] gave them duties, not rights”) or modern (“rights did not enter the political scene until the seventeenth century, when the modern era dawned”) or abused (“that fiction has been taken far beyond those original good intentions”) is without warrant. A concept can be true, good, or useful and yet not be mentioned in the Bible, or not be expressed until after a certain date in history, or not be without abuse in the hands of men. Unless one can show that invoking the concept is immoral in itself or tends necessarily to error, then people (conservatives or not) need not regard its use as improper or illicit. Even if the concept is a “fiction” (whatever one might mean by that), such a status need not rule out its use in principled argumentation and public persuasion.
Pardon the typo; “Of course, in day to day discourse, we can treat these values as constants…”
I think you’re onto something here. However, I’m a little surprised that you dismiss out of hand the idea that man was created with certain “rights.” (I’m just as skeptical as you are of that word implying what folks tend to think it does; but for fairness’ sake…)
Have you looked at all at William of Ockham’s philosophy of rights (i.e., *ius utendi* and *usus iuris*) in making up your mind on this? Ockham’s understanding is very non-Lockean (and arose about 300 years before the latter). Also, it’s connected intimately with a theory of *dominatio* that applies even in the case of the prelapsarian state. Thus, in a sense, Ockham applies the term “right” very clearly—and very evangelically—to the basic human situation vis-à-vis its creator, as part and parcel of his grander conception of law (both natural and civil). Of course, he might be wrong; but he certainly deserves a separate reading from Hobbes and Locke.
In case you’re interested, let me know and I’ll email you a recent dissertation from Univ. of Toronto on this very topic. Quite interesting stuff. Thanks again for your article!
Well, the answer you give depends on the question you are asked.
And there are (at least) two distinct questions of relevance to the HHS mandate:
(1) May a government permissibly (i.e. is it *right* as a matter of political morality that any government whether in the United States or elsewhere) compel a person to pay for abortifacients; and
(2) Is it unconstitutional (i.e. is it *unlawful* under the law of the US Constitution) for the United States Government to compel a person to pay for abortifacients.
US federal courts are really only concerned with (2) — or they *should* only be concerned with (2) if they stick to their constitutional task. But citizens and legislators alike should be concerned with *both* (1) and (2).
The difficulty arises when we assume that (2) is the primary or even the only question of import. It is not. The US Constitution acts as a limit on what the US Government may do but it is not the sole limit on what it may permissibly do. As well as being bound by the law of the constitution it is also bound by political morality. And arguments about how the HHS mandate is immoral (i.e. exceeds the legitimate authority of any government anywhere) as well as unlawful (i.e. exceeds the powers granted to it under the US Constitution) should be made in the public square. Americans need to be making both arguments.
Making public arguments about (2) is not in and of itself to give into the liberal agenda. Making public arguments about (2) to the neglect of (1) probably is.
Making poor public arguments about (1) in terms more appropriate to a debate about (2) is.
Well put, David; I completely agree.