Mandated Reporting and Health Care Controversy

A few years ago I was in Paris in a meeting room that might as well have been an art gallery – certainly no place for a boy from rural Missouri.  I was there because I’d been asked to serve as the English-speaking secretary for a global meeting of the National Bioethics Councils – a nice perk of my work with the World Health Organization’s Ethics team.  The president of a bioethics council in a developing nation and I were speaking before the meeting when he brought up my life as a Jesuit.  He said, “Many more people in my country would be dead if not for the Catholic Church and its commitment to quality care for everyone… and I mean everyone, regardless of who they are or where they’ve come from.  The Church cares for those no one else will.  I just want to say thank you.”

Three months before that conversation in Paris I had presented my thesis in an utterly unremarkable conference room only made distinctive by the incredible cadre of faculty and students of Johns Hopkins School of Public Health who sat before me.  Some in the room knew that I had been working on a new way of setting population-level health goals that focused more on achieving equity.  Everyone in the room knew I was a Jesuit.  As far as I know they were, without exception, supportive of my vocation.  But they did not give me a free pass that afternoon.  One of the first questions I received, from one of the kindest faculty members in the school, was this: “Do you think the fact that you are a visible representative for a Church that many believe treats women unequally in any way impacts your ability to speak on the importance of equity in health?”

Both of these stories describe part of who I am.  The fact of the matter is that I imperfectly straddle two worlds that rarely speak the same language, but are often engaged in the same work.  Both care deeply about the poor.  Both see health as an intrinsic and instrumental good.  Both emphasize personal and public responsibility.  Yet for their all these similarities it is not rare for a situation to arise in which these worlds seem to be talking past one another.  No, that analogy doesn’t quite do justice to the tension I feel – it sometimes feels to me that the Church and the world of public health are standing face-to-face screaming at one another.  And at moments like this, when tensions are really high, they act like scorned lovers who pretend that they really don’t need each other anyway.  And I can do little but watch.

So why do it, you ask?  Aside from my love of drama, I consider it a 21^st Century version of Jesuit missionary work.

***

Let me dive into this thicket with a warning: I am not interested in providing a position.  If you’re looking to score points in a debate then you probably should look elsewhere.  But if you want to engage other people in conversation on a topic as neuralgic as they come these days, then I hope what I offer will be helpful.

Moral theology and public policy are regular bedfellows in newspaper headlines.  Gay marriage and adoption services; new state-level legislation and abortion; the integrity of families and immigration policy; and now religious freedom and public health.  The topics might change, but our irreducibly pluralistic society means that we need to get better at discussing conflicts because they aren’t going away.

The application of moral theology in public policy is almost always a matter of prudential judgment rather than doctrine.  This means faithful people who are fully informed can come to different conclusions.

I have sat down several times to write this article, to write about the Obama administration’s ruling that nearly all health insurance plans must provide contraception and other reproductive services without an individual co-pay.  The US episcopacy, politicians on both sides of the aisle, op-ed writers, and many others have weighed in.  So, why read another article?  Hasn’t everything already been said, and by more competent people?  Perhaps it has, but there is no end in sight so we must be missing something.

At first, I did not think it was a very big deal.  Then I listened to then-Archbishop Dolan and realized I had missed important pieces of the puzzle.  Confusion followed as every article I read focused on a different aspect of the ruling, each seemingly as important as the next.  Truthfully, I am still sorting through everything.  And no, it’s not a lack of conviction.  It’s an admission that morally complex decisions are not as univalent as we like to believe.  Cardinal Dolan encourages Catholics to be informed and active.  I’m still working on the first part.

(Cue some public health colleagues thinking, “I can’t believe he’s not defending full access to contraception when the scientific evidence clearly indicates its value to women’s health.”)

(And cue some Catholic friends thinking, “I can’t believe he’s not defending the free exercise of religion when the government is clearly trying to tell us what we can and can’t do even when it goes against our morals.”)

Well, believe it.

***

A quick summary of events might offer a useful beginning:

• The 2010 health reform law ensured that preventive health services would no longer cost the consumer anything out-of-pocket.  Further, the law gave the Secretary of Health and Human Services (HHS) the power to determine which health services would be considered preventive.
• At the recommendation of the Institute of Medicine, the Secretary of HHS determined that all FDA-approved contraceptive measures should be included as preventive health services, a category which includes birth control and sterilization procedures.
• Many states (for a list of state polices you can click here, and download the Insurance Coverage and Contraceptives PDF) already have requirements to cover contraception, with varying levels of exemption.  Some Catholic institutions (including a few dioceses) meet these state requirement by providing insurance for contraception, while other institutions choose to self-insure in order to bypass the requirement
• Obama originally mandated that nearly all employers were required to provide insurance plans to their employees that covered these preventive services.
• Less than two weeks after the first ruling, a revised mandate is issued that requires insurance companies to provide these services directly to the employees if their employers object on moral grounds.

There’s a lot going on here.  This is a religious liberty issue.  It is an issue of cooperation with evil.  It is a women’s health issue.  It is an issue of the common good’s connection to contraception.  It is an issue of forming individual consciences. It’s an issue of the participation of religious institutions in public life.

Each time I discuss the issue with someone I feel like Harold Ramis telling my buddy Bill Murray not to cross the streams.  Nevertheless here comes my best Dan Aykroyd impersonation: total protonic reversal, here I come.

***

The other day I saw one of the bumper stickers that has emerged from this debate.  This one, obviously meant to promote the religious side of the conflict, read:  “pregnancy is not a disease.”  And it is absolutely right.  Pregnancy is not a disease.  It’s a great gift; and like all gifts, pregnancy has been given by God and is to be cherished as such.  It seems to me that that is a needed message in today’s world.

But upon consideration I began to realize that the subtext of this statement is far less attractive.  The fact that someone says “I believe that pregnancy is not a disease” means that they are also saying “other people believe that pregnancy is a disease.”  Maybe I am completely naïve, but I don’t know any of my colleagues in maternal health who would say that pregnancy is a disease in the same way cancer is a disease.  What my public health colleagues would claim is that becoming pregnant carries a change in health status; and it is a change in health status that carries significant health risks.  Saying that pregnancy carries health risks is not disparaging; it is descriptive.  Outside of the pithiness of a bumper sticker, that pregnancy is both a great gift to be cherished and that it carries health risks can stand alongside each other perfectly well.

This kind of mutual recognition only occurs when we examine ourselves as much as we examine the other, and it leads us to avoid presuming the worst in the other.  Contraception is not classified as a “preventive health measure” because people believe it is like cancer.  The Catholic position is that couples should not prevent pregnancy by technological means.  But those who hold this position shouldn’t assume that those who choose to prevent pregnancy are doing so because they think that pregnancy is a disease.

***

On the secular side, many have noted (with disputed accuracy) that 98% of sexually active Catholic women have used birth control at some point in their lives. Mentioning this fact implies “if your own people aren’t listening to you then why should we listen to you.”  It is a not-so-subtle way of trying to undermine the Catholic moral position on contraception, or drive a wedge between the Bishops and the faithful.  The percentage of adherents to a particular standard tells you neither the rightness of that standard nor the authority proper for determining the standard.

I could suggest, and likely underestimate, that 98% of drivers have violated the law of speed limits at some point in their lives.  It doesn’t matter.  The government still has the authority to hold drivers accountable for speeding.  Yet the debate about the contraception mandate is filled with these kinds of red herrings.  It might be a clever debating trick but it doesn’t help resolve the real issue at hand.

***

For the faithful Christian perhaps the real issue is how to live in a morally compromised world.  Should you be a judge if you have to preside over divorce cases?  Should you work an IT help desk if your work provides access to pornography?  Should you pay taxes if your money funds executions?  Should you buy an iPad if its was produced in unjust conditions?

You could withdraw completely, living a virtuous life unsullied by the imperfections of civil society.  Or you could choose to engage the world rather than flee it.

I know this sounds weird, but by living a typical life we must essentially ask how much we can cooperate with evil.  Our moral tradition recognizes that as Christians engaged in the world we must sometimes cooperate with evil activities.  If you’re wondering just what exactly the Church teaches about cooperation with evil click here – the questions below will actually make sense and you’ll better understand some brilliant moral theologians when they appear on the Daily Show.

So where does the latest ruling fall along this continuum of cooperation with evil?  Health insurance companies have been told they must cover the cost of contraceptive services for Catholic hospitals’ employees.  So although Catholic hospitals will not pay for contraception coverage directly it is hard to imagine that their payments to insurance companies won’t in some way be used for contraceptive coverage.  This leads us to ask questions like these:

• How closely are Catholic hospitals participating in the execution of the evil action?  And how close is too close?
• Will providing insurance coverage for contraception give the impression that the Catholic hospital approves of this action and thus give rise to scandal?
• How should a Catholic institution balance the competing goods of witnessing to its moral teaching and providing its employees with health insurance, now mandated to include a service contrary to its moral teaching?

***

Religious liberty is a central issue for both sides.  The United States of America has had a doctrine on religious liberty since 1791.  The Catholic Church has been one of the world’s strong advocates of religious liberty since Dignitatis Humanae in 1965.  Both have an imperfect history but both have a compelling interest in protecting religious liberty.  But the right to religious liberty, like almost all rights, is not absolute.  The government of the United States should not impose burdens on the practice of religion, and can do so only if the burden is vital to achieving an essential element of the common good that cannot be obtained otherwise.  And this leads us to what I consider the three real questions:

1. Can we agree that the revised mandate compromises religious liberty?
2. If so, is increased access to contraception so vital to the common good that it warrants a contravention to religious liberty?
3. Finally, are there any other ways to achieve the same end without or with less of a burden on religious liberty?

As astute readers, no doubt you’ve anticipated my point, but let me be clear never the less.  It lies at the heart of the tension between the rights of individuals and the obligations of living in a society.  In other words, we ought not simply say: “you, government, are violating my religious liberty.”  Instead we must be able to say, “you are violating my religious liberty unnecessarily” – without sufficient cause.  And this simple word, this “unnecessarily,” is not a propositional argument for which there is one right answer, it is a persuasive case that must be made.

And persuasion gets adjudicated in the public square.  The common good, and threats to it, must be argued for.  So we should all stop yelling — either about religious liberty or about women’s health — and start trying to persuade one another.

***

It’s the necessity for making a persuasive case – to my classmates as I defend my ideas, or to the American public as I write – that has led me to a basic premise I try to live by.  It’s this: people who disagree with me are not as diabolical as I often want to believe.  It is easy to be sarcastic, dismissive, or vitriolic.  But in the end doing so fails to be effective because it doesn’t convince anybody who doesn’t already agree with you.  It is more difficult to approach the other with humility and charity – beginning a conversation with a sense that neither one of us has the entire truth and finding the good (no matter how small), and the good intentions, in what the other has to say.  We often confuse these two Christian virtues with capitulation.

I am not saying there isn’t a place for a prophetic stance.  I think there is.  The prophetic position – naming a truth with no apology and no compromise – is an integral part of salvation history.  But I know a lot of folks whose personal motto could be “Not always right, but never in doubt.”  That kind of life is self-appointed certainty – a far cry from the God-given vocation of prophecy.

I am also not saying there is not a single truth to be found.  I think that, for matters of faith and morals, there is.  I just find it very unlikely that anyone has a complete grasp of how to implement that truth in public policy.

I am an imperfect member of an imperfect Church in an imperfect world.  I could have gotten my graduate degree in public health from a Catholic university where I would not have faced skepticism about my vocation.  But if I had not gone to Johns Hopkins I would never have been standing in that beautiful gallery in Paris, where a stranger crystallized for me the life-saving work of the Church around the world. The Church needs the world and the world needs the Church.  We will end up disagreeing about particular moral issues but we will never know what it is possible to achieve unless we start trying to believe that people of good will are ultimately on the same team.

 

Author’s Note:  This topic has engendered a lot of passion.  You are welcome to disagree with me and with other commenters, but for the comment section to remain open everyone must remain civil.  The comment section will be moderated in order to preserve the kind of space I have attempted to describe.