Conscience Protections and Subsidiarity
The Obama administration’s refusal to provide adequate conscience protections to Church-affiliated institutions that do not wish to pay for contraception is fundamentally wrong. Obama has lost the vote of Michael Sean Winters over this. Given the depraved condition of the modern Republican party, I’m not sure I would go that far, but I know where he is coming from. Not only is this decision wrong, but it represents a betrayal of those who fought hardest and took the most heat – even death threats – for supporting the Affordable Care Act.
But let’s be clear about why it is wrong. I have little interest in American constitutionalism, but I have a major interest in Catholic social teaching. And in this domain, the decision was wrong because it was a violation of subsidiarity. Specifically, instead of simply furnishing help, the federal government stepped over the line and usurped the power of a lower level authority in the social order. By providing too much “subsidium”, the government suffocated the legitimate autonomy of religious institutions offering health care coverage. As Pius XI put it, the role of the state is to “furnish help to the members of the body social, and never destroy and absorb them”.
Part of the problem is the way that left-wing liberalism has developed in the United States, insofar as it seeks to curb the autonomy of religious entities once they step onto the public square. The closest comparison to the Obama decision would be the French government decision to ban certain religious garb in public schools, notably the headscarf frequently worn by Muslim women. In both cases, it is a violation of the autonomy of the religious entity, which does not lose this autonomy when it enters the public square. And this principle is far bigger than any fights over the merits of providing contraceptives (or wearing scarves in France). It would apply equally if the federal or state government attempted to interfere in the way Catholic schools, hospitals, or charitable institutions deal with undocumented workers and their families – a live issue in the United States today.
Another example would be the provision of social welfare in countries with a strong Christian Democratic tradition, such as Germany and the Netherlands. Here, the welfare system is funded by the state, but managed by subsidiary mediating institutions – including religious bodies – in a fully autonomous manner. This model of a publicly financed and privately governed welfare arrangement stems directly from the principle of subsidiarity. But such a model seems inconceivable in the United States.
But let’s be clear about something else too. From this same perspective of Catholic social teaching, positions like those of Robert George also don’t hold any water. George is almost gloating over Obama’s betrayal of the Catholics who supported him. But George and those like him tend to misapply the principle of subsidiarity themselves. Rather than too much help, they would have the government provide too little. Sticking to the health care arena, these people opposed the Affordable Care Act based on what Pope Paul VI referred to an unbridled liberalism that “exalts individual freedom by withdrawing from it every limitation” and which is based on “an erroneous affirmation of the autonomy of the individual in his activity, his motivation and the exercise of his liberty”. This is the basic right-wing liberalism in the United States that is mis-named “conservatism”. Specifically, these anti-Obama Catholics on the right opposed attempts to provide near-universal healthcare by means of strict regulation of insurance companies, an individual mandate, and subsidies for the poor. The individual mandate, as an “attack on autonomy”, continues to draw the most ire.
But this approach is fully in line with Catholic social teaching. It gels with our collective obligation as a society to provide healthcare to everybody through solidarity. It is also warranted through subsidiarity. As Pius XI put it, “the right ordering of economic life cannot be left to a free competition of forces” and needs a directing force. John XXIII stated clearly that “intervention of public authorities that encourages, stimulates, regulates, supplements and complements is based on the principle of subsidiarity”.
If the market cannot provide, the state must step in to fix the problems (directly through solidarity, indirectly through subsidiarity). And indeed, John Paul II noted that “there are many human needs which find no place on the market. It is a strict duty of justice and truth not to allow fundamental human needs to remain unsatisfied, and not to allow those burdened by such needs to perish.” It is hard to think of a better example than health care. John Paul also notes that the free market must be “controlled by the forces of society and by the State, so as to guarantee that the basic needs of the whole of society are satisfied”. Health care is such a basic need. The fact that the United States, alone among the wealthy countries, does not provide it to all is a major source of scandal.
One way to look at subsidiarity is that it seeks to balance the scales between different groups, by providing just the right amount of help from above (neither too much nor too little) to achieve a harmonious social order. This is certainly what Pius XI had in mind. Paul VI put well when he said that “when two parties are in very unequal positions, their mutual consent alone does not guarantee a fair contract; the rule of free consent remains subservient to the demands of the natural law”. In such a case, the state must step in to correct any imbalances. In the United States, there is a huge imbalance between people and insurance companies, especially those on the individual market. The Affordable Care Act seeks to correct this unbalanced relationship by forbidding insurance companies from denying coverage at whim, calling for state-level exchanges to help level the playing field between insurers and insurees, and making sure the poor are not excluded from health care because they cannot afford it.
In other words, through the Affordable Care Act, societies of a superior order are adopting “attitudes of help (“subsidium”) — therefore of support, promotion, development — with respect to lower-order societies” (as the Compendium puts it). And while the Obama administration’s decision on conscience protections goes too far, critics of Obama from the Catholic right would not go far enough. Both are unbalanced under Catholic social teaching.