Burwell v. Hobby Lobby: A thin margin indeed

The recent Supreme Court decision, Burwell v. Hobby Lobby, has been hailed as a victory for religious rights, but in the Supreme Court’s majority opinion there are ominous signs for bioethics.

First, no commentator so far has mentioned that the Supreme Court decision implies that the only legally viable objection to underwriting abortifacient interventions must be religious in nature. The thin margin of decision by a majority that repeatedly referred to the Religious Freedom Restoration Act indicates that anything less compelling than a “sincere Christian belief” would be insufficiently persuasive. The belief at issue was that life begins at conception.

Thus there seems to be no legal room for a secular argument against funding abortifacients in Hobby Lobby’s situation. But what if someone held a purely scientific belief that life begins at conception? Would we not hope that such a person, who came to such a conclusion based on scientific evidence, would then have deeply held moral views about abortifacients? And if so, shouldn’t there be any an equal legal respect for such views?

In fact, what is specifically “Christian” is not the belief that life begins at conception. That is a scientific fact; what the Christian then does is conclude that there is moral consequence to the fact. He then has conviction to act based on this belief.

There are serious concerns here—one is that these events indicate that in our society those without religious beliefs are failing to demonstrate the moral conviction to act on the scientific fact that life begins at conception. The second is that should such secular moral conviction occur, the legal system would fail to grant legal standing to it. The Supreme Court majority made no attempt to accommodate a nonreligious belief; certainly the minority would not do so either.

A third concern is that there is ample evidence that many who support abortifacients deny the scientific facts altogether. They create arguments that what is being destroyed by abortion and abortifacients is not yet actually human life. In these instances they reveal that while they retain a moral sense that ending human life is wrong, they decide to override it with fanciful and convoluted cogitations in order to justify other desires. They simply lack sufficient moral conviction that respecting human life is paramount; both truth and the embryonic human become expendable.

The outcome of Burwell v. Hobby Lobby certainly could have been worse. But as it is it bodes poorly for the state of modern bioethics, for it is shows that there is no active nor legally viable line of defense against assaults on nascent human life than a Christian community increasingly marginalized by its own government.

A few tentative thoughts on — what else? — the ACA

With all the hoopla surrounding yesterday’s Supreme Court decision upholding most of the Affordable Care Act or ACA (12 pages in today’s Chicago Tribune alone), and with my extremely limited understanding of Constitutional law and legal matters in general, it almost seems silly for me to weigh in. But I will anyway. Disclaimer: I am neither a Republican nor a Democrat (I can’t stand either party), and my views do not represent those of Trinity International University, the medical profession, Christianity in general, or God.

The fact that the Court upheld the law on the basis that it is really imposing a constitutional tax rather than a mandate got me thinking (and I want to bypass all of the idiotic political wrangling about who said it was a tax when). We tax to provide for many things that are considered public or common goods: roads, schools, libraries, police services, and the like. These common goods are things that are necessary, but that no one person or small group of people could possibly pay for, so the cost is spread over the large group of people who potentially benefit from such services. Is it reasonable to see health care not as a special privilege for those who can afford it, but as a common good?

In our current “system,” health care costs are spread over large groups of people through multiple private insurers, as well as the government-administered programs of Medicare and Medicaid. However, the private insurers, in an effort to maintain the skyscrapers they have erected in downtown Chicago, exclude those patients who are a threat to their profits.  This would be perfectly understandable and excusable if they were in the business of insuring luxury or discretionary items like large-screen TVs or designer clothes. But they are not insuring luxury items; they are providing payment for a common, public good.

The most direct solution would be a direct tax to pay for health care for everybody. That is not to say it is a simple solution; it is fraught with problems, and is probably currently politically untenable. Barring that option, the next most reasonable option would be to set up a tax structure that encourages or enables everyone to buy insurance, since that is the way health care is paid for in this country. It seems to me that this is what the current Court ruling has said the ACA does. (Whether that is what the ACA actually does is beyond my ability to discuss intelligently.)

I am no proponent of the ACA (see here). There will be unintended consequences and unforeseen ramifications and nobody knows what will happen as it is implemented. (Don’t believe anybody from either party who tells you they know how things will turn out.) My personal biggest problem with it is that its provisions for cost control seem anemic at best. However, it was passed by the legislative branch of our government, signed into law by the executive branch, and now upheld by the judicial branch. It is time for our elected officials to get on with the task of governing, not posturing and jockeying for party power. There will have to be multiple fixes for the ACA and fixes for the fixes as time goes on. Let’s quit the fighting already and get down to the work of providing health care — and move our understanding closer to seeing health care as a common good, not a luxury item.

(I will be gone on vacation the next few weeks with no computer access. This means not only that I won’t post for the next couple of Fridays, but that I will not be able to immediately respond to any comments you might want to add.)

Reflections While Awaiting the Health Care Verdict

As I write this, Americans are within three days of “The Verdict,” whereby the United States Supreme Court will rule on the provisions of the contentious law variously called “The Affordable Care Act” and “Obamacare.” Whatever the outcome, it offers a stark reminder that issues of bioethical concern, including the way in which our society should best deliver health care to promote the general welfare of our people, exist not only in the rarified air of philosophical academia but in the muck and mire of public policy, legislative bodies and, indeed, the judiciary. Many who genuinely try to formulate health care policy based on Scriptural directives find themselves on opposite sides. Our politics are polarized. This is nothing new, really, but the polemical nature of our debate makes a few things clear to me. I recall J. Budziszewski’s “The Revenge of Conscience,” where he described how both political liberalism and conservatism seemed to suffer the same error that assumes people, whether in government or the private sector, are basically good. The former believe that government will make good choices and implement them fairly to citizens. The latter believe that self-directed individuals will make good choices. But competing political philosophies are populated by fallen human beings, all of whom can make terrible choices. I think that the simple way politics fails us today, frankly, is that we don’t effectively recognize sin. True, our own politics, that advance our righteous agenda (and I really don’t mean that entirely as a pejorative) may address the fashion in which policy will “fix” some societal sin, perhaps perpetrated by our political opponents. But do we, as Christians dedicated to the process of redemption in a fallen world, underestimate the pervasiveness of sin in ourselves? Do we genuinely believe that if “our solution” is chosen, sin will be subdued and goodness abound?
I remember my efforts, as a patient, student, and business owner who watches annual insurance premiums for my staff soar, to research the reasons behind our flawed system. Were health insurance companies greedy and insensitive? Yes. Was government inefficient and prone to fraud? Yes. Did some physicians game the system, perhaps to increase revenue from their own diagnostic facilities? Yes. Did patients, even those given control over how their own health care dollars were spent, often make rotten decisions? Yes. It was discouraging to find that we all, in some sense, play villains in this narrative. Human systems, even with the manifest blessings of common grace and the redemptive work of Christ, are stained by greed and corruption and hatred and pride. Whatever the Court decides on this law, one side will be elated and the other discouraged. No one believes that the health care system will be “fixed” and “done” regardless. I would submit that fertile ground for subsequent reforms should account for what sin has done and will do, however the law is formulated, and that Christians in the arena, in whatever role we play, will be most effective as we begin with genuine repentance.

Science, politics, ethics, and emergency contraception

Last December 7th, Health and Human Services Secretary Kathleen Sebelius instructed the FDA not to give over-the-counter (OTC) status to the emergency contraceptive drug Plan B One-Step for girls under age 17 (It is currently OTC for all women 17 years of age and older). Sebelius gave as her reason her “conclusion that the data … are not sufficient to support making Plan B One-Step available to all girls 16 and younger, without talking to a health care professional.”

Commentators immediately went ballistic, bemoaning the “fact” that the science shows that this product should be approved OTC for all ages, but that politics overruled the science. Last week a Perspective piece in the New England Journal of Medicine (NEJM) made the same assertion, as did an earlier Viewpoint in JAMA.

However, there is more to these claims of scientific-objectivity-being-overruled-by-politics than meets the eye. Science can only tell us what is or what can be, never what should be. You cannot from the premise, “We can do such-and-such,” derive the conclusion, “Therefore, we should do such-and-such,” without the intervening value statement that “Such-and-such is good, or desirable, or right.”

In his inaugural address, President Obama promised to “restore science to its rightful place” in government, to “base our public policies on the soundest science.” But public policy decisions are inevitably decisions about what should be done; every regulation in the law is an acknowledgement that those governing believe that one particular way of doing or taxing or regulating something is better than the alternatives. In other words, every policy decision is based in some part on ethics and morals — things which objective science cannot reveal to us. To “restore science to its rightful place” means “let’s get our facts straight.” This is important: good ethics (and good policy) must start with good facts. But science’s rightful place is not, and cannot be, to make the ethical decision for us.

Science can tell us the chances of Plan B One-Step preventing pregnancy after unprotected intercourse. It can give us statistics about how women use it and what the potential side effects are. It can not tell us whether or not it is a good thing that a 12-year-old who just had unprotected intercourse should be able to get the medicine without talking to an adult such as a medical provider.

Sebelius appealed to a lack of scientific data in making her decision; I do not know if she also had an unspoken political agenda. It seems at least mildly improbable that someone so staunchly pro-choice, who is part of the administration of a President and a political party that do not oppose Plan B on political or ideological grounds, would herself do so to gain political points or power. But I do know that, contrary to all the pundits, this decision, like all policy decisions, cannot be made by empirical science alone. The accusation of “Politics trumps science” is just a front for those whose own politics, morals, and ethics lead them to a different conclusion.