The debate over compulsory coverage for contraception rages on, with Notre Dame changing their policy on coverage for birth control again under Trump executive order allowing them to do so. The university had initially claimed that a requirement mandating them to provide contraceptive coverage was a burden on its exercise of religion, and discontinued coverage last October, before quickly reversing course after a protracted outcry from students, faculty and staff. Over 17,000 people are currently covered by the institution’s insurance plan. The university’s current position is to cut coverage for birth control that the university considers to be inconsistent with Catholic teachings; continuing coverage for ‘simple contraception’ while discontinuing coverage for contraception that ‘kills a fertilized egg’.
The Affordable Care Act required that insurers cover the cost of contraception without any out-of-pocket costs by the claimant, with exemptions for houses of worships and closely-held for-profits, with the proviso that organisations that wished to avail of the exemption must notify the federal government, who would then contract directly with the insurer to provide unimpeded access to birth control for employees and their dependents. Under Trump administration rules, the exemption has been expanded to include non-profit organizations and for-profit companies, including public corporations, and a separate HHS rule allows similar moral objections for most institutions.
The central claim of supporters of the new rules tends to focus on an objection to becoming ‘complicit’ in care that the individual or the institution considers morally objectionable. The parameters of the moral landscape for the debate are familiar and predictable. Under the Church Amendment, no individual or entity funded by the Department of Health and Human Services may be required to provide or assist in the provision of abortion or sterilization services, and following Hobby Lobby, RFRA extends to closely-held for profits, essentially creating a landscape in which institutions and corporations may hold religious beliefs for the purposes of determining the medical care that will be made available to patients, employees and dependents. Beyond the repercussions this construction of identity has for individuals working or receiving care from a relevant institution, the reasons for allowing institutions to construct identities in this manner is exceedingly complex and confusing. It may be that the idea of ‘institutional conscience’ has passed uninhibited into public discussion, but the idea demands examination. What does it mean for an institution to be religious, or to hold moral convictions? What is the necessary relationship between the individual belief of controlling members – shareholders, trustees – and the reality of commercial decisions or care decisions on the part of employees and doctors? Given that institutions draw a collective identity from distinct individuals, can degrees of moral conviction exist for different institutions depending on the solidarity or discord in shareholder beliefs?
The theory is abstract, but the potential for practical problems in administration is reasonably concrete. It’s easy to imagine conflicts arising between the conscience of the institution, and of individual doctors administering care. Almost every state allows doctors to refuse to provide abortion care, and many have policies extended conscientious ‘opt-outs’ to sterilization and contraception. The legal position of medical staff in the inverse scenario – where they are willing, and indeed want to provide medical care that transgresses the ethos of their employing institution – is troublingly unclear. 53% of US doctors have worked in religiously-affiliated hospitals, many of which place restrictions on the types of care that may be made available to patients, and as such, may prevent doctors from undertaking medical care that the medical practitioner considers to be in the best interests of the patient, but which is against the ethos of the hospital. A 2012 survey indicated that 37% of doctors in Catholic institutions in the US reported that they had faced a conflict with the institution’s ethos in relation to permissible care. The significance of this conflict can’t be overstated. The Catholic Church is the world’s largest provider of healthcare, and is the largest non-profit medical provider in the US. Many Catholic hospitals find themselves as ‘sole community providers’ narrowing, and in some cases effectively eliminating the ability of patients to access morally contested care, and for doctors to provide it. For patients who want to access, for example, therapeutic abortions in some religious hospitals, the clash of individual and institutional conscience is far more than an abstract argument in moral theory; it is an immediate harm occasioned on them by the favouring of a collective, institutional conscience over their medical needs, and even over the medical determinations of their doctor.
Conscience is undoubtedly a pillar of moral living. Allowing individuals to commit themselves to their most profound moral commitments is a critical concession to tolerance and community living. This commitment should lead us to question how far we are willing to grant the desires of a collective, amorphous institutional identity over the concrete wishes of individual doctors, whose conscience may be displaced to maintain an institutional ethos. In particular, where healthcare is monopolized, it should lead us to question the extent to which we are comfortable allowing institutional conscience to also monopolize the moral and medical landscape.