The HHS Ruling Debate as a Clash of Values

Responding to Douthat, Dreher, and Drum, Noah Millman helpfully frames the debate over the HHS ruling as a clash of values:

. . . the liberal side in this debate doesn’t take the Catholic Church’s objections to contraception seriously as a moral matter – it’s just a peculiar hangup of theirs – and the conservative side in this debate doesn’t take liberals’ support for a positive right to contraception seriously as a moral matter – contraception may be convenient and morally neutral, but it isn’t a positive good.

If both sides fail to understand each other, they also fail to understand themselves. Ironically, Millman, the lone liberal writer at The American Conservative, lays out the “conservative” side (as he calls it) much more clearly than does Dreher, his conservative colleague. Dreher, a former Catholic, should know better than to suppose that the Church opposes contraception on religious, rather than philosophical grounds. And yet Dreher likens the Church to a small sect of Orthodox Jews who “because of their hard-to-understand (to you, at least) religious rules, have to walk to their synagogue on the Sabbath.” When in Dreher’s thought experiment these Jews are prohibited from walking to synagogue, a Rabbi protests to his fellow citizens:

The people of our town have been able to get where they want to go with minimal inconvenience until now. It is not unreasonable for the town to accomodate our practice, as strange as it may seem to you. If you will not, then we have no choice but to withdraw — not out of meanness, but because we cannot do what we believe is evil in the sight of God . . . You are not asked to understand why we believe what we do. You are only asked to accept that it is extremely important to us, and to make a reasonable accommodation for our practice, which, let’s be honest, has never been a problem in this town.”

Notice that Dreher’s Rabbi makes no effort to convince others that they too ought to walk to synagogue on the Sabbath. Indeed, the very fact that the custom involves walking to the synagogue and not, say, the grocery story is intended by Dreher to indicate its sectarian nature. I am sorry to say that Dreher has got the whole thing upside down. For, as anyone who has carefully read Humanae vitae must surely know, the Church does not deem contraception wrong for Catholics alone; the Church insists that contraception is wrong for everyone. Moreover, the Church’s primary argument against contraception is not that it is inconsistent with the scriptures (as a Protestant might argue), but that it is inconsistent with natural law, which by definition can be understood by unaided human reason. Now, obviously the entire natural law tradition has been called into question by intractable moral disagreements such as this one. Yet, unlike Dreher’s Orthodox Jew, Catholics have gone to great lengths to demonstrate the reasonableness of Catholic teaching. Perhaps the arguments against contraception are bad — I personally find the vast majority of them bad — but the important point here is that Catholics are making arguments that anyone in theory could accept and not merely appealing to scriptures, encyclicals, and other documents that are authoritative only to their co-religionists.

If Dreher misunderstands and therefore misrepresents his side, so too do liberals misunderstand their side. Thus, for example, Sarah Lipton-Lubeh frames the debate in terms of a woman’s negative right to non-discrimination when, as Millman points out, what is really at stake is the positive right of access to contraception. Segregation is a good example of how rights can be violated in a negative sense. But in this case it is obviously not as though the Church has agreed to insure contraceptives for men, while perniciously denying them to women on the basis of their anatomy. What liberals really need to establish in order to win this debate is that contraception is a positive right. Millman takes Drum to be claiming as much in his post, paraphrasing Drum as saying that

contraception is a positive good, deserving in a sufficiently wealthy society to be treated as a positive right, something nobody should be unable to obtain because of a lack of means, and a church that finds this positive good to be evil should only be able to impose its views on fellow communicants, not employees who likely don’t share the church’s bizarre view (even if those employees are Catholic).

In fact, all Drum says is that the Church ought to play by “secular rules.” It is apparently inconceivable to Drum — and, incidentally, his ally, White House Press Secretary who, when badgered about the HHS ruling repeatedly stressed the importance of providing women with access to “preventative health services” — that anyone might have reason to deny that contraception is a positive right.

Which, in a sense, is understandable. Not every fringe position is worth the trouble of refuting. I don’t know of any compelling reasons not to end the Fed or return to the gold standard, and yet I am certainly not losing sleep at night over Ron Paul. Given the marginal status of the Church’s position, it is not difficult to see why liberals jump from the conclusion that contraception is not a bad thing to the conclusion that it is a very good thing. Along with access to health care, affordable housing, and education, access to contraception is correlated with higher living standards, as Naomi Cahn and June Carbone have shown.

As a Catholic, I am ambivalent about the Church’s stance on contraception, but recognize and respect it as part of the overall fabric of the Church’s social teaching, which stands at odds with contemporary conservatism and liberalism alike. As a liberal, I am generally committed to the notion of positive rights and therefore reject the libertarian dogma that no one has the right to impose anything on anyone. (Where Catholicism and liberalism disagree I am a Catholic and not a liberal.) Yet it seems to me that we cannot even begin to have a debate until liberals acknowledge that their vision is not of a state that neutrally adjudicates between competing interests, but of a state that is committed to an unique conception of the Good, which it would seek to impose on all others. Once this is realized, and once Catholics realize that we too are committed to pursuing our vision of the good, not merely privately (as libertarians would have us do) but in the public sphere, we can have a debate in which liberals do not hide behind “non-discrimination” and Catholics do not hide behind “religious liberty,” a debate in which both sides argue on behalf of the merits of their philosophy and vision of the good society. (Though, to be clear, on the Catholic side this would not and should not entail making contraception illegal or denying conscience protections to others; nor would it entail theocracy!)

Meanwhile, Millman alone seems to grasp the stakes of the debate:

The Catholic church . . . represents if not a total approach to society and to “the good” certainly a very “thick” approach, touching most important aspects of life, and as such is necessarily a competitor with a hegemonic state. So the question at issue is not really freedom of religion – it’s actually pretty easy to reconcile the individual conscience with the HHS rules, provided sufficient flexibility in getting to new institutional arrangements that don’t transgress that conscience – but how large a scope the hegemonic state wants to give to such competition.