Sunday, February 19, 2012

First things first, please

I think Maggie Mahar (her comment to a post on February 17) is correct that there are cost benefits from the use of contraceptives and abortifacients. There are certainly religious-based differences of opinion about their use but it seems to me the cost benefits are clear.

Accordingly a public policy to promote the voluntary use of contraceptives and abortifacients seems to me beneficial at least from a cost perspective. And cost is clearly important.

However, the first and primary issue in the present controversy appears to be whether the administration has chosen a correct, legal, and constitutional method to implement its policy. Credible critics object to the administration’s policy on technical, legal and constitutional grounds. I think these objections must be dealt with first.

So far, the administration has responded largely by deflection- that is, by attempting to turn the public discussion into one of access to contraceptives and abortifacients. This is not helpful and at best it’s a diversion from the basic issue.

This tactic of deflection may explain why, so far, the administration has not satisfactorily responded to the numerous sincere objections to its policy from many churches and related organizations. In fact after seeming to offer an "accommodation” that turned out not to alter anything meaningful in the originally-proposed regulation, the administration has now:

(1) proceeded to implement the originally-proposed regulation without any change,

(2) responded on February 16 to a federal lawsuit filed by the Becket Fund for Religious Liberty by essentially asking the court to defer any action on the suit. Why? The administration said it might "propose and finalize changes to the regulations" at some undefined point in the future.

This response is interesting for several reasons. First, the administration chose not to defend the legality or constitutionality of its regulation. Second, it appears the administration does not wish to defend the regulation as originally written - even though the administration has now finalized the regulation as originally written. Third, having finalized the regulation, there is no assurance that the administration intends to follow thru with its expressed willingness to work with religious groups to reach a satisfactory resolution of this problem - a problem created by the administration in the first place.

So despite the public good that may be available from promoting the voluntary use of contraceptives and abortifacients, and despite the theoretical value in having insurance plans facilitate such use, it seems to me this threshold question is reached first and is much more significant: is the government proceeding in a legal and constitutional manner?

Whether the administration’s regulation may promote the public good is not the constitutional or legal test. The National Recovery Act of 1933 contained measures designed to benefit the public, but the Supreme Court ruled it unconstitutional.

I think the controversy here, as with NRA, similarly involves a more fundamental conflict, in this case church and state. Given the administration's actions to date, I have doubts whether it will make a bona-fide effort to resolve the problem. So - I expect this will be settled in the courts.

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