SCHWARTZ: Freedom in the modern state

The Gadfly

The political brouhaha over a government mandate for coverage of contraception continues. On Friday, the United States Conference of Catholic Bishops rejected President Obama’s compromise proposal, arguing that pregnancy is not a disease and that those with moral or religious objections to various forms of birth control should not be compelled to sacrifice their principles.

Yishai Schwartz '13
Yishai Schwartz '13

The administration counters that contraception is a vital element of medical care that patients have a right to expect from their health care providers. Furthermore, they insist that religious coercion is not at issue here. After all, religious organizations may still practice however they please; only religious organizations that wish to receive government funding to perform public charitable work must play by the government’s rules.

Underlying the conflict is a deeper question: What does freedom mean in the context of the modern welfare state? This may seem like a silly question. Whenever libertarian crazies like Ron Paul or Grover Norquist ascend their soapboxes to preach that big government is a gargantuan beast that crowds out our liberties with its sheer size, I roll my eyes. What does size of government have to do with personal freedom? Good governments protect liberties; bad governments violate them. Size doesn’t factor in. I never understood how anyone could object to money for social welfare programs, schools and medical care.

Recent events have demonstrated precisely where the problem lies. The modern welfare state has created a new zero-sum game between public values and personal freedoms. A government that played no role in health care could remain neutral with regard to contraception. But when taxpayer dollars are a central source of support for the nation’s health care and the government uses the power of its purse to maintain basic standards and protect consumers, the state cannot help but take a stand. It must either fund these groups or deliberately reject them.

There is something twisted about a state that collects taxes from Catholics and shuts down Catholic hospitals because they practice medicine in accordance with the dictates of Catholicism. Surely governments need not employ Christian Scientist doctors who refuse to practice medicine altogether, but to gut hospitals that provide state-of-the-art care and simply do not provide contraceptives seems absurd. In displaying inflexibility on the peripheral aspects of a job rather than focusing on the substantive core, the state unjustifiably violates the liberty and conscience of providers. At the same time, if government fails to mandate coverage for birth control, a service the vast majority of the American public sees as a necessary feature of health care, it fails to protect consumers.

Nor is this a unique occurrence. In Illinois, Massachusetts and elsewhere, Catholic adoption agencies have shut down rather than cave to the government’s demand that they tacitly endorse same-sex marriages and child-rearing. In England last year, a high court decision that found Jewish day schools in violation of nondiscrimination regulations (the schools define Jewishness traditionally, by lineage and formal conversion rather than faith and practice) threatens to destroy an entire community’s school system.

For libertarians, the solution to this catch-22 is as simple as it is fanciful: scale back the size of government to 18th-century levels. If governments don’t fund adoption agencies, health care or education at all, then they have far less regulatory power. Ta-da — no more problem!

But most of us realize this sort of far-sweeping solution is both untenable and undesirable. Government-created programs are entrenched in citizens’ expectations and corporate strategies, and no one has the political capital to work against this widespread public support. But even if we could shift these expectations, would we want to? State safety nets protect those who are most vulnerable, and the patchwork of private charities that operate in the absence of government lack the resources and the organizational reach to offer comparable services.

In the face of this conflict, most people have simply given up. They have resigned themselves to the necessity of government arbitrarily drawing a line where religious freedom must give way to public interest. But throwing up our hands ultimately betrays limited thinking and a woeful political laziness.

We need not choose between women’s easy access to contraception and religious freedom of genuine believers. The real solution lies in government working to supplement existing programs, allowing citizens access to the services they need while institutions continue to offer only the services they can faithfully provide.

We need not compel Catholic charities to do as we wish; we simply must ensure that alternative options exist. Let new programs provide contraception, and let the Catholic hospitals get on with the good work that fills 99 percent of the public’s health care expectations. Government should view its role as filling in gaps, not engineering changes in believers’ practice.

Yishai Schwartz is a junior in Branford College. His column runs on Tuesdays. Contact him at


  • Devaghost

    “We need not compel Catholic giant money-making hospitals masquerading as charities…” to practice medicine in a manner that respects the rights of those seeking medical care. We would not compel a fundamentalist Muslim hospital to take x-rays of women. We wouldn’t bar an Orthodox Jewish hospital from screening for the presence of pork before treating someone’s ulcer.

  • River_Tam


  • Devaghost

    So if pregnancy is not a disease and a medical services provider is allowed to deny services on the basis of what it considers to be sinful, then a hospital may refuse to deliver a child because the mother and father aren’t married or because they are married but the father is of a different religion and we can do that because there’s no place in this entire country where the only hospitals for miles have religious affiliations. This is not a thinly veiled, seemingly rational, self-righteous excuse to impose one’s religious views on others?

    • River_Tam

      > This is not a thinly veiled, seemingly rational, self-righteous excuse to impose one’s religious views on others?

      If I go to a doctor and demand to be treated in a way that violates her conscience, how am I not imposing my religious/moral views on her?

      Refusal of care is not an imposition of anything. Private doctors and private hospitals should have the choice to deny care to whoever they see fit. Public hospitals and employees of public hospitals should refuse no care.

      This is not that complicated.

      • Devaghost

        You’re absolutely right. Doctors should be allowed to provide the care they deem fit. Self important bigots in funny hats on the other hand…

        • Devaghost

          Note: six years at Holy Trinity, Communion, Confirmation, all the bizarre superstitious crap.

          Refusal of care isn’t medicine and the Church has no business providing or not providing medical care based on its misogynistic, homophobic beliefs.

        • morse_14

          Doctors are people, not tools.

        • River_Tam

          > Doctors should be allowed to provide the care they deem fit.

          So… you’re in favor of a doctor having the right to refuse to deliver a child because the parents aren’t married? Because immediately above, you imply the opposite.

          • Devaghost

            sar·casm   [sahr-kaz-uhm]
            harsh or bitter derision or irony.
            a sharply ironical taunt; sneering or cutting remark: a review full of sarcasms.

          • River_Tam

            Ah, so you *don’t* think doctors should be allowed to provide the care that they deem fit?

          • Devaghost

            Yes. I don’t think the Catholic Church should decide what care doctors should be allowed to provide and not provide. Health care is then not health care. It’s religious imposition. How much is your tuition?

          • RexMottram08

            Error alert: conflating health care insurance with health care services.

          • Devaghost

            Sorry, entitled rich kid. the rest of us can’t pay cash for medical services.

          • River_Tam

            > I don’t think the Catholic Church should decide what care doctors should be allowed to provide and not provide.

            But if a Catholic doctor decides that he doesn’t want to provide a service, he doesn’t have to?

            I’m just trying to see where exactly you’re standing on this issue.

      • ycollege14

        But these aren’t private doctors or hospitals. These receive funds from the government, thus they should not be allowed to limit their care options from a basis of “religious objection”.

        • RexMottram08

          This reverses the relationship between the person and the State. It is the State that derives rights and actions from the authority of free people. It is the State that is limited in operation. Government funding cannot impede the natural right of freedom of conscience.

  • Branford73

    Mr. Schwartz, if you are going to wade into first amendment freedom of religion issues, you and YDN would be well-served if you researched your topic a little. U.S. governments’ (federal and state) ability to prescribe generally applied health care rules which trump religious practices is not constitutionally controversial, not since Justice Scalia (noted Catholic, btw) wrote for the court in Employment Division v. Smith, 494 U.S. 872 (1990). Where a law is neutral toward religion and generally applicable, lacking any pretext designed to obscure a hostility toward religious practice, religions will not be exempted. To permit otherwise under the First Amendment “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

    A government may legislatively provide exemptions, which the federal government did for itself in the Religious Freedom Restoration Act, passed in 1993. But states may require contraceptive coverage across the board. As of 2/2/11, “28 states require insurers that cover prescription drugs to provide coverage of the full range of FDA-approved contraceptive drugs and devices. . . .”

    The brouhaha is a political firestorm created by the right wing, since Catholic Church sponsored facilities operate in those states. Or, on second thought, was this controversy bait cast by Obama to set up contraceptive coverage as a national issue? Guess who wins that debate in a national election/referendum.

    • ldffly

      Here’s another note to let impressionable youth know that they need to beware when wading into the waters stirred by Branford73.

      The Smith decision represented a new turn in court opinion on church/state relation. At the time, Justice Scalia took considerable public heat for his opinion. It was, and still is, a noxious decision in the minds of many. It enabled far more extensive state intrusion into religious practice than had been customary since the Lemon decision of ’71. (Remember that in the Smith case it was the use of peyote in American Indian religious practice that was at stake.) That Justice Scalia authored the opinion, or that he is Catholic, don’t have normative status for me and for many others. In fact, at the time, it appeared to many commentators that Scalia authored the opinion with Counter Reformation attitudes toward tolerance in mind.

      Part of the controversy here is that most people still believe in compelling state interest before the state may intrude into religious practice. Clearly, Smith altered that standard. Too bad in my opinion.

  • Devaghost

    The Church of Scientology should be allowed to purchase the only hospital in a seventy-mile radius and shut down the mental heath dept, right?

    The difference is…?

    One religion is ‘established,’ the other is weird?
    One religion is small and disregarded, the other is large and powerful?
    One doesn’t own lots of hospitals, the other does?

    What argument can you make that isn’t rooted in religious bigotry? So far, you haven’t come up with one. You’ve come up with seemingly rational justifications for that bigotry,but that’s about it. This is not a question of religious freedom. It’s the opposite of that.

    • River_Tam

      > The Church of Scientology should be allowed to purchase the only hospital in a seventy-mile radius and shut down the mental heath dept, right?


      > The difference is…?

      There isn’t one, at least not legally.

  • Devaghost

    Releasing mental patients out into the streets is just insane…hmm…maybe you should find a good hospital.

    • River_Tam

      > Releasing mental patients out into the streets is just insane…hmm…maybe you should find a good hospital.

      Well, if a patient is legally required to be committed, then they’d just be transferred, same as if the entire hospital shut down for budget reasons.

  • RexMottram08

    Where the government is big, everything else is small.

    Mr. Schwartz cannot imagine anyone objecting to welfare programs, public schooling and any other nice trinkets he finds to be nice and desireable.

    But government has NONE of those to give. The government can only tax, take, mandate and command that private people, charities, corporations bend to the sovereign.

    The Constitution is not a grab-bag of “good things.” The Constitution is the restraint placed upon the king.

    The idea that Health and Human Services is justified in maintaining “tooth-level surveillance” and telling Catholic hospitals to provide insurance coverage for pharmacological abortion is abhorrent to friends of American liberty.

    • RexMottram08

      An official recently confiscated a child’s lunch in North Carolina since it did not meet their standards and forced the child to eat chicken nuggets from the cafeteria.

      Petty tyranny is the road to serfdom.

      • River_Tam

        Don’t worry, the democrats would only get offended if the kid was a vegan.

  • RexMottram08

    Also, the column’s first sentence is hackneyed and may cause eye-bleeding.

  • Branford73

    “The Constitution is the restraint placed upon the king.”
    I hope you don’t think this all that it is. If you do, you’re being silly. It is the blueprint for executive, judicial and legislative structures, assigning powers to each* and reserving unenumerated powers to the states or the people. That’s an oversimplification, too, since volumes have been written trying to describe what the central (federal) government can do and from which section of the constitution the power derives.

    Since the Court has taken up the insurance mandate of the health care law we will, in the not too distant future, be given another discussion of federal power emanating from the Commerce Clause.

    *(Are you going to tell me the Constitution does not give the Supreme Court the right to be the final arbiter of what the Constitution means? I really don’t see Marbury v. Madison being overturned anytime soon, nor do I see rational people argue that it should be overturned.)

    • River_Tam

      > I really don’t see Marbury v. Madison being overturned anytime soon, nor do I see rational people argue that it should be overturned.

      Marbury v Madison was Constitutionally an overreach. There, I said it. The Supreme Court grabbed powers that were not explicitly delegated to it in the Constitution. It’s not even that controversial of a viewpoint, although there is a lively scholarship surrounding the question.

      Of course, repealing it now would also repeal hundreds of years of case law in the process and cause massive legal chaos, so congrats – no one wants to cause massive legal chaos.

      Doesn’t mean the decision was rightly decided from a legal perspective.

      • Devaghost

        Thank you for waving the idiot flag so proudly. How did you get into Yale?

    • RexMottram08

      Sotomayor, Kagan, Ginsburg and Breyer- have been unable to articulate ANY limit to federal size and scope.

      We need much more emphasis on the narrowing of government than the expanding of government.

  • River_Tam

    Let’s play a game. Commenters, please tell me where you stand on these issues:

    1) Should a doctor be required by law to provide services which are legal but conflict with his conscience and sense of right/wrong?

    2) Should a private hospital be required by law to provide services which are legal but conflict with the hospital’s collective conscience (as determined by the ownership of the hospital)?

    3) Should a private insurer be required by law to pay for services which are legal but conflict with the insurer’s collective conscience (as determined by the ownership of the insurer). (this is, of course, assuming that the rules of coverage are determined prior to letting people buy coverage)

    4) Should an employer be required by law to buy their employees insurance that pays for services which are legal but conflict with the employer’s conscience?

    Please explain if your answer is not “Yes” to all or “No” to all. If your answer is “yes” to all, please explain why the notion of medical privacy (cf: *Roe v Wade*) protects the rights of the patient but not the rights of the doctor or the person paying for the treatment.

    • Devaghost

      Why, other than your conservative lack of reason, do you keep talking about doctors as if this were about a doctor’s sense of right or wrong? This is about a Church preventing doctors from being doctors.

      • River_Tam

        Because there are no pro-life doctors?

      • LtwLimulus90

        just get off. your comments are useless, Devaghost

  • Branford73

    I’ll play. Generally the answers are yes, as a condition of conducting such services or business at all. These entities can avoid providing the required services by getting out of the licensed business entirely.

    #1. Re: doctors: It depends on the circumstances. Not for elective services, but for serious health issues, if the doctor is qualified to perform a needed procedure he/she cannot refuse to perform it unless he/she’s willing to give up his/her licence to practice medicine. An ER doc cannot refuse to treat a bad guy wounded in a police shootout because he disapproves of engaging in shootouts with police.

    #2. Re hospitals: Again it depends on the circumstances. In densely populated and arguably overserved area someone who wants to build a hospital generally must get a certificate of need from the state,. The state may condition that approval on promises to perform services the state deems necessary for the health of the populace. In a sparsely populated and perhaps underserved area, the state may condition licensing on provided medical services without discrimination on conscience grounds.

    If a “private” (hospitals are subject to state regulation and therefore the term private is relative) hospital maintains an emergency room to serve the public it may be required by the state to provide emergency services, which includes at least stabilization of the patient before transfer. Google EMTALA.

    #3. Yes. It has long been generally accepted that states can regulate the insurance agency, and specify the types and scope of coverages it may sell. Some insurance guy might object to no fault insurance, because he believes in individual responsibility and accountability. But if a state legislature decides all auto insurance companies in the state must offer a particular form of no fault, he must do so or stop selling auto insurance in that state. So, if a state says a medical insurer must include contraceptives if it offers coverage for any prescription drugs, it has the power to do so.

    #4. An employer may, I think, decide not to offer medical coverage or prescription drug coverage at all. But following what I said in #3 above, if it offers prescription drug coverage the state may require it to cover all FDA approved prescription drugs.
    Suppose an employer also believes in individual responsibility and therefore thinks that an employee who gets hurt on the job due to his own negligence? Do you think such an employer can refuse to carry worker’s compensation insurance? No, not and stay in business.

    Your proposed question trying to compare privacy rights of patients to providers doesn’t make sense to me – apples and oranges.

    • River_Tam

      I’m not asking what *is* the current state of affairs, I’m asking what you think *should* be the way the world works.

      For instance, right now, OB-GYN’s can choose not to offer abortion services. Similarly, a hospital can choose not to offer abortions. Similarly, insurance companies can choose not to cover abortions, and thus companies are free to choose plans that do not cover it.

      Do you think this is fair / morally right? I know the current law – I want to know your opinion on it.

      > Suppose an employer also believes in individual responsibility and therefore thinks that an employee who gets hurt on the job due to his own negligence? Do you think such an employer can refuse to carry worker’s compensation insurance? No, not and stay in business.

      This is truly apples and oranges. No, employers cannot choose to not carry worker’s compensation insurance, just as they cannot choose to get a zoning permit for their office building. This has nothing to do with providing health insurance to employees.

      • Branford73

        Sorry about the bolding above, it wasn’t intended. I’m OK with the fairness of the descriptions I gave to your enumerated questions. There is a balancing of interests in each situation.

        I’m firmly pro-choice on abortion but I agree it’s a special category and recognize people have strong objections. I would be OK with a system that required hospitals to have available facilities and personnel to perform abortions, and grant privileges to doctors willing to perform them and where there are enough nurses and other support personnel available to hire who do not have conscience issues with it.

        • River_Tam

          > I’m firmly pro-choice on abortion but I agree it’s a special category and recognize people have strong objections.

          Are you saying you’re okay with conscience objections on abortion but not anything else (eg: contraception, morning after pill, plastic surgery, circumcision, etc)? If you’re firmly pro-choice, why is abortion any different from any of these other medical procedures? (I’m particularly interested in circumcision, since it’s a case where there are religious and health reasons to have it done and very strong sentiment on the other side that considers it genital mutilation and a violation of the baby’s rights).

          Religious freedom shouldn’t be contingent on the nature of the procedure in question.

          • Rek

            Ok, now I’ll play. I concur with Branford73. I think abortion can be treated differently because we, as a society, has decided as such. That’s a pleasant euphemism for “the government has said you don’t have to, so you don’t have to.” I am not opposed, in principal, to the idea that the government can require health options (which I will use to cover all four categories/questions) as a prerequisite to functioning within the jurisdiction of that government. I think we choose not make such requirements re: abortion because we (or the gov’t) don’t feel that is necessary or reasonable. On the contrary, we do feel that all women should have access to adequate contraception, so we require that of all health options desiring public (or at least federal) funding.

            If society (and it’s gov’t) change their mind on this, then things can revert to what they were. But on principle, I do believe the gov’t has the right to set the terms.

          • River_Tam

            > I think abortion can be treated differently because we, as a society, has decided as such.

            Rek, this is circular and you know it.

          • Branford73

            My personal preference is abortion on demand but because of the strength of the objection to abortions in an established pregnancy (after implantation), and my belief that some anti-choicers are not just trying to punish single women for premarital sex, I am willing to accept a public policy that allows for people, not organizations, to avoid direct participation in abortion procedures.

            I am not sure I can articulate a consistent philosophy that grants abortion the exception. For other medical procedures or supplies, the rights of people to control their own bodies and to obtain those procedures or supplies outweighs the rights of others to withhold or prevent the procedures or supplies. Perhaps a general exemption for conscientious objectors to these other services could be fashioned where their non-participation did not place a significant barrier to those who wish to obtain the services (e.g. a populated area with plenty of pharmacies willing to fill RU-486 prescriptions or even simple oral contraceptives might allow a conscientious objector pharmacist).

            Otherwise, people who want to go into these health care professions should understand that they should be prepared to provide the legal and generally accepted health services patients want, without picking and choosing which ones within their training and competency they’re going to provide. Or figure out some work-around, like practice-sharing with someone else who will provide the service objected to.

  • Mikelawyr2

    I said it before and I’ll say it again:

    One of my (and my wife’s) most salient Yale memories is the overall weirdness of POR types. The invocation of Randian figures of speech, the tendency to say the wrong thing at the wrong time and sometimes even to say something mildly threatening, their dress — one guy used to parade around the Old Campus carrying a cane and wearing a monacle. I understand trench coats and hats were a big thing for POR types in the 1990’s.

    Just keep your eyes and ears open.

    • River_Tam

      A cane and a monocle! I shudder at the thought!

      (no, but really, that sounds much more Tory than POR)

      • LtwLimulus90

        ^Someone doesn’t know her YPU parties very well any longer. I actually know someone in the PoR who walks around with a cane and monocle every day. every day. just saying.

        • River_Tam

          To be honest, I try to avoid the whole lot of them. I have friends across the spectrum, but I was never much of a joiner.

        • CBKM

          He may or may not be our Chairman…

          Accusations of Randianism, however, are incredibly offensive and unwarranted.

          I’ll never understand why the left ceded good fashion sense to the right. There’s nothing wrong with a dress coat, a nice hat in the evening, a well tailored suit or vest, or properly shined shoes. T-shirts and jeans are dreadfully uncreative. I thought the left was supposed to be artsy?

  • ldffly

    I remember the guy with the cane and the monocle. This isn’t apocryphal. I never knew his name, though. However, the reference to Rand is too much. At least in my decade (yes, I spent nearly a decade at Yale), I don’t remember Ayn Rand having any followers. Then she was still a member of cuckooland to most conservatives.

    • Mikelawyr2

      Yeah, monocle, and my wife’s roommate was a full-blown Randian

      • ldffly

        That was too bad for your wife. I feel for her.

        The current Ayn Rand renaissance is a sign of decline in sophistication in political thinking. Remember Buckley, among others, wanted no part of her.

        • Mikelawyr2

          Yup. Needless to say, my wife’s rommate had a bunch of Randian friends, several of whom I met.

          The point is that there’s something weird about POR people, with some notable exceptions. Brookhiser was a really nice guy. I won’t mention the jerks.

          • RexMottram08

            Buckley and Brookhiser… sigh… how I wish more Yale men would emulate these gentlemen…

      • ldffly

        Forgot. The guy I remember also used to wear a straw hat.

  • Branford73

    (edited to move to a reply to River Tam above)

  • The Anti-Yale

    If MD’s or religious hospitals wish to put their religious beliefs above treating their patients, they need to put a sign on the door:” We do not perform X, Y, and Z procedures due to religious convictions.”

    My 73-year-old mother was tortured alive, fully conscious for 118-days on life-support machinery until her body literally ROTTED around the life-support machines, simply because she had the luck to be on vacation 3000 miles from her hometown hospital (Yale-New Haven) in a city where the only hospital was controlled by the Vatican’s uncompromising belief in the sanctity of life —–life at all costs (including patient suffering).

    God save us from the God doctors, and I say that as a graduate of a school which trains divines.

    Paul D. Keane

    M. Div. ’80

    M.A., M. Ed.