"Freedom to Serve" Is Not A Lawyer's Quibble

Health Progress, Mar/Apr 2004 by Place, Fr Michael D

As perhaps you know, one of CHA's primary areas of engagement in the last few years has been how we can, as a ministry engaged, best respond to the coordinated efforts of various groups to limit or restrict the ability of Catholic health care to operate in a manner consistent with its values and beliefs. Recently, those efforts have been gathered together in a focus area under the title "Freedom to Serve" (www.chausa.org/fsi).

Early on in our analysis of the situation, it became clear that we needed to develop a position paper or case statement that could serve as a positive articulation of the legitimate and critical role of Catholic health care within the philosophical, constitutional, and legal context that is the milieu of the United States. The process of developing the case statement included dialogue with and among some of the most astute Catholic thinkers. And even after a draft was completed, the conversation has continued. One conclusion drawn from this intense reflection and analysis was that our opponents were seeking to reverse long-standing legal and social conventions. In other words, one could argue that our position had the credibility of being the accepted perspective: namely, that the religiously motivated provision of social good and services was one that we should presumptively be able to pursue in a manner consistent with our values and beliefs as religious providers.

This clarification, while providing intellectual consolation, clearly has not been adequate to the task of turning back our challengers. Our opponents have continued to achieve some notable successes, and, if anything, the intensity of the challenges has increased. Our perplexity as to why we have not been more successful is increased when we seek to quantify the potential net gain for our opponents' cause if current protections were eliminated. Again, cold logic could reasonably question why they expend so much effort for a relatively small increase in the availability of currently prescribed services.

Such wonderment could easily lead to the snap conclusion that what we really are dealing with is the recurrence of virulent anti-Catholicism, a bias that, unfortunately, has been part and parcel of the American landscape for centuries. Although I would not summarily exclude such a possibility, I am convinced that it is not a completely sufficient explanation.

For the sake of our collective reflections, I will offer a hypothesis as to what really is at stake and then outline an analytical framework to support the hypothesis. Why engage in such an abstract, if not obtuse, exercise? My answer, quite simply, is that if we do not fully appreciate what is at stake, we unwittingly might fail to pursue the most effective strategic or tactical response.

HYPOTHESIS

Our opponents' ultimate goal is much more than their so-called reproductive freedoms. Rather, their goal is to neutralize or eliminate the role of organized religion as an actor in the public square, an actor capable of participating in and influencing society's understanding of what should be our nation's "public morality"-a public morality that, in turn, can be the occasion for the development of both public policy and civil law.

One could further hypothesize that ultimately they would like to eliminate any sense of there being an objective (transcendental) referent to which public morality is in some manner accountable. On the contrary, public morality would be replaced by a public order that is the result of a social contract entered into by society: a contract that can be changed by majority vote and that, at all times, must honor the primacy of individual rights.

ANALYTICAL FRAMEWORK

For this hypothesis to be appreciated, I must first articulate several premises. In outlining them, I must admit that I am borrowing from-and adapting almost beyond recognition-thoughts liberally borrowed from Fr. John Courtney Murray, SJ; Joseph Cardinal Bernardin; and Fr. Bryan Hehir.

1. The United States lias charted a distinctive path with regard to the relationship of the state (that is, government) and organized religion. On one hand, there is no established or state religion. On the other hand, there is a legitimate sphere of freedom of religion for each citizen and every faith. As Cardinal Bernardin noted, our religious pluralism "did not purchase tolerance at the price of expelling religious and moral values from the public life of the nation. The goal of the American system is to provide space for a religious substance in society but not a religious State."1

2. There is a difference between society or a common social order and the state. In both the American experience and recent Catholic social thought, the role of the state is a limited one that is situated in the context of and aimed toward the realization of society's common good, as well as the common good of the entire human family.

3. One of the tools available to the state in achieving its ends, and ultimately in providing for the well-being of society, is civil law. Civil law, however, also is not an end unto itself. The purpose of civil law is to preserve or enhance public order, and the demands of public order must be serious enough to trump the claims of freedom in order to justify the making of civil law.