Tuesday, April 8, 2014

Kidd: "The Quaker Contribution to Religious Liberty"

By Thomas Kidd here. A taste:
Quaker convictions about religious liberty, like Baptists’, emerged from the experience of persecution. ...


JMS said...

Before Professor Kidd ran off the rails in the last sentence of his otherwise decent article on Quaker contributions to religious liberty, I want to note two historical errors.

First, his statement that, “When Penn founded Pennsylvania, it joined Roger Williams’ Rhode Island as the second American colony that offered liberty of conscience to all with no established, tax-supported church.” This is not correct. Before Penn founded Pennsylvania in 1682, the West New Jersey Concessions and Agreements in 1677 declared that, “That no men, nor number of men upon earth, hath power or authority to rule over men's consciences …." (Chapter 16).

Second, the professor must not know much about how Quakers fared during the War of Independence if he really believes that, “By the time of the Revolution, the Founders had also come to believe that in the case when a legislature passes a law that violates the consciences of such dissenters, the government has a special obligation to offer accommodations or exemptions, so as not to coerce anyone into acting against deeply-held beliefs.” He should read Arthur J. Mekeel’s book, The Quakers and the American Revolution, or Paine’s attack on them in the Appendix of the Second Edition of Common Sense. The American Revolution was a disaster for the Society of Friends. Many of them were coerced and persecuted for their pacifism and neutrality (their “deeply-held beliefs” be damned by many ardent Whigs as tantamount to Toryism), rather than “accommodated.”

But it’s the last sentence that I object to the most, where Professor Kidd undermines his hope for “moving past the culture wars” by egregiously bashing the Obama administration’s ACA mandate as a threat to religious liberty and a burden on Free Exercise First Amendment rights.

In his book review of George Marsden’s recent book, Twilight of the American Enlightenment, Professor Kidd embraced the fact-free distortions propagated by false claims that the ACA mandate provides access to abortifacients, when it clearly does not. While he warns us that, “our deepest differences cannot be resolved through appeals to “rationality and science,” what other authority can we turn to other than gynecological science to refute the misleading and factually incorrect argument he (and Hobby Lobby, Catholic bishops, Liberty University et al) posits?

As stated by various health and science experts (e.g., the FDA and the International Federation of Gynecology Obstetrics), the morning after pill, also known as Plan-B or “emergency contraception,” is unequivocally not an abortion pill. The morning after pill prevents ovulation, not the implantation of a fertilized egg. It prevents pregnancy but cannot and does not stop pregnancy after fertilization takes place.

The Green's (owners of Hobby Lobby) contention that the pills cause abortions is a central pillar of their argument for gutting the contraception mandate. Yet, for years, Hobby Lobby's health insurance plans did cover Plan B and Ella, and their employee's pension plan still invests in companies who manufacture these products. So, where was their religious conscience objection prior to 2012?

It was only in 2012, when the Greens considered filing a lawsuit against the Affordable Care Act, that they dropped these drugs from the plan. Why did they suddenly find their “conscience?”

It’s all about their politics and nothing to do with their religious liberty.

So, abortion and infringements on liberty of conscience are non-issues. They are being used as red herrings or strawman arguments that threaten the founder’s (and Williams’ and Penn’s) conception of religious liberty which created the “respectful pluralism” we mostly enjoy today.

Yet it seems that Professor Kidd prefers to sacrifice historical or scientific attention to detail and engage in the type of “zero-sum political battles” he claims to abjure.

Tom Van Dyke said...

Of course it's about religious liberty. Hopefully the Supreme Court will agree. Signs are good.

As for narrowing the controversy to the "abortifacient" angle, the refutation goes something like this:

So even under plaintiffs’ view of what constitutes "abortion," why might those methods raise any moral concerns?

Because, according to the FDA, the four contraceptive methods named in the Hobby Lobby complaint -- two IUDs, ella and Plan B -- might prevent implantation of an embryo in a small number of cases. And if and when they have such an effect, then in plaintiffs’ view—even if not in the view of the law—such cases would result in termination of a human life. Moreover, in plaintiffs’ view, deliberately preventing implantation is immoral, and some level or type of complicity with such immoral conduct is itself immoral. Plaintiffs claim that the HHS Rule requires them to participate in such implantation-prevention in a way that would make them complicit in sin. If that were the case, then (as I explained in my December post) I agree with plaintiffs that it would not matter for purposes of RFRA whether the law concurs with their view that prevention of implantation is an “abortion.” The threshold question, for RFRA purposes, is not whether a particular effect on an embryo is or is not an “abortion” as the law defines it, but whether, regardless of nomenclature, it involves something the plaintiffs sincerely believe to be sinful. As the Democrats for Life put it, “[i]t is no salve to plaintiffs’ conscience to be told that the government defines abortion differently.”


2. Is the Court Likely to Issue an “Abortifacient”-Specific Holding?

As I explained in my December post, I think the Court is unlikely to issue a ruling limited to "abortifacients" or "possible implantation-prevention methods." For one thing, the scope of such a ruling would be uncertain. Hobby Lobby and Conestoga Wood have identified four forms of contraceptive services that might prevent implantation. But so, too, might several other of the 18 FDA-approved methods, including, most significantly, some forms of the birth-control pill. (The FDA-approved labeling for Seasonale, a birth-control pill, reads: “Although the primary mechanism of this action is inhibition of ovulation, other alterations include changes in the cervical mucus (which increase the difficulty of sperm entry into the uterus) and changes in the endometrium (which reduce the likelihood of implantation.” See also, for example, this website, taking the view that ten or more of the methods involve “embryocide.”) Thus, even on the plaintiffs' own theories, the remedy they are seeking would be of unknown breadth, not necessarily limited to the four identified forms of contraception.

More importantly, such a ruling would do nothing to decide the vast majority of the challenges that have been brought against the HHS Rule. Most of those cases (including those brought by Catholic employers) seek an injunction against coverage of contraceptive services writ large, and are not limited to possible implantation-prevention. I doubt the Justices will be inclined to issue a narrow ruling that would leave in place the bulk of the cases that have created the current circuit split.

Tom Van Dyke said...

Oooops. Link: