Two Things Catholic Institutions Should Not Do to Protest the Mandate

Over at Public Discourse today, Christopher Tollesfsen has a very fine essay on various issues related to the HHS contraception mandate. Although I agree with most of it, I disagree on two very minor points. Here’s the first:

A Catholic hospital forced to provide contraceptive coverage could . . . seek to hire only those personnel who it was confident supported the mission of the Church, including its pro-life, pro-family mission. (That Catholic hospitals and universities have not done this is perhaps their greatest failing in their apostolic work, a failing that has contributed to the current HHS crisis in various ways.)

In some ideal sense, such a proposal may well make sense, but according to this page at the site of the United States Conference of Catholic Bishops, there are about 600,000 full-time employees of Catholic hospitals and related entities in the United States. Although I happen to agree with the Church’s teaching on contraception, I recognize that this places me in a very small minority (probably no more than two or three percent) of my co-religionists and an even smaller minority among the general population. I rather doubt that there even are 600,000 people qualified for the jobs who affirm the Church’s teachings on contraception. To be sure, this is in part due to the abysmal catechesis that the Church has provided Christ’s faithful for the last forty-five years, but wide and deep support for contraception is now—pardon the term—one of the facts of life, and it will not change anytime soon. Thus, even if it were legal, attempting to staff Catholic hospitals with people who agree with Humanae Vitae is utterly impracticable. It would be great if more people agreed with us, but until that happens, we need political strategies adapted to the situation of a small minority in a pluralistic liberal democracy.

Here’s the second thing I disagree about in Tollefsen’s post:

Perhaps [Catholic hospitals and universities] could request of their employees a “run” on the available contraceptives, and then publicly destroy, in protest, everything that had been obtained.

I have great respect for Christopher Tollefsen as a philosopher, and everything he writes is worth reading, but this proposal is simply harebrained. Because the financial capacity of the employees of Catholic hospitals and universities is small relative to the size of the contraception industry, and because the ability of that industry to expand production is very substantial, there is no chance that this proposal would reduce the availability of the products in question or increase their prices. In general, buying the products of companies in business to make money by selling such products is unlikely to harm those companies. On the contrary, it merely enriches those companies and impoverishes the people foolish enough to participate in such a scheme. Nor would such  a public spectacle change anyone’s mind about the morality of contraception. For the time being, I happen to work for a Catholic university, albeit one extremely unlikely to adopt Tollefsen’s proposal. If my university surprises me, however, and requests that I hit the local CVS to buy up all the condoms and then join my co-workers in a great Bonfire of the Rubbers, I intend to take a pass.

Note: In an earlier version of this post, I had said that if a Catholic hospital attempted to hire only Catholics supporting the Church’s teaching on contraception, it would likely violate the federal employment laws. That is not correct. As my colleague Professor Michael Moreland kindly pointed out to me, under Title VII, religious employers like Catholic hospitals may restrict their hiring to members of the relevant religion, which is a different thing from the ministerial exception, which exempts religious employers from  legislation concerning all forms of discriminiation, not just discrimination on the basis of religion, in connection with the hiring of ministers and similar employees. Yet another proof of what happens when lawyers talk about the law outside their area of legal expertise.