slipperyslopeMany pro-life Catholics and evangelicals cheered when the Supreme Court ruled that small business employers don’t have to pay for abortifacients in health insurance plans. But could support for conscience rights lead down a slippery slope? “Some slopes are indeed slippery, and we do well to approach them with caution,” says theologian and philosopher Richard J. Mouw, “Which is why I take it seriously when I find myself challenged by a slippery slope argument about something that I advocate.”

My challenge in this regard has to do with the recent court decisions regarding Hobby Lobby and Wheaton College. In each case employers have resisted health insurance arrangements that violate their sincere opposition to funding abortions. I share their views, and have argued that these sincerely held convictions ought to be granted legal status—which is basically the perspective set forth recently by the majority of Supreme Court justices.

Here, however, is the slippery slope challenge in this context. Suppose a company owned by Jehovah’s Witnesses refused to support a health plan for their employees that permitted blood transfusions? Or what if a Christian Science employer refused to provide any health insurance at all? Surely those are sincerely held convictions that have a right to be considered for protection in providing employ benefits.

The challenge is legitimate. And I don’t have an immediate response that settles the concern in any satisfactory manner. But I do take the challenge seriously. I have to—if I want the defenders of same-sex marriage also to take my challenge to them seriously.

Dr. Mouw raises an important point for consideration. I too take that challenge seriously, but I also think I have a response that can settle the issue in a satisfactory manner. Indeed, I think the worst-case outcome has likely already been settled.

Slippery slope arguments are often misunderstood and many people think they are always logically fallacious. As a general rule, if someone summarily dismisses a slippery slope claim, they are probably not the type of person who understands how arguments work. A full defense of slippery slopes against supporters of folk fallacies will have to wait for another day. For now, I’ll simply refer to and recommend one of the best analyses and explanations of the slippery slope, Eugene Volokh’s 2003 article in the Harvard Law Review, “The Mechanisms of the Slippery Slope.” In his paper Volokh says,

A slippery slope is one that covers all situations where decision A, which you might find appealing, ends up materially increasing the probability that others will bring about decision B, which you oppose.

If you are faced with the pragmatic question “Does it make sense for me to support A, given that it might lead others to support B?,” you should consider all the mechanisms through which A might lead to B, whether they are logical or psychological, judicial or legislative, gradual or sudden.

You should consider these mechanisms whether or not you think that A and B are on a continuum where B is in some sense more of A, a condition that would in any event be hard to define precisely.

In order to take a slippery slope argument seriously, support for position A needs to lead to the realistic possibility that people will support position B. Absurd scenarios can be dismissed if they are truly absurd. For example, if someone claims that if we let religious people opt out of the contraceptive mandate we’ll have new religious groups (e.g., The Church of Anti-Obamacare) springing up in order to get out of paying for healthcare services, they are not making a legitimate slippery slope argument — they’re just spouting rhetorical nonsense.

Mouw, however, presents two scenarios that are both realistic and highly possible.

Let’s concede, for the sake of argument, that if we support position A (conscience rights should preclude employers from having to pay for abortifacients), it will inevitably lead to position B (Jehovah’s Witnesses will refuse to support a health plan for their employees that permitted blood transfusions and Christian Science employers will refuse to provide any health insurance at all). What would be the real-world impact if that were to occur?

Let’s start with the easiest scenario. Should we avoid supporting position A since it could justify a Christian Science employer refusing to provide any health insurance at all? No.

Small business owners are not required to provide health insurance as part of an employee’s compensation. A Christian Science employer could legitimately choose not to provide health insurance for her employees for any number of reasons. She could choose not to provide health insurance because it violates her religious beliefs or she could not provide health insurance because it cuts into her profits. Her motive for what she offers employees at her business is her business, not ours.

The lack of health care benefits, however, would be of interest to her employees. What should they do in such a scenario? Most likely, they won’t have to do anything since the labor market will already have addressed the problem. After all, employers don’t offer health insurance for free; it’s part of an employee’s overall compensation.

Imagine you are applying for a job and two different employers offer the following option:

Option A: $20,000 a year in salary with no health insurance benefits

Option B: $15,000 a year in salary with $5,000 a year in health insurance benefits

Which is the better option? From an economic standpoint, the total compensation is the same: $20,000 year. What most people don’t realize, though, is that when they are hired they are usually only given option B. They are given a lower salary because the employer has mandatory benefits (which may benefit the employer more than paying compensation in cash). Yet most people assume (wrongly) that if they are earning $20,000 a year salary without benefits, their employer could and should provide them “free” health insurance. But it doesn’t work that way — not for the employees or for the employers. Competition for employees in the labor market determines the total level of compensation offered.

If most people who work in Occupation X get health insurance as part of their compensation, then the Christian Science employer that doesn’t offer health insurance will have to offer a higher salary in order to attract employees. For some employees (including other Christian Scientists), this would be preferable to getting “paid” in health insurance that they won’t need or use.

The second scenario is very similar. The problem appears to be that the Jehovah’s Witness employer refuses to support a health plan for their employees that permitted blood transfusions. But that’s not the real problem. The problem is a matter of information and compensation.

The Jehovah’s Witness employer should inform their prospective employees that their health plan doesn’t cover transfusions. Based on that information, the employees should then demand that they receive additional pay to compensate for the lack of transfusion coverage.

Let’s say that that the typical insurance plan covers 80 percent of all health care costs and you’re the type of employee that needs a transfusion about once every 10 years. The average blood transfusion costs $1,100. Once we do the math ($1,100 divided by 10 years times 80 percent) we find that your employer needs to pay you an additional $88 a year in compensation. That is all that is required to allow you to get the benefit and for the Jehovah’s Witness employer to keep from violating their conscience.

(The main objection to this solution is that it adds an extra layer of complication to the hiring process. But that seems like a small price to pay to protect the sacred right of conscience.)

Realistically, the number of people who these situations would apply is miniscule. There are only about 20,000 Christian Scientists in the U.S. and most of them are not small-business owners. Similarly, Jehovah’s Witness only account for .7 percent of the American population, so the likelihood that a worker will be affected by their religious objections to transfusions is vanishingly small.

Even if supporting conscience rights puts us on the slipperiest of slopes, the unintended outcomes are not sufficiently nefarious and the real-world impact would be trivial. As with the contraceptive mandate, the workaround solutions are relatively easy to implement and thus do not justify violating an employer’s rights of conscience.

This may indeed be a slippery slope. But if so, it is one we should willing slide down in order to protect our first freedom.

Business for the Glory of God: The Bible's Teaching on the Moral Goodness of Business

Business for the Glory of God: The Bible's Teaching on the Moral Goodness of Business

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  • Bill Hickman

    The “Church of Anti-Obamacare” example stretches credulity, but you don’t need to establish a new religion to bring this kind of RFRA claim. I bet some corporations will sue for RFRA exemptions from federal law by casting their laissez-faire views as part and parcel of bible-based evangelical Christianity. They might even quote material from the Acton Institute in their complaints. I don’t see any language in the Hobby Lobby opinion that would make such a claim a clear loser.

  • RaymondSwenson

    Conscientious objection to participation in war based on religious belief or strong moral conviction has been accepted by the US armed forces for a century. When there was a military draft, it was an important exemption from being compelled into military service. Though we have had an all-volunteer force since about 1974, there are still a number of people every year who become converts to a religion or moral philosophy that is incompatible with military service per se, with participation in combat arms, with military uniform requirements that conflict with certain religious appearance requirements (such as turbans and daggers for Sikhs), duty schedules that conflict with certain sabbath observances. or foods that conflict with religious dietary rules. The armed forces will give an honorable discharge to service members who give timely notice that their new religious commitments conflict with their military duties.

    The number of people with such conflicts are small, because only volunteers enlist, and in general it has not been a burden on other service members to accommodate many of the religious conscience exemptions that do not simply make military service impossible.
    A related religious conscience exemption was the ministerial exemption from the draft. It was purely a matter of congressional legislation, not a requirement of the First Amendment, but it shielded from the draft many young ministers and divinity students. It also provided a temporary exemption for young Mormon missionaries during their two years of service; initially during the Vietnam War, the Selective Service asked the Church of Jesus Christ of Latter-day Saints to limit the number of young men called as missionaries to two per congregation per year, but the LDS Church eventually persuaded the SS that young men going out at age 19 for two years of missionary service were constantly being replaced by 21 year olds who had completed their service, still eligible for the Draft, so there was no reason to deny young Mormon men the opportunity to serve, since the net effect on the number of eligible men was negligible. I was a beneficiary of that understanding, serving as a missionary in Japan from early 1969 to early 1971, and then joining AFROTC upon my return to the US for college. I then served 20 years on active duty.
    These accommodations for religious conscience have had no discernible negative effect on the ability of the US armed forces to recruit and enlist young men and women. Whatever “slippery slope” that anyone might ever have feared from these policies of accommodating religious belief, there is no evidence the negative consequences ever materialized. Since RFRA is a statute, we as a nation can afford to wait and watch what happens, to see if the Hobby Lobby ruling actually causes a substantial problem, and then adjust the statute appropriately. However, the value our society places on religious pluralism weighs against assuming a hypothetical worst case scenario and legislating on a speculative basis.
    Similar religious conscience exemptions should be considered for people who have religious objections to significant participation in same sex marriage ceremonies. There is no realistic scenario in which accommodating religious conscience would ever flatly deprive any gay couple from finding a wedding photographer, a reception center, a florist, a dress maker or tailor, or cake maker. There are plenty of businesses in those fields that operate on a commercial basis without regard to religious or moral aspects of the customers, and other businesses owners that affirmatively support same sex marriage. Forcing a business owner to participate against his or her will in an event that he or she personally objects to, is likely to elicit less than stirling quality in the service coerced out of the business. Those personal services and goods are susceptible a great deal to the degree of personal enthusiasm of the persons providing the service. Coercing someone to do something against their will will not elicit their best efforts, and no one wants to divert an important day of personal celebration into whipping an uncooperative small business owner to grudgingly provide a service. Thus, the real cost to gay couples of accommodating religious conscience is minimal, while the benefit felt by the people whose conscience is accommodated will be significant. This accommodation is never going to lead to gay couples being deprived of the personal services expected in a wedding reception, especially because other LGBT people are perfectly capable of opening new competing businesses that will provide those services. So there is no “slippery slope” argument against simply respecting the religious conscience of such small business owners who provide a “luxury service.”

  • Stephen

    I’m quite shocked at this article because a fundamental tenet of natural law is that we can rightly reason from first principles to the proper conclusion, a priority at Acton. Yet in this article, uncritically so, the source of RFRA and its standard throw out natural reason. As Hadley Arkes, Phillip Hamburger, and Gerard Bradley, et al., have cogently argued, using RFRA, which came out of the height of Warren Court activism, relegates religious activity to the playpen of the autonomous self, obscuring true moral norms and getting courts of the demand to link deductive logical reasoning to first principles. It makes it impossible for those intellectually honest, on its face, to separate out the “Church of the Flying Spaghetti Monster” from a true religious claim. See 695 S.W.2d 171 (Tenn. 1985). We lasted without the Sherbert standard (which RFRA employs) for 175 years and yet have so quickly run to the post-modernist Sherbert standard uncritically, not tying it into first principles. In effect, it puts all the decision-making into the hands of, in most cases, unelected judges and out of the hands of “we the people.” Pre-Smith the average loss rate of Plaintiffs was about 93%. In other words, based on the morality of the judge they rarely found a government interest they didn’t like.

    So what has happened is we have not really permitted judges to explore, much less be bound, to natural reason from first principles to the proper answer on religious claims. This deprives them of a great opportunity to become acquainted with right reason. And we reduce religious thought to a non-cognitive enterprise, inwardly directed (as the post-modern ethos is) rather than a marriage of cognitive and faith qualities that benefits the social and moral fabric of our nation because it is also outwardly directed.

    Sherbert, and RFRA, is a slippery slope indeed, and a false promise of hope to the adherent in most cases, mere treatment of a symptom than an analysis with any healing efficacy to the underlying sickness. And it may be argued that in this day of immorality it is needed; that is no excuse to embrace it.

  • Alecto

    Oh boy, I can see it now. Since Roberts got it wrong in NFIB v. Sebelius, we’re now reduced to exemptions for this or that, instead of the correct conclusion: Obamacare, ACA or whatever you want to call it is unconstitutional on its face because it asserts legislative jurisdiction over matters clearly outside the purview of the federal legislative branch. Yes, yes, I know, those dunces we elect have been eroding the meaning and weight of the 9th and 10th Amendments for a century, but I still believe Article I, Section 8 limits the scope of federal legislative activity to those named functions. Healthcare ain’t one of em. Neither is the environment, transportation, etc….SCOTUS gets 99.9999% of the cases it “reviews” wrong. What difference does it make now whether the ability to exercise one’s religion (not religious freedom) encompasses the ability to refuse paying for other people’s birth control and abortions? You’re splitting hairs.

    I’d give anything to read an opinion from one of these fossils that had an ounce of intellectual or moral truth in it.

  • bdlaacmm

    Good Grief! All of these issues would disappear in a nanosecond if only we (the USA) would abandon this utterly insane coupling of healthcare with our employment. Let’s go to a national health system similar to Britain’s and be done with it! No more worrying about what our employer thinks about this or that procedure.

    By the way, I lived in the UK for several years, and found my health care completely adequate – in some ways even better than anything available here except to the very well off.

    What an opportunity was missed with the Affordable Care Act – we should have embraced the single payer option from the start!

    • Alecto

      I agree that coupling healthcare with employment is problematic, but the solution is in no way to permit the federal government to further exceed the scope of its constitutional authority in ever more oppressive, expensive ways. I am sick to death with people schlepping to the U.S. claiming to want “liberty” and “freedom”, extolling “individual rights” blah, blah, blah, when all they’re really seeking is some version of the tyrannical workers’ utopia/sewer they left. /Smack! /Smack!

      Have I succeeded in beating some sense back into you? For your penance you must read the Federalist papers 50 times. I guess you simply ignored the stories about rationing in Britain. You ignored the lack of care, the interminable waits, the lack of innovation, drugs, equipment, the euthanasia of the elderly and terminally ill. There is such a thing as an objective truth, and your opinion of the NHS over there is as far from reality as I’ve read. It stinks and I can smell it here.

      Individuals are best able to determine what their means are, and what their needs are. I love this perpetual notion that some parasite in DC who never held a real job in his life and is now incapable of doing any real job (that is always implied for lawyers of any kind) is somehow capable of or possesses the intellectual or moral capacity to “solve” any problem. Government mucks up everything in which it interferes and there are no exceptions to that rule. There is not one example of American government success in any area. More Americans had better, more innovative medical care when insurance did not exist, and when Medicaid and Medicare did not exist.

      Government is the weapon with which liberty is always killed!

      • bdlaacmm

        “I guess you simply ignored the stories about rationing in Britain. You ignored the lack of care, the interminable waits, the lack of innovation, drugs, equipment, the euthanasia of the elderly and terminally ill.”

        We have that right here in the USA. It’s just that we call it not being able to afford good health insurance.

        “Government is the weapon with which liberty is always killed!”

        Hmmm…. Not “always”. I’d say all those government soldiers, sailors, and airmen in WWII didn’t kill liberty in occupied Europe. I would imagine that those post-Civil War amendments to our Constitution ending slavery didn’t kill any liberty. Sometimes government is the instrument of liberty – not always, but sometimes. You can’t (truthfully) make any absolute statements about government and liberty.

        “and your opinion of the NHS over there is as far from reality as I’ve read.”

        Interesting. So my actual objective real world experience is less real than what you’ve read?

        • Alecto

          Your experience is subjective, not objective. That is the distinction between a constitutionalist and a progressive: we understand words have meanings. Oh, and because I feel like it: /smack /smack /smack. You’ve been served.

          Lincoln “ended” slavery by signing the Emancipation Proclamation. No Amendment “did away with it”. However the 14th Amendment is widely misinterpreted because it was so poorly drafted (by a…lawyer!) WWII? You mean the war that FDR was for after he was ‘agin it? The war that finally, finally ended the Depression? You really need more variety in your reading prog.

          Government is never the instrument of liberty, individuals are.

          • bdlaacmm

            Actual experience is subjective, huh? Ya know, you remind me of the character Mark Studdock in C.S. Lewis’s novel That Hideous Strength:

            “His education had the curious effect of making things that he read
            and wrote more real than things that he saw. Statistics about
            agricultural labourers were the substance; any real ditcher, ploughman,
            or farmer’s boy, was the shadow. … In his own way, he believed as
            firmly as any mystic in the superior reality of the things that are not
            seen.”

            My actual interactions with the NHS are reality. Your “constitutionalist” idealism is pure Platonism.

          • Alecto

            Do you have any original thoughts? Or, are you merely capable of parroting what others think and write?

            My interactions with any number of institutions are reality, too. Tell me, whose “reality” carries more force? Neither of our experiences substitute for objectively measured and verifiable facts, for reality in the objective sense. C.S. Lewis is highly overrated, but very popular these days. There are so few Catholics worthy of adulation, you have to strain to find one. But then, culturally, I’m American and you are not.

          • bdlaacmm

            “Do you have any original thoughts?”

            No, I don’t. And neither do you. I truly believe no one has had a genuinely original thought since probably the1st Century A.D. (or maybe the 2nd).

            By the way, there are plenty of Catholics out there worthy of our attention. Start with Pope Francis and Pope Benedict, then move on to Fr. Robert Barron, Peter John Cameron, Joe Heschmeyer, Scott Hahn, James Martin, Daniel Berrigan… and if you include the recently deceased, Thomas Merton, Dorothy Day, G.K. Chesterton, J.R.R. Tolkien etc., etc. I could throw in a few really admirable Anglicans as well, but you’ve already balked at Lewis, so I’ll let them be.

    • mickey_meador

      It’s obvious now from this and other posts that your are Socialist. Just how much freedom and personal resources are you willing to surrender to others to enable fairness and equality society.
      Through hard work one establishes worth, charity, and self sufficiency. Socialism whether by government power or worker unions destroy initiative as well as productivity and well being of society as a whole. As humans we have inalienable rights and responsibilities. These rights do not include harming others. Taking from the efforts of others is harm. Caring and helping others is responsibility. Taking money to give benefits to others is theft. All in society have the personal responsibility to support their own needs without taking from others.
      I have family and business relationships with the UK and it’s socialist society and it has minor successes and major failures. Sure it’s medical care is adequate in many cases but our US medical facilities, and availability is second to no other nation. Very few citizens actually are without essential healthcare. Emergency services are available to all without the ability to pay directly for it. Doctors and hospitals provide charity for millions of the needy. The failure of the insurance system is largely brought by governments regulation and restrictions. Portability of coverage is a needed reform and can be achieved by removing govt. restrictions.
      “Single payer” is not a solution as it is dependent on a central government to extract resources from productive citizens and reward those not willing to be productive. It’s Socialism. And has been said “Socialism only works until it runs out of other peoples money.”

      • Alecto

        I believe every American ought to have an HSA as others have suggested. I’m amazed by the difference between senior citizens, who have no understanding of the Health Savings Account arrangement and my generation. The fact is, many Americans have been taught to steal from their fellow citizens and now feel entitled to do so.

        If every individual had the ability to allocate any percentage of his pre-tax income to an HSA and was made responsible for his use (or misuse) of the funds, the cost of care would plunge, and society would eliminate many health problems caused by personal habits. Third party payment systems invite irresponsibility and abuse.

        The Little Red Hen is the most compelling story in support of individual healthcare accounts, and against government paid everything. Should be mandatory reading for every American.

      • bdlaacmm

        Sorry, Micky, but I am no socialist. I am also not an ideologue of any political persuasion. If the left has a good idea, I’ll embrace it – ditto for a good idea from the right. I like what works, and care not a whit whether it fits into anyone’s neat box of political orthodoxy. We’d be better off as a nation if we just all dropped these demands upon our elected officials for ideological purity. Give me a good pragmatist any day.

        Government is sometimes the problem, and other times the solution. There is no “always”, either one way or the other. Life is just finding the right balance between two unworkable extremes.

        You ask, “Just how much freedom and personal resources are you willing to surrender to others to enable fairness and equality society?” My answer: Whatever’s necessary, and not a bit more. But the point is, the answer is not zero. I surrender the freedom to drive on whatever side of the road I wish in order to be safe on the road. I surrender personal resources so that there are roads for me to drive on.

  • mikehorn

    There are many sincerely held claims that this ruling opens up, all of them in the face of sound medical evidence, where the size of the exempted group can be very small, but their affect on everyone else is large. Vaccine denial is one. AIDS denial. I’ve lived in the South, so you better believe interracial marriage and race in general is alive and well as a religious issue (remember that slavery, segregation, and interracial marriage are all religiously based).

    My main concern is vaccine denial because it is part of the fringe of both Left and Right, and is always based on sincerely held moral arguments. But herd immunity is an objectively real thing, and someone else’s belief doesn’t get to put my life in danger from preventable disease.

    A note that will probably get strong reactions here: the four contraceptives in question work by preventing ovulation. When first introduced there was an hypothesis that they might prevent implantation, but this has been so thoroughly debunked that the medical community wants to remove all such “abortifacients” warnings as baseless, no connection to objective fact. A fertilized egg will still implant. Sincere the belief might be, but it does not reflect objective reality.