More Judicial and Editorial Equivocation
According to the New York Times, Judge Carole Jackson was obviously correct when she ruled that HHS-mandated health care coverage is no more offensive to a religious employer than paying salaries. Her argument was that the problem arises only if an employee “makes an independent decision to use the plan” in a way that offends the employer’s religious beliefs, and that such an independent decision is no different from an employee using part of a salary to do the same thing.
But this argument is, in fact, obviously incorrect. It actually obscures the key issue. Through the HHS mandate, the government seeks to force whoever pays for the insurance to contribute to the cost of medical procedures which violate religious teaching. The conflict with conscience does not arise because an employee makes a bad decision; it arises because the employer in question is coerced into paying premiums for a product which, in return for these payments, provides services which the plaintiff’s religion forbids him to support.
Over the last two days, I wrote a major In Depth Analysis explaining the inability of any jurisprudence based on legal positivism to address this dilemma. I attempted to offer the correct conceptual solution. But I also suggested that even the right solution will not work if we are unwilling to describe the issues clearly and honestly. Obfuscation is invariably the work of either a knave or a fool. A federal judge should be neither.
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