Liberalism’s Fault Lines

Katie Casey

Master Thesis: Religion and the Public Domain

Supervisors: Dr. Erin Wilson and dr. Kim Knibbe

University of Groningen

June 2014

Table of Contents

Appendix 2: National Association of Evangelicals Press Release, 28 January 2014 115

Appendix 3: American Congress of Obstetricians and Gynecologists Press Release, 26 November 2013 116

Appendix 4: American College of Obstetricians and Gynecologists Committee Opinion, November 2012 117

Appendix 5: National Women’s Law Center Press Release, 26 November 2013 122

Appendix 6: National Women’s Law Center Press Release, 28 January 2014 123

Appendix 7: Society for the Protection of Unborn Children Press Release, 24 April 2013 124

Appendix 8: Society for the Protection of Unborn Children Evangelicals Newsletter, Autumn 2013 126

Appendix 9: Royal College of Midwives Press Release, 29 February 2012 128

Appendix 10: Royal College of Midwives Midwives magazine article, 29 February 2012 129

Appendix 11: Reproductive Health Matters Blog Post, 14 May 2013 131

Appendix 12: Reproductive Health Matters Blog Post, 23 October 2013 135

Acknowledgments
I would like to thank my thesis supervisor, dr. Erin Wilson, for her endless support, insightful and challenging comments and questions, and regular friendly reminders to take a break once in a while – they were much appreciated! I am also very grateful to Nikita Beresford and Lisanne Coolen, who could probably defend this thesis themselves for how often they have listened to me talk about it over the past year, and who not only patiently tolerated my ramblings but responded with helpful ideas. I couldn’t have written the UK chapters without Nikita guiding me through the finer points of British constitutionalism and legal research. Finally, thank you to my parents, for supporting me through my international adventures.
Introduction
Women’s rights and religious rights often appear to be at war with each other, particularly when legal access to abortion and contraception is at stake. Women’s rights advocates claim that religion interferes with women’s private choices; religious rights advocates respond that accepting the legality of abortion would mean denying their deeply held religious values. Underlying these debates are questions about the nature of the public domain: whose values are represented there? And what does that mean for those who disagree?

The line between the public and private has never been a particularly clear one, and religion is particularly prone to pushing that boundary through its presence in the public domain. Claims for conscientious objection¹ – the right to be exempt from some otherwise mandatory task based on a religious objection to it – are a contentious method of reshaping the line between public and private. Conscientious objection traditionally referred to objection to military service, but has recently been expanded to encompass objection to abortion and related health care. The form these objections take and the legal protections afforded to them vary, but almost all are controversial.

This thesis aims to answer the question: how is the public/private divide negotiated in cases of conscientious objection to abortion and reproductive health care? Utilizing insights from feminism and liberal political and legal theory, it examines two case studies, drawn from recent appellate court cases in the United States and the United Kingdom. These countries share a liberal legal heritage that embraces the public/private distinction; however, they have significantly different cultures around religion and religious freedom. Despite these differences, striking similarities emerged in the strategies used by both proponents and opponents of conscientious objection to distinguish the public from private in a way that supported their position. The central argument of this thesis is that ultimately, the dualisms between medicine and religion, women’s rights and religion, and sincere and insincere beliefs used by both sides of the debate illustrate the inability of the public/private divide to address the complicated questions raised by conscientious objection. As a result, I consider the public/private divide insufficient to adequately address the rights at stake in these cases. In the rest of this introduction, I provide a brief overview of the thesis, outlining the main theoretical debates, key aspects of the case studies and the methodology used in the analysis before concluding with a chapter outline.
The contentious nature of the public-private divide

The public-private divide is a key tenet of liberalism, and provides the basis for Western understandings of religious freedom. Precisely what belongs in the private and what belongs in the public varies in political theory and feminist scholarship, as will be discussed in more detail in the following chapter. However, in general the public-private divide can be understood as a dualism dividing that which is considered (according to largely liberal secular criteria) reasonable, universally accessible and relevant to the common good (the public) from that which is individual and often irrational (the private.)² In this pairing, the private is subordinated to the public, which is privileged. This dualism between public and private is linked to other dualisms in Western thought – for example, rational and irrational, male and female, and science and religion. These pairings are generally seen as bipolar opposites.³ One of the goals of conscientious objection is to carve out space for private religious beliefs in the public realm of health care policy. However, they also create political battlegrounds over how far the right to conscientious objection can properly extend before it interferes with women’s rights and health, where women’s bodies and their “privateness” or “publicness” become indirectly the object of debate.

Related to religion’s place in the private domain is the idea in liberalism that the state must be neutral towards religion – it cannot hold a particular religious perspective of its own, or favor one religion over another.⁴ Since it cannot make substantive judgments on the content of an individual’s private faith, the state⁵ judges religion on other standards, such as the sincerity of the belief or the centrality of the belief to the believer’s tradition. State neutrality theoretically allows religion to be part of the private domain, by protecting it from state judgment. However, in order to talk about religious freedom, the state has to hold some definition of what religion is and what it does. Declaring what religion is and does (and also, by implication, what it is not and what it does not do) means that the state is unavoidably involved in the normative reproduction of concepts of religion. For example, Protestantism heavily influences the Western concepts of religion deployed by the state. ⁶ These definitions are not and cannot be neutral. State neutrality in fact includes underlying cultural assumptions about religion that make their way into how it is defined and regulated in the public domain.

These theoretical concepts have made their way into laws that intend to guarantee religious freedom and balance claims for conscientious objection against other public needs. However, as Winnifred Fallers Sullivan notes, “Religion and law today speak in languages largely opaque to each other.”⁷ This thesis attempts to translate these mutually incomprehensible languages in a few ways. First, I trace the background of conscientious objection law in each case study country, putting it in the context of both larger national debates on religious freedom and historical and cultural developments. Previous scholarly work on these laws has been largely limited to medical and legal journals. By putting them in their historical, political, legal and cultural contexts, which are often overlooked in medical and legal scholarship, I hope to demonstrate how underlying ideas about religion in the public domain influence the formation and ongoing interpretation of the law. Though the issues raised by religious freedom jurisprudence in the United States and United Kingdom do not perfectly overlap with those raised in the cases, they provide an idea of the lens through which judges and stakeholders considered the issue of conscientious objection. Second, I look at each court case itself not only through the judges’ decisions, but also through statements by organizations representing the various interests at stake in each case – specifically, religious organizations, professional organizations, and women’s rights organizations. Though their interpretations of the cases ultimately carry less weight than the judges’, they are part of the larger cultural discourse about religion in the public domain, and contribute valuable insight about how the line between public and private is drawn by raising arguments outside of the legal boundaries of the cases.

Liberal conceptions of the public and private domain in the United States (US) have developed into a definition of religious freedom that rejects both government regulation and government endorsement of religion, demanding the ability to both hold beliefs and manifest them without interference, except in dramatic circumstances. In federal law, restrictions on religion receive the strictest level of judicial scrutiny. While religious freedom has been central to American identity and national mythology throughout its history, ⁸ federal jurisprudence on the topic is relatively young. Developed substantially during the Culture War of the 1960s, the United States’ approach to religious freedom includes substantial protections for conscientious objectors to abortion. American law requires that, within the medical profession, conscientious objection be permitted in a wide variety of circumstances both directly and indirectly related to abortion. The continued divisiveness of abortion in American culture combines with a skepticism towards government regulation of religion to support claims of conscientious objection, despite many recent changes and inconsistencies within the law regarding religious freedom.

How far claims for conscientious objection can stretch is one of the key questions addressed in Hobby Lobby v. Sebelius. In March 2013, the Tenth Circuit Court of Appeals heard the case brought by craft chain store Hobby Lobby, which claimed the right to an exemption to a portion of the Affordable Care Act of 2010 (ACA, also called “Obamacare”). The ACA required employers to provide coverage for contraception in company health insurance policies. Hobby Lobby argued that requiring the company to pay for contraception violated its (the company’s) religious freedom under the Religious Freedom Restoration Act. The owners of Hobby Lobby, the Greens, are evangelical Christians, and object to certain forms of contraception that they feel cause abortions. Throughout the case, the court struggled to determine whether their beliefs could be considered the religious beliefs of their corporation. Women’s rights organizations and professional organizations argued that they couldn’t be, and that excluding birth control from their insurance plans was an intrusion into women’s private decisions and undermined the public goods advanced by the law. These arguments put women’s bodies in an ambiguous position; women’s decisions to use contraception were depicted as private, but women using contraception was presented as a public good, furthering public health and women’s participation in the public domain. The court ignored these arguments entirely, instead finding that Hobby Lobby held sincere religious beliefs, which merited protection. The decision raises questions about how neutral the state really is towards religion, and whether a broad understanding of religious freedom, which recognizes few legitimate restrictions on private religion in the public domain, can incorporate concerns about women’s rights.
Religion and the Public Domain in the United Kingdom

In contrast to the United States, ideas of religious freedom in the United Kingdom (UK) draw heavily on the idea of nondiscrimination, and are based in both domestic legislation and European Court of Human Rights jurisprudence. Developed in the context of increasing migration and growing religious diversity, cases of religious freedom deal primarily with managing religious diversity in the public domain. As a result of the legacy of the Church of England and its continued influence, courts more frequently make judgments about the content of Christianity than other faiths, declaring which practices or beliefs are “core” to Christianity and thus protected and which are “peripheral” and can be regulated or infringed on. The UK also recognizes a wider variety of justifications for limiting manifestations of religion, under Article 9(2) of the European Convention of Human Rights. Because abortion is a less contentious issue in the United Kingdom, and the legalization of abortion preceded the development of strong protections for religious rights, conscientious objection has not been as broadly discussed in UK law. However, it is provided for in the Abortion Act 1967, except in emergency circumstances, for medical professionals directly providing abortion. The original law largely ignores religion, allowing conscientious objection for any moral reason; however, recent case law, in light of the application of the European Convention of Human Rights to UK law and the related development of religious freedom jurisprudence, has considered the religious dimensions of conscientious objection in terms of balancing public state needs against private beliefs.

The Scottish Court of Sessions, an appellate court, addressed the question of how religion should be accommodated in the public domain when it heard the case Doogan & Anor v NHS Greater Glasgow & Clyde Health Board (hereafter Doogan v. NHS or the Doogan case) in April 2013. Mary Doogan and Concepta Wood were midwives in a Glasgow labor ward, with registered objections to performing abortions. However, their roles as Labour Ward Co-ordinators required them to supervise abortions performed by other midwives, which, they argued, violated their right to conscientious objection. They were supported by pro-life group Society for the Protection of Unborn Children, which put forth an interesting mix of religious and non-religious arguments, emphasizing the Christian nature of Doogan and Wood’s beliefs while arguing that accommodating those beliefs served a public purpose of maintaining “professionalism.” On the other hand, professional and women’s rights organizations made similar arguments to those made in the United States, highlighting the danger conscientious objection posed to women’s health and the need for midwives to fill a public, professional role shaped by medical ethics and science. These debates illustrated the ambiguity between the public and private in cases of conscientious objection and abortion.
Dualisms in the Cases

The cultural differences and competing understandings of religious freedom between the United States and United Kingdom were visible in the cases. Both deal with how far conscientious objection can extend beyond direct provision of abortion; however, the Hobby Lobby case, dealing with payment for emergency contraception, is far further removed from the actual act of abortion than the Doogan case, where the midwives could conceivably be asked to assist with an abortion in their job duties. This reflects the more extensive understanding of religious freedom found in the United States. The Hobby Lobby case was also significantly more contentious, generating more public comment and debate, reflecting the unsettled nature of abortion in the US and the central place of religious freedom to American politics. However, despite these differences, the interpretations of the public and private domain, and how these should be divided with reference to religion and gender, were surprisingly consistent in both contexts.

All parties in both cases generally agreed that religion was part of the private sphere, but the implications of this were highly contested. For proponents of conscientious objection, religion’s private nature meant that regulations on it were not justified. Opponents of conscientious objection, on the other hand, argued that because religion is private and individual, it should be subordinated to various public interests when necessary – for example, to protect the health of women seeking abortions. In their arguments, two dualisms emerged. One positioned religion in opposition to medical science. Medicine was depicted as unbiased and rational, in contrast to discriminating, irrational religion. Women’s decision to have an abortion, the argument ran, should be made on medical grounds (in conjunction with doctors who presumably do not hold religious objections or are willing to put them aside), leaving no place for religious “interference” in those decisions. By potentially preventing or delaying access to contraception or abortion, opponents of conscientious objection depicted religion’s presence in the public realm of medicine as dangerous and even deadly. The second dualism, between religion and women’s rights, worked in a similar way. Women’s participation in the public domain was furthered by access to abortion and contraception; therefore, religion that sought to limit access to these must be privatized. These arguments rely on an understanding of religion as irrational and a matter of personal choice. Both of these dualisms are ambiguous in how they position women themselves as part of the public or private; they give little attention to women’s agency, and instead focus on creating boundaries between religion and the public domain.

The key dualism that proponents of conscientious objection (in these cases, religious organizations, the people claiming conscientious objection, and ultimately the judges of the appellate courts) relied on was an implied one, between sincere or “core” beliefs and insincere or peripheral ones. Though especially important in the Hobby Lobby case, where Hobby Lobby had to prove that it held sincere religious beliefs as a corporation, this discourse of sincerity also appeared in the Doogan case. In these arguments, any sort of compromise to “public reason” was presented as impossible given the deeply held nature of religious convictions, making accommodation the only possible option. Willingness to compromise to the demands of a public role would have implied that the beliefs in question were insincere or relatively unimportant, undermining the legal claim for a conscientious objection.

Close reading of primary sources around each case study, including the judgments themselves and documents by stakeholder organizations, reveals the varied and conflicting ways the public and private are constructed. Value-critical analysis, a methodology developed by Martin Rein and elaborated by Ronald Schmidt, provides a framework for looking at the debates, both inside and outside the courts, around religious exemptions.⁹ Critical discourse analysis offers additional tools for conceptualizing and analyzing the competing cultural meanings given to the concept of religious freedom.

Value-critical analysis is a method based on identifying and examining the values that underlie political debates. By drawing out the core values of policy proponents, the analyst aims to create a comprehensive narrative of each position.¹⁰ Because the claims for religious exemptions examined here have been made in court cases, some of the proponents’ positions have already been neatly laid out. Analyzing the arguments in these judgments shows some of the legal considerations around religion in the public domain. However, debate over how the public and private should be delineated is not restricted to the courts. Groups with a stake in the outcome offer competing arguments, often beyond the scope of the specific legal issues of the cases, that rest on competing ideas about the public and private. In order to get a sense of those competing perspectives, I examine documents from professional organizations, women’s rights organizations, and religious organizations.

Critical discourse analysis, a method developed by Fairclough and described by Jorgensen and Phillips, is a useful tool for drawing out the alternative interpretations of the cases. This method highlights that discourses do not exist in a void; rather, they draw on “genres” and other discourses.¹¹ Discussions of conscientious objection in health care draw on religious freedom discourse, but they also rely on discourses about women’s rights or health care policy, for example. The interplay between these “genres” contributes to the construction of the line between the public and private domain.

Using critical discourse analysis, this study examines texts from relevant organizations with the goal of identifying their understanding of what criteria they use to distinguish between the public and private, and what that distinction means for the right to conscientious objection. Organizations in the United States were chosen from those organizations that submitted amicus curiae briefs in the Hobby Lobby case. They are the National Association of Evangelicals, the American Congress of Obstetrics and Gynecology, and the National Women’s Law Center. In the United Kingdom, where amicus curiae briefs are not publicly available, organizations were chosen that had commented on the case in the media. These were the Society for the Protection of Unborn Children’s Evangelicals group, the Royal College of Midwives, and Reproductive Health Matters. Two texts on the topic of religious exemptions and the ongoing cases were chosen from each organization. All examined texts are included as appendices to this thesis.
Structure of the Thesis

Chapter 1 discusses some of the various ways that the public and private have been distinguished in liberal political theory and the problems posed by those divisions, as well as some of the ways conscientious objections have been discussed within liberalism. It will also consider how feminist theory complicates this picture. This brief overview provides a theoretical background that is, broadly speaking, shared by both case study countries, and informs my analysis of the cases that follow.

Chapters 2 and 3 describe conscientious objection in the United States. Chapter 2 offers a background on religious freedom in the United States, putting the topic of conscientious objection into the context of ongoing legal debates about the extent of religious freedom and their historical and cultural roots. These debates show how liberalism’s understanding of religion as private have in the United States tended towards a reluctance to regulate religion in general and confusion about on what grounds religion can be restricted in the public domain. Chapter 3 turns to Hobby Lobby v. Sebelius, examining how the public and private are delineated within the judgment itself and the documents of selected interested organizations.

Chapters 4 and 5 focus on the United Kingdom. Chapter 4 discusses religious freedom in the United Kingdom, particularly noting the influence of minority religious communities and of the European Union, which has in the past 20 years led to significant changes in how religious freedom and potentially conscientious objection are interpreted. Chapter 5 examines Doogan v. NHS and documents from selected organizations, again looking for lines of division between the public and the private.

Chapter 6 compares the two cases and describes the common themes found in each. Both cases have three dualisms in common: between sincere and insincere belief, the former deserving accommodation in the public domain; between religion and medicine, the latter being a more appropriate standard for behavior and policy in the public domain; and between religion and women’s rights, the latter necessarily circumscribing the former’s presence in the public domain. Also raised by both cases is the question of what makes one a public actor, and how that role relates to claims for religious rights. The ambiguity of roles visible in the cases illustrates a serious weakness of relying on the public/private division to resolve conscientious objection.

The conclusion reviews the key themes of the thesis and considers possible solutions to the questions raised by the cases. The public/private divide, which presents religion and women’s rights as two competing groups seeking to make their “personals” political and public, is ultimately insufficient for protecting women’s rights and agency while also recognizing religious rights.