“Contraception” is not exactly the right term. The HHS mandate implementing Obamacare requires insurance plans of religious employers to provide not just contraception but also sterilization and abortion-inducing drugs—“morning-after” (and even “week-after”) pills designed to cause the death of a conceived human embryo rather than prevent conception. The technical term for such drugs is abortifacient, though they often are called, euphemistically, “emergency contraception.”
“Cram-down” is a perfect term for HHS’s policy, however. The whole point, it seems, is to override religious objections to such a policy to the maximum extent politically possible, out of an intense ideological commitment to contraception and abortion as “preventive health care.” It is vital, the ideologues say, to prevail over religious objections precisely in order to advance, and permanently entrench, this particular ideology and, further, to vindicate the power of government to impose such policies on everyone. Religious objections must be overcome, in part for the sake of overcoming religious objections.
The Obama administration’s HHS policy—and even more so the sham “modification” of it announced on February 10—recalls a memorable story recounted in certain Greek manuscripts traced to the ancient Jewish communities of the Mediterranean, in what is known as the book of Fourth Maccabees. (Some Protestants, like me, treat such inter-testamental religious literature not as scripture, but with respect as part of the “Apocrypha.”)
In the second century B.C., the foreign tyrant Antiochus IV Epiphanes decreed that all Jews should be forced to violate their religious consciences by publicly eating pork and food sacrificed to idols. “If any were not willing to eat defiling food, they were to be broken on the wheel and killed” (4 Maccabees 5:3). It was a command of gratuitous forced submission as a sign of Antiochus’s supreme authority to compel obedience by a subject people.
But it was not to be: “And when many persons had been rounded up, one man, Eleazar by name, leader of the flock, was brought before the king.” Eleazar was an old man. Antiochus, who said he respected Eleazar for his “gray hairs,” tried to persuade him to submit to the command to eat pork: “‘why, when nature has granted it to us, should you abhor eating the very excellent meat of this animal? It is senseless not to enjoy delicious things that are not shameful, and wrong to spurn the gifts of nature.’” A reasonable enough argument—if one does not appreciate religious conscience.
Antiochus went on: “‘it seems to me that you will do something even more senseless if, by holding a vain opinion concerning the truth, you continue to despise me to your own hurt. Will you not awaken from your foolish philosophy, dispel your futile reasoning, adopt a mind appropriate to your years, philosophize according to the truth of what is beneficial, and have compassion on your old age by honoring my humane advice?’” And then, the convincing clincher: if compelled by torture, Eleazar’s actions surely would be excused by his God! “‘For consider this, that if there is some power watching over this religion of yours, it will excuse you from any transgression that arises out of compulsion’” (4 Maccabees 5:6–13).
Eleazar declined, stating that no compulsion was more powerful than obedience to God. “‘Therefore do not suppose that it would be a petty sin if we were to eat defiling food; to transgress the law in matters either small or great is of equal seriousness, for in either case the law is equally despised’” (4 Maccabees 5:19–20).
Antiochus had Eleazar stripped and scourged nearly to death. Then, “partly out of sympathy from their acquaintance with him, partly out of admiration for his endurance, some of the king’s retinue offered Eleazar an accommodation: “‘Eleazar, why are you so irrationally destroying yourself through these evil things? We will set before you some cooked meat; save yourself by pretending to eat pork’” (4 Maccabees 6:14–15).
It was a rather inspired political maneuver: the tyrant’s authority to compel obedience would be vindicated. At the same time, the misguided dictates of pathetic religious conscience would (surely) be satisfied. But Eleazar would have none of the charade:
But Eleazar, as though more bitterly tormented by this counsel, cried out: “May we, the children of Abraham, never think so basely that out of cowardice we feign a role unbecoming to us! For it would be irrational if we, who have lived in accordance with truth to old age and have maintained in accordance with law the reputation of such a life, should not change our course and ourselves become a pattern of impiety to the young, in becoming an example of the eating of defiling food. It would be shameful if we should survive for a little while and during that time be a laughing stock to all for our cowardice, and if we should be despised by the tyrant as unmanly, and not protect our divine law even to death” (4 Maccabees 6:16–23).
The story does not have an especially happy ending (at least from a human, secular standpoint). Eleazar is tortured to death, then an entire family of brothers after him. But the story of Antiochus IV Epiphanes, and Eleazar, remains a remarkable two-thousand-year-old parable about tyranny and conscience, about cram-downs, accommodations, deception, and adherence to principle.
There are relatively few instances in recorded modern western history when government has insisted on vindicating its authority and overriding religious conscience for its own sake—purely for the symbolism of power prevailing over conscience. Legend has it that William Tell was sentenced to shoot an apple off the head of his son, with a bow and arrow, for refusal to bow to the king’s cap. William Penn and other Quakers were punished for failing to remove their hats in deference to civil authority. As recently as the 1930s and 1940s, Jehovah’s Witness schoolchildren were expelled from school for refusing, out of religious conscience, to salute the flag and recite the Pledge of Allegiance. (The Supreme Court upheld such expulsion in Minersville School District v. Gobitis , but reversed itself in West Virginia State Board of Education v. Barnette .)
The HHS mandate is of a piece with these infamous examples. It almost goes without saying that forced provision of contraception, sterilization, and abortion as part of a health insurance plan violates the religious moral consciences of many Jewish and Christian ministries that serve others, including persons outside their faith, in a variety of ways—through hospitals, schools, soup kitchens, and other charitable activities. For government to force religious groups to buy health plans for their employees that violate the groups' faith is a flagrant, outrageous violation of religious liberty. The alternative—that such groups pay a huge, per-employee fine and not provide health coverage to their employees at all (leaving them on their own to comply with the government’s mandate that all individuals buy health insurance)—is just as coercive. For many religious employers, that too would be an act of faithlessness and an abandonment of moral and religious responsibility.
The legal case against the Obama HHS policy was (and remains) shooting-fish-in-a-barrel easy. The policy violates the First Amendment’s Free Exercise of Religion clause, under any interpretation. It is not neutral toward religion, exempts some religious employers and not others, and vests government bureaucrats with broad discretion as to who will be exempted. Even more clearly, the policy violates the “Religious Freedom Restoration Act” of 1993, a federal super-statute that protects religious liberty and applies to the operation of all other federal laws unless a new law explicitly removes itself from RFRA’s requirements. Under RFRA, any federal law or regulation that burdens the exercise of religious convictions must give way to such beliefs, unless justified by a “compelling” interest that can be achieved in no other way. The contraception cram-down cannot possibly pass such a stringent legal test: what makes compulsory contraception, paid for by religious groups, “compelling”? How can it be so important, given other exemptions from the requirement?
The administration’s initial rule was so legally insupportable that it could sensibly be explained only as a botched attempt to appease an extreme political constituency by deliberately coercing religious groups to violate their consciences. It rightly produced a firestorm of criticism. It rapidly became clear that Obama’s initial policy was a grave political miscalculation.
So, on February 10, President Obama announced his Antiochus-like “accommodation”—not a retreat from an overreaching assertion of government power, mind you, but an act of gracious government beneficence: a dispensation granted to appease unreasonable religious objections. Religious groups would not be required to offer plans that provided contraception, sterilization, and abortifacient drugs, the administration promised. Rather, ministries could offer plans without such services. Their insurance providers would then be required to provide such services for free. See? Religious groups would not have to violate their consciences after all!
One need not have majored in economics (as I did) to know that the “free” provision of benefits is a ruse. Religious employers who enter into such arrangements will pay higher premiums for their employee health plans. What (supposedly) is not covered will be paid for by higher rates for what is covered. Economically, it is a wash.
More to the point, morally and ethically, the situation is the same as well. The provision of abortion drugs, sterilization, and contraception remains an inextricably linked feature of the health care plans that a religious institution or individual purchases for employees. These services will be provided (“free”) as a direct consequence of the coverage contract arrangements made by religious employers.
The notion that Obama’s arrangement is any less a violation of religious liberty, that it is any less a deliberate cram-down, or that religious persons surely should not see this as a violation of their consciences, is insulting—and eerily reminiscent of the story of Eleazar. It looks an awful lot like the courtiers’ offer of cooked meat instead of pork. It’s worse than that actually: the violation of conscience for Eleazar would have been that of giving scandal and demoralizing others by his apparent obeisance. Obama’s offer is actually to eat pork, but to pretend it is something else—an act both of complicity and scandal.
One need not share Roman Catholic objections to contraception (or even abortion) to recognize the deep sincerity of such religious convictions and the severe violation of conscience created by being forced to act in complicity with the Obama administration policy. One need not share those religious convictions any more than one need object to eating pork in order to empathize with Eleazar’s plight and admire his courageous stand. And one need not embrace or accept a particular religious belief in order to recognize that sincere religious conscience is never satisfied by accepting the tyrant’s offer of a dishonorable ruse.
Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).