The Bishops and the Mandate: Principled Witness vs. Politics as Usual

 
 

The controversy over the HHS mandate is not a spat about wonkish detail or tribal privilege. It remains a struggle for the principle of religious freedom, the soul of civil society.

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America’s Catholic bishops have overstepped: so say the editors of the Jesuit America magazine. Sure, they grant, the bishops were right to protest when President Obama required Catholic institutions to pay for insurance coverage of contraceptives, sterilizations, and abortion-inducing drugs. After all, they noted, the Church’s shepherds were backed up by liberal “Catholic journalists, like E.J. Dionne and Mark Shields, and politicians, like Tim Kaine and Robert P. Casey, Jr.” But now Obama has “announced a compromise solution” and regained the support of these figures. So what began as the Church’s struggle for its “freedom . . . to define” itself is now (according to America’s editors) a quibble over “fine points of public policy.” What was originally the bishops’ “defense” is now a “campaign.” They are being “wonkish.” They have gone “too far.”

The America editorial, like the President’s “accommodation,” seems premised on the idea that rhetorical ingenuity can alter the facts. But facts are stubborn. There was in fact no compromise, only a vague promise. And even if revised as the President promised it would be, the mandate would remain an assault on religious freedom and the rights of conscience. That is why, despite the predictable defections of a few liberal Catholic figures and editorial boards, the bishops have been joined in rejecting the “compromise” as unacceptable by prominent Protestant, Eastern Orthodox, Jewish, and Muslim leaders, as well as by hundreds of scholars representing a wide spectrum of political views—clergy and scholars including Stanford Law School’s great religious liberty scholar Michael McConnell, a Protestant; distinguished Jewish scholars Rabbi Meir Soloveichik and Rabbi David Novak; and the eminent Muslim public intellectual Shaykh Hamza Yusuf. A great many non-Catholics evidently see what America’s editors missed: This is not a spat about wonkish detail or tribal privilege. It remains a struggle for the principle of religious freedom, the soul of civil society.

Let’s consider some facts. When national opposition to the mandate was a white-hot blaze, President Obama announced a few changes meant to satisfy critics. Hours later, the mandate was enshrined in the Federal Register without any of those changes having been made. The President’s self-imposed deadline for making good on his promises? After the election.

He claimed to be accommodating religious, especially Catholic concerns. It was a compromise, say America’s editors. That would make it history’s first unilateral compromise: The White House had secured (and promptly rolled out) the approval of longtime supporter Sr. Carol Keehan—and Planned Parenthood’s Cecile Richards—but not a single bishop.

In fact, the New York Times reports, the proposal was never really meant to address the bishops’ concerns. It was calculated to give cover to liberal Catholics, whose renewed support of the mandate would mute the roar of criticism of Obama from champions of religious freedom on the Left and Right both.

No matter, say America’s editors. What the bishops still stubbornly reject is just the balance between “contending rights and interests” that the state has struck “for the sake of the common good”—a balance that the state alone has title to settle. The America editors smell mischief. They suspect, mournfully, that the bishops’ current struggle seems “intended to bar health care funding for contraception.”

Well, the bishops certainly do oppose mandating this funding (and always have), for contraceptives and abortifacients are, as Cardinal Timothy Dolan and others have noted, not health care. Anovulent pills can be used for genuinely health-related purposes, which the bishops support and even cover for their own employees. But what contraception and abortion prevent or “treat”—the existence of new people—is no illness or disease. They serve, as such, no common good. And when one weighs religious liberty against what is no public good at all, it’s easy to see how the scales of justice will tip. Bishops who point this out are not flexing “political muscle” in a hyped-up “difference over policy,” as America’s editors suggest. They are drawing the plain implications of Catholic principle—to which Jesuit magazines are, we presume, editorially committed.

But suppose, for the sake of argument, that these services were forms of health care. Imagine too that the “compromise solution” were more than the election-year I.O.U. of a politician who had already revealed himself to be reckless about religious freedom (and even averse to that term). We still face the fact that the mandate would require Catholic and other religiously opposed employers to provide plans that cover services they find morally abhorrent, or else pay crippling fines. Insurance companies would be the ones to advertise (and, officially, to fund) the plans’ controversial parts, but objecting employers would in practice bear their costs. Which of these tweaks, we wonder, moved Dionne, Shields, Kaine, and Casey from indignant opposition back to gushing support? The America editorial, long on assertion and innuendo but short—very short—on argument, doesn’t say. Let’s go through the possibilities.

Freedom of conscience is hardly safer after the new proposal: Objecting employers will still have to contract for insurance plans covering what they judge to be immoral. Their employees will still have this coverage through employers’ contracts, effectively on their dime. Those who felt a duty to resist the original mandate will likely have the same objections to the revised one. Even if they would feel justified in breaking their moral and religious commitments in order to avoid breaking the law, coercing them in this way without good reason (on which, more below) would be wrong.

And even where conscience isn’t violated, religious liberty can be. Catholics aren’t obligated to go to Mass on Wednesdays, but a law banning them from midweek Mass attendance would be a gross violation of religious freedom. Likewise, even if the mandate’s threat of heavy fines would justify Catholics’ compliance, it would infringe their right to bear religious witness unencumbered except for the gravest reasons.

This would be bad in itself, but it would also drain the vibrancy and pluralism of our religious institutions—mediators between the individual and the state, buffers against tyranny, schools of those virtues without which republics fail.

But it gets worse. All these threats—to conscience, to witness, to religious freedom, to pluralism and civic virtue—would take their toll for no good reason, whatever one’s view of the services at stake. The cause of subsidized contraception and abortion has, again, no share in the common good. But suppose it were a public good, and important enough to justify risks to conscience and witness and religious freedom; suppose Obama’s revision really would be implemented as promised; and would, so implemented, diminish all these risks. The case for the mandate would still fail, for whatever risks remained would be unnecessary.

For one thing, contraceptives, sterilizations, and abortion-inducing drugs are widely available—not just at drug stores but also (to cite the administration’s own announcement) at “community health centers, public clinics, and hospitals with income-based support.”

But even more tellingly, the administration has on non-religious grounds granted exemptions from the mandate to employers that account for an estimated 88 million employees in 2013. If coverage of contraceptives and abortifacients is indispensable, why is it not guaranteed for these tens of millions? If, on the other hand, the administration can afford to exempt employers for other reasons, why not show the same solicitude for employers with moral and religious objections? HHS Secretary Kathleen Sebellius, who promulgated the mandate, may have let the reason slip when she declared herself at “war” with those she cast as enemies of—you guessed it—“women’s health.”

There is, of course, no war on women’s health. The only dispute is whether religious freedom and the rights of conscience should bow to an ideology that places supreme importance on facilitating people’s sexual lifestyle choices. This is the stubborn fact that rhetoric about “health care” is meant to obscure. But even those sincerely committed to advancing sexual liberationist ideology as a public good could promote it while respecting the rights of conscience and religion. There are countless ways of making contraceptives, sterilizations, and abortion drugs more widely available without conscripting unwilling parties for the government’s cause.

A genuine accommodation of this sort would not just serve Catholics’ rights. There are non-Catholics who oppose contraceptives and sterilizations, and many of all persuasions oppose abortion. Nor are institutions the only ones threatened, though they are the only ones even allegedly accommodated. As the America editors point out, to their credit, religious business-owners (not to mention insurance providers) face similar predicaments, but their rights are ignored. Finally, letting this policy stand on contraception, sterilization, and abortion-inducing drugs sets a precedent for even worse violations of conscience. How would it be structurally any different, for example, to mandate coverage of surgical abortion?

The administration’s dubious record on religious freedom, its selective intransigence on the insurance mandate, indeed the weakness of its position from every vantage-point leave only one explanation. Against people seeking to keep and share their faith, the Obama administration has chosen to give shining witness to its own dogmas—for which it would risk one-term martyrdom; before which it would bend every pillar of society, make every last man and woman bow. The Catholic bishops remain standing in bold resistance, and somehow it is this—and not their own, rather awkward posture on the matter—that embarrasses the editors of America magazine.

Robert P. George is McCormick Professor of Jurisprudence at Princeton University. Sherif Girgis is a PhD Candidate in Philosophy at Princeton and a law student at Yale. Ryan T. Anderson is Editor of Public Discourse.

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