In addition to being illegal by violating the Religious Freedom Restoration Act (see Ed Whelan’s posts at National Review Online about this starting here), the Health and Human Services contraception mandate is unjust for at least two reasons: it infringes the natural right of all citizens to freedom of conscience and religion (see Melissa Moschella’s Public Discourse article); and it attempts to impose on society a false—overly restrictive—definition of what religion actually is (see Gerard Bradley’s Public Discourse article). Here I want to sum up and defend these two crucial points.
First, on the right to religious freedom. The rightful authority of the political community is limited: it does not extend to every aspect of human life. We form political community only to promote the public good, that is: to protect natural rights, and to promote ends that serve all within society, and can effectively and appropriately be pursued by the political community (as opposed to ends—such as the adoption of a particular religion—that can best be pursued only by individuals, families, and voluntary associations). The protection of natural rights—grounded in genuine human goods or aspects of human flourishing—is an essential component of the public good, and part of what citizens consent to when they consent to the political community.
Thus the protection of natural rights is not an optional extra, or alien to the public good—it is a constitutive element. Included in these natural rights is the right to form and to follow one’s conscience, adopt a religious belief, and practice one’s religion. The freedom to shape one’s life well by one’s free choices, and to respond to the truth about God to the extent one can reach that—the freedom to realize the central human goods of integrity and religion—are natural rights and essential to the political common good.
True, this right to act on one’s conscience and exercise one’s religion is not absolute. If such exercise seriously damages the public good, then the political community may limit such conduct. But since the political common good essentially includes protection of the rights to follow one’s conscience and to practice one’s religion, then limiting the exercise of that right must be only a last resort. As a result, every political community has an ethical duty to respect the free exercise of religion, and to restrict it only when necessary to achieve an essential component of the public good.
The HHS mandate does not meet this standard. It forces religious groups to perform actions contrary to their religious beliefs without its serving an essential element of the public good. Moreover, the apparent good that the mandate aims to promote—unrestricted equal access for all citizens to contraceptives and sterilization—is not impeded by religious groups living out their belief that contraceptives and sterilization are morally wrong and harmful to human well-being.
Catholics, for example, do not seek to have their beliefs about sterilization and contraception enshrined into law. And their refusal to fund such practices in their insurance plans neither penalizes employees who would use them nor prevents those employees from seeking them through other available avenues, such as local pharmacies where contraceptives can be purchased inexpensively or Title X clinics across the country that fund family planning services, including contraceptives. Thus, the mandate’s restriction of Catholics’ and other religious groups’ natural right to religious freedom cannot be justified on grounds that their freedom harms the public good by preventing unrestricted access to contraception and sterilization. Rather, the government is trying to coerce Catholics and other religious groups, without justifiable cause, to act contrary to their consciences and religious beliefs. So, the HHS mandate is an unjust violation of a natural right that deserves protection as part of the public good.
Second, the mandate promotes a false idea of religion—as essentially private and marginal. The mandate allows exceptions for conscientious objection only to those religious groups that relate almost exclusively to people of the same religion. Evidently the rationale is that the exercise of religion consists only in private teaching and actions in relation to one’s co-religionists. But this is a straitjacketed view of religion, and to foster this distorted view is to harm religion and the common good. Religion—whether Christian, Jewish, Muslim, or a natural religion (as distinct from a supernatural and revealed religion)—is a relationship or harmony with the Creator; but it includes cooperating with the Creator with respect to the fulfillment of his plan for creation, especially the well-being of all human persons. So religion of its nature involves reaching out to people who do not share one’s specific religion. All Christians, including Catholics, for example, believe that religion is a social reality—though not political, since it transcends the political.
The HHS mandate not only attempts to coerce Catholics to violate their conscience, it also insinuates a false redefinition of religion for our whole culture. But religion is not a creature of the state: it antedates the political community and has its structure independently of political laws and mandates.
Moreover, the right to freedom of religion is not a right belonging only to people when they act as individuals; it also belongs to people insofar as they associate in communities or institutions—including religious schools and hospitals—and seek to fulfill their religious missions. It’s worth asking: Why do Christians (for example) have religious schools and hospitals to begin with? Partly, of course, for the sake of learning and of treating sickness and suffering, but also to do these things in the context of bearing witness to the truth and goodness (as they see it) of the Gospel—otherwise it would not be part of the church’s mission to found or conduct them. So, laws that attempt to compel such schools and hospitals to act contrary to their moral beliefs would also coerce them to compromise their specifically religious mission. They are laws that, to paraphrase Timothy Cardinal Dolan, strangle the Church’s ministries.
But could the mandate nonetheless be justified because it is needed to promote an essential component of the political common good? No. Wider access to abortion-inducing drugs, sterilizations, and contraceptives is not an essential component of the political common good. Indeed, it can be argued that such devices are contrary to the health of women. But, in any case, access to these devices is already widespread, and applying the HHS mandate would increase access to them negligibly. Even if increasing access and promoting use of such devices were a necessary component of the common good, this would not be the only way of pursuing that end—several other measures that do not involve coercing religious institutions to participate in providing “services” that violate their beliefs are conceivable.
The mandate is a gravely unjust infringement upon the natural right to follow one’s conscience and to religious freedom. It imposes a false view of religion as a set of beliefs whose practice can only lawfully extend to those who share the same set. Every fair-minded person—of whatever religion, or of no religion at all—should oppose it.
Patrick Lee is the John N. and Jamie D. McAleer Professor of Bioethics and Director of the Institute of Bioethics at Franciscan University of Steubenville.