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The Law as Therapist
The HHS contraception mandate has nothing to do with health.

Sister Carol Keehan, president of the Catholic Health Association

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The Obama administration’s contraception mandate touched off a firestorm when it was announced on January 20. Lawsuits challenging the rule were soon filed. Republican presidential hopefuls vowed to reverse it. Bills to do just that were introduced in Congress. The nation’s Catholic bishops (whose institutions would be most dramatically affected by the mandate) said — emphatically — that they would not comply.

At this point, it still remains unclear how much calm the administration’s February 10 “compromise” on the mandate will restore. The “compromise” conceded nothing to religious liberty; it was not meant to. It was meant to stop the political bleeding. The New York Times headline said that it “aimed to please the Catholic left.” It did so by applying a verbal salve. On cue, Sister Carol Keehan, president of the Catholic Health Association, said that she was “very pleased.” Liberal Catholic journalists and politicians were happy too. The bishops’ initial response was conciliatory as well, but on a careful second look they saw through the charade.

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How the mandate imbroglio plays out is important, not least for those who care about Catholic institutional ministries. But no matter how the current fight ends, we are going to experience what the venerable Yogi Berra called “déjà vu all over again”: the same challenges to religious liberty, for the same reasons and with the same stakes, are going to keep popping up again and again. The bishops denounced the mandate as an “unprecedented” assault upon religious freedom. But that is not to say it is a one-off event or an abrupt anomaly. The contraception mandate is a pressure point created by broad and powerful social currents, but there are many such points (abortion and same-sex “marriage” among them), because the tectonic plates that underlay the mandate extend way beyond the Pill. Their momentum is far from spent, and their clash with religion will settle the meaning of religious liberty for some time to come.

These underlying factors are not impersonal forces beyond our control. They are not merciless juggernauts like digitalization or globalization. They are not the work of nature or of nature’s God. In fact, it is not even the U.N.’s fault. The good news, then, is that the assault upon religious liberty is ideological and cultural. Its roots lie in what a lot of Americans who have a lot of power think, and want — and say that all Americans should think, and should want.

But the bad news is that the assault is ideological and cultural, and that it is rooted in the social vision of powerful people, who are vain possessors of an ideology which they would impose upon all of us, ostensibly for our own good.

Partisans of religious liberty should not expect the courts to be reliable allies in this fight. The relevant judicial interpretations of the Constitution are discouraging. The clause that sounds most in sympathy is the one in the First Amendment that bans Congress from “prohibiting the free exercise” of religion. But its scope is basically limited to laws meant to harm religion; it does not relieve churches and believers from burdens imposed by laws of “general applicability.”

One might argue that the HHS mandate nonetheless violates the Free Exercise Clause. After all, contraception is already part of the cultural furniture, and it could be delivered to every address by means that do not involve religious employers. The administration’s decision to conscript these employers anyway may reflect a desire to remove the last moral stigma from contraception, precisely by involving the Catholic Church in it. If so, then the mandate evinces unconstitutional hostility to religion. While this argument is plausible enough to warrant development, it would take an especially independent-minded judge to hold that the Obama administration has aimed to handicap the Catholic Church.


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