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

By Gerard V. Bradley


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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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COMMENTS   10

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LindaF
   02/28/12 06:58

I'm a PRACTICING Catholic - that distinction has to be made, as many of the "Catholics" cited in the news coverage are not.

I'm opposed to this HHS legislation for other reasons. It's an attempt to get around Constitutional rights in a way that legislative action cannot control - the use of administrative/executive rules that fundamentally change a law's intent. That use is one that Obama and other overreaching Presidents have been resorting to quite a bit of late.

That executive end-run around the Constitution extends back to Andrew Jackson, and continued through Teddy Roosevelt and his cousin. For too long, the legislative branch let the executive take over, with the assistance of the judicial branch.

This has the potential to be a monumental decision - or not, if the court allows this executive action to continue. It might depend on how ornery the Justices feel about Presidential over-reach, combined with their irritation about petty snubs and insults.

Horrible to think that on such slim grounds our freedom might depend.

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   02/28/12 08:33

"If I knew for a certainty that a man was coming to my house with the conscious design of doing me good, I should run for my life."

Evidently we as a nation have forgotten this!

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   02/28/12 08:47

Masterful essay; thank you.

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   02/28/12 11:06

The Founders did not incorporate the "free exercise clause" into the 1st Amendment to protect only "private" religious behavior, thinking, or expression.

I quibble with an otherwise engaging article only in this -- that Obama is doing this in order to "conscript these employers anyway may reflect a desire to remove the last moral stigma from contraception". This is only a means to an end which the rabid Left aspires to: removal of religion in any and all it's forms and expression from the public square. The morally relativistic secular Left desires to exstinguish any and all influence by and from anyone of any faith from every crack and crevice of public life.

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let me be
   02/28/12 11:08

As C.S. Lewis said :

"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."

This is how the administration thinks and why they are more dangerous.

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Really?
   02/28/12 12:33

In the UK, and indeed Europe at large, religion has vanished from society with record low numbers of people professing a belief in God, attendance at church, or having moral value alignment with Christianity.
At the same time Islam is rising in it's place and caries it's own set of rules most liberals would find objectionable and oppressive. The old sage about being careful what one wishes for might just apply.
The ultimate goal is a religion free society run by paid for politicians where morality is variable and depends on cost, background, connections and dogma. And the Left has the nerve to call the Right oppressive.

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D. Bene
   02/28/12 18:26

Do not be fooled. This is not only about Roe vs Wade, contraception, etc.

If USA The Dictator can do this (Obamacare & now contraception schemes), he (they) can force psychiatric exams by State Doctors/therapists and declare you whatever they like...and off to a FEMA Camp you go (FEMA = weasel word for Concentration Camp), never to be heard from again.

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Jerry Lapham
   02/28/12 19:04

"The protective shield around the objecting employee is large. ‘Participation in executions' includes personal preparation of the condemned individual and the apparatus used for execution and supervision of the activities of other personnel in carrying out such activities.

"Of course, this exemption implies no insult to anyone’s preferred path to orgasm. That is probably why it is uncontroversial."

It's uncontroversial only because liberals are also against executions.

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   02/28/12 21:18

From "defending sects" to "defending sex". How the Court has fallen.

Does the "equal sexual liberty" doctrine prevent anyone from saying no? Am I infringing on someone's sexual liberty if I refuse to have sex with him or her when asked?

The idea that abortion rights should be maintained because people have depended on having them for a couple of decades is stupid. Lifestyle decisions in general may be difficult to change, but given a year's notice, people could start saying no and any existing pregnancies could be aborted (or carried to fruition). Seriously, how much notice do we get about changes to the tax code, for example?

By the way, saying no is cheaper than any abortion, ever. And yes, some men don't take no for an answer. Let them pay for the child to be carried to term, and raised for 18 years. DNA tests would prove paternity. Maybe men will start saying no.

The worst thing, perhaps, is that once the feds start telling you can have sex, they establish that it is because they have the authority to tell you such a thing. Thus they can, as a corollary, tell you that you specifically may not have sex, or that you must have sex with a person they assign. Oh, but they would NEVER do such a thing....

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Tom8
   02/29/12 15:16

Legal issues aside, the Church can not comply. Therefore, either fines will be collected, or the Church will pull all health insurance coverage from the affected institutions. It's simply another way to flush people out of private health insurance and force them into the exchanges, like livestock being loaded onto train cars....

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