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The Mandate War
At stake is nothing less than the future of civil society in the United States.

Father John Jenkins, C.S.C., president of Notre Dame University

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George Weigel

The battle for religious freedom between the Catholic Church in the United States and the Obama administration just entered the second quarter.

The first quarter was bureaucratic and rhetorical. The debate began with the January 20 announcement that the administration’s implementation of Obamacare would require Catholic institutions and individual Catholic employers to provide “preventive health services” (including contraceptives, sterilization, and abortifacient drugs) that the Church rejects as gravely immoral. It was a clumsy attempt at coercing consciences, and it drew widespread condemnation across the spectrum of Catholic opinion.

The debate intensified after the administration announced, on February 10, a future “accommodation” of Catholic concerns; but the proposed “accommodation” was an accounting shell game that would change absolutely nothing in either the moral or the legal structure of the issue. Showing a remarkable degree of unanimity, the Administrative Committee of the United States Conference of Catholic Bishops rejected the “accommodation” at its March meeting and insisted that the issue at stake was not birth control, but religious freedom: The federal government was trying to compel the Church and individual Catholic believers to do something the Church’s settled teaching considers immoral. That same point was underscored a month later by the bishops’ Ad Hoc Committee on Religious Liberty in its Easter-week statement, “Our First, Most Cherished Liberty.”

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Throughout the first quarter of this deadly serious game, the administration did not move a millimeter, the claims of its flacks and some of its Catholic apologists notwithstanding. The “contraceptive mandate” (which, remember, is also a sterilization and abortifacient mandate) is now law, without any “accommodation.” The administration continues to insist on provision of the services in question; it continues to define a “religious exemption” that is so stringent that it is not clear whether any Catholic entity (or Orthodox Jewish entity, or Mormon entity) would qualify; its narrow definition of “religious ministry” puts the Church in legal and financial peril for serving people who are not Catholics, which is another requirement of the Catholic conscience.

But the debate is not only about religious institutions; it is about the rights of conscience of employers (Catholic or otherwise) whose convictions require them not to include contraceptives, abortifacient drugs, and sterilizations in the health-insurance coverage they provide their employees. These men and women, like the numerous Catholic entities (including dioceses and educational institutions) that are self-insuring, are all put in grave legal and moral peril by the administration’s intransigent determination to impose its concept of “reproductive health” on the entirety of American society — and to force those who oppose that concept to provide the very means by which the concept is imposed.

Now comes the game’s second quarter, which will be legal, as the battle for religious freedom moves into the federal courts. A dozen lawsuits challenging the administration’s mandate are being filed today on behalf of more than 40 plaintiffs: Catholic dioceses, including the archdioceses of New York and Washington; Catholic social-service and health-care agencies; Catholic educational institutions, including the Catholic University of America, the Franciscan University of Steubenville, and the University of Notre Dame; and Catholic publications. These suits, in addition to those already filed by the Becket Fund for Religious Liberty and the Alliance Defense Fund on behalf of other religious litigants, ought to help clarify several sometimes-confused points in the months ahead.

• This is not an argument about birth control, nor is it part of some “War on Women” waged by misogynistic clerics and their political allies from the fever swamps of the Right. The mandate is being legally challenged, in twelve different federal district courts, on the grounds that it violates the provisions of the Religious Freedom Restoration Act and the First Amendment’s guarantee of the free exercise of religion. If those legal protections mean anything, they must mean that neither religious institutions nor individuals can be compelled to provide “services” that are readily available through means other than coercing religiously informed consciences. Contraceptives are more readily available in the United States in 2012 than either cigarettes or beer. There is no compelling public need to dragoon institutions and individuals who conscientiously object to providing them into doing so — with the threat of ruinous financial penalties if they do not.



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