As of August 1, the Obamacare/HHS mandate requiring the provision of contraceptives, abortifacient drugs, and sterilization procedures — all in the name of “reproductive health” — is finalized. The mandate has triggered the most unexpected controversy of the 2012 election season.
The Catholic bishops of the United States and other concerned parties have accurately described it as a grave violation of religious freedom; dozens of entities have sued the Obama administration over the mandate, charging that HHS is in violation of the Religious Freedom Restoration Act; at least one federal district judge has granted injunctive relief to a petitioner in those suits; more suits and more decisions are expected. More broadly, an array of commentators have seen in the HHS mandate a quintessential expression of the administration’s disdain for the institutions of civil society, which it seems to regard as merely the vehicles for the delivery of “services” the government decides to provide, rather than as associations with their own inherent integrity and their own unique role in democratic public life.
Where stands this argument after seven months, and with the mandate now legally in force? And where is all this likely to go in the months and years ahead?
(1) The administration has not made any serious effort to address the concerns over the mandate that have been vigorously pressed by Catholic bishops, Catholic employers, pro-life Americans of all religious persuasions and none, and civil-society advocates. The administration’s alleged “accommodation” of these concerns — after the White House appeared to have been blindsided by the ferocity of the response to the original mandate — was quickly recognized for the accounting shell game it was and is. As such, it was rejected as an unacceptable governmental intrusion into the unique mission of religious bodies, even by religious institutions and associations that had supported Obamacare.
Any hopes that the administration might think again about the mandate have been frustrated time and again. And with the Obama campaign now seemingly committed to marshaling its base through bogus claims of a “war on women,” it is not easy to see how an administration running lefter-than-thou is going to risk being perceived as caving in to Catholic bishops it’s tried to paint for months as mindless, authoritarian misogynists.
(2) The U.S. Catholic bishops, for their part, have stayed strikingly united in their commitment to making the defense of religious freedom in full a priority moral question in the 2012 election. The bishops and their national staff quickly and accurately recognized that the religious-freedom issue was the key to fighting the mandate and that the provisions of the Religious Freedom Restoration Act made it likely that a successful legal challenge could be mounted. Attempts from within and without the Church to divide the bishops have all failed, and the bishops have stayed on message. Equally fruitless have been efforts to cut a deal in which Catholic institutions would be exempt from the mandate but conscientious Catholic employers would be left to their own devices. Rather than taking this particular bait, the bishops in June doubled down on religious freedom in full, for individuals as well as institutions. Attempts to replay this gambit in the fall will achieve the same result: nothing.
In all of this, it might be added parenthetically, the administration has been exceptionally clumsy in its politics and its messaging. The initial announcement of the mandate seemed based on the assumption that the White House could play divide-and-conquer, peeling Catholic progressives away from their religious leaders. The “accommodation,” trotted out when the original strategy didn’t work, seemed to assume that the bishops could be rolled — and indeed would welcome an opportunity to return to the administration’s good graces. When that, too, failed, a great silence ensued; and despite the efforts of the bishops’ staff to engage the administration in a serious exploration of Catholic concerns raised by the mandate, nothing of the sort has happened.