1. The first thing to keep firmly in mind is that the mandate is just that — an arbitrary regulation implementing the Obamacare law, not a regulation statutorily required by that legislation. The mandate can be rescinded by future regulatory action; the mandate would have been rescinded had the 2012 election turned out differently; the administration could rescind it now, if it chose; a future administration could rescind it. Despite the Supreme Court’s June 2012 decision in NFIB v. Sebelius and the president’s reelection, the mandate is not set in legal concrete, now or in the future.
2. If the mandate is not a settled matter, neither is the extent of the safe-harbor period. If the administration chose, it could extend the safe harbor beyond August 1, 2013, and broaden it to include for-profit employers — and if it really intended no burden on Catholic employers, it would do so, until such time as the courts settled the matter of the mandate’s legality. Still, absent such unlikely action from an administration that has always seemed determined to bring the Catholic Church (and other institutions of civil society) to heel, the “safe harbor” can be extended and broadened legislatively: as part of budget negotiations between the House of Representatives and the White House, or by a denial of appropriations to enforce the mandate. There is strong sentiment against the mandate in the House of Representatives, and effective ways should be found to bring that sentiment to bear, quickly, on an extension of the safe harbor, which would bring at least temporary relief to those institutions and employers that now face difficult decisions about compliance.
3. From the outset of the controversy, the U.S. bishops have taken the correct constitutional and legal position that the HHS mandate is an unjust infringement of the rights of both Church institutions and employers with conscientious objections to providing insurance coverage for “services” they deem morally objectionable. It is imperative that this both/and approach be maintained until a legal victory is achieved. Thus the bishops must firmly reject any Obama administration attempt to split the opposition by providing an “accommodation” for religious institutions while insisting that the mandate applies to lay employers with religiously informed conscientious objections. Any agreement to such an “accommodation” would not only undercut the legal case being pursued; it would do grave damage to the bishops’ teaching authority and capacity for future pastoral leadership.
4. Absent an extension of the safe-harbor period and a broadening of its scope, there are no easy answers to the dilemmas faced by those with conscientious objections who are now required, or soon will be, to comply with the mandate. Interim tactics to address these dilemmas will likely be suggested by Church leaders or theologians or both. Any such interim tactics cannot concede the principle that the mandate is unjust and illegal; ought not establish irreversible practices or precedents; and must not undercut the larger strategic goal of defeating the mandate at law.
5. Given the 2012 election results, the most promising route to final victory in this contest lies through the federal courts. It is entirely possible, indeed probable, that a judicial consensus holding that the mandate is a clear violation of the Religious Freedom Restoration Act will form in 2013 — a consensus that will likely support relief for both Church institutions and for-profit employers. Thus it is imperative that great care should be taken to avoid undermining the prospects for a satisfactory judicial resolution of the matter — either by public discussion of potential “deals” to be made with the administration, or by the imprudent airing of interesting but abstract theological questions that will inevitably be interpreted by the media and the public, and may be interpreted by the administration and the courts, as an attempt to justify a way out of the current conflict or, worse, to legitimate a surrender under duress. This is a legal and political battle, not a university seminar in moral theology, and it must be approached as such.
THOMAS MORE, STRATEGIST AND TACTICIAN Throughout 2012, the memory of St. Thomas More — the lord chancellor of England who gave up his office and eventually lost his life because he refused to sacrifice his religious convictions and conscience to the will of King Henry VIII — has loomed over the mandate debate. As this issue continues to be contested in 2013, it is important to remember that More was a principled politician and a tactically skillful lawyer who wanted to use the arts of politics, and the available mechanisms found in the law, to defend a good cause and vindicate the rights of conscience.
That is what the U.S. bishops have been doing for the past year: using the available legal instruments and the arts of persuasion to remedy a serious injustice.
Religious leaders are, by nature and training, understanding and accommodating. But in the case of the HHS mandate, there can be no accommodation, for what is at issue is a first principle of justice that touches every American, even as it bears on the future health of American democracy and the future existence of a robust civil society in these United States. Throughout 2012, the Catholic bishops rightly insisted that this is not a Catholic fight, but rather an American fight: a battle to vindicate what has been recognized since the Founding as the first freedom, religious freedom.
That will be as true in 2013 as it was in 2012. The Catholic Church, with its allies from other religious communities and its allies among constitutionalists, will best serve God and country by working with tenacity and skill in the tangle of legal argument and political persuasion, until the mandate is no more. That is the strategic goal, which the Church seeks for America as well as for itself and its people. The legal path to victory is the appropriate, indeed the essential, tactical method suggested by a proper understanding of the cardinal political virtue of prudence.
— George Weigel is Distinguished Senior Fellow of Washington’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.