No Mystery Why the Catholic Church Is Going to Court

by Ed Whelan

In a badly confused New Yorker essay titled “Why is the Catholic Church Going to Court?,” Margaret Talbot finds “both baffling and dismaying” the decision last week by various Catholic dioceses, schools (including the University of Notre Dame), and social-service providers to challenge the HHS mandate that would require them to provide their employees insurance coverage for contraceptives (including those that can operate as abortifacients*) and sterilization services. Talbot’s bafflement and dismay would seem to result from her misunderstanding some elementary points. Among them:

1) Talbot claims that the “lawsuit” (actually, there were twelve lawsuits filed last week, on top of the several that were already pending) “proposes . . . that religious freedom means that they [the Catholic plaintiffs] can deny access to birth control to people who don’t share their faith or that article of it.” (Emphasis added.) But that’s an outrageously false claim. If and when the lawsuits succeed, Americans will continue to have ready access to birth control. What is at stake in the lawsuits is the separate matter of whether the Obama administration can dragoon those employers who have religious objections to facilitating the use of contraceptives, abortifacients, and/or sterilization services to be the vehicle for implementing its agenda.

2) Talbot claims that the lawsuits seem “likely to fail.” But her discussion of “relevant precedents” completely ignores the decisive role that the federal Religious Freedom Restoration Act will play. As I have spelled out, the challenge to the HHS mandate is a clear winner under RFRA. No one, so far as I’m aware, has seriously contended otherwise. Indeed, I’m pleased to note that just last week, at a religious-freedom conference that the Ethics and Public Policy Center (the think tank I run) sponsored, the Brookings Institution’s William A. Galston, who served in the Clinton White House, expressed his own view that the HHS mandate clearly violates RFRA.#more#

(Plaintiffs’ Free Exercise claim is likewise meritorious. See point three of my Part 1 post here.)

3) Talbot also mistakenly refers to the HHS mandate as a “proposed rule.” But that rule has been made final. (What has been “proposed” is some sort of “accommodation” that would modify the final rule, but Talbot correctly recognizes that such a “compromise is actually impractical.”)

4) Talbot contends, “Going to court will embed the Church in partisan politics and yoke it to the right wing.” But, as Archbishop William Lori nicely put it last week:

This is not a fight we want or asked for, but one forced upon us by government on its own timing.

This is not a Republican or Democratic, a conservative or liberal issue; it is an American issue.

I of course don’t claim to speak for the Catholic Church or for any of the particular entities that are plaintiffs in pending lawsuits, but there should be nothing “baffling” or “dismaying” about why Catholic (and some other religious) institutions have gone to court: They seek to enforce their religious-freedom rights against a government edict that would trample them.

* For example, according to its manufacturer, Plan B can operate either to prevent conception (i.e., in a genuinely contraceptive manner) or to prevent implantation of an already fertilized egg. There is a rhetorical dispute over how best to label this second means. Some people call it contraceptive, but that is clearly wrong, as it occurs after conception. For most opponents of abortion, the morally relevant fact is that this second means destroys the life of an already existing human embryo. That’s why I believe the term “abortifacient” fairly conveys this second means.

The Corner

The one and only.