Bench Memos

Doesn’t Think?

After my long post on embryo-killing “contraceptives,” I’ll limit myself to a couple of additional comments on Linda Greenhouse’s op-ed on the HHS mandate cases (titled “Doesn’t Eat, Doesn’t Pray and Doesn’t Love”):

1. Greenhouse contends that the real objection to the HHS mandate “has to be not to the mandate’s actual impact but to its expressive nature, its implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby.” That’s a very odd conclusion.

For starters, the Hobby Lobby plaintiffs themselves, as well as many other non-Catholic challengers to the HHS mandate, have made clear that they have no objection to methods of contraception that don’t present the risk of embryo-killing (that don’t, in other words, have a possible secondary means of operation that is abortifacient). It’s thus clear that they have “a value system that says it’s perfectly O.K. to have sex without the goal of making a baby.” (They may well object to nonmarital sex—with or without the goal of making a baby—but that’s a different matter.)

Although it may come as news to Greenhouse, under Catholic moral teaching it’s also “perfectly O.K.” for married couples “to have sex without the goal of making a baby.” It’s one thing not to have the “goal of making a baby” (a goal that would be implausible for couples of a certain age); it’s quite another thing to have the goal of not making a baby. (I set aside here the intricacies of Catholic teaching on natural methods of family planning.)

What objecting employers clearly object to is being dragooned, in violation of their religious consciences, to be the vehicle for the Obama administration’s goal of marginally increasing contraceptive access. There is nothing merely “expressive” about that dragooning or about the massive fines that religious objectors face.

And what millions of other Americans object to is the Obama administration’s trampling of the religious-liberty rights of those employers—not just the for-profit, closely held family corporations that are prominent in the litigation that has proceeded furthest, but also the countless religious nonprofits which the Obama administration initially left with no protections and to which it has only belatedly extended its phony accommodation (and also the many houses of worship and religious orders that were not clearly eligible for the Obama administration’s initial exemption).

2. Greenhouse contends that those resisting the HHS mandate are engaged in a “culture war … on modernity.” But that’s true only if “modernity” necessarily entails hostility to claims of religious conscience.

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