Contraception, Compromise, and Credibility

Today's New York Times has a story that ought not to be a story. Well, two, if you count "Guess what, a bunch of the groups the IRS was allegedly improperly targeting really were engaged in political activities that made them ineligible for the tax-exempt status they applied for," because duh. But the one I mean is the one by Sharon Otterman, with the headline "Archdiocese Pays for Health Plan That Covers Birth Control."

Otterman reports:

[E]ven as Cardinal Dolan insists that requiring some religiously affiliated employers to pay for contraception services would be an unprecedented, and intolerable, government intrusion on religious liberty, the archdiocese he heads has quietly been paying for such coverage, albeit reluctantly and indirectly, for thousands of its unionized employees for over a decade.

The reason I say this shouldn't be a story is that the archdiocese's explanation is legitimate. "We provide the services under protest,” archdiocesan spokesman Joseph Zwilling told the Times.

Mr. Zwilling...said that Cardinal John J. O’Connor and the archdiocese “objected to these services’ being included in the National Benefit Fund’s health insurance plan” when joining the [League of Voluntary Hospitals and Homes] in the 1990s. But the cardinal then decided “there was no other option if the Catholic Church was to continue to provide health care to these union-affiliated employees in the city of New York,” Mr. Zwilling said.

The reason this revelation is a real scoop is not that the bishops, under Dolan's leadership, have protested the Affordable Care Act's contraception mandate, as they were right to do, but that they did so in absolutist, life-or-death terms that ignored the reality of political complexity and denied the possibility of compromise. Remember "Our First, Most Cherished Liberty"? Citing Martin Luther King Jr.'s "Letter from Birmingham Jail," the bishops wrote:

It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith....

An unjust law is "no law at all." It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.

When you talk like that, and then it turns out you've been indirectly providing coverage for contraception, under protest, for a long time, you undermine your own credibility. Your uncompromising moral stance looks like selective outrage -- with an obviously partisan frame.

Our editorial "Bad Decision" offered this advice:

If Catholic institutions must choose between complying with the law or dropping health-insurance coverage for employees, they should comply “under duress,” while working to modify or overturn the law. In this instance, the greater good of providing health insurance for all employees outweighs the “evil” involved in the possible use of contraception by some.

And our follow-up editorial, "Bad Reaction," added:

The fact that many Catholic institutions already comply with state laws requiring contraception coverage makes the USCCB’s extreme demands all the more curious. For Catholic institutions to participate in insurance plans where individuals may decide to use contraception is at most remote cooperation with what the church considers evil. It is implausible for the bishops to insist that the revised mandate compels them to cooperate directly in a sinful activity when even the original mandate did nothing of the kind....

Are the bishops not worried that this initiative will be seen as transparently partisan by much of the public?

If they weren't before, maybe they are now? Let's recall that the Obama administration has come up with a compromise that would provide contraceptive coverage to employees of Catholic institutions while not requiring that coverage to be provided directly by the employer. (Here's Cardinal Dolan's response to that proposal; here's Grant Gallicho's critique of Dolan's take.) It may not be a perfect solution. But is it more compromising than what the Archdiocese of New York (for example) is already doing?

Last Memorial Day, Cardinal Dolan wrote a column for Catholic New York that proposed this solution to the church's troubles with the Obama administration:

All Washington has to do is say, “Any entity that finds these mandates morally objectionable is not coerced to do them,” and leave it there. Don’t get into the red tape in trying to mandate for us how our good works should be defined.

How simple! How constitutional! How American!

I noted in a blog post last year that this "simple" solution seems to ignore the reality of how laws work. It certainly doesn't reflect any familiarity with how health insurance works; in that case, the only way to avoid "getting into the red tape" is to not offer employees any insurance at all. The archdiocese has opted not to do that, as today's Times story reports. And that was a good and morally defensible decision. The only reason it looks scandalous now is that it will be seen in the light of heated speechifying about unprecedented threats, unjust laws, and impossible compromises.

Mollie Wilson O’​Reilly is editor-at-large and columnist at Commonweal.

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