An Illiberal Mandate
The Editors December 20, 2011 - 4:15pm
After the 2008 election of President Barack Obama, the U.S. Conference of Catholic Bishops launched a well-financed campaign against the Freedom of Choice Act, a legislative initiative allegedly at the top of Obama’s to-do list. As the administration complained at the time and Catholic supporters of Obama argued, this was a bogus issue. The act itself was a crude piece of prochoice propaganda of dubious constitutionality, and it would have made little sense for Obama to begin his presidency by opening a new battle in the deeply divisive culture war over abortion.
As it turns out, of course, the administration made no such effort on behalf of its prochoice political allies. As a result, the bishops’ extreme rhetoric damaged their credibility. They appeared partisan, determined to cast the new administration as an unprecedented moral threat, and willing to cry wolf to accomplish that aim. The USCCB’s credibility took another unnecessary hit when it opposed the Affordable Care Act. In doing so, it advanced the most dubious arguments regarding the bill’s supposed funding of elective abortions, and turned its back on staunch prolife Democrats in Congress.
Now the bishops have launched yet another attack on administration policies. In August, the Department of Health and Human Services issued a “draft” ruling that would mandate coverage of contraception and sterilization in health-insurance plans, including those provided to employees of Catholic institutions. The ruling offers an exemption from the mandate only to religious institutions that primarily employ and serve coreligionists, and whose work is strictly religious. As HHS sees it, access to contraception is a fundamental component of any health-care plan, especially for women. That claim seems commonsensical to many people, including many Catholics. The USCCB argues that compelling the church to pay for plans that cover services the church has long held to be immoral violates the religious-freedom guarantee of the First Amendment. Catholic hospitals, universities, and social-service agencies see their mission as caring for people of all faiths or none, and they employ many non-Catholics. Given this understanding of mission, inevitably there will be a degree of entanglement between any large religious institution and the modern state. That should not be an excuse, however, for imposing secular values on more traditional religious communities. Religious diversity is impossible without a degree of autonomy from the state. Is there any evidence that such autonomy poses a serious threat to liberal democracy?
The HHS decision, which has been vigorously protested by the Catholic Health Association and by Catholic universities, is under review at the White House, and a final decision about broadening the religious exemption might be made before this issue of the magazine reaches readers. It is in this context that the earlier misguided attacks on the administration by the bishops loom so large. Because of those attacks many will be skeptical of the claim that the HHS mandate is an infringement on religious freedom. That is unfortunate, because in this instance the bishops are right. The president should expand the exemption and allow religious groups to continue their invaluable—and often irreplaceable—work in a way that does not compromise their distinctive religious identity and values.
When should religious institutions, or individuals motivated by religious beliefs, be exempt from laws that are otherwise applicable to all citizens? That has always been a hard question to answer. Conscientious objectors can be exempted from military service, but not from the taxes that pay for national defense. No exemption was made for polygamy among the Mormons, despite the fact that the practice was unquestionably central to their faith. Christian Scientists are not free to let seriously ill children go without medical care. Traditional religious groups can bar women and homosexuals from certain ministerial positions and still enjoy their tax exemption. Bob Jones University, however, lost its tax-exempt status for discriminating against interracial couples. Might Catholic universities one day lose their tax exemption because of their treatment of same-sex couples?
Finding a consistent principle behind these decisions is impossible, and current constitutional law permits fewer exemptions for religious groups than they enjoyed twenty-five years ago. Increasingly, such decisions are left to Congress and the president. Obama faces a difficult choice. Many women’s groups insist that not mandating contraception coverage places an unfair burden on women and is thereby discriminatory. Nevertheless, except when life or limb is at stake, it is hard to see what is “liberal” in coercing religious individuals and institutions. There are other ways that contraception can be made available to employees of Catholic institutions, should they choose to use it. One does not need to oppose contraception to see that, in this case, it’s far less important than the principle, and practice, of religious freedom.