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Monday, February 13, 2012

Obama and the Bishops--What Friday Changed

This is not meant as my final word on this, or even a clearly polished tentative word, but I do want to respond to my conscience and voice my thoughts on the ongoing debate over the Obama administration’s policies with respect to contraceptive coverage (full disclosure—my wife is one of thousands of employees of HHS).

On Friday President Obama announced a new protocol for the ongoing dispute over contraceptive services and the sanctity of conscience. Over the months of this dispute I have been supportive of the Catholic bishop’s argument that the HHS exemption for religious institutions was too narrow. I agreed with many inside of and outside of the Roman Catholic Church who said that the kind of operational definition of “religion” implicit in the HHS mandate represented a privatization of religion that struck at the fabric of our constitutionally protected rights and that threatened the primacy of conscience so dear to the ordered liberty we profess to aspire to. I agreed, in other words, that this was a foundational question of religious liberty and as such I thought it was understandable that the bishops would be taking a leading role in fighting the enforcement of the mandate. Of course, the HHS mandate raised a host of other policy questions that people of good will could argue fiercely over and that bishops were welcome to have opinions on just like other citizens. These questions include: Is the Affordable Care Act (ACA) going to engender more and more specific guidelines to insurers? Is that appropriate? Is that the “nanny state”? Should all these contraceptives be viewed as the same morally, or are there important distinctions to be made between condoms, the pill, RU 486, etc.? Should prevention of pregnancy be viewed as a preventive health policy? All of these questions are legitimate and vital to be engaged in, but they are not of the same order as the question of violation of conscience and they do not require the kind of authoritative voice and active participation of the bishops to answer. 

In my opinion, the president’s proposal on Friday has addressed the question of conscience. I believe that the complex nature of how the modern managerial state interacts with insurance companies, the complex nature of how religiously affiliated institutions interact with their parent religious bodies and with the various levels of governmental oversight, and the complex nature of employee contributions to employer provided health policies and the rights that each have in that equation make a perfect and pure solution to these questions very difficult. In my opinion, the vital question of conscience has been adequately addressed by the president’s proposal which I take to be the following: directly religious institutions like parishes and diocesan offices will be completely exempt from the mandate (this has always been the case), and religiously affiliated institutions that use private insurers will not be implicated in the act of providing contraceptive services because letters from the insurance companies will be sent to the individual policy holders explaining that the services are being offered in compliance with the HHS mandate not in compliance with the wishes of the religiously affiliated institution that helps to provide the insurance coverage.

In my opinion, this is showing appropriate deference to the consciences of the individuals involved. I don’t think that God will hold the religious entity accountable for providing these contraceptives and therefore I don’t think that conscience is being violated going forward. That does not mean that people should be happy with this law or that taking contraceptives is a Catholic virtue or that Catholic social teaching is in harmony with the whole process. Individual Catholics are free to fight this law and to seek congressional or judicial restriction of it. But I do not think that this fight should be taken any longer to imply that the Obama administration is, as Cardinal George once put it, destroying Catholic institutions with the stroke of a pen. 

President Obama did not create the enormously complex modern society that we live in. He may not have hit the balance exactly right in this decision. I believe it is wrong for the government to be mandating insurance companies to have to provide any contraceptive that could be abortifacient. I wish a lot of things about this mandate were different. But I do not think it is fair to imply that this remains a clear strike at religious conscience and a crisis of First Amendment freedoms. I do not think that the bishops should categorize it as such and I do not think it would be wise for them to continue to characterize whatever remaining concerns that they have about the situation in terms that imply intent to damage religious institutions on the part of Obama and determination to undermine the First Amendment. 

I welcome correction and feedback. Just as I don't want to expect purity from Obama administration, I don't expect purity from my bishops. I have more to learn on this issue. But I think that for now I am content to view this much as I do other heated political and legislative controversies and not as I do fundamental constitutional questions.


  1. I am afraid you are wrong, Greg. The government is still forbidding religious organizations (i.e., hospitals, universities, etc.) from negotiating agreements with insurance companies to exclude contraception, abortion, etc. The fact that they can't do that means that their liberty is obstructed. It is, after all, their money. It is not tax money, for if it were, the IRS and not the HHS would be involved and it would be a violation of law, since these organizations are tax exempt. In addition, the fact that Churches are exempt, as you note, shows that it is the employer that is paying for it. For if the employer was not doing so, no exemptions would be necessary, even for Churches.

    What ultimately undermines the administration's claim that the non-church religious organizations will not be paying for contraception etc. is the fact that churches are granted exemptions. Exempt from what? If you can square that circle, you are not only a better than me, you've done something that even the Lord can't do: the impossible.

  2. Frank, I think you are raising questions that strike at the heart of liberty in general. Is the ACA legal? Is the Civil Rights Act legal? What right does the government have to limit private enterprise and contracts? I don't deny that those libertarian critiques have relevance, I am just saying that I am not so sure that this is a religious liberty question primarily. I think that the bishops risk becoming embroiled in a much more complicated, wider debate about the authority of the modern state to regulate corporations. I think the bishops were right to push back hard. And I am not saying the mandate is now just. I am just not sure that the authority of the bishops is operating in the same way that it was because I am not at all sure that this is a simple religious liberty question, and I am not sure that a decisive answer to this question is even possible given how deeply wrapped within century-old debates about the economy/government/corporation it is. Thanks a bunch for your points, though.