Ethics & Public Policy Center

The Battle Continues, Beyond Rush

Published in National Review Online on March 5, 2012


George Weigel

Distinguished Senior Fellow and William E. Simon Chair in Catholic Studies


Despite the White House’s rather successful efforts to reframe the media and congressional debate over the HHS “contraceptive mandate” as a right-wing jihad against “women’s health” — a cynical ploy aided and abetted by Rush Limbaugh’s one-man circular firing squad — the real battle against the mandate and in defense of religious freedom has continued. A March 2 letter from Cardinal Timothy Dolan, president of the U.S. Conference of Catholic Bishops, to his brother bishops usefully and succinctly outlined the current state of affairs, which amounts to unremitting stonewalling from the Obama administration.

The key section of Dolan’s letter read as follows:

When the President announced on January 20th that the choking mandates from HHS would remain, not only we bishops and our Catholic faithful, but people of every faith, or none at all, rallied in protest. The worry that we had expressed — that such government control was contrary to our deepest political values — was eloquently articulated by constitutional scholars and leaders of every creed.

On February 10th, the President announced that the insurance providers would have to pay the bill, instead of the Church’s schools, hospitals, clinics, or vast network of charitable outreach having to do so. He considered this “concession” adequate. Did this help? We wondered if it would, and you will recall that the Conference announced at first that, while withholding final judgment, we would certainly give the President’s proposal close scrutiny. Well, we did — and as you know, we are as worried as ever.

For one, there was not even a nod to the deeper concerns about trespassing upon religious freedom,or of modifying the HHS’ attempt to define the how and who of our ministry. Two, since a big part of our ministries are “self-insured,” we still ask how this protects us. We’ll still have to pay and, in addition to that, we’ll still have to maintain in our policies practices which our Church has consistently taught are grave wrongs in which we cannot participate. And what about forcing individual believers to pay for what violates their religious freedom and conscience? We can’t abandon the hard working person of faith who has a right to religious freedom.And three, there was still no resolution about the handcuffs placed upon renowned Catholic charitable agencies, both national and international, and their exclusion from contracts just because they will not refer victims of human trafficking, immigrants and refugees, and the hungry of the world, for abortions, sterilization, or contraception.

Cardinal Dolan then shed important light on the administration’s approach to this debate, that is, presenting itself as the reasonable party, conceding nothing, and then using flacks like Senator Chuck Schumer and House Minority Leader Nancy Pelosi to muddy the waters and divert attention from the manifest unconstitutionality and illegality of the mandate:

[After February 10], the President invited us to “work out the wrinkles.” We have accepted that invitation . . . [Yet] the White House Press Secretary . . . informed the nation that the mandates are a fait accompli (and, embarrassingly for him, commented that we bishops have always opposed Health Care anyway, a charge that is scurrilous and insulting, not to mention flat out wrong. . . .) The White House [also] notified Congress that the dreaded mandates are now published in the Federal Registry “without change.” The Secretary of HHS is widely quoted as saying, “Religious insurance companies don’t really design the plans they sell based on their own religious tenets.” That doesn’t bode well for their getting a truly acceptable “accommodation.”

At a recent meeting between staff of the bishops’ conference and the White House staff, our staff members asked directly whether the broader concerns of religious freedom -that is, revisiting the straight-jacketing mandates, or broadening the maligned exemption — are all off the table. They were informed that they are. So much for “working out the wrinkles.” Instead, they advised the bishops’ conference that we should listen to the “enlightened” voices of accommodation, such as the recent, hardly surprising yet terribly unfortunate editorial in America.The White House seems to think we bishops simply do not know or understand Catholic teaching and so, taking a cue from its own definition of religious freedom, now has nominated its own handpicked official Catholic teachers.

We will continue to accept invitations to meet with and to voice our concerns to anyone of any party, for this is hardly partisan, who is willing to correct the infringements on religious freedom that we are now under. But as we do so, we cannot rely on off the record promises of fixes without deadlines and without assurances of proposals that will concretely address the concerns in a manner that does not conflict with our principles and teaching.

The cardinal’s letter then described the difficulties of finding a legislative remedy to the problems caused by the mandate, noting that, in the recent Senate debate over the Blunt amendment, “our opponents sought to obscure what is really a religious freedom issue by maintaining that abortion-inducing drugs and the like are a ‘women’s health issue.’ We will not let this deception stand.” (As a concrete expression of that commitment, the bishops’ conference is preparing and will soon distribute materials for use in parishes, which make clear that the issue here is religious freedom.)

But as attempts to find a legislative remedy continue, Cardinal Dolan noted that the judicial path to the defense of religious freedom is the likeliest to achieve success, given both the First Amendment and the Religious Freedom Restoration Act. Thus the cardinal indicated that “our bishops’ conference, many individual religious entities, and other people of good will” are working with pro bono legal assistance to challenge the mandates in the federal courts; some suits have already been filed, and others will be filed in coming days. Given the Supreme Court’s recent Hosanna-Tabor decision, it is not easy to see how the administration will successfully defend its latest attempt to erode the institutions of civil society and violate individual consciences. That it will try to do so, however, is a fact of which voters should be constantly reminded as the year unfolds.

The rigor with which the bishops have challenged the administration and its HHS mandate has not been given the attention it deserves, except in the distorted sense that has dominated too much mainstream media coverage of the debate: that this is all about those antediluvian bishops trying to impose on the entire country a morality their own people reject. But under the leadership of Cardinal Dolan, Bishop William Lori of Bridgeport, chairman of the bishops’ conference’s recently formed Ad Hoc Committee on Religious Liberty, and others, the bishops have stayed on message (and on point), insisting that the mandate is an infringement on religious freedom of grave concern to all. As one Catholic feminist blogger put it, “This is as much about birth control as the American Revolution was about tea.”

The bishops have also, and at last, taken aim at those within the Catholic family urging an acceptance of the administration’s bogus “accommodation.” Cardinal Dolan’s letter took an unprecedented shot at the Jesuit magazine, America; Bishop Lori went even farther in a letter to that journal, noting that its disdain for the bishops allegedly getting lost in “details” of policy ignores every one of the mandate’s infringements on the religious freedom of both institutions and individuals. To which it might be added that it takes a special kind of moral blindness (or partisan besottedness) to suggest, as America did, that requirin
g the Church’s institutions and employers of conscience to provide health insurance that includes abortifacients like Ella is a “detail.” Moreover, as Cardinal Dolan’s letter made clear, the administration has a very direct way of “working out the wrinkles” in such “details”: It’s Obama’s way, or no way.

The media echo chamber may continue to reverberate with Rush Limbaugh’s stupidities. But the real battle continues, and, as it moves towards the courts, it looks more and more like a battle that can and will be won. The issue is clear, and the bishops are all-in.

- George Weigel is Distinguished Senior Fellow of Washington’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.

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