Published December 19, 2012
As the Catholic Church and the Obama administration approach the first anniversary of what has become the most serious confrontation between the Church and the federal government in U.S. history — a confrontation caused by a regulatory mandate implementing Obamacare — a review of the strategic situation is in order, with an eye to the terrain ahead. But given the confusions about this struggle that were sown in many minds during the presidential campaign (not least by the vice president of the United States), it is important to begin by remembering just what is being contested here.
Early in 2012, the Obama administration first announced, and then finalized, a regulation implementing the “preventive services” requirement of the Patient Protection and Affordable Care Act, popularly known as Obamacare. Issued by the Department of Health and Human Services, the regulation generally requires that health-insurance plans, including plans sponsored by employers, provide contraceptives, abortifacient drugs, and sterilizations without any cost (or “co-pay”) to the insured. While the mandate exempted certain religious employers, its definition of a “religious employer” was absurdly narrow and would not exempt the vast majority of Catholic educational, social-service, and health-care institutions, because they employ non-Catholics and serve non-Catholics.
The HHS mandate thus requires most Catholic institutions and employers to provide “reproductive-health services” or “preventive services” that the Catholic Church judges to be gravely immoral. In doing so, the mandate seriously burdens Catholics in the free exercise of their religious convictions. Those convictions are not abstractions. Religiously informed Catholic moral convictions are culture-building and institution-forming: They shape the ethos and activities of Catholic educational, charitable, and social-service agencies, and they shape the professional lives as well as the personal lives of conscientious Catholics.
Thus, in contesting the HHS mandate, the Catholic Church is defending and promoting religious freedom in full, as that first freedom touches both institutions and individuals. The Church is claiming the fundamental religious-liberty right to be itself, not least in its service to the poor, the vulnerable, and the marginalized; and the Church is defending the fundamental religious-liberty right of the people of the Church to be themselves, in their professional as well as their personal lives. In claiming and defending religious freedom in full, the Church is defending the American understanding, with which Catholic teaching is in full accord, that “religious freedom” cannot be reduced (as the Obama administration seems to want to do) to a privacy right to certain lifestyle choices — in this case, the choice to worship. Religious freedom in full is far more than freedom to worship without civil liability, although it surely includes that.
It should also be remembered, indeed underscored, that the Obama administration has laid this burden on Catholic institutions and Catholic employers in an unnecessary, and thus aggressive, way. The U.S. government has numerous ways to distribute contraceptives and abortifacient drugs, and to provide sterilizations. It need not conscript Catholic institutions and Catholic employers as governmental agents in order to meet the administration’s public-policy goals. Attempting to do so through coercive state power (i.e., the power to levy heavy monetary fines for non-compliance) breaches what has long been understood to be a secure boundary between the state and civil society in the United States.
THE BISHOPS’ RESPONSE
Confronted by this challenge, which they did not seek but which they could not ignore, the Catholic bishops of the United States, under the leadership of their conference president, Cardinal Timothy Dolan of New York, and the chairman of their conference’s special committee on religious liberty, Archbishop William Lori of Baltimore, mounted a principled, vigorous campaign against this unconstitutional, discriminatory, and wholly unnecessary regulation throughout 2012. The bishops first tried to convince the administration that the HHS mandate should be rescinded. The administration then floated the notion of an “accommodation” that would nominally shift the obligation of providing (and paying for) coverage of “preventive services” from religious institutions and conscientious employers to the insurance companies. The bishops recognized this tactic for the shell game it was, repeated their call for rescission of the mandate, and reiterated their willingness to explain and defend their concerns to the administration.
The administration being unwilling to yield, the bishops reaffirmed their united opposition to the mandate at a meeting of their conference’s administrative board in March and again at a meeting of the full conference in June. The bishops also sponsored a “Fortnight for Freedom,” which sparked religious-freedom rallies around the country and culminated on Independence Day in a nationally televised Mass attended by an overflow congregation of more than 5,000 at Washington’s Basilica of the National Shrine of the Immaculate Conception. Throughout the summer and fall, individual bishops and state Catholic conferences underscored the primary importance of religious freedom as an issue in the 2012 election campaign. Exit polls on November 6 indicated that the bishops’ case was heard by a clear majority of those Catholics who regularly attend Mass.
THE LEGAL CHALLENGE
Had Obamacare been deemed unconstitutional by the U.S. Supreme Court, the immediate crisis for both Catholic institutions and conscientious Catholic employers would have abated, as the HHS mandate and other implementing regulations would have been rendered moot. But as no such outcome was assured, dozens of plaintiffs, including both Catholics and Protestants, filed suit specifically against the mandate in federal courts across the country. As of mid-December 2012, there are more than 110 such plaintiffs, including colleges, universities, charities, voluntary associations, businesses, and dioceses. Over 40 such suits are now being litigated.
The plaintiffs in these suits have argued that the mandate violates the 1993 Religious Freedom Restoration Act (RFRA), which was passed by overwhelming majorities in both houses of Congress and signed into law by President Bill Clinton. According to RFRA, the U.S. government may substantially burden the free exercise of religion only if it is clear that such burdening is the “least restrictive means of furthering [a] compelling governmental interest.” Given the multiple ways in which the government already “furthers” its stated interest in facilitating the distribution of contraceptives and abortifacient drugs and in providing sterilizations, it seems clear that the mandate is a wholly unnecessary burden on employers who have objections to providing such services on the grounds of religious conviction.
As I write, plaintiffs have obtained preliminary injunctive relief against the mandate in four cases. Only two adverse rulings on the merits have been handed down; both are oddly argued, and one of them is currently being appealed in the Tenth Circuit. Moreover, each of the six cases in which decisions have been rendered involves a for-profit business, a class of litigants whose religious-liberty claims are regarded skeptically in some quarters. Thus it seems not unreasonable to expect similar anti-mandate decisions on behalf of non-profit employers, e.g., religious colleges and universities, religious charities, religious social-service agencies, religious health-care facilities, and dioceses.
The course of litigation to date suggests that a Supreme Court decision on the HHS mandate will not require another tortuous revisiting of the First Amendment. The mandate has very little chance of clearing the high bar set by RFRA for burdening the free exercise of rel
igion, which is the legal question at the forefront of the mandate lawsuits. Thus it seems eminently reasonable to expect that the legal challenges to the mandate will ultimately be vindicated by a Supreme Court that, in January 2012, upheld the “ministerial exemption” from equal-employment-opportunity law in a 9 to 0 decision in which the Obama administration’s two Court nominees joined.
FROM NOW TO THEN
A year into this contest, the Catholic Church in the United States has every reason to think it is winning the battle for religious freedom that it was compelled to engage when the HHS mandate was finalized. Yet there will be a substantial period of time — probably a year and a half, perhaps longer — before the final legal decision is rendered. Meanwhile, the mandate went into force on August 1, 2012 (for any health-insurance-plan renewal initiated after that date), although many Catholic institutions have been able to take advantage of a year-long “safe harbor” (i.e., non-compliance) period conceded by the administration — a period described by Cardinal Dolan as “a year in which we’re supposed to figure out how to violate our consciences” and a concession obviously intended to punt the mandate issue down the field, past the 2012 election. With the safe harbor set to expire on August 1, 2013, what should be the Church’s strategic approach between now and then — between the impending full implementation of the mandate after the safe-harbor period ends and what can reasonably be expected to be a final victory in the Supreme Court?
1. The first thing to keep firmly in mind is that the mandate is just that — an arbitrary regulation implementing the Obamacare law, not a regulation statutorily required by that legislation. The mandate can be rescinded by future regulatory action; the mandate would have been rescinded had the 2012 election turned out differently; the administration could rescind it now, if it chose; a future administration could rescind it. Despite the Supreme Court’s June 2012 decision in NFIB v. Sebelius and the president’s reelection, the mandate is not set in legal concrete, now or in the future.
2. If the mandate is not a settled matter, neither is the extent of the safe-harbor period. If the administration chose, it could extend the safe harbor beyond August 1, 2013, and broaden it to include for-profit employers — and if it really intended no burden on Catholic employers, it would do so, until such time as the courts settled the matter of the mandate’s legality. Still, absent such unlikely action from an administration that has always seemed determined to bring the Catholic Church (and other institutions of civil society) to heel, the “safe harbor” can be extended and broadened legislatively: as part of budget negotiations between the House of Representatives and the White House, or by a denial of appropriations to enforce the mandate. There is strong sentiment against the mandate in the House of Representatives, and effective ways should be found to bring that sentiment to bear, quickly, on an extension of the safe harbor, which would bring at least temporary relief to those institutions and employers that now face difficult decisions about compliance.
3. From the outset of the controversy, the U.S. bishops have taken the correct constitutional and legal position that the HHS mandate is an unjust infringement of the rights of both Church institutions and employers with conscientious objections to providing insurance coverage for “services” they deem morally objectionable. It is imperative that this both/and approach be maintained until a legal victory is achieved. Thus the bishops must firmly reject any Obama administration attempt to split the opposition by providing an “accommodation” for religious institutions while insisting that the mandate applies to lay employers with religiously informed conscientious objections. Any agreement to such an “accommodation” would not only undercut the legal case being pursued; it would do grave damage to the bishops’ teaching authority and capacity for future pastoral leadership.
4. Absent an extension of the safe-harbor period and a broadening of its scope, there are no easy answers to the dilemmas faced by those with conscientious objections who are now required, or soon will be, to comply with the mandate. Interim tactics to address these dilemmas will likely be suggested by Church leaders or theologians or both. Any such interim tactics cannot concede the principle that the mandate is unjust and illegal; ought not establish irreversible practices or precedents; and must not undercut the larger strategic goal of defeating the mandate at law.
5. Given the 2012 election results, the most promising route to final victory in this contest lies through the federal courts. It is entirely possible, indeed probable, that a judicial consensus holding that the mandate is a clear violation of the Religious Freedom Restoration Act will form in 2013 — a consensus that will likely support relief for both Church institutions and for-profit employers. Thus it is imperative that great care should be taken to avoid undermining the prospects for a satisfactory judicial resolution of the matter — either by public discussion of potential “deals” to be made with the administration, or by the imprudent airing of interesting but abstract theological questions that will inevitably be interpreted by the media and the public, and may be interpreted by the administration and the courts, as an attempt to justify a way out of the current conflict or, worse, to legitimate a surrender under duress. This is a legal and political battle, not a university seminar in moral theology, and it must be approached as such.
THOMAS MORE, STRATEGIST AND TACTICIAN
Throughout 2012, the memory of St. Thomas More — the lord chancellor of England who gave up his office and eventually lost his life because he refused to sacrifice his religious convictions and conscience to the will of King Henry VIII — has loomed over the mandate debate. As this issue continues to be contested in 2013, it is important to remember that More was a principled politician and a tactically skillful lawyer who wanted to use the arts of politics, and the available mechanisms found in the law, to defend a good cause and vindicate the rights of conscience.
That is what the U.S. bishops have been doing for the past year: using the available legal instruments and the arts of persuasion to remedy a serious injustice.
Religious leaders are, by nature and training, understanding and accommodating. But in the case of the HHS mandate, there can be no accommodation, for what is at issue is a first principle of justice that touches every American, even as it bears on the future health of American democracy and the future existence of a robust civil society in these United States. Throughout 2012, the Catholic bishops rightly insisted that this is not a Catholic fight, but rather an American fight: a battle to vindicate what has been recognized since the Founding as the first freedom, religious freedom.
That will be as true in 2013 as it was in 2012. The Catholic Church, with its allies from other religious communities and its allies among constitutionalists, will best serve God and country by working with tenacity and skill in the tangle of legal argument and political persuasion, until the mandate is no more. That is the strategic goal, which the Church seeks for America as well as for itself and its people. The legal path to victory is the appropriate, indeed the essential, tactical method suggested by a proper understanding of the cardinal political virtue of prudence.
George Weigel is Distinguished Senior Fellow of the Ethics and Public Policy Center in Washington, D.C. and holds EPPC’s William E. Simon Chair in Catholic Studies.