Hopefully Not Until Later: Religious Freedom and the HHS Contraception Mandate

October 9, 2017

At the end of last week, as reported by The New York Times and others, “the Department of Health and Human Services issued two rules rolling back a federal requirement that employers must include birth control coverage in their health insurance plans. The rules offer an exemption to any employer that objects to covering contraception services on the basis of sincerely held religious beliefs or moral convictions.” [1] Cardinal Daniel N. DiNardo, President of the United States Conference of Catholic Bishops (USCCB) and Archbishop of Galveston-Houston, Archbishop William E. Lori of Baltimore, Chairman of the USCCB’s Ad Hoc Committee for Religious Liberty, hailed the Trump Administration’s announcement and issued the following joint statement:

“’The Administration’s decision to provide a broad religious and moral exemption to the HHS mandate recognizes that the full range of faith-based and mission-driven organizations, as well as the people who run them, have deeply held religious and moral beliefs that the law must respect. Such an exemption is no innovation, but instead a return to common sense, long-standing federal practice, and peaceful coexistence between church and state. It corrects an anomalous failure by federal regulators that should never have occurred and should never be repeated.

“’These regulations are good news for the Little Sisters of the Poor and others who are challenging the HHS mandate in court. We urge the government to take the next logical step and promptly resolve the litigation that the Supreme Court has urged the parties to settle.

“’The regulations are also good news for all Americans. A government mandate that coerces people to make an impossible choice between obeying their consciences and obeying the call to serve the poor is harmful not only to Catholics but to the common good. Religious freedom is a fundamental right for all, so when it is threatened for some, it is threatened for all. We welcome the news that this particular threat to religious freedom has been lifted, and with the encouragement of Pope Francis, we will remain “vigilant, precisely as good citizens, to preserve and defend that freedom from everything that would threaten or compromise it.”’” [2]  

The Catholic position on this is well-known, and has been set forth clearly by those authorized to articulate it. The United States bishops have been in opposition to the HHS contraception mandate from the onset, and although the bishops, “whether individually or joined together in conferences of bishops or in particular councils, do not possess infallibility in teaching, they are authentic teachers and instructors of the faith for the Christian faithful entrusted to their care; the Christian faithful are bound to adhere with religious submission of mind to the authentic magisterium of their bishops.” [3]

But the issue could easily arise again. Not only have we seen the HHS contraception mandate supported by an entire political party and a substantial portion of the population, but the American Civil Liberties Union has tried to force Catholic hospitals to perform abortions. [4] It would be undue politeness to suggest that there are not powerful political forces aiming to undermine Catholic institutions in the United States. It behooves us, therefore, to consider the reasoning behind the Catholic objection to the HHS contraception mandate. We may need to use it again.

The Second Vatican Council declared “that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.” (Dignitatis Humanae, Sec. 2) [5] The Catholic objection to the HHS contraception mandate was that it compelled Catholics to act in a manner contrary to their religion.

Clever opponents will point to the “due limits” language in the Council’s decree. But it isn’t likely that a Catholic ecumenical council would sanction legal restrictions on the practice of Catholicism, and we are considering the Catholic position here, not what might be a permissible government action under the U.S. Constitution. If the Constitution were amended tomorrow to outlaw Catholicism entirely, the Church, and, presumably, most Catholics, would object.

So it is clear that the Church requires freedom of religion for all people, to include Catholics. This is hardly a foreign concept to Americans, since we have even allowed for conscientious objector status when it comes to service in the military.

But we ought to be able to answer the question as to why it violates our religion to pay for health insurance that covers birth control. After all, we are not being forced to use the birth control ourselves. How can we be responsible for the acts of other people?

The Catechism tells us that sin “is a personal act. Moreover, we have a responsibility for the sins committed by others when we cooperate in them:
“- by participating directly and voluntarily in them;
“- by ordering, advising, praising, or approving them;
“- by not disclosing or not hindering them when we have an obligation to do so;
“- by protecting evil-doers.” (Catechism of the Catholic Church, Sec. 1868) [6]

When a Catholic employer provides insurance coverage for birth control, he is providing a means for its use. That is direct participation. And since he is, even with an HHS contraception mandate in place, free to either provide such coverage or go out of business, his participation is voluntary. The situation would be different if, say, there was government provided insurance that covered birth control, because the taxes paid by the employer that, in part, financed the insurance would be indirect. There would be no face-to-face contractual relationship between the employer and the government insurer.

But it looks like the conundrum presented by the HHS contraception mandate is no longer a concern. For now. Whatever the government requires, it should make no difference as to whether Catholics will violate the teachings of their religion, and that is the point that we need to press home for future considerations.

Jack Quirk