Will contraception-rule change relieve religious conscience?

Friday, February 10, 2012

An Obama administration rule that under the new health-care law church-affiliated institutions must cover birth control in their health-insurance plans riled Catholics and other religious people who called it an assault on religious freedom. Today the president revised that rule — to make contraceptive coverage available not through religious employers, but directly from insurance companies.

A government order that religious-affiliated organizations provide coverage of procedures that violate their beliefs would seem on its face to violate the First Amendment. “Congress shall make no law … prohibiting the free exercise” of religion, the amendment says.

“Free exercise” means people of religious faith cannot be told how to worship or what to believe, what to hold in their consciences, how to act according to their consciences, what to preach or teach about their religion — or how to organize and run their religious institutions.

The Catholic Church teaches that contraception and abortion are against God’s will. So how could the government compel a church-run hospital, university or other institution to provide insurance coverage for birth control, including abortion-inducing “morning after” pills? Will changing the mechanism to keep religious hospitals and universities clear of having to administer such coverage really do the trick?

Initial reaction from some is that it might.

“The framework developed has responded to the issues we identified that needed to be fixed,” said Sister Carol Keehan, president of the Catholic Health Association, in an Associated Press report.

Melissa Rogers, director of the Center for Religion and Public Affairs at Wake Forest University Divinity School, said in a statement, “The plan rightly recognizes that the government should not force religious communities to pay for or provide services forbidden by their faith.”

Not so fast, said Catholic League President Bill Donohue. The long-time critic of the administration rejected the new approach.

“If the insurance plan of a Catholic institution must cover services it deems immoral, then such a health-care plan is offensive, plain and simple,” he said. The Catholic League’s insurance provider, Christian Brothers, would be forced to provide free coverage of abortion-inducing drugs if an employee demanded it, Donohue said.

“Then the rest of us would, in effect, be subsidizing her abortion. This is outrageous and will not stand judicial scrutiny,” he said. “When it comes to the First Amendment, there is no such thing as a half loaf. We want now, and in the future, the same rights we have enjoyed since the beginning of the republic.”

Courts have held that religious beliefs can be restricted only under certain narrow circumstances. The Obama administration has said that its original rule, devised as part of the executive branch’s effort to carry out the Affordable Care Act passed by Congress, was modeled on similar approaches in 28 states. Courts have upheld those approaches.

But those states, AP reported, “appear to have differing exemptions for religious employers.” And in California, which according to the San Francisco Chronicle has had a similar contraception requirement in place since 2001, some Catholic institutions are expressing concern at the federal mandate.

Even if courts would give a further green light to a federal a contraception mandate in health plans offered by religious-affiliated entities, however the paperwork is handled, we’ve seen that courts don’t always consider religious freedom on a par with other values that society says it wants. A free-exercise court challenge isn’t likely to succeed under Supreme Court rulings. That does not mean there’s no free-exercise issue at stake. There is.

It has been observed that because religious-affiliated entities take government money, they should comply with government mandates. But religious institutions use federal funds to provide services in which they believe, which are part of their religious mission.

Further, accommodating religious belief and practice should have been on the front end of the White House interpretation of the health law, not an after-the-fact scramble in response to furious objections and vows by Catholic bishops to disobey the law.

As First Amendment Center Senior Scholar Charles C. Haynes told the Chronicle yesterday, the United States has a tradition of respecting and protecting, as far as possible, “the rights of people to do what they must do, according to the highest authority in their eyes.”

Government-imposed contraception rules for religiously affiliated organizations offer “a cruel choice,” Haynes told the newspaper. “You could either serve the public … or you follow what God requires.”

Whether today’s adjusted plan will satisfy most Catholic organizations remains to be seen. But this issue needn’t have been an issue in the first place. In light of the First Amendment, government can and should make every effort — in advance — to accommodate religious concerns wherever possible.

That would be a good thing for everyone’s conscience. But the question remains whether today’s effort at accommodation adequately protect the religious freedom of Catholic-affiliated institutions and those of other faiths.

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