Health and Human Services Kathleen Sebellius has issued regulations requiring private health plans to cover contraceptives (including some abortifacients). Against the USCCB’s charge that this requirement is wrong and that the exemptions from this requirement are too narrow to protect religious liberty, Doug Kmiec defends the administration”unsuccessfully. Let’s take a look.

That the law may specify that abortion or contraceptive coverage be included as choices for employees ought not be seen as making the employer contributing to the legally imposed medical premium complicit in the act itself.

The HHS regulation does require employers to cooperate materially in contraception and early abortions. Whether this makes those employers “complicit” in the morally important sense depends on whether such cooperation can be justified; the question can’t be resolved, as Kmiec seems to assume, by considering just the form of prescribed involvement, apart from its content and effects. In the case of Catholic employers, I can’t see how the prescribed involvement wouldn’t seriously prejudice witness to the Church’s teaching that contraception is immoral and abortion gravely unjust, and thereby undermine commitments integral to the mission that informs and justifies any of the Church’s activities.

To think that an authorizing statute or executive decision violates principles of religious liberty or free exercise merely because it allows a choice contrary to faith is to misunderstand the nature of democracy and individual freedom.

This statute does not “allow a choice contrary to faith”; the absence of bans on contraception does that. What this regulation does is to require some to sponsor an option contrary to their own faith. Religious liberty is a condition of healthy democracy and a component of individual freedom. Being required to act contrary to your faith is consistent with your right to religious liberty only if it is incidental to a law required for the common good. But this regulation can’t be required by the common good if in itself it only harms the common good, as it does if contraception and abortion are immoral. Thus, there is no perspective neutral on the value of contraception and abortion, from which to justify this mandate as a policy consistent with religious liberty. This is an especially inconvenient fact for Kmiec in this context. For his purpose is precisely to show that someone faithful to the Catholic Church’s teaching can see this regulation as consistent with religious liberty.

But while Catholic teaching implies that this mandate and its breadth are wrong even according to natural reason, supporters of wide access to abortifacients and contraceptives could agree that it is overbroad. That is, even if access to contraception and early abortion is required by the common good, the mandate’s burden on religious liberty is unjustified, because unnecessary: The HHS regulation’s religious exemption is narrower than almost every analogous state regulation. HHS could better respect different views of healthcare without any substantial harm to its own.

Kmiec’s best hope is to point out that the HHS regulation doesn’t outlaw anything”at most it would require employers and insurers to drop coverage or go out of business. But even non-criminalizing burdens on religious exercise face a higher burden of justification, and anyway the regulation requires all individuals with private insurance to support these services with their premiums. It makes no exceptions for them. Combine that with the Obamacare individual mandate, and you do have a legal requirement that Catholics fund contraception and early abortion, at least on pain of a fine (Obama’s solicitor general would say “tax,” but the difference is hardly morally significant, whatever its constitutional significance).

It also vastly understates the responsibility of the church’s own obligation of moral formation — including effectively revealing to married couples the sublime joy and significance of intimacy that is total and ever open to new life.

Precisely the opposite. The Church’s moral witness is hindered to the extent that it is required to contribute in a highly visible way by purse to what it denounces by word.

There is no violation of religious liberty when HHS announces a temporary (or permanent) regulation requiring all employers — religious or nonreligious, Catholic or not — to provide employees with an insurance benefit for artificial contraception.

Again, this presupposes that (a) it isn’t contrary to Catholic faith to sponsor contraception in this way (notice how early abortion has dropped out of view here) and that (b) if it is, the common good requires the HHS regulation mandating Catholics to do this anyway. But (b) is impossible if the Church is right about contraception and abortion, as Kmiec doesn’t mean to deny. And (a) is false given the bishops’ statements”even assuming they’re wrong about whether such cooperation would be unjustified”if Catholics have a religious obligation to obey their bishops.

Yes, it would be more congenial if the HHS administrative process adopted the Catholic view of contraception over that of other churches, but that declination was a choice the church herself since Vatican II has conceded belonged to Caesar.

First, by the Church’s own lights, the Catholic view of contraception is no more specifically Catholic than the Catholic view of theft. Vatican II did not deny Caesar’s basic capacity for moral reasoning. Second, even if abstaining from contraception were like abstaining from meat on Fridays, it’s misleading to call the HHS regulation a mere adoption of a view. HHS can adopt any view it wants. The question here, to keep our eyes firmly on it, is what HHS may require of the Church, her members and ancillary organizations.

Sherif Girgis, a 2008 Rhodes Scholar, is a Ph.D. candidate in philosophy at Princeton University and a law student at Yale Law School. He earned an A.B. in philosophy at Princeton and a B.Phil. in philosophy at Oxford.

RESOURCES

Douglas W. Kmiec , Obama cannot be at war with Catholics if he is at peace with religious freedom

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Articles by Sherif Girgis

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