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As readers may know, the Obama administration’s Department of Health and Human Services is proposing to require every health insurer in the land to pay for, and thus to be complicit in, the provision of contraceptives, including some that would be more accurately described as abortifacients. The rule offers a potential exception on religious grounds, but this “exemption,” as previously discussed by Christopher T. Haley, Ryan Anderson, and others on this website, is exceedingly narrow and inadequate. It extends only to the most narrowly defined “religious employers,” to include only those primarily devoted to inculcating religion, primarily hiring their own co-religionists and serving the same, and fitting other narrow legal criteria under the tax code.

In addition to a chorus of bishops and lay leaders, two university presidents (Father John Jenkins of Notre Dame and John Garvey of Catholic University) have now spoken out forcefully about this rule. Father Jenkins, in a September 28 letter to HHS Secretary Kathleen Sebelius, pleaded with her to rewrite the rule using an alternative, broader definition of “religious employer,” so that Notre Dame will fit within its protective ambit. Otherwise the university will be required “to offer our students sterilization procedures and prescription contraceptives, including pills that act after fertilization to induce abortions, and to offer such services in our employee health plans.”

Father Jenkins rightly demands recognition of a broader notion of religious conscience rights than the administration has yet been willing to recognize. But in an unfortunate lapse, he has nothing to say about the injustice of forcing other employers, insurers, workers paying premiums”whether any of them is Catholic or not, or religious in any way”to be complicit in the provision of abortions. Of course he is concerned chiefly about Notre Dame, but this was a missed opportunity to say more.

Several times Jenkins refers to “the Church’s moral teaching,” or its “social teaching,” or what “the Catholic Church finds morally objectionable.” Yet he never pauses to clarify whether the precise concern at issue here implicates moral norms held by the Church to be particular to itself, or norms universally applicable to all moral agents, whether Catholic or not.

If this is not clear, consider the kosher laws that are binding on Jews. They forbid the eating of pork. But no Jew holds that by virtue of the kosher laws, gentiles are forbidden to eat pork. The kosher laws establish moral norms particular to the Jews, not universal norms to be obeyed by everyone. It is probably no coincidence that the kosher laws were vouchsafed to the Jews directly by divine revelation: there is nothing about them to suggest that they are the conclusions of unaided reason about the morality of human conduct.

Unfortunately, Father Jenkins seems to treat the Catholic teaching on abortion as something like the Jewish kosher laws. “We Catholics,” he seems to be saying, “in our Catholic institutions, must not be forced to underwrite any behavior that our Church forbids to us.” But the message of Catholic teaching on abortion is a message to the whole world: abortion is the taking of innocent human life, a grave evil that can be known to be so from premises available to every rational person, whether he or she is Catholic or not. It is not true that abortion is wrong for Catholics because the Church teaches it is wrong. It is true that the Church teaches its parishioners that abortion is wrong because it is wrong, for everyone .

President Garvey of Catholic University published a Washington Post op-ed on October 2, making very similar arguments. But he too missed an opportunity to teach the broader lesson. And he even gave an unintended rhetorical gift to the other side in this debate. The pivotal passage in his article is this:

I understand, as do the leaders of other Catholic organizations, that not all citizens share the views that the Catholic Church holds about contraception and sterilization. It is particularly sad that not all Americans share our conviction that abortion is gravely wrong, even in the earliest stages of pregnancy. But in objecting to these regulations, our university does not seek to impose its moral views on others. All we ask is respect for the religious beliefs we try to impart to our students.

By disclaiming any interest in “imposing” his moral views on anyone else, Garvey unwittingly slips into the relativism of abortion’s defenders, who say that “choice” is the governing principle because no view is “privileged” over any other. But of course this is really a fraudulent relativism. What abortion supporters truly want is precisely to impose their views on others. The proposed HHS rule is proof of it, as it would require everyone in America to become complicit in the prescription of abortifacient drugs.

Garvey, like those who defend abortion, should want to impose his view, because he truly believes it. But rather than explode the falsehood that “we shouldn’t legislate morality,” he writes here as though he accepted it instead.

Contrast the responses of Jenkins and Garvey with the approach taken by the late Congressman Henry Hyde, responsible for the well-known Hyde Amendment, attached annually to federal appropriations to ban the expenditure of federal funds on abortions. The Hyde Amendment lays down a clear marker that no taxpayer will be made to be complicit in the evil of abortion. The amendment attempts no distinction between those who are conscientiously opposed to abortion and those who are not. Thus the Hyde Amendment is more than merely defensive of some Americans’ consciences; it takes the offensive as well, and it has helped keep the abortion regime at bay for more than a third of a century.

In the spirit of Henry Hyde, a more thoroughgoing response to the HHS rule came from the Witherspoon Institute’s Task Force on Conscience Protection, and from the Alliance Defense Fund on behalf of eighteen Catholic colleges and other interested parties.

Father Jenkins and President Garvey admirably defend the institutional conscience rights of their universities, and that is rightly their foremost concern. But by not going on the offensive against the basic immorality of the Obama administration’s rule, they backed into a purely defensive stance. The Obama administration may not budge from its rule as proposed. But one danger is that it will accept a “Jenkins-Garvey” solution, expanding the “religious employer” exemption in the HHS rule and then trumpeting the administration’s “reasonableness.”

Meanwhile, countless other Americans opposed to abortion, and marooned outside the ambit of the rule’s exemption, as insurers, employers, and employees, will be coerced to buy and sell health insurance that covers abortifacient drugs on demand. And the nation will stand, for the first time since the Hyde Amendment was enacted in 1976, foursquare on the side of the grave evil of abortion in both its fiscal and its regulatory policy. The point that must be hammered home is that the whole nation”not just Catholic and other religious institutions”is having its conscience anesthetized by the Obama administration.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J.


Christopher T. Haley, Creating a Catholic Ghetto

Ryan T. Anderson, Protected in Law, Cared for in Life

Letter from Fr. Jenkins to Kathleen Sebelius [PDF]

HHS’s birth-control rules intrude on Catholic values

Helen Alvaré, Gerard V. Bradley and O. Carter Snead, Conscience, Coercion, and Healthcare

Letter from Alliance Defense Fund [PDF}

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