The Roman Catholic Diocese of Greensburg won a preliminary injunction this month blocking provisions of the federal Affordable Care Act mandating that it provide contraception coverage in the insurance plans it offers to employees of affiliated schools and charitable entities.
The position taken by the diocese in this case and by the majority of the Catholic hierarchy in this country was set forth by Pittsburgh Bishop David A. Zubik in the Post-Gazette several months ago (“A Reprieve for Catholics: Congress Must Work to Lift Onerous Health Law Mandate,” Perspectives, Dec. 26).
The bishops argue that the contraceptive mandate violates their religious liberty, contrary to the First Amendment of the Constitution. The mandate requires many church-related entities, including colleges and charitable organizations, to make available, directly or indirectly, insurance coverage for their employees for contraceptives and medications that arguably inhibit conception or reject the fertilized egg. Church teaching is that such practices are immoral and thus, they argue, the mandate violates the religious liberty of the church.
This argument turns the concept of religious liberty on its head and is wrong as a matter of law. As fellow Catholics, we also think that the views expressed by many members of the hierarchy as to the church’s relationship to society and to its own members are questionable.
The First Amendment reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
At the time the founders wrote these words, most American citizens had come from countries where the state had established particular religions and often persecuted nonbelievers or those of other religious persuasions. Since the ratification of the First Amendment, courts and legal scholars have debated the meaning of these words. But a general agreement has emerged that the establishment clause bars the government from imposing religious views or practices upon members of society, and the free-exercise clause protects the rights of individuals to exercise their own consciences in matters of faith or doubt.
In determining whether a law is consistent with the First Amendment, the courts instruct decision makers to weigh at least three factors: the vital government interest in promoting the health, welfare and safety of all citizens; the institutional interests of churches; and the fundamental right of citizens to exercise their own consciences in matters of belief.
Balancing these interests is not always easy. Many of us think the bishops’ argument weigh the interests wrongly.
Under the Affordable Care Act, which is a law of general application, the government manifestly serves a vital public service by attempting to provide for universal health care. This is especially important for the poor among us and has long been supported by Catholic teaching, as Bishop Zubik recognized in his article.
Current regulations allow religiously affiliated entities to simply certify in writing that they have a religious objection to contraceptive coverage and the total cost for such coverage is shifted away from the employer and imposed on the insurance system. While we believe such an exemption is not required by the First Amendment or by law, it is crucially important to remember that every person remains free to exercise her or his conscience as to whether to practice birth control.
The fact that insurance coverage has been provided doesn’t require anyone to use the coverage. The essential religious liberty of every person to decide whether to use the coverage is fully protected.
At least since the Roe v. Wade abortion case was decided in 1972, the U.S. Catholic hierarchy has spent a hugely disproportionate amount of energy attempting to impose its moral views on abortion and contraception upon a majority of citizens, including conscientious Catholics who have contrary views on either or both subjects.
A long-standing argument supported by important theologians over the centuries is that it is not appropriate for a church to exert political power to create civil laws that impose its moral views upon a majority who do not share those views, as is true with abortion. Similarly, if church leaders succeed in their lawsuits regarding the Affordable Care Act, they will impose a burden on employees of church-sponsored entities that employees of secular employers do not bear.
Since more than 80 percent of Catholics believe that birth control is moral and an even higher percentage practice some form of birth control, we raise the related question of whether the hierarchy should seek to use civil law, rather than moral persuasion, to encourage their fellow, but respectfully dissenting, Catholics to follow their views.
What many of us find most troubling is that the church’s mission to live and preach the message of the Gospel and to reach out to the poor, the marginalized and the suffering is taking second place in the priorities of much of the American hierarchy. From outward appearances, including the highly partisan language of the complaints attacking the contraception mandate, the church seems to have joined those who would protect the rich and curtail protection for the working class and poor of our country.
All of us, poor or rich, liberals or conservatives, activists or non-activists, are children of God. Irrespective of our partisan political persuasion, we should give first priority to carrying out the message of God’s good news of love and concern for all.
G. Robert Blakey is the William J. and Dorothy K. O’Neill Professor of Law Emeritus at Notre Dame Law School. Paul H. Titus is of counsel at the Pittsburgh-based law firm Schnader Harrison Segal and Lewis.