Mandate contrasts with U.S. stance elsewhere on freedom

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Mandate contrasts with U.S. stance elsewhere on freedom

What's good for the goose is good for the gander.

As the saying goes, if it's good for one person it's good for everyone -- you should be willing to accept what you impose on others.

In 1998 Congress overwhelmingly passed and President Bill Clinton signed into law the International Religious Freedom Act. It created a system for promoting religious freedom worldwide, including establishing the U.S. Commission on International Religious Freedom.

Fast forward a year or so and various states began proposing and passing legislation that requires employers who provide prescription drug coverage to pay for contraception, sometimes without an exemption for religious employers.

"If this legislation were to pass, it is difficult to imagine any limit upon the state's ability to require religious institutions to violate the principal tenets of their religious beliefs," said Paul Long of the Michigan Catholic Conference, discussing a proposed law there in 2008 mandating such coverage.

That same year the International Religious Freedom Act, in ceremonies marking its 10th anniversary, was hailed for having improved the U.S. governments's ability to respond to abuses of religious rights.

Today, religious liberty advocates in the United States are appalled by the federal Health and Human Services Administration mandate requiring that churches, with only a finely nuanced exclusion, must provide insurance coverage for sterilization, contraceptives and abortion-inducing drugs to employees effective Aug. 1. That exemption would protect only church entities that primarily employ and serve people of their faith.

A revision announced by President Barack Obama that left intact the restrictive definition of a religious entity and would shift the costs of contraceptives from the policyholders to the insurers still fails to ensure that Catholic individuals and institutions would not have to pay for services that they consider immoral, according to Catholic Church leaders and others.

Gross insensitivity

The federal mandate should have a wide conscientious objection clause, First Amendment advocates have told the Review.

"The original mandate reflected a gross insensitivity to religious freedom," said Thomas C. Berg, a professor of law and public policy at the University of St. Thomas in Minneapolis with an expertise in religious liberty and church-state interactions. "The argument that only individuals have a conscience and institutions can't have a conscience -- that was what you heard from the side supporting the mandate without any meaningful exemption."

Brian J. Buchanan, managing editor of online material for the First Amendment Center in Nashville, Tenn., wrote in a commentary that "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."

He added that 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, which protects the free exercise of religion.

Berg said the mandate reflects a disturbing trend. "It's unfortunate. I agree with what I think is the bishops' take that the goals of health care reform are laudable. The goal of having the government involved in trying to help people get coverage and access is good and just. But if you don't make accommodation in that for religious liberty, then that increased government role can be oppressive. Thinking pragmatically, that can hurt support for the social goal in the first place."

Berg said the requirement to fund emergency contraception, which people have argued can cause the abortion of human embryos, means that the matter also is one of conscience for people other than Catholics, such as evangelicals.

Weakened protections

The federal government may indeed have the authority to carry out the mandate, said Charles C. Haynes, senior scholar of the First Amendment Center and director of the Religious Freedom Education Project at the Newseum in Washington, D.C.

"Unfortunately, in my view, the Supreme Court has seriously weakened the protections of the free exercise clause since its decision in Employment Division vs. Smith (1990). Challenges to a government regulation that burdens free exercise of religion are now less likely to prevail. The Religious Freedom Restoration Act (1993), however, (which says the government cannot pass a law that substantially burdens religious practice) still applies to the federal government -- and a challenge to this regulation under that law may have some likelihood of success."

Because The HHS mandate's religious exception limits religious employers to, among other restrictions, employing and serving primarily "persons who share the same religious tenets of the organization," Catholic hospitals, schools, charities and outreach centers would, as non-religious employers, be ineligible for the exemption.

"This (exemption) is ridiculously narrow," said Missouri Catholic Conference general counsel Tyler McClay.

Haynes, of the First Amendment Center, said, "What makes this situation difficult, of course, is that religiously affiliated institutions serve the public, hire outside their faith, and receive some government funding. That means the government has to balance the right of employees to receive health care with the religious-liberty rights of the institution. The effort to find a way to accomplish both interests should be made up front -- something that was not done in this case."

Court challenge

McClay and the Missouri Catholic Conference are more hopeful of the outcome of a court challenge to the mandate.

"The drug Ella (a contraceptive drug included in the HHS ruling) has been shown .... as an abortificient and can be given up to five days after intercourse, so it can clearly (have) an abortion effect ... which brings abortion into the mix of this whole discussion. Legally that may not have much impact, but morally and socially you are now imposing on religious people that they must offer abortion-inducing drugs," McClay said.

"The Smith case said a neutral law of general applicability can infringe on a religious right if the law only incidentally infringes on religious liberty, like a general law prohibiting the use of peyote (which was at the heart of the case). This is not incidental. You are talking about a mandate that requires people of faith to do something they find morally objectionable, an infringement on religious liberty that results from the law itself. ... I think the judges will look at this with a higher level of scrutiny," he said.

Strong arguments can be made under the Religious Freedom Restoration Act that this mandate violates the prohibition that "government cannot pass a law that substantially burdens religious practice."

"Is it a slam dunk? No. But I think it's a much stronger case than you would otherwise have," McClay said.

"This is a fundamental religious liberty issue. It's not about access to contraception. It's about the right of the Church to operate in the public square, provide services to the poor and needy and still maintain the integrity of its faith tradition.And this is true not just for Catholic but every faith tradition."

Some information for this story was provided by Review Staff writer Barbara Watkins.