The HHS mandate means that, except for houses of worship that qualify for an extremely narrow exemption, all employers and institutions in this country – including every Catholic college and university (there are more than 200) – must provide contraceptives, some of which bring about abortions, to all to whom they offer insurance.
At The Catholic University of America, we have the right, with very few limits, to operate our private university inspired by our faith and consistent with that faith – a freedom that is even stronger because it is rooted in the First Amendment, the first 16 words of which guard against government action that would restrict people and organizations in the free exercise of their religious beliefs. Free exercise, the founders’ term, is much broader than “freedom of worship,” which would lock the First Amendment inside the walls of a church or synagogue and leave religious institutions such as ours out in the cold.
The Obama Administration undoubtedly would agree that we have been exercising our religious beliefs in our long-standing practice of not offering contraceptives through our health plans. Their position seems to be, however, that the government’s interest in guaranteeing free contraceptives to every citizen trumps our free exercise. But the law requires a “compelling interest” for the government to override the First Amendment this way, and if the government does establish such a compelling interest, then the government must use the “least restrictive means” to accomplish it. It takes little imagination to come up with less restrictive ways of providing contraception than converting religious organizations into agents of the state (for example, it could directly fund and distribute contraceptives or provide tax credits to purchasers or providers). The government should not decide what a legitimate religious belief is and when a citizen may act on those beliefs.
We are forthright when we say this controversy is not about contraception. We believe use of artificial contraceptives is wrong. But that’s not why we have filed the lawsuit. At its core, this dispute is about liberty, because our civic health depends on the way policy gets made and how governmental power is restrained. If the administration had proposed to provide contraception directly, rather than funneling it through religious organizations, then we would simply disagree with the policy, pay our taxes and engage in the public debate. That is not the case here. The mandate violates the Constitution because it converts religious employers to servants of the state in providing drugs and services that it knows those employers oppose on religious grounds.
We cannot yield to a false choice – failing to offer health care to those we employ (which would violate our social gospel now, and the law next year) or not opening our doors to people of all faiths (which is against Christ’s teaching but is the only way to qualify for the administration’s eye-of-the-needle “religious exemption”).
In response to our objections, the administration proposed an “accommodation,” which would compel insurance companies directly to provide the contraceptive coverage. But this is Potemkin economics, because policymakers in Washington know well that insurance companies don’t and can’t fund anything on their own – they use the funds provided by those they insure (our faculty, staff and students) and those who subsidize that insurance (Catholic University, in the case of our faculty and staff). Therefore, accounting gimmicks aside, under the “accommodation” the university would still end up subsidizing contraceptives, abortifacients and surgical sterilization, would still be violating its religious tenets, and would still be acting as a hypocrite in front of its students – teaching one thing in this institution committed to truth, yet practicing another, crimping if not extinguishing the dialogue between faith and reason.
A couple of weeks ago, President Obama exhorted new graduates: “Don’t accept somebody else’s construction of the way things ought to be. It’s up to you to right wrongs. It’s up to you to point out injustice. It’s up to you to hold the system accountable….” Having exhausted all our other options, we intend to follow the president’s advice. We’ve identified the injustice, and having failed to persuade the administration to reexamine its faulty assumptions and decisions, we will attempt to hold the system accountable through the courts. We’re confident that the laws and the Constitution are on our side.
Lawrence Morris is the general counsel of The Catholic University of America.