HHS Mandate & Chief Justice Roberts

by Michael Sean Winters

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Last January, after President Obama announced he would not be expanding the kind of traditional, typical conscience exemptions regarding the HHS contraception mandate, for a brief period in time, most Catholic commentators were united in opposition. From E. J. Dionne and Chris Matthews on the left to Pat Buchanan and Ross Douthat on the right, Catholic voices spoke loudly and clearly that the government had over-stepped. Part of the reaction was tribal, to be sure, but most of it was rooted in Catholic sensibilities that date back to the Reformation. We could not understand how the government could differentiate between a Catholic parish and a Catholic university, labeling the former religiously exempt and the latter essentially secular for purposes of this law, in part because we held, contra the Reformers, that faith and reason must work together. We refused to accept a similar differentiation between the Church’s charitable and healing ministries and our parishes because we held, contra the Reformers, that faith and works must go hand in hand. We perceived, not always clearly, that the government was adopting an idea of what religion is that does not conform to our understanding of what religion is, and this was especially true of those of us on the left for whom the social justice ministries and the healing ministries of our Church touch a deep spiritual chord. They bring Matthew 25 alive. I suspect the White House was surprised by the reaction, but that only shows how little this White House understands Catholics.

As we all know, the unity within the Catholic fold did not last. First, President Obama announced an accommodation that has proven not to work out in the details, a fact that those Catholics who embraced the accommodation need to acknowledge and be more vocal about. Second, Rush Limbaugh called Sandra Fluke, the Georgetown University Law student who testified that she wanted contraception covered by her Catholic school, “a slut” giving credence to the idea that the GOP was engaged in a “war on women.” The GOP House leadership, of which Cong. Paul Ryan is a member, pulled the Fortenberry Bill which would have changed the mandate as the poll numbers tanked.

One other thing changed in February. The USCCB, which had long insisted on an individual exemption from the mandate for employers whose businesses really are secular, now made that point a more dominant theme. Thus was born the issue of “Taco Bell.” At the time, I said that, while I am sympathetic to the idea that individuals should enjoy broad conscience protections, certainly they have a higher bar to cross to claim such an exemption when compared to an explicitly religious institution. And, I worried that if we went to the mat for an individual exemption for anyone, we would lose our united focus on the need to protect the rights of our religious institutions. I also expressed the worry that in a culture that equates conscience with whim, any focus on individual conscience rights would unintentionally feed the beast of relativism in our culture. Nonetheless, I confess, the issue worried me.

And, the issue of an individual exemption clearly worried the USCCB. You can simple compare the statements of different bishops. For example, at the start of the Fortnight for Freedom, Archbishop William Lori spoke powerfully in favor of the individual exemption. At the Mass closing the Fortnight, Archbishop Charles Chaput did not mention it. I remained unsatisfied with my own position and the unsatisfaction grew when a bishop told me he had received many letters from Catholic businesspeople asking him how they should respond to the mandate, could they in good conscience comply? I did not know what the bishop should say to such a query.

Then, it hit me. Chief Justice John Roberts to the rescue. In his minority, but controlling, opinion upholding the Affordable Care Act, out of which the HHS mandate grew, Roberts held that the ACA is constitutional under Congress’ taxing authority. To be sure, Roberts was addressing the other mandate, the individual mandate requiring everyone to purchase insurance, not the HHS mandate. But, in upholding the entire law as an exercise of Congress’ power to tax, Roberts provided Catholic business owners a means to assuage their consciences. Taxes do not constitute formal cooperation with evil. We all paid for the Iraq war with our taxes, no matter what we thought of the morality of that war. Indeed on the specific issue of contraception, we all pay for it through our taxes which go to fund Title X programs that provide contraception. So, if the mandate is considered a tax, then I think individual businesspeople, the woman who owns that Taco Bell and the Board at EWTN, can all pay for the contraception coverage in their insurance plans without fearing that they have sold out their faith. People who oppose the mandate are free to challenge it as bad public policy. They are free to sue. But, I think the religious liberty argument went out the window, as soon as Roberts opened the door to understanding the ACA’s mandates as taxes.

I hope the bishops will think about this. If they were to drop their insistence on an individual exemption, it will be much easier to win a broader exemption for our religious institutions. Fairly or not, some people believed the USCCB was “moving the goalposts” in February and certainly the White House became convinced that there was little or nothing they could do that would satisfy the bishops. Those who see Obama as the Great Satan, of course, will miss the opportunity to fight another battle in the culture wars, but I think most bishops detest the kind of political involvement that they have found themselves in. I believe them when they say they did not go looking for this fight. I also commend them for not backing down from this fight. But, in the great tradition of casuistry, we should also work out, in the “tangle of our minds,” as St. Thomas More put it, a way to fix the problem and Chief Justice Roberts has offered us a way to fix part of the problem. We should take it.

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