The US Department of Health and Human Services (what is a human
service? what is not a human service? no wonder the federal budget
expands like any balloon and faces the same fate) has issued a policy
that, after a one year grace period, all employers, including
religious groups, must offer their employees health insurance and that
health insurance must cover contraception, abortificants, and
sterilization services or pay a fine. The Catholic Bishops have
declared that they cannot and will not comply with the new regulation.
From their point of view, they are being asked to do something they
deeply consider tantamount to murder. And goes against God's Law.
William Blackstone, the great English jurist upon whose thinking much
early American law was based, maintains in his treatise that any law
that goes against God's is no law at all. Thus, there is the
possibility of civil disobedience: the principled refusal to obey a
law on the ground's that it is negated by higher law.
The Obama administration will argue that this is a matter of employee
rights. Just because you work in a Catholic hospital is no reason you
should not get the insurance that the government mandates for all.
Reproductive services cost money, and these workers should have these
benefits like anyone else.
Some might argue that "contraceptive services" do not belong in ALL
insurance policies. Health insurance is there to cover things that
happen to me over which I have no control. I do not need insurance
against pregnancy if I am male. I do not need fire insurance on a
vacant lot. A celibate does not need insurance against STD. So why is
the government mandating what goes into the mix in the first place?
In a free market, I would be able to find insurance for me, and I
would not have to subsidize others. But the issue under discussion
assumes that the government can mandate for other employers. Assuming
that, can it mandate for churches? (The Supreme Court will soon take
up the question of whether the federal government has constitutional
authority to mandate the purchase of insurance by all citizens under
penalty of fine.)
The Supreme Court recently decided 9-0 that religious organizations
are exempt from federal employment laws when it comes to hiring and
firing within their ministeries. The Obama administration argued that
a church as employer had no more rights than any other employer. ("One
Law for the Lion and the Ox is Oppression"--William Blake). The court
was dumbfounded by this claim, since it amounted to the claim that the
government, and not the church could decide whom a church should hire.
But if the First Amendment means anything at all, it means precisely
that the church must be left alone.
The current policy raises the question, how far does the First
Amendment ("Congress shall make no law regarding an establishment of
religion") go in exempting churches from federal law and regulation.
The court has already said there can be no meddling in the selection
of ministers, teachers, etc. But what about a maintenance worker at
Notre Dame or a receptionist at St. Hilda's Hospital? They are not
involved in sacred duties.
Clearly there are some bright lines. No church should be allowed to
inflict harm on third parties. Religion does not exempt us from
providing appropriate medical care for our children, including blood
transfusions. But an adult is totally free to refuse medical treatment
for religious, or any, reasons.
Many think the new policy will be reversed. The Bishops are not going
to back down. The issue raises passions on both sides. But not just
pro-lifers will oppose it. Those who worry about the ever expanding
reach of the federal government will see the policy as a power grab.
(Already, Rand Paul has written against the new policy from a
libertarian stance. But whether it is or is not, the Supreme Court
will soon have to decide the issue.
