This past Friday, Georgetown Law hosted “Contraception and Conscience: a Symposium on Religious Liberty, Women’s Health and the HHS Rule on Provision of Birth Control Coverage for Employees.” The symposium consisted of three different panels dis- cussing the legal, theological, and health issues relating to HHS’s rule requiring employers to subsidize preventive health services for employees. The panels were stacked in opposition to the HHS rule, with a few women’s rights advocates to make the argument for women’s health through the screams for religious freedom.
The panelists presented some interesting arguments, and I’d like to take the time to respond to a few issues that were raised. During the second panel of the day―suggestively titled “What is the Burden on Religious Exercise?”―John Langan, a professor and Jesuit priest at Georgetown, argued that the HHS regulation requiring all employers to cover birth control for free neglects the church’s interests and right to exercise its religious beliefs freely. A principal development in western civilization, he asserted, has been the affirmation of the church as a separate entity from the government.
We’ve heard this argument before, of course. The HHS regulation was immediately met with vague, oppositional cries of free exercise and the separation of church and state. But why do we only hear religious organizations demanding such a separation when they feel the government is unduly encroaching on their beliefs? Where was this demand for separate church and government entities when Congress passed a tax code that publicly subsidizes reli- gious organizations? Georgetown itself benefits so much from public funding that the school allows military recruitment on campus despite its discriminatory policies so as not to “risk the termination of certain federal funds,” as Dean Treanor noted in a letter to the law center community last week. Perhaps the religious hierarchy is less concerned about mixing government and religion when the church directly benefits from the relationship. I guess it’s nice to have your cake and eat it, too.
Lost in Langan’s statements about the rights of the church was any discussion of the rights of indi- vidual women. The church is upset because it feels that the government is forcing its secular agenda on religiously-affiliated employers, but it seems to have no problem with an employer-based health care system in which it is permissible for a tax- subsidized religious organization to force its theological beliefs on all of its employees.
In this regard, panelist Lisa Cahill, a Catholic theologian and social ethicist from Boston College, hit the nail on the head. The individual and institutional consciences exist in a social context, she posited. Catholic moral and political posi- tions are not set in stone. Rather, the church can look to compromise and make accommodations. (For a good example of such compromise, look to the Obama Administration’s HHS Religious Accommodation — 54 C.F.R. § 147.130(a)(1)(iv); 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2010)). However, as Cornell University Law School Professor Eduardo Penalver pointed out, the church appears to be moving toward an oppositional position, looking to selectively opt out of the political process rather than embracing its identity as a pluralistic community.
In the end, I did appreciate the symposium for opening avenues of dialogue. However, I think the debate may fall on the side of futility as long as the opponents of the HHS regulation continue to foster a martyrdom complex. At one point, Professor Patrick Deneen of Notre Dame―the most high-profile school to have filed a lawsuit against the HHS regulation to date—stated that religiously-affiliated entities will continue to fight the regulation in court and, if they lose, they will refuse to obey the law. His statement seemed predicated on a rash interpretation of St. Peter’s call in the Book of Acts to obey God rather than men. Such hyperbolic statements add no value to discussions of important public policy, and only reinforce Chief Justice Waite’s opinion in Reynolds v. United States, which stated: “Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
The government is not waging a holy war against religion or the First Amendment. From the beginning, the HHS regulation has included an exemption for churches and houses of worship, balancing the needs of truly religious organizations with the needs of millions of women who work for religiously-affiliated employers, but do not want their healthcare dictated by those employers. The Obama administration did not have to provide any exemption, and the regulation would still have met the constitutional test established in Employment Division v. Smith, in which Justice Scalia declared that neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment.
Moreover, the administration has proposed an accommodation for religiously-affiliated employers that, while still in the rulemaking process, will likely require insurance companies to pay for contraception claims directly, leaving the employer entirely out of the process. No matter what the end result looks like, we should remember this above all: the regula- tion was established to provide access to a basic component of women’s health to the greatest number of women who want to use it, including the 98 percent of Catholic women that use a form of birth control during their lifetimes.
That’s the issue that got lost in the symposium’s dialogue. Professor Robin West, moderating the final panel of the day, attempted to prompt a discussion of this missing conversation, of just how beneficial birth control and expanded access to it has been for women. Unfortunately , the voices at the symposium espousing the virtues of contraception were outnumbered by those espousing the virtue of religious freedom. We heard much about the interests of religiously-affiliated employers, but not enough about the rights and interests of the women they employ .