Something truly terrible emanated from the White House a couple of weeks ago. There are bad decisions, and there are evil decisions. There are evil decisions disguised with sophistication as progressive, or hidden in the riddles of the law; then there are evil decisions that rear their ugly heads and roar for recognition.
This terrible emanation was neither hidden nor progressive; in fact, as Michael Gerson wrote in a WASHINGTON POST column, it hearkens back to nineteenth century nativism, as the “most transparently anti-Catholic maneuver” since the 1875 Blaine Amendment, aimed at parochial schools.
In a decision the Catholic bishops of the United States called “literally unconscionable,” the Obama administration confirmed the proposed healthcare mandate requiring all insurance plans to pay for contraceptive services, sterilization, and some abortifacients.
The religious exemption (so narrow that, as Bishop Rhoades pointed out, Jesus and the apostles would not qualify) was also confirmed as proposed, aside from allowing certain organizations an additional year to comply.
Catholic leaders across the nation responded with outrage; over a hundred bishops have denounced the decision.
Cardinal-designate Timothy M. Dolan remarked that “the president is saying we have a year to figure out how to violate our consciences.” The United States Conference of Catholic Bishops publicly vowed to fight the edict.
In the words of Brian Burch, president of CatholicVote.org, the “decision is a direct attack on you, our Church, and the religious liberty of all Americans.”
WALL STREET JOURNALIST columnist William McGurn noted that even left-leaning Catholics were grossly affronted by the decision. “They understand that if left to stand, this ruling threatens the religious institutions closest to their hearts—those serving Americans in need, such as hospitals, soup kitchens and immigrant services,” he wrote.
Indeed, liberal Cardinal Roger Mahony blogged that he “cannot imagine a more direct and frontal attack on freedom of conscience.”
University President Fr. John Jenkins, CSC, offered the statement, “I am deeply disappointed in a decision by the administration that will place many religious organizations of all faiths in an untenable position.”
Department of Health and Human Services (HHS) Secretary Kathleen Sebelius remarked with oblivion in a January 20 press release, “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.”
One of these comments is not like the other.
In an interesting twist at the end of the release, Sebelius defended the decision with sweeping references to “scientists,” “abundant evidence” of “health benefits,” and the “common good.” Attempts to clarify these terms were shuffled between half a dozen departments in the HHS press office and ultimately answered.
Notre Dame faces an obtuse fork in the road. In Fr. Jenkins’ ill-fated letter to Sebelius last September, he described the present “impossible” position of having to choose between the Church’s social and moral teachings.
Notre Dame Professor of Law Gerard Bradley elaborated on the difficulties of Notre Dame’s predicament. “No Catholic apostolate could buy into and make available to its employees a plan which covers contraception,” he wrote. “Doing so would cause scandal, and doing so would obscure the clear and faithful witness to the faith which every apostolate must bear. “
“Notre Dame [will] have to explore other means of making health insurance available to its employees, such as giving every employee a voucher – or its functional equivalent – so that employees can purchase health insurance in the marketplace,” Bradley concluded.
Brown confirmed Jenkins’ concern for universal conscience protection, pointing to the letter to Secretary Sebelius Jenkins signed along with Archbishop Timothy Dolan and other religious leaders calling for protection of the “religious and ethical convictions of all.”
University Spokesman Dennis Brown commented on the plans currently in place, “[W]e are reviewing our options in conversation with the United States Conference of Catholic Bishops and Catholic hospitals, schools and charitable organizations. We believe that our response will be most effective if it is carried out in coordination with the bishops and other Catholic organizations.”
On the prospects of overturning the decision, Notre Dame Professor of Law Richard Garnett explained a number of options. “First, it could be successfully challenged in litigation, as a violation of statutory religious-liberty protections,” he said. “Several lawsuits have already been filed [on behalf of Belmont Abbey and Colorado Christian University].”
“Second,” Garnett offered, “Congress could amend the Affordable Care Act…However, it is not likely that the current Senate would pass such a measure, and it seems unlikely that the President would sign it into law.”
Certain congressmen are trying. On January 31 Senator Marco Rubio, Florida Republican, introduced the Religious Freedom Restoration Act of 2012, the GOP’s first legislative response.
A third possibility, according to Garnett, would be securing waivers for particular institutions and employers. “After all, many employers – including McDonald’s – have been given waivers from some of the act’s more burdensome requirements,” he said. “Finally, of course, either this administration or its successor could revisit the matter.”
Professor Bradley confirmed that the decision “could be overturned by Congress any time, since it is an administrative regulation inferior in force to a Congressional statute,” but advised not to “expect any serious effort to overturn the rule at least until next year.
Sycamore Trust President William Dempsey pointed out one reason for hope. “One can scoff at [the extra year granted] publicly, as many have; but in fact it is very important to have this grace period,” he said.
Several options face concerned students, Catholics, and proponents of the first amendment.
Professor Bradley urged political action. “Well, this is a situation where the two major parties are surely on opposite sides of an important issue,” he said. “So, count this as a reason to support Republican candidates for Congress and for the presidency.”
Notre Dame Professor of Law Emeritus Richard White suggested prayer and political action. “The most important thing the concerned layman can do is to pray for our country and our Church; second only to that, he or she should resolve to work for the defeat of President Obama in November and, in my opinion, of any candidate with a ‘D’ after his or her name.”
Fr. Jenkins proposed dialogue as the solution. “Moving forward, we call for a national dialogue among religious groups, government and the American people to reaffirm our country’s historic respect for freedom of conscience and defense of religious liberty,” he said.
There is another implicit call for the layman. Pope Benedict XVI in an address to U.S. bishops urged the community to respond with “an engaged, articulate and well-formed Catholic laity.”
Not only through political action affirming religious liberty, then, one to ought fight to overturn the mandate, but there also exists a further obligation to address the healthcare controversy at its roots.
More than acquainting himself with Catholic doctrine, the responsible layman will inquire deeply into its judicious foundations. A theme developed in Plato’s MENO and carried through the Christian tradition is the connection between the good and the useful. In layman’s terms, what’s good is good for you.
This connection becomes especially critical given the administration’s stated motivations in confirming the healthcare mandate. If we aim to improve the health of “women and their families” and the “common good,” we ought to investigate with great care what those terms entail.
Katie can be contacted at firstname.lastname@example.org