Obama vs. the Church

No one will mistake it for the dissolution of the monasteries, the low point of Henry VIII’s assault on the Catholic Church. But President Obama is embroiled in his own conflict with Rome, and like Henry, he’s the aggressor. The English King won his fight back in the 16th century. He got his six wives and established himself as the head of the Church of England. But unlike Henry, Obama will almost certainly be forced to back down.

The new fight grows out of Obama’s health care reform. The Department of Health and Human Services is requiring all employers to cover contraceptives, including those that act as abortifacients, and surgical sterilization. The requirement runs counter to the teachings of the Catholic Church. While churches themselves are exempt, a huge swath of Catholic institutional life, from Catholic hospitals to Catholic schools, has just been told by the government to practice what it does not preach. The head of Catholic Charities USA says the exemption is so inadequate, it wouldn’t have covered “the ministry of Jesus Christ himself.”

Catholic hospitals, schools and charities are left with the choice of buying health plans that cover practices the Church morally opposes or paying onerous per-employee fines. The Becket Fund for Religious Liberty is suing on behalf of Belmont Abbey College, a small Benedictine school in North Carolina. When the mandate kicks in a year from now, the monks will have to pay an annual six-figure fine if they dare stay true to their religious convictions. The University of Notre Dame’s fine would be in the range of $10 million a year.

How could Congress have done such a thing? It didn’t, at least not knowingly. Congress merely passed a mandate for coverage of “preventive services,” without stipulating what exactly that meant. In this instance, Congress left it up to Health and Human Services Secretary Kathleen Sebelius to decide. Her say-so has been elevated to the status of law.

Sebelius argues that, in her wisdom, she struck “the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Access to preventive services, though, isn’t mentioned in the Constitution. Thomas Jefferson didn’t write a letter to the Danbury Baptists about how best to help people avoid pregnancy. If there’s a conflict between the free exercise of religion and access to preventive services, our founding principles (and federal law) say religious freedom prevails.

In the 1990s, Bill Clinton signed the Religious Freedom Restoration Act, enshrining in law broad protection for the free exercise of religion. The HHS mandate clearly trespasses against it. There is no “compelling governmental interest” (one of the tests of the act) in making Catholic institutions pay for coverage of contraceptives that are readily available elsewhere–in Sebelius’ own words, at “community health centers, public clinics, and hospitals with income-based support.” In her defense, Sebelius says that 28 states have similar mandates, and three of them–Oregon, New York and California–have exemptions as narrow as the federal one. But those states also have easy escape hatches for objecting institutions.

The Administration’s handiwork has been condemned from Catholic pulpits across the nation, and liberals have joined conservatives in lacerating it. With Catholics always a key swing vote, especially in Midwestern battlegrounds, the mandate is a political millstone. Even Catholic laypeople who ignore the church’s teachings on birth control don’t enjoy seeing their church treated with such high-handedness.

The rule betrays a disturbingly pinched view of religious liberty. On Jan. 11 the Administration was rebuked 9-0 by the Supreme Court in the Hosanna-Tabor decision. In a case involving employment-discrimination law, the Administration maintained that the Constitution gives religious institutions no protections in choosing their faith leaders. The court reacted with incredulity.

In Obama’s decision (and yes, he did okay it), we see again an encroachment of secular government, with its web of rules and regulations, on a free, civil society. It is an expression of the unyielding “tutelary power” of the administrative state foretold by Alexis de Tocqueville. Such a state seeks what it imagines to be our happiness, he wrote, “but it wishes to be the only agent and sole arbiter of that happiness.”

In America, though, what the state wishes it doesn’t always get. Obama will retreat or lose in the courts.

Lowry is the editor of National Review