There has been a progression to this crisis. Things change, and I’m sure they will keep changing, but it all began with the passage of the Patient Protection and Affordable Care Act (Obamacare) on March 23, 2010. That is how the government first became involved in forcing people and organizations, including Catholic organizations, to buy health insurance that matches certain rules which the government sets. One of these rules, which Obamacare lets the Executive Branch set, is the source of the crisis regarding the Free Exercise of Religion regarding Catholic Hospitals.
It’s worth making a historical note that when anti-Federalists in the late 1700s were arguing for the Bill of Rights as a condition for approving the Constitution, the counter-argument from the Federalists was not that the Bill of Rights was bad, but that the Constitution gave no authority to the government which would make it possible for these rights to be violated. Furthermore, the Federalists said that if you put a fence around certain important freedoms (the Bill of Rights) it will lead to an assumption that the government may expand in all other areas not listed. In other words, you will be fighting your battles at the fence of the Bill of Rights, when the battle should never even approach that fence.
Now, of course I’m glad that the anti-federalists won this argument about the Bill of Rights, because the Federalist counter-argument was incredibly short sighted on how easy it is for the government to violate rights and how loose future generations have been on the Constitutional limits on government authority. However, it is worth noting that there are two issues at play in this debate: First, “How could the government so blatantly ignore the Free Exercise rights of Catholics that many will be pushed to civil disobedience against this rule to satisfy their conscience?” Second, “Why is this issue even being argued, as the Constitution gives absolutely no power to the federal government to decide what particular things should be in health insurance policies and who must buy those policies?”
The remainder of this piece will focus on the first question, but take note of the second question and realize why this crisis even exists. It is good that millions are standing up for their First Amendment Free Exercise rights against the President of the United States, but it is horrible that they have to do so in the first place.
The next stop in the timeline is when the rule suggestion, approved and strongly supported by the Health and Human Services Secretary Kathleen Sebilius, came that all employers must cover contraception and abortifacient drugs at no cost to the employee. Churches and other houses of worship were exempt, but religious organizations such as Catholic hospitals were not exempt.
It is curious why one type of Catholic organization gets an exception, but another type of Catholic organization does not. It could be, as Joseph Knippenberg argues on the First Things blog, that the Obama administration takes the same view that was argued by his administration in the Hosana-Tabor Supreme Court case, where the solicitor general stated that the government’s power was not subject to Free Exercise constraints of the religious school in question because, in their words, the fact is,
this is not a church operating internally to promulgate and express religious belief internally. It is a church that has decided to open its doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws.
In other words the government did not see the Hosana-Tabor School as the real church, just like the government does not currently view Catholic hospitals as the real church either. Real churches promulgate and express religious belief internally. As soon as you open your doors to the public to provide a socially beneficial service, you drop your Free Exercise rights which allow you to guide your actions by your religious convictions. To keep those Free Exercise rights, you must operate “internally to promulgate and express religious belief internally,” a telling grammatical redundancy. If you keep to yourself, stay out of the public, and only do things internally, then there will be no Free Exercise problems.
Huh? By this logic, caring for the sick in society at large is not a proper function of a real church. After all, the hospital goes out into the public to provide a service. So what if Christianity commands its followers to care for the sick? They’re offering a public service; therefore, they don’t get any exceptions. What about evangelistic organizations? They seek to promulgate and express religious belief, but they intend to do it externally. Are they also not “real churches”? The ignorance of religious practice here is astounding. When the government, not individual organizations or individual people by their own conviction, decides what is actually religious and what is not, then the thing we used to call “The Right of Free Exercise of Religion,” is diminished from God-given to hypothetical.
Before, the way it worked was that Catholic organizations bought health insurance for their employees that did not include coverage for contraceptives, while those individuals who did not agree with that church doctrine would have to find and buy contraceptives on their own. This was the compromise already in place. This allows the organization to allow its religious belief guide the way it spends its money, and it allows women to buy contraceptives themselves if they disagree with the organization on this stance. However, this compromise is being taken away because the administration believes, as President Obama said in his press conference on the contraception compromise (more on that later), that every woman deserves access to the care they need. In fact, many other supporters of this rule have said that women have a right to this care.
This is the biggest and most over-looked farce in the entire argument. Since when does “access” mean that someone else buys something for you at no cost? I always thought that having access to something meant that you merely have access to it, not that it is thrown at you for free. And even if it is a right, which I think is a striking misunderstanding of what rights actually are, does any other right even come close to this type of “access” which the president claims for contraception? I have a right to free speech, but does that mean the government will pay for me to print a newspaper? Will it even buy me a newspaper? (For the record, a one year subscription to the New York Times is about as expensive as a year’s worth of birth control, depending on where you live and what type of birth control you buy.) I have a right to access the housing market free from discrimination, mistreatment, or intimidation, but will the government buy me a house? This is ridiculous, but this is what is truly striking: an invented right based on a questionable definition of the word “access” is being used to nix the very real, foundational, widely understood, and God-given right to the Free Exercise of Religion. The incompetence demonstrated here regarding Constitutional freedoms is astounding. I think this is perfectly fair to call this an assault on religious freedom.
And that’s exactly what the Catholic bishops did. Good for them. Because of the backlash of such a wide range of Obama supporters, from big-time backer and former DNC chair Tim Kaine, to the tingly-feeling-up-the-leg newscaster (who apparently also listens closely at mass) Chris Matthews, Obama had to do something. And what did Obama do? Well, it was pretty much nothing, but he tried to make it look like something.
Now it is difficult to determine what exactly will happen, because right now all we have is a press conference with no detailed explanation behind the words spoken. But we do have word from the White House chief of staff that there will be no more debate on the question and the issue is closed.
So, I’ll just have to parse the words spoken to figure out what is happening. Apparently, women will still have access, which somehow means “free of charge,” to contraceptives. However, religious organizations will not have to pay for them. Instead, the health insurance companies will have to pay for them. They must offer these contraceptives to women “no matter where they work” so that the competing interests of religious freedom and
free contraceptives “access to contraceptives” are both respected.
The glaring problem here is that President Obama believes that he can just get something for free. The health insurance companies are going to provide free contraceptives to their customers, but who pays the health insurance companies? Will the drug manufacturers who make The Pill donate their product or will the money paid by Catholic organizations to health insurance companies fund contraceptives? It’s a word game and accounting trick. Catholic organizations will not be billed for “Contraceptives,” but they might be billed for “overhead,” “miscellaneous coverage,” or “government compliance.” And is it that hard to decipher what that will actually be? Is this what President Obama equates with following the dictates of your conscience?
The other glaring problem is the declaration that health insurance companies must provide these services to women “no matter where they work.” Before, there was an exception to churches and other “real” houses of worship. Now, unless this rule allows those same organizations to somehow block contraceptives from going to their employees, that exception no longer exists. Instead, they will have to be satisfied with the word game and accounting trick which asks for “overhead,” “miscellaneous coverage,” or “government compliance.” And religious organizations are supposed to be happy with that? The only thing keeping the compromise from being worse than the original problem is a word trick and trust in President Obama to satisfy the Catholic religious conscience.The inexperience making deals between opposing viewpoints here is astounding.
Are President Obama and Kathleen Sebillius so ignorant that they do not recognize that this “compromise” makes the situation worse? Is Free Exercise a word game? Are invented rights based on questionable definitions able to trump the First Amendment to the Bill of Rights? Can Barack Obama be serious?
The tyranny of ignorance, incompetence, and inexperience is astounding. I am no critic of contraception, but I intend to get mad about this one. I will get mad and stay mad so that when my own Free Exercise is threatened there will still be people around to stand with me. I encourage you to do the same.
Feel Free to Pass this along
-J Caleb Jones
*It is worth noting that this rule also includes abortifacients which many prolife protestants (including me) believe paying for would be against their religious conviction. This is also important and equally worth getting angry over. However, it has not received the same coverage as the Catholic contraception issue, and both purposes can be served by arguing the more visible aspect of this crisis.