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Analysis
February 28, 2012
The HHS mandate: Assessing the current situation and looking to the future
On January 20, 2012, the US Department of Health and Human Services (HHS) finalized its August 2011 mandate requiring virtually all employers to provide insurance coverage for sterilization and contraceptives, including long-lasting injections and implants, and so-called morning after pills. Depending on the circumstances, these drugs and devices can cause abortions. The mandate went a step further by effectively reversing previous exemptions to such mandates based on conscience or religious grounds.

Universal opposition

Strong opposition to the mandate was immediate. Religious leaders and Americans of all stripes correctly saw the mandate as a violation of the consciences of individuals and of the free exercise of religion guaranteed by the US Constitution. The Catholic Church, whose various entities have hundreds of thousands of employees, was at the forefront of the opposition to this unprecedented intrusion of the federal government into such matters.

While President Obama must have anticipated opposition from the US bishops and faithful Catholics, he may have been surprised to find that even the “progressive” Catholics who helped to elect him in 2008 were against the mandate. Faced with increasing opposition from conservatives and liberals, from people of faith and non-believers, and even from the secular media, the President sought to placate the opposition. He also sought to regain the support of “progressive” Catholics.

A meaningless accommodation

With the help of a trade association called the Catholic Health Association of the United States of America (CHA-USA), the Obama administration reached what it believed was a workable solution. On February 10, 2012, the President approved and confirmed the mandate, while giving religious institutions an extra year to comply with its demands. At the same time he promised that he would allow an accommodation before the date for compliance by religious institutions. This “accommodation” was simple: insurance companies, and not the religious employers, would cover these immoral practices free of charge. It was claimed that the cost of the contraceptives and sterilizations would be offset by savings associated with unwanted pregnancies that would now be avoided.

However, as common sense and cost analysis conducted by insurers concluded, this projection is absurd. There would likely be additional costs and certainly no savings. With or without increased costs, all employers will pay premiums for the entire insurance package and, therefore, be forced to provide drugs and procedures in violation of their conscientiously held beliefs.

A mixed reaction to the accommodation

The United States Conference of Catholic Bishops (USCCB) and faithful Catholics, together with thousands of other religious leaders and their congregations, restated their opposition to the mandate and to the promised “accommodation.” But the President dismissed their concerns, knowing that his anti-life, anti-marriage, and anti-family policies had already permanently alienated these groups. That they should now be further disaffected by this assault on conscience and religious liberty is of little consequence to him. He instead elicited support from those “progressive” Catholics he knew would accept and promote the illusion that his “accommodation” corrects the abuses in the mandate.

He was right in thinking that his sleight of hand would give them an excuse to turn a blind eye to the truth of the matter. The CHA-USA and the Leadership Conference of Women Religious (LCWR) proclaimed their support for the “accommodation.” The latter group expressed its appreciation to the President for restructuring the mandate “in a way that respects the conscience rights of religious institutions.” The University of Notre Dame and the Association of Jesuit Colleges and Universities also voiced their support for the “accommodation.” President Obama had succeeded in dividing Catholic opposition and in muting the voice of the bishops through the pronouncements of these dissident groups.

A deeper divide within the Catholic Church

The contradictory positions concerning the “accommodation” to the HHS mandate within the Church have exposed a deeper divide between the bishops and dissenting groups. Several news outlets cited a recent study claiming that 48 percent of US Catholic hospitals perform direct sterilizations. Others reported that some Catholic colleges provide coverage for contraceptives, even when not forced to do so by state law.

These citations are intended to suggest that the strong and virtually unprecedented opposition of the US bishops to the HHS mandate and “accommodation” is hypocritical, or at least hopelessly out of touch with what is really happening in the institutions whose right to the free exercise of religion the bishops seek to protect. What they actually reveal, however, is the duplicity of these institutions that give lip-service to Catholic teaching, while at the same time ignoring it.

The hypocrisy lies not with the bishops, but with institutions that promote themselves as Catholic to gain the support and patronage of those who respect the Catholic tradition, all the while defying the divinely given authority of the Church and the moral truths that are at the heart of that Tradition.   

A question of authority

More astute commentators realize that the duplicitous behavior of these institutions points to a further problem; that is, the lack of serious supervision and discipline on the part of the bishops. In fact, it must be acknowledged that while the bishops retain their authority de jure, it has been de facto greatly diminished, if not lost. Catholic colleges, universities, hospitals, and professional organizations did not abandon the moral demands of the Gospel overnight. Nor did the bishops lose their authority overnight, as some commentators have suggested, referencing the sexual abuse crisis. No, they lost it because they failed to exercise it in too many situations over all too many years.

Engaging in open dialogue

The majority of bishops have relied solely on cordial dialogue to persuade dissident individuals and institutions to uphold the truth and to reflect it in their behavior and pronouncements. As the current controversy and an examination of the growth of dissent within the Church over the past 50 years shows, this approach is not working.

And now a monster has been created in the form of a self-appointed shadow magisterium that regularly counters the true teaching enunciated by the bishops. In the current controversy, Catholic politicians continue to present and promote their personal erroneous theological opinions as valid Catholic teaching; the CHA-USA, the LCWR, and influential nominally-Catholic educational institutions have aligned themselves with governmental policies that the bishops have rightly denounced.

The issue here is not simply that such individuals and institutions have flouted directives given them by the bishops, but that they have violated the moral truth expressed in those directives. The bishops do not present moral teachings in their own name, but in the name of our Lord Jesus. The practical rejection of episcopal authority by these institutions over the HHS “accommodation” is ultimately a denial of the moral truth and an abandonment of their mission to proclaim this truth for the good of mankind. Their dissent also undermines the religious liberty and conscience protections guaranteed to them by the First Amendment.

The importance of law

As Cardinal Raymond L. Burke has demonstrated, the Code of Canon Law does not merely permit the diocesan bishop to apply certain canonical measures to ensure the Catholic identity of the Church’s institutions; it obligates him to do so. Only a few bishops, who suffered the scorn of dissident groups and even of some of their fellow bishops, have employed canonical measures (dialogue followed by disciplinary action) to correct false representations of Catholic belief and practice made by self-identified Catholics.

However, the current controversy may have convinced an increasing number of bishops of the need for greater supervision and stronger disciplinary action. Some seem ready to go beyond dialogue. There are signs that many more bishops intend to follow the prescriptions of canon law in order to compel Catholic institutions to adhere to the teachings of the Church which they claim to follow.

New unity and new hope

The current controversy over the HHS mandate has stirred Americans to defend religious liberty. The Catholic bishops are united in their opposition to the mandate, and they enjoy the support of the majority of Catholics. Other religious bodies have also expressed their firm resolve to fight the mandate in the courts and through the legislature. Seven US states and several Catholic organizations have already filed suit against HHS and other agencies of the Obama administration.

People of faith and those of no faith will not simply shut up and pay up in the face of this blatant attack on the fundamental human and constitutional right to the free exercise of conscience and religion.

 
About the Author
Msgr. Kevin T. McMahon, STD 

Msgr. Kevin T. McMahon, STD is professor of moral theology at the Pontifical College Josephinum in Columbus, Ohio.
 

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