Assessing Obama’s Assault on Religious Liberty

Legatus Magazine | Published on

By James C. Capretta and Rev. Thomas V. Berg

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The Department of Health and Human Services (HHS) issued a final rule on Jan. 20 requiring all insurers to include free coverage of abortion-inducing drugs, sterilization procedures and prescription contraceptives in their insurance plans—including those sponsored by employers. All of these “preventive services” are instrumental to engaging in intrinsically evil actions, as consistently taught by the Catholic Church.

On Feb. 10, President Obama announced that the administration would pursue an “accommodation” to address objections to the HHS mandate. He did so by principally removing the employer from the equation, shifting the cost of the objectionable coverage from the employer to insurance companies.

The outcry from a broad spectrum of Americans of both political parties, a plethora of religious affiliations, and most notably from the Catholic bishops under the leadership of Cardinal Timothy Dolan, has been powerful. With great effect, the bishops have insisted that the administration’s assault on the religious liberty of some is an assault on the religious liberty of all. Nor will the bishops tolerate a solution that exempts Catholic institutions while leaving tens of thousands of religiously minded and conscientious individual employers without recourse.

Proponents of the mandate have suggested that insurance companies could rely on health cost savings that would accrue due to the availability of the “preventive services.” But the vast majority of analysts believe that the very real costs of providing “free” services in insurance will be passed on to the employers in form of higher premiums. Now three months into the controversy, experts can envision no scenario relying on insurance to cover these services which disentangles religiously affiliated employers sufficiently to satisfy Catholic moral concerns. In greater detail, here’s why.

The government intends to force insurers to cover these products and services even though the contract between the insurer and employer excludes them. Thus, from the perspective of a Catholic employer, if it chooses to offer health insurance to its workers, it will know in advance that this coverage pays for the problematic products and services. The government is leaving no way around this problem because it is insisting that the mechanism for providing “free contraception” to the public must be the insurance system.

Consequently, it remains the case that when a Catholic employer chooses to offer insurance, it will, by definition, trigger insurance coverage for the very same objectionable products and services. That is, employees will have access to these proscribed services and products in virtue of the contract between employer and insurance company. Thus, the Catholic employer is left in the position of either accepting to be a key cog in the process of facilitating access to gravely immoral practices or of not providing health insurance at all to its workers.

That “being a key cog in the process” is termed in Catholic moral theology as “material cooperation” (as opposed to “formal cooperation,” which would mean willfully being a cog in an evil endeavor—like the get-away driver in a bank robbery). Conscientious Catholic employers who wish to be faithful to Catholic moral teaching would certainly not approve of their insurance policies covering these services (that would be formal cooperation), but by acquiescing to the mandate they would find themselves in this position of materially cooperating. The Church teaches that material cooperation can at times be licitly tolerated in view of very serious reasons. Is the provision of health insurance to employees a serious enough reason to allow for this degree of complicity?

The evident moral good of providing health insurance to employees (with all the attendant benefits) does not supersede the grave moral requirements of upholding religious liberty, protecting the life of the unborn and witnessing to the world about the right ordering of human sexuality. While the provision of health insurance by employers is certainly in full harmony with Catholic social teaching, it is not—nor have the bishops of this country ever taught that it is—a positive moral obligation of Catholic employers. Of course, in 2014 and beyond, employers will have even less of an obligation to provide insurance to their workers as the government will have set up by then an alternative insurance access point in every state.

But what a tragedy it would be for any Catholic employer to have to face such a choice. Before it comes to that, it is our hope, rather, that reason will prevail through the voices of concerned citizens all across this country. We must continue to reject empty offers of “accommodation” and demand rescission of this unconstitutional, unlawful and immoral regulation.

James C. Capretta is a fellow at the Ethics and Public Policy Center and project director of e21′s ObamaCareWatch.org.He was an associate director at the Office of Management and Budget from 2001 to 2004. Rev. Thomas V. Berg is a member of the New York State Task Force on Life and the Law and professor of moral theology at St. Joseph’s Seminary in Yonkers, New York.