Free Birth Control vs. Freedom of Religion

When Pliny the Younger was a provincial governor in the Roman Empire, he wrote a letter to Emperor Trajan asking whether he should execute Christians who refused to burn incense in worship of the emperor. Pliny, in keeping with the customs of the empire, did not care about forcing Christians to believe that the emperor was a god. But in public they had to behave as if they did. Thus, the Christians were in the dock not so much because of their faith in a risen Christ as over their willful refusal to declare themselves part of the reigning social order.

I thought of Pliny when I read that the Obama administration, in creating specific rules to implement Obamacare, will require all employers (with a very narrow exemption discussed below) to offer their employees health insurance that provides FDA-approved contraception, female sterilization, and other “reproductive” services free of charge — even if the employer is a religious organization and doing so violates its doctrine. I also recalled the times that President Obama and other members of his administration have supported “freedom of worship.” However, as in Pliny’s time, “freedom of worship” is not the same thing as “freedom of religion.” The former means that one may believe whatever one wants and worship privately without interference, whereas the latter allows one freedom to live in the world at large consistent with one’s faith tenets, even if they are not endorsed by the state.

Because the administration is knowingly forcing (primarily Catholic) religious organizations to pay for medical services to which they are theologically opposed, the new rules represent a frontal assault on freedom of religion at an institutional level. This is no small matter. To date, public controversies over “conscience” in health care have mostly involved individuals — e.g., doctors, nurses, pharmacists — whose personal morality or religious convictions conflicted with the provision of certain medical procedures or substances. For example, pharmacies in Washington State and Illinois have litigated over the right of owners to refuse to dispense contraception on religious grounds. The Ninth Circuit Court of Appeals ruled against the pharmacies and in favor of a state regulation (since withdrawn for reconsideration) requiring them to dispense legally prescribed medications. An Illinois state court took the opposite view in a similar case.

But the free-birth-control rule goes much further than creating a potential conflict between the general law and individual religious beliefs. Rather, the rule targets the right of religious organizations to conduct their public activities consistently with their religious dogma and moral values — except within the narrow confines of an actual church, synagogue, mosque, temple, or monastery.

This isn’t an accident. The preliminary rule, which will remain unchanged in the final version, created a very narrowly tailored religious exemption (page 46,623 of the Federal Register). To qualify for exemption as a “religious employer,” an organization must meet four criteria:

1. The “inculcation of religious values” is “its purpose.”
2. It “primarily employs persons who share its religious tenets.”
3. “It primarily serves persons who share its religious tenets.”
4. It is a non-profit organization under sections of the code that “refer to churches, their integrated auxiliaries, and conventions or associations, as well as to the exclusively religious activities of any religious order.”

Lest there be any doubt of the limited nature of the exemption, the proposed rule states, “Specifically, the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.”

Thus, the group health insurance covering nuns in a Catholic religious order would probably not have to cover contraception. But insurance provided by the same order’s elementary school probably would. Ditto a hospital established by the nuns.

Even more telling: Despite much screaming from opponents, the Department of Health and Human Services has refused to broaden the religious exemption in the final rule — forcing religiously founded organizations to violate their parent church’s teachings, a frontal assault on the freedom of faiths to operate institutional outreach organizations consistent with their beliefs. If this rule stands, it won’t end there. If Catholic organizations can be compelled by federal diktat to violate their religious tenets, so can other religious organizations in different contexts.

Some have argued that a recent 9–0 Supreme Court ruling allowing a Lutheran church to fire a minister who in a secular organization would have been protected by the Americans with Disabilities Act provides shelter against the free-birth-control rule. I think not. That case was not about “freedom of religion,” as I have defined it here, but “freedom of worship” — the Court ruled that churches are free to decide on the criteria for appointing and releasing their own ministers and individual leaders without interference. But the free-birth-control rule isn’t about the “ministerial exception.” Rather, it imposes a legal duty on faith organizations to comply with the values of the state whenever they engage in public action or charitable enterprise among the general society.

In fact, HHS Secretary Kathleen Sebelius declared that the Obama administration intends not only to force churches to do what the state directs, but even to speak as the state directs. From Sebelius’s official statement about the promulgation of the new rule:

We intend to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.

Thus, the Obama administration is attacking even freedom of worship by forcing exempt organizations to tell their employees where and how they can violate church teaching.

The birth-control rule is the latest and most egregious example of government forcing religious organizations to conform their operations to reigning secular moral values. In this sense, faith organizations are being compelled to participate in a metaphorical Caesar worship. As in the Roman Empire, the government will allow religious organizations general freedom of worship, but, increasingly, not freedom of religion. Pliny would approve.