How the bishops undermined individual responsibility

Roger Pilon Vice President for Legal Affairs, Cato Institute
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There are times when a single issue captures the troubles of an age. Now in its fourth week, the Obamacare contraceptive battle is bringing to the fore not only the conflict between government-run health care and religious liberty but, far more sweepingly, between our ever more socialized world and basic notions of liberty and responsibility.

The firestorm the White House created when it announced last month that it would allow only a narrow religious exception to its rule requiring employers to provide women with free contraception and abortion medication was hardly extinguished by Friday’s “fig leaf” compromise. The U.S. Counsel of Catholic Bishops, among many others, has seen right through the sham: “In the case where the employee and insurer agree to add the objectionable coverage,” the bishops said, “that coverage is still provided as a part of the objecting employer’s plan, financed in the same way as the rest of the coverage offered by the objecting employer.”

The White House response? That’s it — no more compromise. So the lines are drawn. And the president’s supporters, looking to November, are rallying to spin this as a battle not about religious liberty but about women’s rights. New York Times editorial page editor Abe Rosenthal’s immediate reaction to Friday’s announcement was to dismiss “the ridiculous brouhaha over the new health care rule” and to chide the president for seeming to cave. But by Sunday we saw MSNBC’s Rachel Maddow with a Washington Post op-ed, “The Republican war on contraception,” while the Times’ Nicholas Kristof wrote that “If we have to choose between bishops’ sensibilities and women’s health, our national priority must be the female half of our population.”

“Our national priority”? Fasten on that phrase and a question posed by Kristof follows of necessity: “Do we really want to make accommodations across the range of faith? What if organizations affiliated with Jehovah’s Witnesses insisted on health insurance that did not cover blood transfusions? What if ultraconservative Muslim or Jewish organizations objected to health care except at sex-segregated clinics?” Well, what if they did?

The bishops have it exactly right, as far as they go: “[Friday’s] proposal continues to involve needless government intrusion in the internal governance of religious institutions and to threaten government coercion of religious people and groups to violate their most deeply held convictions.” But with their plea for special exceptions, they go only part way. What’s worse, since they supported Obama’s efforts to socialize American health care, they have no one to blame for this but themselves.

Turn anything over to government and the battle over conflicting values begins — the battle over “our national priorities.” With certain things — protecting our liberties from domestic and foreign threats, providing basic infrastructure and clean air and water — we pretty much all agree, if not at the edges at least in the main. But beyond those, we have vast disagreements about health care, education, retirement, and so much else that government dominates today, all at the expense of individual liberty and responsibility. The bishops are rightly concerned that Catholic employers are being forced to do what their religious beliefs prohibit. But that comes, necessarily, with the collective territory.

And it doesn’t help that Justice Antonin Scalia, a Catholic’s Catholic, laid a foundation for today’s dilemma. In 1992, in Employment Division v. Smith, he wrote that “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” He’s right, but unfortunately the court has never drawn a proper constitutional distinction between what government is free and not free to regulate — the very question before it at the moment in the Obamacare litigation.

On the contrary, the court’s expansive reading of government power, especially over the 20th century, has enabled people like Kristof to assume the collective posture. Thus he writes that “the cost of birth control is one reason poor women are more than three times as likely to end up pregnant unintentionally as middle-class women,” from which he concludes that “birth control is not a frill that can be lightly dropped to avoid offending bishops.” Rather, coverage for it “should be a pillar of our public health policy — and, it seems to me, of any faith-based effort to be our brother’s keeper, or our sister’s.” As the president so often says, we’re all in this together, which means that if poor women end up pregnant unintentionally, it’s we who are responsible. That’s what we’ve come to.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.