The contraceptive mandate and religious freedom

Erica Szalkowski Graduate Assistant, The Center for the Advancement of Catholic Higher Education
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Several years ago at the March for Life in Washington, D.C., I saw some counter-protesters —mostly college-aged women like myself — carrying signs reading, “Keep your rosaries off my ovaries.” Bizarre visuals aside, I almost felt bad for their miniscule group, ineffectually waving placards at the glacial crowd of pro-life demonstrators. Now it’s 2012, and the 38th Parallel for women’s rights groups and religious activists isn’t Roe v. Wade, it’s Belmont Abbey College v. Sebelius, Florida v. United States Department of Health and Human Services and the other suits filed by Catholic institutions on May 21 seeking to overturn the Health and Human Services (HHS) contraceptive, abortifacient and sterilization mandate. If the mandate is upheld by the courts or unchanged by the administration, it will contribute to a major redefinition of faith in the public square.

From the start, religion in the United States occupied a different sphere than other types of beliefs, which is why religious freedom was enshrined in the First Amendment. Though a combination of free speech and peaceful assembly rights could protect most congregations from government interference, the “free exercise” of religion is specifically guaranteed. This seems to imply that religion is at least different, if not more dignified, than the general rabble of ideas.

Traditionally, the U.S. legal system reinforced this difference, siding with religion even when it conflicted with social norms. During Prohibition, the passage of the Volstead Act protected the sacramental and medicinal use of alcoholic beverages — an “accommodation,” if you will — which allowed Catholics to continue to celebrate valid Masses in the United States. A more recent and somewhat gruesome example comes from Hialeah, Florida, where the local government attempted to pass ordinances against animal sacrifice to discourage the Church of the Lukumi Babalu Aye from establishing a worship space there. Despite cultural distaste for cruelty towards animals (an offense punishable with jail time in some states), the U.S. Supreme Court upheld the church’s right to ritual sacrifice. However, those engaging in “free speech” don’t enjoy the same privileges. Occupy protesters who smeared blood and urine on a hot dog cart were arrested, as were PETA representatives who doused a Neiman Marcus store with fake blood during a “Fur Free Friday” event.

Enter the HHS mandate, which rejects this legal and cultural tradition and lumps religion with all other philosophies. Atheists may approve, but both they and the 83% of Americans who identify with a faith should be concerned and offended by this redefinition, if only because the government frequently discriminates between ideologies, promoting some and discouraging others. The “Cash for Clunkers” program is a relatively benign example of the government’s efforts at shaping societal values. By incentivizing the purchase of fuel-efficient vehicles, the government revealed a partiality toward environmentalist ideologies. Do we really want to allow the government to show “partiality” toward or against the free practice of religion?

The so-called accommodation offered by the administration exposes its lack of understanding of this fundamental principle that the free exercise of religion deserves special protection. Besides refusing to expand the definition of a “religious organization” to include most actual religious organizations such as hospitals and schools, the accommodation doesn’t recognize that providing contraceptives, not just paying for them, violates the Catholic conscience. If the religious objection to contraceptive use was a simple ideological preference, passing the receipt to another organization may be enough to alleviate any sense of responsibility for their use, but this isn’t the case. By simply shifting the billing responsibilities the accommodation refuses to recognize that the Catholic objection to contraceptive use to prevent pregnancy is a conclusion based on thousands of years of moral reasoning. While an idea or conviction can flourish in the intellectual realm, religion is by definition practiced. It is this special link between faith and action which the First Amendment protected and the mandate and subsequent accommodation refuse to acknowledge.

The legality of the mandate — and the Affordable Care Act itself — is still up for debate. In the meantime, I think I’ll develop a few slogans of my own, in case I need them. How does, “Keep your contraceptives off my campus” sound?

Erica Szalkowski is a graduate assistant at the Center for the Advancement of Catholic Higher Education at Mount St. Mary’s University, and is pursuing her Masters degree in Business at Mount St. Mary’s University.