Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
These days, media commentators have suggested that Pope Francis is criticizing the U.S. bishops for being "obsessed" with abortion and other hot-button issues. But there's another story on display right now that exposes the obsession of abortions-rights activists. In this story,the same 'single-issue politics' that reframed the religious freedom battle over the HHS contraception mandate as a "war on women," has led Democrats to limit the GOP's use of the filibuster to block the appointment of liberal judges.
So what does the filibuster have to do with the HHS mandate?
Everything, according to the New York Times. Reportedly, Senate Majority leader Harry Reid and like-minded Senate Democrats sought to limit Republicans' use of the filibuster, in part, because they didn't like rulings that favored employers that opposed the HHS mandatae on moral grounds. Reid singled out a Nov. 1 judicial ruling by Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit. The problem was that Brown's ruling favored the plaintiff. The Times reported
In the case before the Washington appeals court, Judge Brown issued an opnion siding with Freshway Foods.... In the opinion, she likened the government's requirement that the company cover birth control for its employees to affirming "a repugnant belief," and wrote that the company could be forced to be "complicit in a grave moral wrong."
The Times story and Reid cited passages from Judge Brown's ruling, without noting the full context. The Times and Reid did not attempt to clarify that Judge Brown, in her decision favoring the HHS for-profit plaintiff, sought to adhere to legal criteria outlined in the Religious Freedom Restoration Act, passed by Congress and signed by President Bill Clinton. RFRA directs government to pass laws that do not unjustly burden the free exercise of religion unless there is a "compelling state interest." Once that "compelling state interest" has been established, RFRA directs the state must choose the least burdensome means of advancing that interest.
Judge Brown is one among a slew of federal judges to rule against the Obama administraiton's contracepiton mandate. And when these judges note the moral objections of the plaintiffs, they do so to highlight the burdens imposed on the free exercise of religion. The issue is not whether the judge shares these faith-based objections. If that were the case, then a Catholic judge might dismiss Jewish or Muslim religous objections to a particular law. The issue is whether a plaintiff, who adheres to a particular religious teaching, is forced to violate that deeply held belief, or -- as in the case of the contraception mandate-- pay passive fines that could cripple or close their business.
Ed Whelan, who blogs at Bench Memos for National Review, outlined Judge Brown's opinion in Gilardi v. U.S. Dep’t of Health and Human Services, and placed passages from her decision in proper context:
The primary opinion, by Judge Janice Rogers Brown, rules, first, that the closely-held companies that the Gilardis run do not have any rights under RFRA. Judge Brown determines that “secular corporations” do not have free-exercise rights. And although the line between secular and religious corporations might not be easy to draw (and does not turn on the for-profit/nonprofit distinction), the plaintiff companies conceded that they are religious corporations. (Slip op. at 7-15.)
But, Brown rules, the Gilardis themselves have been injured by the HHS mandate in a way that is separate and distinct from the injury to their companies. (Slip op. at 15-17.) The HHS mandate burdens their exercise of religion by pressuring them to approve and endorse the inclusion of objectionable coverage in their companies’ health plans. “They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong.” (Slip op. at 20; see generally pp. 17-23.) The government’s supposedly compelling interest is nebulous (slip op. at 23-28), and even if it were compelling, the HHS mandate is not the least restrictive means of furthering that interest (slip op. at 28-32.)
Sounds like a nuanced decision. But if you do an internet search, you'll find the blogspere alive with attacks on Judge Brown purported extremism. For many such commentators and activists, "reproductive rights" trump religious freedom. Period.
Single-issue politics fueled the recent decisions both to embrace the "nuclear option," and to back the HHS mandate, among other morally problematic services authorized under the Affordable Care Act, forcing the U.S. bishops to withhold their support for Obamacare. This point was made clear by Cardinal Timothy Dolan of New York, in a Dec. 1 television interview on NBC's Meet the Press.
Cardinal Dolan said that since 1919, the U.S. bishops have advocated for "afforable, universal healthcare." The bishops backed off after the Affordable Care Act excluded "undocumented immigrant and the unborn baby."
So that's when we began to worry and draw back and say, 'Mr. President, please, you're really kind of pushing aside some of your greatest supporters here. We want to be with you, we want to be strong. And if you keep doing this, we're not going to be able to be one of your cheerleaders....And that sadly is what happened.