The HHS Mandate: Is the Battle About Religious Freedom or Contraception?

Are Americans ceding the debate on whether the culture will benefit from the state’s promotion of contraception? Helen Alvare weighs in.

Helen Alvare
Helen Alvare (photo: CNA photo)

WASHINGTON — Since the contraception mandate was approved on Jan. 20 with a narrow religious exemption, opponents have called it an unprecedented threat to the “first freedom.”

Even as Democrats sought to redefine the issue as an attack on women’s access to contraception, Catholic leaders and their allies have mostly stayed on message during congressional hearings and media interviews.

But at a March 23 Georgetown University forum on the contraception mandate, Helen Alvare, a pro-life leader and law professor at George Mason University, took direct aim at the claimed health effects of government sponsored contraception programs, and other arguments the Obama administration has employed to blunt criticism of its controversial policy.

To be clear: Alvare did not advocate legal restrictions on contraception. Rather, her argument attacked the government’s assertion that the contraception mandate, which includes abortifacients and sterilization, is necessary for women’s health. 

Like any legal scholar addressing religious-freedom issues, she began by asking several questions likely to surface in any legal challenge to the mandate:

What is the state’s compelling interest in advancing a contraception-promotion policy that poses a threat to religious freedom?

What is the nature of the burden being imposed on religious institutions?

Finally, if the state’s interest is justified, what is the least burdensome means to compel conscientious objectors to comply with said policy?

While many scholars who oppose the mandate have focused on the narrow exemption it provides, Alvare also drew attention to the continuity, prescience and institutional witness of Catholic teaching and practice on contraception.

“I will be talking about how the Catholic Church understands the burden placed on it by the mandate … and the interference with internal religious affairs it represents,” said Alvare, speaking at the panel discussion on the mandate sponsored by the Religious Freedom Project, a program of the Berkley Center at Georgetown.

She sketched a timeline that began with the Food and Drug Administration’s approval of oral contraceptives in 1960 and included Pope Paul VI’s 1968 encyclical Humanae Vitae, which warned that birth-control use would fuel exploitive treatment of women, dissolution of marriages and coercive state population-control efforts.

She briefly noted Blessed John Paul II’s theology of the body and fresh efforts to bring that teaching to mainstream Catholic life. And she argued that the on-going exclusion of contraceptive services from Church health plans was deeply significant.

“The continuing refusal to insure for contraception services is possibly the most visible way Catholic institutions have expressed the continuing Catholic position” on birth control, she asserted, thus underscoring the heavy burden the mandate imposed.

Any break from that practice would likely be a source of scandal and moral confusion, she said, suggesting the broad scope of the burden placed on Church-affiliated universities, hospitals and social agencies required to cooperate with the provision of services they strongly oppose.

If Catholic institutions offer health plans that include these services, she added, “it’s likely to give the appearance that the institutions lack commitment to the critical values at stake — especially marriage, chastity and life.

“It therefore interferes with the solemn obligation of Catholic institutions to bear witness to the truth of Jesus Christ and his teachings,” she added.

Alvare contrasted the development of Catholic Church teaching on contraception and sexual ethics with the culture’s struggle to make sense of the social consequences of contraception use.

When oral contraceptives were introduced, non-marital births were just 5% of all live births. By 2010, non-marital births had steadily increased to 40% of all live births — despite an explosion of federal and state programs providing free or subsidized birth control.

In Alvare’s judgment, the social pathologies associated with non-marital sexual relationships — facilitated and fostered by artificial birth control — raise questions about the administration’s reasons for establishing the mandate: securing women’s health and reducing both unintended pregnancies and the associated financial impact on government-assistance programs for such families.

The administration has offered no solid “rationale — let alone a compelling government interest in making contraception marginally easier to access as a claimed response to women’s health needs,” Alvare charged.

She thus challenged the mandate’s constitutional standards, suggesting that it would fail both the First Amendment and the Religious Freedom Restoration Act.

First, the ineffectiveness of government contraception policies designed to stem unintended pregnancies cast doubt on the ‘state’s compelling interest’ in advancing access to contraception.

Second, the ‘burden’ imposed upon the free exercise of objecting religious institutions was too great to justify the modest increase in access to contraception—already widely available through state and federal programs.

At the Georgetown forum, the other panelists on both sides of the debate set aside Alvare’s points about whether the state should be promoting contraception and the full scope of the burden imposed on church-affiliated institutions. Instead, they primarily addressed whether the mandate’s narrow exemption met constitutional or statutory standards.

However, Thomas Farr, the director of Georgetown’s Religious Freedom Project, welcomed Alvare’s contribution.

“I believe the conversation revealed that the HHS mandate is about religious freedom in full — that is, the mandate certainly implicates the particular legal questions surrounding the Free Exercise Clause of the Constitution and conscience exemptions, but it also raises the issue of libertas ecclesiae: the Church’s right to present its teachings on contraception, abortion and sterilization and how those activities affect the common good.”

“It seems reasonably clear that the bishops are going to fight to carve out conscience exemptions for religious institutions and religious individuals. It is less clear whether they or other Catholics will see a responsibility to exercise the right (some might call it a duty) to make the Catholic case on contraception in the public square,” Farr added.

The mandate has prompted a slew of legal actions, with a growing number of religious institutions and states challenging the narrow religious exemption in court.

However, while some scholars predict that the Religious Freedom Restoration Act provides a high standard to bolster the bishops’ case, some panelists at the Georgetown forum predicted that any legal challenge would end badly for conscientious objectors.

“What the courts will decide is difficult to predict. There is a broad, secular, cultural belief that opposition to contraception is madness and that it cannot be defended except on some inaccessible theological ground,” said Farr.

But he noted that when Alvare disputed the state’s interest in promoting contraception, she moved beyond Catholic moral principles to address the practical legacy of birth-control use over half a century.

Farr observed, “The meaning and value of religious freedom in full raises many issues. The most immediate is whether the Obama administration will protect the conscience rights of Catholic and other religious institutions and individuals — and, if it does not, whether the courts will mandate their protection because of the Free Exercise Clause.”

But, he added, “a broader, more Catholic-specific aspect of the question is this: Will Catholics publicly defend — with patience and charity — their teachings on contraception as a matter of the common good? Will they do so less as a matter of changing the laws, but changing the culture? Put differently, if those teachings are true, why are we not defending them?”

Register senior editor Joan Frawley Desmond writes from Chevy Chase,Maryland.