The National Catholic Review

It’s been more than four years and 100 lawsuits since the federal government’s Department of Health and Human Services first proposed requiring religious institutions to include “free” contraception and early abortifacients in their health insurance coverage.

Only God (and the Government Accountability Office) know how much this administration has spent on this crusade. Almost certainly more than it would take to provide contraception to every woman and girl affected by its mandate.

Because it appears that the Supreme Court is about to write the concluding chapter to this story, it’s a good time to reflect upon the controversy and distinguish between what is at stake legally and what is at stake culturally. The latter is rarely considered.

If you read the briefs and opinions thus far produced in the lawsuits you will see two prominent legal questions. First, whether it is a “substantial burden” on religion—sufficient to trigger the Religious Freedom Restoration Act—to require religious institutions to communicate to their insurance providers that they must attach free contraceptives and early abortifacients to their health insurance plans. The government contends that the state gets to decide what does and does not burden religion; religions counter that the substance of religious conscientious objection is a theological matter outside governmental competence.

Second, if a court finds that the mandate burdens religion, RFRA requires it to decide whether the government can demonstrate a “compelling interest” in forcing these employers to insure for these drugs and devices. On the evidence, the government should fail this test. In its hundreds of briefs, it has never been able to show that the middle-class women and girls affected by the mandate (remember that poor women already get billions in free contraception) need free contraception for their health. I have read and analyzed every study the government has cited and relevant studies they have omitted. The former are either completely inapposite, incomplete or unwilling to draw the conclusions the government cites them for. The latter indicate that the government’s case is fatally flawed. Furthermore, not only do women fail to rank free contraception on their lists of “top 10 things women want,” but they can regularly be found complaining about the side effects of hormonal contraceptives, suing manufacturers or lamenting the government’s mistaking sex-divorced-from-kids for a women’s agenda.

Obviously, the legal effects of the mandate cases are important for the future of religious freedom. What is too little considered, however, is their cultural significance. In its briefs, and even more in its public messaging, the state continually claims that free contraception is synonymous with women’s freedom. Perhaps the low points were presidential campaign postcards urging women to “Vote like your lady parts depend on it! Because they kinda do!” and Colorado’s health exchange ads featuring a young woman saying: “OMG He’s Hot! Hope he’s as easy to get as this birth control.” And who can forget the federal government’s histrionic “war on women” rhetoric?

Religious employers are insisting only that the state allow the survival of competing visions of what promotes women’s well-being in the realm of sexuality. Could it possibly be the case—as the government claims—that it is better for every woman in America that there be no institutions left standing who hold that sex has weight largely because it is the place where every human being begins? And that the place where every human being begins—his or her family structure—is so very, very determinative of the chances in life a person will have?

At a time when The Washington Post editorial section is worried that women are suffering because of a lost understanding of what sex even means, when Vanity Fair asks whether we have begun the Dating Apocalypse (instant sex but no relationship), when the chairwoman of the Federal Reserve can write that contraception changes the mating market to women’s disadvantage—how could it possibly be true that the government should forbid other voices considering the welfare of women and children?

Whether or not you like the Catholic Church’s position on contraception doesn’t matter. The question is whether the state will leave standing any voice but its own on the question whether divorcing sex even from the thought of children is good for sex, good for women or good for children.

Helen Alvaré is a professor of law at George Mason University, where she teaches law and religion and family law. She is also a consultor to the Pontifical Council for the Laity.

Comments

James Schwarzwalder | 11/10/2015 - 10:06am

The key point in "The Federal Mystique" is whether the "State" is moving toward absolute control of the lives of individuals. Dem Dem's, the Obama administration and Hillary Clinton, are all for "free contraception and early abortifacients" in universal health insurance. "The Federal Mystique" also gave us several unjust and wasteful wars, Vietnam, Iraq I & II. Objection to the "draft" is what brought the Vietnam War to a close. For the next election I'm thinking of setting up a stand outside of the polling station where I can sell old fashioned clothes pins. You can put one on your nose prior to entering the voting booth.

Michael .mpc | 11/2/2015 - 12:13pm

We seem to have become afflicted by a cultural Alzheimer's or collective amnesia, that this country was founded with a very strong sense that the government, whether monarchic or 'res public', should have its powers enumerated, proscribed, and limited, in order to create a balance between order on the one hand, and liberty on the other. Do they teach the Declaration / War of Independence, the Articles of Confederation, the Federalist / anti-Federalist papers, the U. S. Constitution anymore in schools. In my opinion, the federal overreach into our personal lives is even greater than Machiavelli and Hobbes had imagined: prescribing the size of fountain sodas, mandating contraception, mandating herpes injections, etc.. With supercomputers beginning to store our choices at supermarkets, department stores, etcetera we will be told how "healthy" we are, and whether we are mentally "competent" soon. It is ridiculous. Thank you, Mrs. Alvare, for your call to the sanity of a "feminine", familial mystique.

FRED CLOSE | 10/30/2015 - 10:30pm

Humanae Vitae is actually very nuanced, and not divisive at all, no matter how many deplore it. In rejecting artificial contraception as contrary to human dignity, it points out that it is an artifice, as in "a scheme or artifice to defraud" making what appears to be a total offering of self anything but. Nothing good can come from fraud or deception.

Lisa Weber | 10/30/2015 - 3:32pm

Whether you like the Catholic Church's position on contraception matters because the church is less able to influence the culture of those who don't agree with it.

Lisa Weber | 10/30/2015 - 2:57pm

Whether or not you like the Catholic Church's position on contraception matters greatly for two reasons. The first is that "Humanae Vitae" has been divisive and is largely ignored by Catholics. The second is that by flatly condemning contraception, the church has forfeited its opportunity to make statements more nuanced and truthful.

Using contraception has physical, emotional and social costs. Not using contraception also has physical, emotional and social costs. Moral consequences are a given with any matter as important as sexuality. Church teaching focuses on the costs and disadvantages of contraception without talking about the costs and disadvantages of not using contraception: this is dishonest. Failing to discuss the issue of power in the matter of contraception is also dishonest. Dishonesty destroys one's credibility whether a person or an institution is speaking.

The legal issues are about religious freedom and are important for that reason. The Catholic Church should be able to address the cultural issues but it is handicapped by a narrow teaching that most couples do not support and a discussion so limited that it is dishonest. An opportunity to do good is being lost.

Guillermo Reyes | 11/11/2015 - 8:23pm

It is really dishonest to exclude basic medical sciences (e.g. biochemistry, physiology, embryology) in your push for the contraception dialogue (depriving a fertilized ovum to be implanted on the endometrium and thereby killing it).

Science has something to say on this matter and only the ignorant and/or proud would opt to turn a blind / dumb view to the scientifc data.. Its not all about womyns rights.

Luis Gutierrez | 10/30/2015 - 12:44pm

Likewise, whether or not you like the Catholic Church's position on the male-only priesthood doesn't matter. The question is whether the Vatican will leave standing any voice but its own (including Christ's!) on the question whether divorcing Holy Orders even from the thought of women priests is good for the hierarchy, good for the Church, or good for the people of God.

Richard Booth | 11/10/2015 - 6:20pm

Luis...we both know they call it "Tradition," based on "The apostles were all men" (we don't know that for a historical fact, by the way) and "We have always done it this way." My thinking on this issue is that the clerics do not know what to do about the real-world situations that a developing, changing world has presented to them. Why does the church say there were only 12 of them? There is magic in combinations of 3s. For instance, the mea culpas, the Trinity, three days in the tomb, 3+4 = a week, 3x4 = number of months and apostles, and on and on. Religion contains a lot of magic!

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