The Jig Is Up

As you’ve probably noticed by now, the response of conservative Catholics to President Barack Obama’s decision to require full birth-control coverage from employers who provide health insurance has been to accuse the administration of an attack on religious freedom. These Catholics, and in particular, the Catholic Bishops, would prefer a regime that allows a broad exemption for Catholic-affiliated hospitals, even if they employ nonadherents and serve the general public. Anything less, they argue, is an assault on their constitutional rights. To wit:

“The federal government, which claims to be ‘of, by and for the people,’ has just dealt a heavy blow to almost a quarter of those people – the Catholic population – and to the millions more who are served by the Catholic faithful,” said Bishop Timothy A. McDonnell of Springfield, Mass., told his congregation on Sunday. “We cannot – we will not – comply with this unjust law.”

Supporters of the administration argue two things. First is that this rule isn’t new. Two of the largest states in the union—New York and California—have identical laws on the books, while 26 other states have fairly narrow exemptions to insurance rules for religiously affiliated employers.

Because this rule isn’t a big change from the status quo, supporters also argue that this “controversy” has less to do with religious freedom and more to do with the political positioning of the Catholic bishops as well as their long-standing opposition to contraception (which isn’t shared by a large majority of the Catholic laity). The evidence for this claim became much stronger yesterday, when a spokesperson for the bishops gave up the game—that this has nothing to do with conscience exemptions and everything to do with a deep hostility to reproductive choice and women’s health:

“There has been a lot of talk in the last couple days about compromise, but it sounds to us like a way to turn down the heat, to placate people without doing anything in particular,” Picarello said. “We’re not going to do anything until this is fixed.”

That means removing the provision from the health care law altogether, he said, not simply changing it for Catholic employers and their insurers. He cited the problem that would create for “good Catholic business people who can’t in good conscience cooperate with this.”

“If I quit this job and opened a Taco Bell, I’d be covered by the mandate,” Picarello said.

In other words, if a Catholic so much as opens a business—even if it’s secular—they should be allowed to discriminate and deny birth-control coverage to their female employees, in effect, charging them a fine for having two XX chromosomes. To borrow a line from Antonin Scalia’s opinion in Employment Division v. Smith (which you can read about here), to acquiesce to the bishops—and allow private citizens to escape the law because of incidental burdens to their religious beliefs—“would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

The good news is that this strengthens the political hand of the Obama administration against skittish Democrats. According to the latest poll from the Public Religion Research Institute, 55 percent of Americans agree that “employers should be required to provide their employees with health-care plans that cover contraception and birth control at no cost.” This includes 58 percent of Catholics and 52 percent of Catholic voters. Similar results were collected by Public Policy Polling in a survey released earlier in the week.

If this becomes a fight about access to birth control in general, it’s hard to believe that these numbers wouldn’t improve by a significant margin. It’s one thing to defend religious freedom, it’s something else entirely to pick a fight with the near–100 percent of Americans who have used—or will use—birth control at some point in their lives. And if this happens, Republicans who have hitched their wagon to the bishops—like Mitt Romney and Rick Santorum—will be in for an unpleasant surprise.