Panelists at the Alliance Defending Freedom presentation on March 16 concerning the HHS contraceptive/abortifacient mandate case recently heard at the Supreme Court entertained questions following their presentations, summarized in an earlier article. Panelists included Matthew S. Bowman, Senior Counsel of the Alliance Defending Freedom, Gregory S. Baylor, Senior Counsel of the Alliance Defending Freedom and Director of the Center for Religious Schools, Helen Alvare, Professor at the George Mason University School of Law, and Founder of Women Speak for Themselves, and Catherine Szeltner, a reporter and producer with the Eternal Word Network, a Catholic broadcasting network.
A questioner asked what Justice Scalia’s passing means for the outcome of the current case before the Supreme Court. Gregory Baylor of ADF responded that the previous Hobby Lobby decision protecting the religious liberty of closely held for-profit corporations was a 5 to 4 decision. However, the current case involves non-profits, but beyond that, religious non-profits, so the previous voting pattern, which is also the common liberal/conservative divide of the court, may not be a predictor of the outcome in this case. This is a realistic hope, he said. But if there is a 4 to 4 split on the Supreme Court, one of two results is possible. The court could allow this split to be the final action on the case, in which case the decisions of the lower courts, which went against the religious organizations involved, would stand. These organizations would then be required to comply with the mandate, pay prohibitive fines, or close. There would, however, be no legal precedent established for the cases the court is considering. Alternatively, the court could, if it so decided, postpone a decision until after this election year, and perhaps until after all nine positions on the court have been filled. In that case, these organizations would continue to have the judgments against them suspended until the court makes a final decision. It was also noted by a questioner that Roe vs. Wade case was not decided for three years from 1970 to 1973.
The question of state interference in personal life is a crucial part of the case. In response to a question as to whether women generally favor the use of contraception and abortifacients, Szeltner responded that it is contraception which is a war on women’s bodies. Another questioner noted that the “hipster” movement (a generally liberal/left type of alternative culture) has tried to influence the government to regulate what people eat, a clear government interference in that area of life, a kind of interference that would be considered intolerable if an issue were construed as sexual. Szeltner responded that we are encouraged to eat organic foods, yet are encouraged to take drugs that alter normal bodily functions (with contraceptives).
Another question concerned how panelists would respond to the claim that declining to fill out the HHS mandate form to initiate contraceptive and abortifacient coverage is simply being obstinate. Baylor said that filling out the form does not simply involve claiming a conscientious objection to providing contraceptives and abortifacients, but actually involves the organization in the process of obtaining contraceptives and/or abortifacients. “The role of the employer is indispensable in this plan,” he said. It is not an accommodation, but another way of complying in supplying goods believed to be sinful. It should not be referred to as an “accommodation,” but as a second way to comply with an objectionable mandate, Baylor said. Normal conscientious objection says “I object to causing evil.” Government insistence on employer involvement in the HHS mandate really says moral and religious analysis of contraception and abortifacients is wrong, Baylor claimed. Baylor also said that the analogy being made between complying with the HHS mandate by filling out the HHS mandate form and procedures for conscientious objection to military service is wrong. Religious organizations are not being asked to say “I object to going to war,” but to provide a substitute soldier.
Another aspect of the case is the new social reality the cultural left is endeavoring to construct using health care. A questioner pointed out that the government is trying to “alter reality” by saying that the provision of contraceptives and abortifacients are not in plans these organizations are required to offer, when in fact they are present in the plans. Baylor responded that the government is saying that contraception is not in the plans if the government says it is not. The government is “mischaracterizing beliefs.” The “accommodation” is simply another way of complying with the HHS mandate and involvement in the provision of contraception and abortion inducing drugs. Alvare said that the public may be receptive to the government’s real claim that it can determine what religion is and is not by executive determination of the scope allowed to the free exercise of religion. Noteworthy in this respect is that 28 states have contraception mandates. But in these states there is no reduction in unwanted pregnancy, she said.
A questioner asked if the worldviews of young people are a problem in defending religious liberty. Szeltner said that the denial of religious liberty is a problem for everyone. Alvare added that when asking for religious freedom, the claim should be addressed as are claims to free speech, protected regardless of offense to others. Baylor said that religious freedom should be about balancing. In the past, “it was understood that way.” An objecting pharmacist, florist, baker, or marriage official was no problem if others can provide the objectionable service. Today, conscientious objection is not tolerated if it is motivated by opposition to the sexual revolution.
Another questioner asked if the government is discouraging childbirth. Alvare responded that the government says it is trying to discourage unwanted pregnancy. It is really putting adult happiness before the interests of children. The government’s true position is not so much anti-child as pro-adult freedom of choice.
An observer from the Family Research Council pointed out that there is accommodation to religious belief in our society, but not from the Obama Administration, and asked how we make this clear to the public. On such things as blood transfusion and the selling of pork, there is accommodation to religious beliefs, she said, but moral objections to the sexual revolution are not accommodated. Baylor responded that the administration now has moved away from speaking of its alternative way of compliance as “accommodation” and is calling it an “opt-out” instead. This implies that moral and religious objections to the sexual revolution are being accommodated, when in fact they are not. It might be added that the term “opt-out” carries the connotation of “special treatment.” But really the Administration’s response to religious opposition to its policy is not an “opt-out,” Baylor said, although the mainstream media have accepted the government’s narrative. The real exemption, given to houses of worship, is not given to religious organizations. The government must move from its ideological commitment to the sexual revolution to commitment to legal principle, Baylor said. Szeltner suggested that we refer to the “so called accommodation.”
It might be added that the Catholic faith especially requires service to the public as a religious act. And it cannot be a religious act unless it is done by religious standards.
Alvare observed that rational arguments are difficult because of political and ideological conflict. It could be added that without liberal/left ideology, most people could easily see that people should not be required to pay for other people’s choices that they believe are immoral, or contribute to behavior believed immoral. This must be offered as the final argument for religious conscientious objection to a society which professes pluralism, and a state which professes neutrality.
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