The current controversy surrounding the “contraceptive mandate” from the Department of Health and Human Services (HHS) has focused on too narrow a set of issues. The issues at hand aren’t the virtues or vices of contraception (or, worse, pills that induce abortion), and they aren’t not just about Catholic hospitals or charities, and they aren’t just about whether “preventive medicine” is cost-effective in the long run.
For that matter, while the biggest issue clearly does involve religious freedom, even that issue itself is broader than it has usually been portrayed. Furthermore, not even that crucially important principle fully captures the entirety of what’s at stake in the dispute.
University of Mobile President Mark Foley got it right when he called the new regulations “the most blatant incursion upon religious liberty in current history,” or at least in the current history of the Western world. The situation is this: By refusing to allow faith-based institutions to avoid providing services directly in contradiction to their religious teachings, the HHS regulations don’t merely affect Catholic practices related to contraception. Instead, they would allow the government to interfere almost at will with any economic- or health-related policies of any denomination or religion.
Orthodox Jewish charities conceivably could be forced to do work on the Sabbath. Amish could be required to use electricity to comply with rules promulgated by the Occupational Safety and Health Administration. Or, if liberal cultural warriors have their way in the long run on “medical marijuana” or “compassionate assisted suicide,” regulations could force Baptist hospitals to provide those services as well.
It’s not that these scenarios are likely; it’s that, under the legal theories being assumed by the administration, there would no longer be any constitutional barrier to such policy choices. Alas, as plenty of experience shows, that which the federal government is not forbidden to do usually ends up, in the long run, being a power the government actually exercises.
To paraphrase an old saying, “First they abused the rights of Catholics, but I wasn’t Catholic, so I didn’t object. Then they abused the rights of Confucians, but again I didn’t object…. When they finally attacked my rights, I was a goner, because nobody else remained to defend me.”
So, clearly, religious freedom is at risk. This is both a moral affront and a constitutional affront, because the First Amendment was explicitly designed to protect what Thomas Jefferson and James Madison called “liberty of conscience.” Indeed, in the Virginia Declaration of Rights, upon which the federal Bill of Rights is largely based, Madison successfully removed the idea of government showing “tolerance” for religion (which implied that religious rights were merely doled out by a beneficent government rather than a natural right from God) and instead won the adoption of this language: “All men are equally entitled to the full and free exercise of [religion] according to the dictates of Conscience.”
The rights for which Madison fought did not merely adhere to institutions; they primarily protected individuals. If faith-based institutions are forced to capitulate on the current issue, so too would individuals not be allowed to exercise their consciences – a growing problem, anyway, as thesecolumns have noted before.
Yet, as important as religious freedom is, it’s still only part of the story (albeit the most consequential part). The same unrestrained power that would let the government trample religious liberty (if the “contraception” regulation stands) will let it become authoritarian across the board. This is at the heart of the battle over the “individual insurance mandate” due for Supreme Court review, and over another upcoming health care battle over something called the Independent Payment Advisory Board.
Health care is hardly the only problem area. A government that doesn’t protect something as fundamental as religious liberty certainly can’t be trusted to protect personal privacy from new technological forms of surveillance. It can’t be trusted to protect private property, or contractual rights, or the right to peacefully assemble or engage in political speech. In short, a government that doesn’t respect traditional limits soon becomes a government that respects no limits. This is the recipe for a society of ordered liberty to transform into a society where government orders supersede liberty – and, if worse comes to worse, ends up crushing liberty entirely.
None of this is to ascribe nefarious motives to any contestants in the dispute. It is, however, to explain how the results, whether intentional or not, could end up being nefarious indeed. That’s why, as Dr. Foley wrote, “It's time that persons of faith insist that our voice be heard in America.” Voices heard, yes, and our rights observed and respected.