(by Susan Klemond)
Catholics who work at for-profit companies might not feel morally challenged by the fact that abortifacients, elective sterilization and contraceptives are now 100 percent covered under their health plans because they’re not obligated to use them.
But most Catholic for-profit employers, now forced by the HHS mandate to provide and pay for this coverage for their workforce, are struggling to understand and follow Church teaching on the issue while continuing to operate their businesses.
And, unless the requirement is changed — which isn’t very likely — starting this August non-profits also will face stiff fines for not complying. (The HHS mandate is named for the Department of Health and Human Services which is enforcing it as part of the Patient Protection and Affordable Care Act)
Catholic teaching has led the U.S. bishops, theologians and many employers to conclude that the mandate is not acceptable because it obliges Catholic employers to cooperate — substantially, directly and indispensably — in very gravely wrong actions.
Currently more than 190 individuals representing hospitals, universities, businesses and schools have filed 59 lawsuits against the mandate, according to the Becket Fund for Religious Liberty — a Washington, D.C.-based non-profit, public-interest legal and educational institute protecting religious freedom — which has represented a number of organizations opposing the HHS mandate.
In the two Minnesota cases, federal courts have granted business owners temporary relief from the mandate as they await final decisions.
How and why does complying with the mandate go against Church teaching? Have the government’s actions violated the constitutional right to free exercise of religion?
Theologians writing in two court briefs offer answers to these questions. St. Louis abbot and theologian Benedictine Father Thomas Frerking along with the non-profit Missouri Roundtable for Life contributed to a friend-of-the-court brief filed with several lawsuits opposing the mandate, including one in Minnesota. Also, a group of theologians contributed to another brief filed as part of an appeal in a Michigan court.
Here, in question-and-answer format, are some of their arguments.
Why is the mandate so bad for Catholic employers?
The HHS mandate fits the legal definition of a “substantial burden” on the practice of faith because it forces participation in practices considered immoral by the Catholic faith.
Through the mandate, the government creates and imposes coercive pressure on employers to pay for and provide products and services that require Catholics to either change or violate their beliefs.
In establishing the mandate, the government is setting up a structure through which it could easily require employers to pay for coverage of other immoral practices such as surgical abortion and euthanasia.
Employers don’t force their employees to use abortifacients, elective sterilization or contraceptives. Why is it wrong just to offer the coverage?
By providing the mandated coverage, employers knowingly facilitate another person’s objectionable action and this makes them morally complicit with that action. The more serious the forbidden action, the greater the responsibility.
This link is also found in American tort law: a person has increased responsibility for an effect they substantially and directly cause.
The mandate requires that employers have very substantial and direct participation because the forbidden action wouldn’t happen without their contribution, which they know is earmarked for that purpose. The fact that employers pay the whole cost also makes it likely that usage will increase.
Providing and paying for the coverage also violates Church teaching because it sends a message that the employer endorses the actions.
I oppose the death penalty and I’m forced to pay for it through my taxes. How is that different than complying with the mandate?
The difference has to do with how directly a person participates in the action. If they share in the intention by physically cooperating or knowingly giving moral assistance, they more seriously violate Church teaching than if they facilitate but don’t share in the intention. It’s necessary to weigh how closely a person contributes to a bad action.
The Church teaches that the cooperator’s moral distance from the bad action needs to be proportionate to the gravity of the action.
Taxpayers don’t directly pay the cost of administering the death penalty — their tax money passes through different channels first. The more causally removed they are, the more acceptable is their cooperation. But an employer who is paying directly for forbidden products and services needs a more serious justification for doing so.
Is this current Catholic teaching?
The Church’s theological tradition contains well developed concepts used to assess how believers cooperate licitly or illicitly in actions considered objectionable. Several objective criteria are commonly used.
In addition, the Catholic bishops have frequently spoken out against the mandate and before it was issued they openly forbid close cooperation in abortion and sterilization procedures. Also the Church has consistently taught that use of contraceptives is immoral.
Haven’t some courts ruled that the mandate doesn’t impose a substantial burden on employers’ ability to practice their faith?
The government doesn’t have the authority to interpret the dictates of someone’s religion. Several courts overstepped their bounds when they substituted their own judgment on the Catholic faith in cases related to the mandate.
Under a 1993 law, the Religious Freedom Restoration Act (RFRA), courts can’t judge the adequacy of someone’s beliefs and they are instructed to defer to believers’ assessment of what their religion requires.
If a believer’s claim is not bizarre or nonreligious it merits coverage under the free exercise clause of the First Amendment and RFRA.
Do the government’s objectives with the mandate justify forcing employers to violate their consciences?
Attorneys defending employers have concluded that the mandate doesn’t further a compelling government interest because contraceptives are easily and inexpensively available through other sources.
The government is responsible for specifically identifying an actual problem that needs solving and for showing that substantially burdening employers is necessary for the solution. According to the writers of the briefs, the mandate would only marginally increase access to contraceptives and abortifacients, and so the mandate violates RFRA.
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