Suppose for a moment that Congress reinstituted a military draft and that the government handed down the following regulation:
No one will be exempt from military service as a conscientious objector unless he or she provides the name and contact information for someone who’s willing to take his or her place. If the conscientious objector fails to comply with this regulation, he or she will be fined $100,000.
Sound crazy? Unthinkable? Un-American?
Indeed, fining someone because of his or her sincerely held religious or moral beliefs would be un-American. It would be contrary to the principle of religious freedom upon which the United States was founded.
But financially penalizing people for adhering to their faiths is what the Obama administration has tried to do – and still may try to do – with its HHS mandate.
The HHS regulation and its “accommodation” for religious non-profit groups would require some faith-based employers to include in their employee health insurance plans coverage for abortion-causing drugs and other morally objectionable items. Like the hypothetical conscientious objector in the scenario above, those who obey their faith instead of the government would be levied massive fines.
The organization I lead, Priests for Life, has been fighting the HHS mandate in court for over four years. Our lawsuit, Priests for Life vs. HHS, is one of the seven that were consolidated into the recent Supreme Court case of Zubik vs. Burwell. After the Court received supplemental briefs from both sides stating that a solution acceptable to religious groups is “feasible,” it sent our case and the others back to the lower appeals courts for resolution.
Right now, we wait for the administration to produce a revised accommodation that respects religious liberty. If it doesn’t, the lawsuits will continue — perhaps all the way back to the Supreme Court.
At the heart of the case is the question of complicity. Specifically, must religious non-profit groups take part in activities which their faith deems as cooperating in evil?
Take the hypothetical conscientious objector to military service who’s ordered by the government to find his own replacement on the battlefield. If his faith teaches that he must live a life of pacifism, recruiting someone to fight in a war would violate that teaching; it would make him complicit in that war. Moreover, if his faith also teaches that this complicity extends to taking actions to assure that another person fights in the same war, then the “opt-out” to which the believer still objects is just as much a violation of his freedom to practice his faith as is the action from which the government is claiming to exempt him.
So, too, with the HHS mandate.
Under the HHS regulation, non-profit religious groups would not be opting out of providing abortifacients to their employees; they would be made complicit in providing them. Under the “accommodation” devised by the Department of Health and Human Services, religious organizations would have to take the initial, necessary step in the abortifacient distribution chain. The administration claims that this step is inconsequential. But they have no business saying that when our faith says just the opposite.
Participation in evil is still participation in evil. There is nothing inconsequential about it.
Fortunately, there are almost always simple alternatives to forcing citizens to violate their beliefs. And these alternatives both serve the government’s interests and protect the religious freedom of Americans.
With the pacifist who objects to participating in war, the alternative is simple and obvious — instead of the government forcing him to find his own replacement, it could just find a replacement itself. The government could draft another person without the help or involvement of the one who objects.
With the HHS mandate, the government could make abortifacients available without involving religious non-profit groups. In fact, under the Religious Freedom Restoration Act passed by Congress over two decades ago, the government must do this.
RFRA states that the government cannot substantially burden religious belief without establishing that its action is the “least restrictive means” of advancing a compelling interest. Here, the administration has several options that are far less restrictive on religious freedom.
As we have outlined in our legal filings in Priests for Life vs. HHS, the government could place a mandate on insurance companies instead of religious organizations to provide the coverage to which these organizations object. It could require that such companies issue and make available completely separate contraceptive-only policies that do not require the authorization of the religious groups. It could make such policies available through Obamacare exchanges or other methods, rather than through our own health insurance plans.
There are other alternatives, but the point is, the Obama administration does not have to force us to take actions or grant permissions that violate our religious faiths in order to achieve its policy agenda.
As Americans, we respect and obey our government and our laws. And our laws on religious liberty recognize what most have always believed — that there is an Authority higher than government. When forced to obey either God or the Secretary of Health and Human Services, the petitioners in Priests for Life vs HHS, and those involved in all the other lawsuits against the HHS mandate will choose God.
Fr. Frank Pavone is national director of Priests for Life. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
