The cries of "We won! We won!" coming from some of the most extreme points on the religious (especially, Catholic) right over the recent Supreme Court non-decision regarding the Obamacare contraceptive requirement (see story) is a bit like the squeals of kids who get trophies just for participating.
The cold fact is that no one has won anything in this long, ideologically based crusade wrapped in the language of religious liberty. What's worse, such frivolous use of a religious liberty strategy breathlessly hyped by the legal group the Becket Fund, in league with certain elements of the U.S. Conference of Catholic Bishops, actually serves to undermine the cause of religious liberty in the long run. Who will take us seriously should religious liberty in some way face real threats?
A fundamental point must be kept front and center when considering the current round in the four-year fight over the Affordable Care Act's requirement that all women have access to all of the contraceptive services approved by the Food and Drug Administration. The Becket Fund argued that a religious organization's simple act of notifying the government of its objection to providing contraceptives was "cooperation in evil."
In representing the Little Sisters of the Poor, the Becket Fund said that the notification requirement "forces the Little Sisters to authorize the government to use the Sister's employee healthcare plan to provide contraceptives ... or pay massive fines, which would threaten their religious mission."
"Cooperation in evil" is a slippery moral construct in any circumstance, given that it was designed as a guide. It is not a statute or moral teaching. It was developed, according to the National Catholic Bioethics Center, "to assist with the identification of different types of cooperation and the conditions under which cooperation may or may not be tolerated."
It was further developed, according to the center, because "it would be impossible for an individual to do good in the world without being involved to some extent in evil."
Thus, on the basis of a highly subjective barometer, the Becket Fund has constructed the rationale for endless rounds of wheel-spinning before the courts.
Eight of nine lower courts that have listened to the arguments have ruled in favor of the government. The same courts now will attempt mediation to arrive at a national standard. Should a compromise be fashioned, there is strong reason to suspect it will resemble the solution already described by the Supreme Court.
What would be the principle change regarding "cooperation in evil" envisioned in that scheme? A religious group will no longer have to notify the government of its objections, instead contracting with an insurance company that would not include contraceptives in its offerings. At the same time, the insurance company would nonetheless "seamlessly" provide those same drugs and devices to any of that religious group's employees who wish to have them. For free.
We will have gone through four years of needless legal wrangling, under the charade of a religious liberty fight that we were told threatened the very existence of church ministries, to rid the process of a piece of paper.
Nothing else will have changed. It will be the equivalent of a moral shell game.
A reality check requires the acknowledgment that the Supreme Court, down to eight members because of the February death of Antonin Scalia, did an extreme run around the issue to avoid a 4-4 tie. In vacating previous lower court decisions and asking those same courts to come up with a solution, the Supreme Court was clear: "The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners' religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest."
Further, the court said: "Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners' health plans 'obtain, without cost, the full range of FDA approved contraceptives.' "
Repeat: No one won anything.
Ah, but the devil remains in the details, and while the Supreme Court seems to have placed its spin on the matter by depicting what a compromise would look like, there is no guarantee that the sides will find quick agreement on the fine print.
The Becket Fund, according to the supplemental brief it filed, clearly doesn't mind if the insurers of religious groups provide contraceptives to the religious group's employees; it just wants a separate insurance policy in place to cover contraceptives.
That could have a domino effect -- from unwieldy payment processes to finding doctors to accept such an arrangement -- that could have the effect of making obtaining contraceptives far less "seamless" than the court wishes. Again, the outcome would be the same. Employees of religious organizations would have access to free contraceptives; it just might be more difficult.
The absurdity of this protracted legal dance is brought into sharper relief by what exists -- and has existed -- in the Catholic community for some time. First, for the vast majority of Catholics, the artificial birth control teaching of the church is a settled issue -- it is ignored. Basing the fight over religious liberty on this issue is basically a continuation of a fight by the hierarchy alone -- and one they have been losing on various fronts for more than half a century.
A more pertinent case can be made for the absurdity of all of this by noting that the New York archdiocese's commercial insurance company, Fidelis Care, lists more than two pages of contraceptive drugs and devices in its current health care offerings. It is required to do so by the state. While it has made its objections known, and while the state has accommodated the church by instituting several measures similar to those initially offered by the federal government as part of Obamacare, church life and ministry goes on unchanged.
In the same way, at least two dioceses too small to self-insure, and in states requiring that health insurers provide the full range of contraceptives, have continued to function with all of their ministries intact. The same goes for other Catholic institutions, such as colleges and universities, that do not come under the structure of a diocese and contract with health insurers who provide the full range of services.
Democracy in as complex a culture as the United States can't function by employing the rigidities and narrow focus required by practitioners of this era's culture wars, among them the warriors who insist on carrying on the ideological opposition to the Affordable Care Act under a thin disguise of a fight for religious liberty.
It is time U.S. church leaders remove themselves from the thrall of shrill lobbyists and partisan ideologues.
