What Happens to American Catholics if the HHS Mandate is Enforced?

by Carson Holloway

For more than a year, Americans have been lauding or protesting the HHS mandate that requires employers to cover contraceptives, including abortifacients, in their insurance policies. Since many employers don’t object to such a policy, the debate has focused on Catholic employers, who have a moral objection to contraception, and therefore to any requirement that they directly subsidize it. These employers argue, quite plausibly, that the free exercise clause of the Constitution (“Congress shall make no law … prohibiting the free exercise [of religion]”) entitles them to a religious exemption from the mandate.

This debate is welcome, because in a country that aspires to constitutional government, it’s important to ask whether its policies conform to its fundamental law. But this is not the whole inquiry. For us, the Constitution provides the bare minimum: It establishes certain rules that we should not violate, but it does not instruct us comprehensively on what is decent, just, or humane public policy. Put differently, the American way is more than just our written Constitution. It is also the traditions and habits guiding the dynamic between our government and society.

Accordingly, our duty to preserve what is best in America, and to transmit it to the next generation, requires that we question not only the constitutionality of public policy, but also its consistency with the best of our political traditions. We can apply this method to the HHS mandate by considering its likely consequences for American society—not just for American Catholicism, but more broadly for the kind of society we aspire to be.

Under its limited exemption policy, the government does not require churches to cover contraceptives, but this hardly satisfies the concerns of many American Catholics. Besides houses of worship, the Catholic Church runs other institutions such as universities and hospitals, which should be administered according to Catholic principles but are not exempted from the mandate. The mandate creates a similar problem for individual Catholics who seek to run businesses of their own in accord with basic principles of Catholic moral teaching.

If the mandate remains in effect, it could cause a schism or a break in the American Catholic Church. It does not take too much imagination to see how this could happen. It is not a secret that many American Catholics disagree with the Church’s teaching on the immorality of contraception. If the mandate is retained and enforced, then Catholic institutions will confront some hard choices. They can stop providing any health insurance to their employees, and face fines or additional taxes imposed by the federal government. They can provide insurance without covering contraception and pay the penalties that the government will impose. Or they can try to make themselves eligible for the narrow exemption. That is, they can restrict their hiring only to Catholics and provide services only to Catholics.

With such unattractive options, it is hard not to suspect that a few Catholic institutions, perhaps administered by Catholics who privately reject the Church’s teaching on contraception, would simply choose to abide by the mandate. They would be able to keep operating, but at the same time would put themselves in open rebellion against the nation’s Catholic bishops. Thus our government will have provoked a schism in the American Catholic Church by putting regulatory and financial pressure on it.

At any rate, whether or not such a schism ensues, the mandate certainly will reduce all faithful Catholics to the status of second-class citizens. The Catholic Church will be reduced to second-class citizenship among the nation’s churches. To be sure, it will be permitted freely to function as a church: The government will not molest it for preaching the gospel or administering the sacraments. But if it tries to do more, to do what it has done for centuries and what other churches still do—provide social services beyond purely spiritual services—it will face penalties. If it tries to follow a higher mandate than the HHS mandate—to organize institutions to feed the hungry, nurse the sick, and educate the ignorant—it will have to pay a fine to do so. This fine is essentially a steep admittance fee to the public square for any church that does not accept the philosophy of sexual liberation.

Catholic laity will face similar challenges. If a faithful Catholic wishes to start a business, he or she will have to keep the business small, so as to avoid the reach of the mandate. Or, if the business grows and employs enough workers to fall under the mandate, the owner will face the same tragic choices as formally Catholic institutions: Go out of business, or pay fines and penalties that will drive you out of business. Under the mandate, America will be a country where economic sanctions are applied to keep the Catholic Church operating within very strict limits and to keep Catholic laymen from becoming very successful in business. The effect of all this is to minimize as much as possible the social and economic influence of the Catholic Church and faithful Catholic individuals.

Liberal defenders of the mandate might respond that the mandate doesn’t really force second-class citizenship on Catholics. Catholics, after all, would still have the fundamental rights of citizens: the rights to vote, speak, write, and organize politically. As for the problems they would incur by not conforming to the mandates, they represent the just fate of any group that chooses to defy government policy. Such an argument has some force, but it is very strange on the lips of American liberals.

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