Text Size:
  • A
  • A
  • A

Shredding the First Amendment


Mary DeTurris Poust

Consisting of the first ten amendments to the U.S. Constitution, the Bill of Rights was introduced by James Madison to the 1st United States Congress and adopted by the House of Representatives in 1789. The First Amendment states that the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The Obama administration’s new mandate requiring nearly all U.S. health insurance plans to cover contraception, sterilization and some abortion-inducing drugs has created a firestorm.

Every diocesan bishop in the country, without exception, has publicly opposed the mandate.

But for the U.S. bishops, with broad support from religious and secular leaders, the issue at stake is an even broader issue of First Amendment religious liberty protections and government intrusion into religious faith and practice. The bishops’ arguments have made clear that, regardless of how many people follow the Church’s teaching on contraception, government has no right to force religious organizations to violate their clear and consistent teachings.

“Never before has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience,” Cardinal Timothy M. Dolan, archbishop of New York and president of the U.S. Conference of Catholic Bishops, said in a video posted online hours after the Jan. 20 announcement by HHS. “This shouldn’t happen in a land where free exercise of religion ranks first in the Bill of Rights.”


Under the leadership of Cardinal Dolan and Supreme Chaplain Bishop William E. Lori of Bridgeport, Conn., chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty, the scope of the response has been unprecedented. Every diocesan bishop in the country, without exception, has publicly opposed the mandate. The USCCB also set up a special webpage (usccb.org/conscience) after the announcement with statements, fact sheets and videos explaining the gravity of the situation. State Catholic conferences, the Knights of Columbus and numerous other Catholic organizations followed the bishops’ lead, appealing to supporters and members to contact their legislators.

In testimony Feb. 16 before the House Committee on Oversight and Government Reform, Bishop Lori explained the Church’s position using what he called “The Parable of the Kosher Deli,” imagining a government mandate that compelled all businesses to serve pork, even kosher delicatessens.

Of course, such a mandate would be rejected, he said. “Does the fact that large majorities in society — even large majorities within the protesting religious community — reject a particular religious belief make it permissible for the government to weigh in on one side of that dispute? Does it allow government to punish that minority belief with its coercive power?” he asked. “In a nation committed to religious liberty and diversity, the answer, of course, is no.”

The mandate is one of numerous regulations dealing with the implementation of the Patient Protection and Affordable Care Act, commonly known as Obamacare. First announced in August 2011 and reaffirmed in January 2012, the regulation states that all employee health insurance plans must cover “preventive health services,” including prescription contraception drugs and devices, as well as elective surgical sterilizations. The mandate states that insurers may not even charge a co-pay for these services, as they commonly do with virtually all other prescription drugs and surgical procedures.

In November 2011, then-Archbishop Dolan visited the White House and appealed to President Obama to extend a broad exemption for religious institutions and individuals with moral objections to contraception or abortifacients. Archbishop Dolan left the meeting stating that he was convinced the president was taking the concern seriously.

However, when the HHS rule was announced in January, it was a different story. The administration held to its original plan of exempting only churches — that is, houses of worship — from the mandate. Any other religious ministry that either employs or serves people of different faiths, would not be exempt, including hospitals, Catholic Charities agencies, and schools and universities. The only thing that these institutions were offered was one extra year to comply.

“In effect, the president is saying we have a year to figure out how to violate our consciences,” declared Cardinal Dolan.

Although abortion-advocacy groups like Planned Parenthood cheered the ruling, Catholics and others saw it as unfathomable — seemingly declaring Catholic health, education and charitable ministries to be secular pursuits serving no religious purpose. For many, it appeared to be a not-so-thinly-veiled assault on religious liberty.

Groups such as the National Right to Life Committee further argued that the new rule would open the door to mandating that “every health plan in America cover abortion on demand.” If other “reproductive services” are considered basic, preventive health care, then why not abortion?


In an election year, the story was proving problematic for President Obama’s campaign, with criticism coming from self-proclaimed “progressive” Catholics whose support helped pass Obamacare over objections from the U.S. bishops. E.J. Dionne, the liberal Washington Post columnist, charged that Obama had “utterly botched” the contraception issue and had thrown “his progressive Catholic allies under the bus.”

With the pressure rising, Obama appeared to reverse course abruptly on Feb. 10, announcing that he would issue a new regulation stating that non-exempt religious institutions would not have to provide the insurance. Instead, the employees of those institutions would be contacted directly by insurance companies and informed that they could have the coverage. The insurance companies themselves, Obama said, would be required to pay the cost of the contraception, not the religious employers.

Although some initial critics of the mandate accepted this “accommodation” as an acceptable compromise, the bishops, pro-life groups and others observed that the proposed regulations had not changed.

Testifying before the House Judiciary Committee Feb. 28, Bishop Lori noted that the original HHS rule, which caused the initial negative reaction, was actually finalized “without change.” He called the accommodation a “legally unenforceable promise to alter the way the mandate would still apply to those who are still not exempt from it.”

Bishop Lori added, “In the world-turned-upside-down that we have all entered since the mandate was issued, this is not merely ‘no change,’ but is heralded as ‘great change,’ for which the administration has been widely congratulated.”

The U.S. bishops have identified a number of objections that the accommodation failed to resolve:

• The rule will continue to provide the original narrow religious exemption for which, as the bishops’ conference noted, “not even Jesus and his disciples would have qualified” because it excludes those who serve people of other faiths.

• Religious employers will still pay for health plans that contain the objectionable coverage, regardless of the mechanism involved in how the beneficiary is told of the coverage.

• For religiously affiliated insurers, and the many Catholic entities that self-insure, the religious employer is the insurer and will still have to provide the proscribed services.

• The regulations will still force individual private employers with moral objections to violate their consciences by providing this coverage.

• The federal mandate adopted the narrowest state-level religious exemption and is stricter than any existing state mandates. The mandate closes off current options for religious employers, such as self-insuring or dropping coverage. It also includes sterilization, something not found in state plans where contraception mandates have been enacted.


In a Feb. 21 letter to their brother bishops explaining the Church’s rejection of the accommodation, Cardinal Dolan and Bishop Lori stated: “In the United States, religious liberty does not depend on the benevolence of who is regulating us. It is our ‘first freedom’ and respect for it must be broad and inclusive — not narrow and exclusive.”

For the Obama administration, the accommodation announcement was successful in tamping down the story in the media, but the bishops have not given up the cause. They continue to push for legislative relief.

Many members of Congress have attempted to fashion legislative remedies, thus far without success. The Respect for Rights of Conscience Act, which would grant broad conscience exemptions for employers and individuals from having to provide or pay for services they consider morally objectionable, was introduced in Congress with bipartisan support. In the Senate, the legislation took the form of an amendment sponsored by Sen. Roy Blunt (R-Mo.). It was tabled March 1 by a vote of 51-48.

The Knights of Columbus is among many Catholic organizations that continue to urge members to contact their representatives in support of freedom of conscience. Several lawsuits have also been filed by Catholic employers, including the Catholic broadcast company EWTN, Ave Maria University in Naples, Fla., Belmont Abbey College in Belmont, N.C., and others, in addition to at least seven state attorneys general.

Objections to the mandate and accommodation have also come from a wide cross section of religious groups, as reflected in the Feb. 16 congressional hearing that included Catholic, Jewish, Baptist, Lutheran and evangelical leaders. At another hearing later in the month, a diverse group of female leaders of many different faith traditions gave testimony against the mandate. This followed an online petition signed by thousands of women stating that concern for women’s health did not automatically mean support for the contraceptive mandate.

Only time will tell how it will end up, but in their Feb. 21 letter, Cardinal Dolan and Bishop Lori insisted that the fight will continue: “We cannot rest when faced with so grave a threat to the religious liberty for which our parents and grandparents fought. In this moment in history we must work diligently to preserve religious liberty and to remove all threats to the practice of our faith in the public square. This is our heritage as Americans.”


MARY DETURRIS POUST writes from upstate New York.