The erosion of religious liberty in America

Catholics must bring the reasoning of natural moral law to the public policy debates . . .

Dr. Marie T. Hilliard

We the lay faithful, according to the Second Vatican Council, are called to live in the world and make it holy. However, we are increasingly reminded that this is no small task. A culture, once respectful of our First Amendment right to the free exercise of religion, is now accusing us of violating the principle of separation of church and state.

However, nothing could be further from the truth, as the Yale constitutional law scholar Stephen Carter said in his 1993 book The Culture of Disbelief: “For the most significant aspect of the separation of church and state is not, as some seem to think, the shielding of the secular world from too strong a religious influence; the principal task of the separation of church and state is to secure religious freedom.”

There is strong evidence of an escalating attack on the right to religious freedom. With the legal recognition of same-sex unions in 18 states and the District of Columbia, the right of persons of faith not to be forced to recognize such unions is being violated. An Oregon clerk was fired in 2008 for refusing on religious grounds to issue certificates of registered domestic partnership to applicants. Fortunately, she successfully challenged this action in court. A fertility practice that on religious grounds limited its practice to married couples was ordered by the California Supreme Court to provide this service to lesbians in 2008. A New York nurse was forced to assist in a not-immediately-life-threatening abortion in 2009, after having given all the appropriate notice of such objections even in her job interview.

The American College of Obstetricians and Gynecologists has stated that physicians of conscience not only must refer to other providers of morally illicit procedures, but in resource-poor areas locate their practices in proximity for such referrals to occur, and in an emergency violate conscience in the providing of such a morally illicit procedure.

With the enactment of the Patient Protection and Affordable Care Act (also known as ObamaCare, but herein referred to as the Act), the need to protect religious liberty is never so evident. It’s undeniable that the Act not only funds programs that will provide elective abortions, but also likely provides for the direct funding of elective abortions through other programs. The Act mandates that “essential health benefits” be provided in every region of the country. Courts have construed such Medicaid provisions to include abortion. Thus, any federal health care legislation must specifically invoke the Hyde Amendment on all options within the bill to assure its applicability, which the Act does not.

There are only two provisions within the Act that protect the conscience and religious liberty of health care providers: opt-outs for participating in assisted suicide and abortion. The problem is in the definition of such terms. Preventing the implantation of a conceived human being is no longer considered abortion. Furthermore, states which have legalized assisted suicide specify that actions taken in accordance with such laws do not constitute suicide, mercy killing or homicide under the law. Thus, without the Hyde/Weldon Conscience Protection Amendment, which is missing from the Act, any conscience protection is tenuous at best.

This scenario becomes more ominous with the recent rescinding of the major protections of the 2008 conscience rule (2008 Final Rule). The 2011 Final Rule limits its examples of conscience protections to sterilizations and abortions. Now there is an effort to mandate that “preventive services” referenced in the Act include contraceptive drugs and devices, which would include abortifacients.

Yet, we have heard that there is “no need to be concerned” because existing laws will protect health care providers of conscience. The facts betray such a statement. Only 10 of the 25 states with pharmacist mandates in the dispensing of emergency contraception provide true conscience protections, and four of these 25 states require a pharmacist to fill all legal prescriptions. Even the Religious Coalition for Reproductive Choice admonishes that the law should not be overridden by positions of conscience that are based in religious beliefs.

Where is Thomas Jefferson when we need him? “Our rules can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.”

Our voices cannot, must not, be silenced. We are not speaking of the individual right to endorse political parties or candidates, but to make clear the need for applying the reasoning of natural moral law to the public policy debates.

Natural moral law is the foundation of a just society. It can be known by reason, and no institution has a better understanding of it than the Catholic Church. We, its lay faithful, must bring that voice of reason into the public sphere. There has never been such a need for those voices to be heard.

Marie T. Hilliard, JCL, PhD, R.N., is a staff ethicist at the National Catholic Bioethics Center.