With liberty and justice for some?

Marie Hilliard contends that the HHS mandate is unfair and unconstitutional . . .

Marie T. Hilliard

With the economy in the doldrums, times are difficult enough for businesspeople. Americans now have to decide whether to violate their consciences or a federal law. If left unabated, these dilemmas will continue — even if the U.S. Supreme Court rules that the Patient Protection and Affordable Care Act is unconstitutional.

In a social system that is increasingly hostile to our free market heritage, hostility is also growing toward the Catholic Church. When seeking to insert faith-based values into public policy debates, Catholics often are accused of violating the separation of church and state. Nothing could be further from the truth. “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,” according to Yale constitutional law scholar Stephen Carter. “The principal task … is to secure religious freedom.”

During his 2010 visit to the United Kingdom, Pope Benedict XVI spoke of St. Thomas More’s integrity in following his conscience. “Each generation, as it seeks to advance the common good, must ask anew: What are the requirements that governments may reasonably impose upon citizens, and how far do they extend?

“There are those who would advocate that the voice of religion be silenced, or at least relegated to the purely private sphere….And there are those who argue — paradoxically with the intention of eliminating discrimination — that Christians in public roles should be required at times to act against their conscience. These are worrying signs of a failure to appreciate not only the rights of believers to freedom of conscience and freedom of religion, but also the legitimate role of religion in the public square.”

This has been seen blatantly in the U.S. Department of Health and Human Services (HHS) mandate that the employers provide — at no cost to their employees — contraception, sterilization, and abortion-inducing drugs and devices. Furthermore, religious or faith-based ministries may be exempted only if they evangelize, employ and provide services primarily to their own members. Only three states with laws mandating such employee prescriptive coverage define a religious agency as narrowly as the HHS mandate: Oregon, New York and California.

However, state laws do not impact self-insured plans under the Employee Retirement Income Security Act, under which many Catholic dioceses are regulated. The HHS mandate will negate this protection. It’s clearly disingenuous for the federal government to state that it’s mimicking state laws already in existence. Clearly our Gospel-mandated ministries are under attack.

But what about the private employer? Shouldn’t they also have conscience protection under the law? Of course! That’s why it’s so appropriate that Legatus has filed a lawsuit against the HHS mandate, reflecting the need to protect businesspeople from HHS’s violation of religious liberty. (Click here for related story) Yet attacks against the consciences of private employers, employees, and businesses existed before there was an HHS mandate — and they continue.

A fertility practice that limited its practice to married couples was ordered by the California Supreme Court in 2008 to provide service to lesbians despite the physicians’ religious objections. In New York, a nurse was forced in 2009 to assist in a not-immediately-life-threatening abortion after having given all the appropriate notice of such objections. Her supervisor threatened her with actions against her nursing license. The court determined that the nurse had no right of private action against her employer.

Twenty-five states have passed legal mandates requiring pharmacies to provide emergency contraception to customers. Fortunately, brave pharmacy owners in Washington stepped up to the plate to challenge this injustice. The courts recently reversed the position of the Washington State Board of Pharmacy after the Becket Fund, representing the pharmacists, got the Board’s anti-conscience position reversed. However, the state’s attorney general is appealing the decision.

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.”

All of us — particularly lay people — need to echo this assertion: “We cannot submit; we will not submit. Our conscience is answerable not to the state, but to God.” We cannot accept that there be liberty and justice only for some. Persons of faith can lay claim to the “first right” guaranteed by the First Amendment of the U.S. Constitution — the right to religious liberty. We can and we must.

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