Catholics vs. Condoms

By Margaret Talbot, The New Yorker

31 May 12

he decision of some forty-three Roman Catholic dioceses, schools, and social services to sue the Obama Administration is both baffling and dismaying. The lawsuit, announced last week, takes aim at the proposed rule by which most employers would have to include contraception coverage in their health-insurance plans. Going to court will embed the Church in partisan politics and yoke it to the right wing. Not the worthiest of approaches - especially when the Administration has suggested a compromise, a means by which insurance companies, not the Catholic employers themselves, would pay for and administer birth-control coverage, and was still taking public comments on it.

The compromise is actually impractical, since so many Catholic employers, like most other large employers in the United States, insure themselves rather than contracting out, but still it was the start of a discussion, and some prominent Catholics greeted it as such. “I am really appreciative of what the President did,” said the Reverend Gregory Lucey, the president of the Association of Jesuit Colleges and Universities, in February. “I’m optimistic and hopeful, and feel the religious liberty-issue is addressed.” Then, too, Catholics and non-Catholics alike could be forgiven for wondering if the church’s legal resources weren’t stretched pretty thin defending itself in cases involving child abuse and its cover-up.

The larger question is who the plaintiffs are really speaking for. The Catholic agencies that are suing and those who support them know that they represent a point of view outside the mainstream. They say so, proudly. The majority of Americans do not believe that contraception is a sin or that denying it to women is a moral good. But that alone is not the problem. After all, conscience and belief often dictate a lonely stance.

Still, it’s reasonable to think that the Church hierarchy could at least convince Catholics themselves. It would be sensible to expect that those who’d been most exposed to the theology behind the Church’s ban on contraception would be far more likely than the rest of us to endorse and live by it. But, as a Guttmacher Institute survey released earlier this year shows, that does not seem to be the case. Ninety-eight per cent of Catholic women have used contraception during their lives (compared to ninety-nine per cent of all women.) Eighty-three per cent of Catholic women who are not pregnant, not postpartum, and not seeking to get pregnant are currently using methods of birth control including the pill, sterilization, the I.U.D. or condoms. Selective inattention to the tenets of one’s faith is a fact of life. So is hypocrisy. But a gulf this wide between teaching and practice is remarkable. It suggests that many Catholic women simply do not believe that birth control is wrong. And it does not bode well for the Church’s campaign to convince the rest of us that it is.

Moreover, the aggressive legal strategy that the Church is pursuing is perplexing because it seems likely to fail. The constitutional argument - that requiring employers to provide contraception coverage as part of their health-care plans violates First Amendment guarantees of religious freedom - has been tried before, and has not persuaded the courts. At least three cases in recent years establish relevant precedents.

In 2004, the Catholic Charities of Sacramento, a social-service organization, brought suit over the Women’s Contraception Equity Law, which required it to provide its employees with contraception coverage. The law made an exception for churches, just as the Obama regulation does, based on the criteria that such “religious employers” primarily hire people who embrace the tenets of the faith and exist mainly to inculcate religious beliefs, but Catholic Charities did not qualify on those grounds. The California State Supreme Court ruled against it. In doing so, the judges cited the U.S. Supreme Court’s ruling in the 1990 case Employment Division, Dept. of Human Resources of Oregon v. Smith: “The right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes.)’ ” A law of general applicability that served a legitimate state interest was not unconstitutional even if it placed a burden on a religious practice. It was unconstitutional only if its intent was to do so. The Women’s Contraception Equity Law had sought to end gender inequity in health insurance: women pay sixty-eight per cent more out of pocket for health care than men do, primarily because of the costs of prescription contraceptives and the health consequences of pregnancy. Its intent - like that of the Obama regulation - was not to punish Catholics but to promote women’s health care.

In 2006, when Catholic Charities and nine other religiously affiliated social-serves groups sued the state of New York over a similar law, the New York Women’s Health and Wellness Act, which also required employers to cover contraception, the New York State Supreme Court came to the same conclusion.

And in March of this year, a U.S. District Judge in Massachusetts ruled against the United States Conference of Bishops, over a program in which the U.S.C.B. used federal funds to run services for victims of human trafficking but barred its subcontractors from offering contraception counseling or referrals. (This was despite the fact that many of the people served were victims of rape, sexual abuse, or forced prostitution.) This case, said the Judge Richard Stearns, was about religious freedom, in a way. But not in the way the bishops saw it. It was about the problem of letting the government “delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them.)”

No one is challenging the rights of those Catholics who object to birth control to eschew it themselves, and to denounce it in public. But the lawsuit proposes something different: namely, that religious freedom means they can deny access to birth control to people who don’t share their faith or that article of it. It doesn’t.