The battle over the HHS mandate is “the most serious confrontation between the Church and the federal government in U.S. history” according to Catholic author George Weigel. And he adds that there’s reason to believe that the Catholic Church is winning.
But the outcome is far from assured, he writes in the conservative magazineNational Review. Weigel lays out his five point strategy for the Church to secure religious freedom:
1. The first thing to keep firmly in mind is that the mandate is just that — an arbitrary regulation implementing the Obamacare law, not a regulation statutorily required by that legislation. The mandate can be rescinded by future regulatory action; the mandate would have been rescinded had the 2012 election turned out differently; the administration could rescind it now, if it chose; a future administration could rescind it. Despite the Supreme Court’s June 2012 decision in NFIB v. Sebelius and the president’s reelection, the mandate is not set in legal concrete, now or in the future.
2. If the mandate is not a settled matter, neither is the extent of the safe-harbor period. If the administration chose, it could extend the safe harbor beyond August 1, 2013, and broaden it to include for-profit employers — and if it really intended no burden on Catholic employers, it would do so, until such time as the courts settled the matter of the mandate’s legality. Still, absent such unlikely action from an administration that has always seemed determined to bring the Catholic Church (and other institutions of civil society) to heel, the “safe harbor” can be extended and broadened legislatively: as part of budget negotiations between the House of Representatives and the White House, or by a denial of appropriations to enforce the mandate. There is strong sentiment against the mandate in the House of Representatives, and effective ways should be found to bring that sentiment to bear, quickly, on an extension of the safe harbor, which would bring at least temporary relief to those institutions and employers that now face difficult decisions about compliance.
3. From the outset of the controversy, the U.S. bishops have taken the correct constitutional and legal position that the HHS mandate is an unjust infringement of the rights of both Church institutions and employers with conscientious objections to providing insurance coverage for “services” they deem morally objectionable. It is imperative that this both/and approach be maintained until a legal victory is achieved. Thus the bishops must firmly reject any Obama administration attempt to split the opposition by providing an “accommodation” for religious institutions while insisting that the mandate applies to lay employers with religiously informed conscientious objections. Any agreement to such an “accommodation” would not only undercut the legal case being pursued; it would do grave damage to the bishops’ teaching authority and capacity for future pastoral leadership.
4. Absent an extension of the safe-harbor period and a broadening of its scope, there are no easy answers to the dilemmas faced by those with conscientious objections who are now required, or soon will be, to comply with the mandate. Interim tactics to address these dilemmas will likely be suggested by Church leaders or theologians or both. Any such interim tactics cannot concede the principle that the mandate is unjust and illegal; ought not establish irreversible practices or precedents; and must not undercut the larger strategic goal of defeating the mandate at law.
5. Given the 2012 election results, the most promising route to final victory in this contest lies through the federal courts. It is entirely possible, indeed probable, that a judicial consensus holding that the mandate is a clear violation of the Religious Freedom Restoration Act will form in 2013 — a consensus that will likely support relief for both Church institutions and for-profit employers. Thus it is imperative that great care should be taken to avoid undermining the prospects for a satisfactory judicial resolution of the matter — either by public discussion of potential “deals” to be made with the administration, or by the imprudent airing of interesting but abstract theological questions that will inevitably be interpreted by the media and the public, and may be interpreted by the administration and the courts, as an attempt to justify a way out of the current conflict or, worse, to legitimate a surrender under duress. This is a legal and political battle, not a university seminar in moral theology, and it must be approached as such.
Please read his entire piece at National Review.
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