Despite hysterical rhetoric to the contrary, the Supreme Court last month did not deny a single woman access to contraception. Neither was any method of contraception made illegal, as House Minority Leader Nancy Pelosi falsely claimed. In fact, the Hobby Lobby case was not about "access" or legality at all, but about who can be forced to pay for contraceptives.
But now a crop of cases against the Department of Health and Human Services mandate is heading to the Supreme Court without the forced-payment element. The plaintiffs run religious nonprofit organizations, and among the dozens of cases in the queue are plaintiffs such as the Rev. Frank Pavone of Priests for Life, the Little Sisters of the Poor and Mother Angelica's Eternal Word Television Network (EWTN).
They are asking the courts for relief from the mandate, despite the so-called "accommodation" created for them by the Obama administration.
The accommodation directs the religious employers to send to their insurance companies a written objection to particular items required by the mandate that violate their religious beliefs. Their insurance companies are then supposed to provide 100 percent coverage of those items to their employees free of co-payment, and without jacking up their premiums.
Court watchers have attempted to predict the outcome of these religious-nonprofit cases by reading the tea leaves in the Hobby Lobby ruling. Not surprisingly, these attempts have produced different readings.
Some find great meaning in the court's reference of the accommodation as an example of a less-restrictive means by which the government can accomplish its goal of free birth-control coverage for all. Others note the court's rebuke of the government's argument (that merely facilitating insurance coverage for items is too "attenuated" from their actual use to be a burden on the religious objector), an argument the government has relied on significantly in these nonprofit cases.
More tea leaves fell from the court's recent granting of an injunction to Wheaton College in its challenge to the accommodation. By granting the injunction for this Christian school, the court, at a minimum, has revealed that it does not regard the accommodation as a clear-cut solution.
Whether the accommodation alleviates the burden on the Eternal Word Television Network's religious beliefs is at the heart of the balancing test under the relevant law, the Religious Freedom Restoration Act.
Under this law, if you think your religious freedom is burdened by a federal law or regulation, you can go to court and argue that your belief is sincere and the burden on it substantial. The government, for its part, can argue that its law furthers a compelling goal, and that there is no way to accomplish it without burdening your religious freedom.
Those who favor Obamacare and its drug mandate suggest the "substantial burden" question is simple: no payment, no burden. However, it is more complicated than that.
The "no payment" element is limited to the co-payments that other employers have to absorb for their employees' birth-control pills. Mother Angelica's network must still pay hefty premiums to an insurance company for providing the employee benefits package, and it's that contract that forms the legal basis for the birth-control coverage. No contract, no more free birth control to network employees. Mother Angelica's network must also sign a form that authorizes the insurer to provide the birth-control coverage. No signed authorization, no free birth control to network employees.
It's no wonder people call it an accounting gimmick.
What's more, the punitive fines still apply. If religious employers such as EWTN do not fully comply with the mandate or the accounting gimmick, they will owe huge penalties accruable on a daily basis. One hundred dollars per employee per day bears no relation to the cost of insuring the items involved. The fine is meant to compel religious citizens and organizations to acquiesce.
There's a whole field of Catholic theology devoted to the issue of moral culpability, and it goes far deeper than mere monetary remuneration.
It involves the principle of cooperation with evil, which examines the conditions under which a secondary agent's cooperation with the immoral act of a primary agent may or may not be morally tolerated. "Formal" cooperation, which can be explicit or implicit, is never morally licit.
"Material" cooperation on the other hand, might be, depending upon whether it is immediate or mediate. The former is never licit, but the latter might be, depending upon whether it is proximate or remote and has proper proportionality or not. Even if all hurdles are cleared and the cooperation is otherwise licit, if it could cause scandal (another theological principle with its own set of rules), then it becomes illicit. This is complicated stuff.
How do the actions required of Mother Angelica by the accommodation hold up under this intricate analysis? Not well, according to 1,500 years of church doctrine. Will five justices agree? Can they possibly disagree, without pretending to be a religious tribunal?
The court can avoid this thorny question altogether by looking at the simpler question on the other side of the equation: Is the accommodation the least restrictive means the government can find to accomplish its goal, or is there another way to give out free birth control and abortion-drug coverage?
In fact, there is another way: Direct government provision of (or reimbursement for) the contraception insurance. The administration has granted an outright exemption for religious nonprofit churches. It could exempt religious nonprofit schools and soup kitchens, too. (Isn't the church exemption a tacit admission that the accommodation is not really enough to protect objections of conscience?)
The Supreme Court has upheld a right to contraception and abortion, but never the right to get them for free, especially from religious organizations or private institutions. Making them free is a White House project that the White House should pay for.
Leave Mother Angelica out of it.
Cathy Cleaver Ruse is senior legal fellow at Family Research Council, where Travis Weber is director of the Center for Religious Liberty.