Birth Control, Abortion and Freedom of Religion

Writer's Note: After I finished this column, the president announced a change in the policy in the hope that the new policy would be more acceptable to the Catholic Church. It is, in my view, highly doubtful that any solution proposed by the White House will be acceptable if it still permits employees of Catholic institutions to obtain birth control information and materials directly, or even indirectly at the institutions’ expense. In a way this is odd, because surveys show that 98 percent of sexually active Catholic women engage in some form of birth control, and a majority support abortion after rape or incest.

Let’s take the hardest point first. The First Amendment to the Constitution provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,....” Seems pretty simple, right? How can the Obama administration insist that women working in Catholic institutions  (not churches) be entitled to birth control coverage as part of their insurance coverage? The Catholic Church is, after all, very much opposed to birth control and, for that matter, abortion, as are many other churches.

But consider this: If a priest ran a red light or was speeding or committed some misdemeanor or felony, he could not avoid prosecution because he was a member of the Church. Nor, I hope you will agree, should he. If a Catholic hospital violated safety regulations or minimum wage laws, it would not be excused on the grounds that it was “an establishment of religion.” In other words, the First Amendment provision on religion essentially means that the federal government cannot dictate what a person or group believes, but they can require religious groups to abide by the laws involving non-religious matters. The same rule is applied to the states by the 14th Amendment. Muslim groups that pray to Allah cannot be prohibited. Muslim groups that pray to Allah and practice Jihad can be.

The reverse is also true. Religious groups are not entitled to prohibit non-members from thinking or acting as they choose, even if doing so would offend the religious groups. Some may believe that God requires everyone to act in a certain way--not use birth control or have abortions, for example--but the First Amendment also means that one particular religion is not permitted to impose its religious views on the rest of us. America would be in revolt if somehow the federal government decided that all food sold in the United States has to be kosher to satisfy the religious beliefs of some Orthodox Jews.

The First Amendment also gives us freedom of speech, but that too is not absolute. Merely because something is oral does not mean it is protected by the amendment. The famous example is that shouting “fire!” in a crowded theater may be prohibited. Speaking in favor of a woman’s right to choose to use contraception or obtain an abortion cannot be prohibited, nor can the sale of contraceptive materials or providing abortions. It may be, if one chooses to believe so, against the law of God, but the Supreme Court has decided in Roe v. Wade that a state cannot constitutionally forbid abortions. In an earlier decision, Griswold v. Connecticut, the same court decided the state has no right to peep into bedrooms or prohibit the sale of contraceptives. Catholics and other religious groups must get used to the idea that we live in a pluralistic society in which no religious group may insist that other citizens must follow their religious tenets.

Even if we concede the power of the federal government to force a Catholic institution to include birth control in the insurance coverage provided for employees under the Constitution, the question remains: should it do so?Obviously, if an institution's leadership believes that it is a grave sin to use birth control, to require that institution to provide coverage is a bitter pill (no pun intended) for it to swallow. On the other hand, I strongly believe that a woman has (and should have) the right to control her body, and the states and federal government have no business interfering with that right based on the religious beliefs of any group, no matter how large. The whole purpose of the Bill of Rights was to protect individuals from the tyranny of the majority.

(The situation might be different if the prohibition on the use of birth control or abortion was based on some kind of public health or medical concern, and not a religious or moral concern. So far, no such concern has been proven and, indeed, the evidence is to the contrary. For example, the chance of death resulting from childbirth is 14 times higher, according to a recent survey, than death resulting from an abortion.)

Although the president’s duty is to ensure that all citizens, regardless of religion, are equally protected by the laws, and carving out an exception for employees of religious institutions would violate that principle, I think the better part of valor would be to simply exempt those institutions from the law. The number of women affected by such a change would surely be small. While lawsuits are certain to arise from women adversely affected, sometimes the executive must violate the rules in the interests of common sense. As a strong  supporter of individual rights that is a tough thing for me to say, but I do so lest I be accused of being, as a friend said recently, indurate. (OK, look it up.)