All women deserve freedom; even if they are nuns

On March 23, the Supreme Court will hear oral argument in cases challenging a Department of Health and Human Services regulation (the “HHS Mandate”) empowering the federal government to use the health insurance policies offered by religious institutions to deliver to their employees drugs and devices acting as contraception or early abortions. The most visible complainant is an order of Catholic nuns who care for the elderly poor. Their sincere, religious credibility is undoubted. But even the Little Sisters of the Poor have some explaining to do.  

Throughout the saga of the Mandate litigation, the Little Sisters and their fellow litigants have been confronted with several fair questions deserving complete answers.  If not answered well, the Little Sisters’ religious freedom claim could seem like “special pleading”, and raise alarm bells even among people who consider themselves lovers of freedom.  

{mosads}The first question concerns the wisdom of the Little Sisters refusing to facilitate contraception.  The vast majority of women use it, Catholics included.  Might it reduce non-marital births and abortions humanely? Even Saint John Paul II did not hesitate to acknowledge that individual women use birth control to avoid abortion. Still, he, like many others, saw the rest of the story: how, when sex is severed even from the idea of procreation (distilled perfectly in the modern phrase, “unprotected sex  – not sex – makes babies”) it loses considerable weight and much forethought about children’s wellbeing; how the “marketplace” for dating and marriage changes. Such that sex is the price women pay for a mate.   Human beings undertake more “risk” on the belief that pregnancy is “insured against”, and before long, rates of non-marital births skyrocket from 5 percent to 41 percent, marriage happens later and less often, and abortion rates increase and never decline to their earlier numbers.  

There are also the health costs of contraception: the hormones people increasingly fear to ingest; the fact that the U.S. Preventive Services Task Force still does not recommend contraception as preventive health care for women, even as it has adopted every other recommendation made in the report upon which the HHS Mandate was based. HHS’ own admissions regarding serious health impacts, especially upon obese women (36 percent of all U.S. women); and the World Health Organization’s classifying of some forms of the pill as carcinogens.  

I would never argue that it is easy to change the sexual climate that contraception helped make possible, or is now used to defend against.  I propose only making room for voices – in this case religious voices – who resist this climate with good reason, and with demonstrated benefits for women.

A second challenge insists that the Little Sisters’ religious conscience is not burdened per se by the Mandate. After all, they only have to articulate their objection to the government, and stand down while their policies are used; they don’t have to swallow, implant or pay for anything.  The Supreme Court settled this argument years ago when it allowed a conscientious objector to decide which step in the process of building weapons – weapons he would never deploy — constituted complicity violating his religion. This legal nicety, however, may not win the hearts of those opposed to the Little Sisters.   It is likely more persuasive to contemplate the specter of the state’s being licensed to take control of private citizens’ enterprises, so as to broadcast a contrary message to employees. Where would it end?   

Finally there is the “parade of horribles”: today, a refusal to insure for contraception, tomorrow a refusal to serve single moms or gays? Certainly, institutions – whether the Democratic National Committee or a Catholic charity – can hire for mission. But there is no record of Catholic refusals to serve, and rather an ample record of the opposite.  Catholic institutions provide high levels of care for every category of persons named in the parade, and have never mounted a legal challenge to avoid what they rather regard as their mission.  Contraception and abortion interest groups, interestingly, perform no such services. Finally, the Supreme Court has made it very clear that religious freedom is not unlimited; the Court has had no difficulty cabining religious freedom in favor of states’ compelling interests in nondiscrimination.  

The Little Sisters of the Poor have an excellent case against the HHS Mandate. But the long-run survival of religious freedom as a well-loved liberty requires more than a willingness to allow it only because the law says so, or even on the sentiment that sweet sisters can occasionally be indulged their idiosyncracies. It is rather important to grasp in every case, who and what religious freedom is for (women, in the case of the Mandate), how it stands as a necessary guardrail against the overweening power of the state, and why it will not lead to the oft-raised “parade of horribles”.

Alvare’ is a professor of Law at George Mason Univ. School of Law.