Charles E. Rice

The HHS Mandate: Obama Regime Claims the Prerogative of God

On January 20, 2012, Health and Human Services Secretary Kathleen Sebelius ordered that, effective August 1, 2012, health insurance must cover preventive services including all FDA-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity, without charging a co-payment, co-insurance or a deductible. “Nonprofit employers,” said Sebelius, “who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, [have] until August 1, 2013, to comply with the new law.” During that year, employers, she said, will be required “to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.”

“In effect, the president is saying we have a year to figure out how to violate our consciences,” said Cardinal-designate Timothy Dolan, president of the U.S. Conference of Catholic Bishops. Bishop Fabian Bruskewitz, of Lincoln, Nebraska, described the one-year extension as a “mockery because, during that year they must refer employees to sources that provide “wicked” services.”
Under the Sebelius mandate, as described in the Guidelines issued by the HHS’ Health Resources and Services Administration, “Group health plans sponsored by certain religious employers… are exempt from the requirement to cover contraceptive services. A religious employer is one that: (1) has the inculcation of religious values as its purpose (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under Internal Revenue Code.”

The exemption for “religious employers” is so narrow that practically no Catholic hospital, university or other Catholic institution could qualify for it. That exemption provides no protection to the consciences of individuals, insurers or employers who do not meet all the exemption requirements. The interim final rule, finalized by Sebelius on January 20th, authorized HRSA to “establish exemptions from its guidelines… with respect to any requirement to cover contraceptive services.” It is unclear whether the exemption, established by HRSA as quoted above, exempts sterilization procedures as well as “contraceptive services.” Neither the mandate nor the exemption excludes “FDA-approved contraceptives” which can operate as abortifacients.

Bishop Thomas Olmsted of Phoenix echoed the statements of numerous other bishops when he said, “We cannot—we will not—comply with this unjust law.”

Why is the HHS mandate wrong? Inevitably, some of our acts facilitate evil acts done by others. The issue is cooperation, formal or material. As John Paul II said in Evangelium Vitae, “it is never licit to cooperate formally in evil. Such cooperation occurs when an action [is] a direct participation in an act against human life or a sharing in the immoral intentions of the person committing it.” EV, no. 74.

“One materially cooperates in another’s wrongdoing,” said Newark Archbishop John J. Myers, “when one’s acts help to make that wrongdoing possible, although one does not intend” to facilitate that wrongdoing. Whether such material cooperation is itself evil depends on the facts. Thus we are morally obliged to pay taxes although we know that some of those taxes will be used to subsidize immoral activities.

The Obama/HHS mandate could be argued to compel formal, and therefore intrinsically evil, cooperation in evil by compelling those who regard contraception as evil to provide free contraceptives to others. At the very least, the mandate compels a very proximate, and perhaps decisive, material cooperation in evil, which cooperation would be evil in itself. Beyond that, the mandate assumes for the Obama Regime the right to decide for Catholics and others what constitutes impermissible material cooperation in evil. This is—to put it simply—the Obama Regime claiming the prerogative of God.

So what can you do if the State imposes upon you a law which is unjust? St. Thomas Aquinas gave us what is still the definitive answer: Unjust laws that are contrary to “human good” because they are beyond the authority of the lawgiver, oppressive or a serious violation of equality, “do not bind in conscience, except perhaps to avoid scandal or disturbance.” What he means is—I am sorry to tell you—that you have a duty to pay your income tax, even though it is in many respects unjust, because the societal harm would be greater if no one paid taxes.

On the other hand, St. Thomas said that some unjust laws are “opposed to the divine good” because they compel one to violate the Divine law. Such laws must never be obeyed, because ‘we ought to obey God rather than men.’” We must die rather than obey them. Thus, apart from the very unlikely possibility that the Obama/HHS mandate will be overturned by the courts or Congress, we will see bishops, priests and lay Catholics (and persons of other beliefs, we pray) paying heavy fines or going to prison rather than obey this unjust law. But this is just for openers. What makes us think that we, unlike previous generations, have a right to be spared from persecution?

Space limits preclude discussion here of why the HHS mandate is a huge blessing in disguise for the Catholic Church and all of us. More later.

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