George Weigel has written another fine article, “The Church and the Mandate.” Weigel gives some background on the HHS mandate, the U.S. bishops’ response, and the political and legal fights over the past year. He summarizes a few important points to remember as we go forward. The third such point deserves emphasis:
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.
And, what should employers do, faced with the reality of the mandate?
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.
Finally, since the courts are now the best (perhaps the only) method to resolve this problem, we ought not be diverting and distracting attention with public discussion that obscures the basic fact: the HHS mandate is a violation of RFRA.
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.
As Weigel concludes, there can be no accommodation with this unjust law.