(RNS) For years, we have witnessed a legal battle over the Affordable Care Act’s so-called contraceptive mandate. It seems odd to have nuns and government lawyers fighting each other in court. But that’s how this culture-war flare-up played out.
And now the nuns stand on the precipice of victory.
On Monday (May 29), The New York Times reported that the Trump administration is finalizing a rule that would exempt many religious institutions from a requirement that employers provide coverage for contraceptives in their group health insurance plans.
The rule fulfills a promise President Trump made four weeks ago when he signed an executive order in a bizarre show of solidarity with religious conservatives.
“With this executive order,” Trump said, “we are ending the attacks on your religious liberty.” That was not exactly true, but the administration began taking steps “to address conscience-based objections to the preventive-care mandate.”
The Little Sisters of the Poor, a Catholic religious order that cares for the impoverished elderly, manage a large network of health care facilities and services. When the contraceptive mandate emerged in President Obama’s first term with no meaningful religious exemption, the Little Sisters sued the government.
Arguing that religious employers should not be forced to provide drugs they believe are sinful, the Little Sisters of the Poor became the public face of religious-liberty challenges to the mandate.
In short order, some other religious employers, including many conservative evangelical institutions, sued the government as well.
At the same time, the Supreme Court ruled that Hobby Lobby, a chain of craft stores owned by evangelical Protestants, could not be forced to cover emergency contraceptives it considered to cause miscarriages or abortions.
The political and public relations debates over the contraceptive mandate were generally self-serving to the combatants and unhelpful to the general public.
Rhetoric on both sides was dishonest. Conservatives said the mandate was an unprecedented attack on their right to freely exercise their religion. Donations flowed to the burgeoning Christian legal-defense industry, which seemingly takes every religious-liberty plaintiff it can find, no matter how outlandish its claim.
Liberals tried to paint opposition to the mandate as nothing more than irrational misogyny. Just this week, House Minority Leader Nancy Pelosi said the Trump administration’s “sickening” rule to “roll back women’s access to contraception” would deny “millions of women access to basic, preventive health care.”
Pelosi linked this rule to a broader “campaign against women,” echoing the Democrats’ overblown “war on women” rhetoric from recent election cycles.
It is true that Trump has a long history of dishonoring women and the Republican Party has pursued policies regarding workplace discrimination and prosecution of criminal violence against women that do harm them.
Ironically, Trump’s rule will undoubtedly lead to more abortions, as some women who lose contraceptive coverage will face unintended pregnancies. Every honest conservative must acknowledge this fact.
This debate forces us to prioritize one value over another. More is lost when we compel our fellow citizens against their consciences than when we accept that a few people may not get free birth control from their employers.
To the greatest extent possible, people should not be compelled by the state to violate their consciences. That’s what religious freedom means, and it is a foundational American value.
The Obama administration failed to anticipate the inevitable and legitimate religious-liberty challenge to the mandate. Even after offering up a series of sensible accommodations, it became clear that the two sides were talking past each other.
I hesitate to support Trump’s rule because the government has compromised and the religious-liberty litigants have not.
And I remind birth control opponents that they are free to fight contraception on the demand side.
But neither I, nor any bureaucrat, should be the ultimate judge over other people’s consciences.
Birth control is almost universally accepted in the United States today, but it was largely frowned upon for 19 and a half Christian centuries.
The belief that contraception is a sin that facilitates further sin and distorts relations between men and women may be unpopular. But it is legitimate and sincerely held.
Recall that Pope Francis visited the Little Sisters of the Poor in Washington during his 2015 trip.
My advice to government lawyers is this: If you ever find yourself in federal court against an order of nuns, be prepared to lose. Also, please reconsider the series of events that led to your being sued by nuns in the first place.
(Jacob Lupfer is a contributing editor at RNS and a doctoral candidate in political science at Georgetown University)