The HHS Mandate on Contraceptives. A Critical History

Suits demanding exemptions from the HHS mandate on contraception and abortion covering in health insurance policies are to be decided by the Supreme Court. Most plaintiffs are Catholic organizations. Irrespective of the final outcome, it is appropriate to examine at this time how and why we have arrived in the situation of hanging on a Supreme Court decision.
On January 20, 2012, the HHS Secretary, Kathleen Sebelius, issued regulations on the implementation of the medical care and insurance law, colloquially named ObamaCare. The regulations cover “reproductive services,” meaning in fact anti-reproduction services. They require that all medical insurance plans offer contraceptive services, including abortion-inducing drugs. Exceptions were provided for church employees. Other religious institutions, such as schools, hospitals, and nursing homes, were not exempted.
It was noted that ObamaCare leaves the Administration to decide what constitutes a religious organization and what conscience protection it deserves. The government also decides what is “health care,” what conditions are to be treated, who is entitled to medical care and to what extent, and how care is to be provided and paid for, with no considerations for “individual choices or ethical convictions.” The force of the government will impose the outcome from considerations of costs or ideology that will override religious conscience.[1]
The argument for the mandate was that everybody uses birth control agents. Insuring a general occurrence, however, makes no economic sense. It is cheaper for everybody to pay directly for the service than through the insurance; payment through government is the most expensive. The goal was then political
The mandate was bound to be controversial, so its timing was at first surprising. The promotion of abortion, contraception, and homosexual agenda were in his stated plan for government, but Mr. Obama is reputedly too astute a politician to start a controversy when the campaign for the next presidential election was heating up. After all, other evil aspects of the health care bill were hidden or scheduled to become effective in 2013 or later.
Information about the inside deliberations in preparation for the move, suggests that he expected a positive reaction. ABC News reported that a major role in reaching the decision was played by the Catholic members of the administration, Leon Panetta, Joe Biden and Bill Daley on one side, Kathleen Sebelius and David Plouffe on the other.[2] (Israeli blogs claim Plouffe is Jewish, but his biography notes he graduated from a diocesan Catholic high school.[3]) None of them argued the matter from religious or moral principles, but only for its potential to gain or lose votes. Panetta, Biden, and Daley thought that it might lose votes, but Plouffe and especially Sebelius argued that Catholics are very much in favor of birth control and free access to it.[4] This fitted Mr. Obama’s agenda and was also urged by his allies in Congress like Senators Barbara Boxer (D-CA) and Jeanne Shaheen (D-NH), and outside the government, like the Planned Parenthood president Cecile Richards.[2] (Another ally, Catholic Health Association president Sister Carol Keehan, welcomed the ObamaCare version without protection from abortion financing.[5])
The US Catholic bishops spoke forcefully against this measure. Acquiescing to such a diktat meant (perhaps this was its goal) denying the Catholics their identity, but the regulations attack all the citizens, by destroying the First Amendment guarantee of freedom of religion
The Administration replied along two lines: First, it stressed that individuals will not be obligated to use contraceptive services. Second, it claimed readiness to work with religious organizations, “to see if implementation of the policy can be done in a way that allays some of those concerns” (White House spokesman Jay Carney) [emphases added]
The first point confused the matter. It was not that individuals could choose to use or not use contraceptives and abortifacients but that Catholic institutions would have no choice but to pay for contraception and abortion. A religious institution has to operate faithfully according to its creed and persons that cannot abide by its rules should find work elsewhere. On the second point, the arrogance of White House’s response was striking. Essentially, they told the Catholic Bishops and all other critics: “We can talk with you if you insist, but rest assured it won’t make any difference.”
After negotiations involving Mr. Obama, Joe Biden, Bill Daley, and Archbishop Timothy Dolan (Head of US Conference of Catholic Bishops), the White House presented on Feb. 9 a modified plan: religious organizations still had to offer contraceptive coverage, but did not have to pay directly for it. The amended plan obviously disregarded the concerns expressed by the Archbishop.
The weakness of the bishops’ argument[6] was to claim exemption only for organizations. Not all Catholics work for religious organizations. Also, an agnostic opposing abortion and contraception should be protected, too. Christian charity compels us to demand that the conscience of all citizens be protected. We note that when a draft law was in effect, American citizens could claim “conscientious objector” status to avoid serving in combat.
Another weakness was that similar mandates have existed at state level, such as in New Hampshire and New York. Complying without protest were, for example, Catholic Charities and St. Anselm College (Benedictine) in NH, and Fordham University (Jesuit) in NY, although New York law allows waivers for faith-based entities. In New Hampshire, Diocese of Manchester and the Catholic Medical Center are self-insured and, therefore, exempt. The state mandates, however, were probably illegal under existing law, contravening the Religion Freedom Restoration Act of 1993.[7] On that basis, Catholic institutions that acquiesced to state mandates could have been brought out of them or ordered out by their bishops.
Even without the HHS regulations, ObamaCare was structured to circumvent conscience protections. Thus, the law does not prevent use of public money for abortions, because Rep. Bart Stupak (a Catholic, and the key vote for passing it[8]) accepted the President’s pledge to reaffirm by executive order the 1976 Hyde Amendment banning federal funding of abortions.[9] The Hyde Amendment, however, applies only to funds provided through annual appropriations bills. The Congressional Research Service found that no funds to be expended for ObamaCare plans will flow through HHS appropriations bills. Therefore, the Hyde amendment will not cover government expenditures for ObamaCare.[10] Mr.Stupak should have known that, but did not want to. Likewise the favorable reaction of the Catholic episcopate to the concept of nationalized health insurance underlying the law was ill-inspired. The danger of that approach to religious liberty is obvious. To protect the rights of all, the solution was not protection of organizations, but personalization of health insurance, so that each citizen can decide for himself whether to buy a specific coverage.
The contraception mandate and the lack of protection against abortion funding in ObamaCare have not been the only difficulties facing Catholics in the U.S. There has been a long push to transform the USA into a territory inhospitable for Christian faith. In matters of sexual morality, one should add the promotion of unnatural relationships, culminating with introduction of same-sex marriages. After a morally objectionable practice is accepted, it soon becomes politically incorrect to criticize it. In the end, one arrives at the situation in France, where a renowned physician was sent to jail for trying to pray in front of the Notre Dame church for abortion victims, or in Sweden, where a pastor can be jailed for stating from the pulpit that homosexual acts are sinful. Interestingly, some justices of the U.S. Supreme Court recommend that we trade our constitution for theirs!
In this context, the muted reaction from Catholics, particularly from the bishops, to the push for legalization of same-sex marriages has been disconcerting. Legalization occurred in Washington State[11] and in Maryland,[12] while we were all concerned with the contraception mandate. Yet, the two are facets of the same problem.
In any event, the bishops followed up on their denunciation of the mandate. Their messages were read in all churches and the faithful were urged to use the available political means to accomplish their rescindment. It became clear, however, after the failed negotiations involving Archbishop Dolan, that the only path to rescindment went through the elections of November 2012.
To analyze the result of the presidential elections, a comparison of votes cast by three groups of voters in 2008 and 2012 is most instructive (O = Obama, McC = McCain, R = Romney):[13]

Catholics: 2008, O 54%, McC 45%; 2012, O 50%, R 48%; O loss: 4
Jews: 2008, O 78%, McC 21%; 2012, O 69%, R 30%; O loss: 9
NR: 2008, O 75%, McC 23%; 2012, O 70%, R 26%; O loss: 5

The switch of Catholics from Obama in 2012 was half of that of Jewish voters and the same as that of those with no religious affiliation (NR). Whereas it might have been said (generously) that Catholics voted for Obama in 2008 because they didn’t know, the 2012 vote showed that they didn’t care. The comparison with the other groups suggests that even those who switched did not do so for moral reasons. The effect of bishops’ exhortation was nil. Likewise, the law adopted in December 2010,[14] repealing the so called “Don’t ask don’t tell” policy in the armed forces, did not seem to influence the Catholic vote in the congressional elections of 2012.
In an article of February 2012, a self-declared Catholic, Tim Padgett, wrote that according to polls the bishops no longer speak for most U.S. Catholics on issues like abortion, divorce, homosexuality, women priests and priests getting married, masturbation, premarital sex, and contraception. He stated that 98% of Catholic women ignore the ban on birth control, “in keeping with their faith’s precept of exercising personal conscience.”[15]. The implications of his statement are grim, but the 2012 elections seemed to bear him out.
As could have been expected, once reelected Mr. Obama wasted no time before starting the push to eliminate Christian morals from public life. Thus, his refusal to enforce the Defense of Marriage Act was followed by an offensive through judicial channels using carefully selected judges, to force the same-sex “marriages” in state after state, against the will of state legislatures and of the citizens.
An enormous problem for maintaining Catholic principles and morals in the public place has been presented by the actions of members of the Catholic church with prominent positions in the society. A list (incomplete) of such persons is shown below. Notably, many of them are also products of Catholic education:
• Kathleen Sebelius: Summit Country Day School, Trinity Washington University (both Catholic); strongly pro abortion.
• Nancy Pelosi, US House Minority Leader, former Speaker: Institute of Notre Dame HS, Trinity College (both Catholic); strong supporter of every position incompatible with Catholic morals. After the first version of the HHS mandates was issued, she stated: “I am going to stick with my fellow Catholics in supporting the Administration on this.”
• Andrew Cuomo, NY Governor: St. Gerard’s School, Archbishop Molloy HS, Fordham University; attacked the other candidate for governor for being pro life. Promoted and signed the same-sex marriage bill. Recently, stated that people that strongly advocate pro life positions and the Catholic position on marriage are not welcome in his state.
• Martin O’Malley, MD Governor: Our Lady of Lourdes School, Gonzaga College HS, The Catholic University of America; supports federal funding on abortion, lobbied for a bill to legalize same-sex marriages, introduced it himself into the Legislature, and signed it when passed.
• Christine Gregoire, WA Governor: public school, Gonzaga U Law School (Jesuit); supports abortion and requiring pharmacies to sell morning-after pills, signed same-sex marriage law.
• John Lynch. NH Governor: public schools, Georgetown University Law Center; pro abortion, in favor of dispensing morning-after pills without prescription, signed same-sex marriage law.
• John Baldacci, ME Governor: public education; voted no on the partial birth abortion ban (while in Congress), signed same-sex marriage law (overturned by referendum).
• Barbara Mikulski, long term US Representative and Senator from MD: Institute of Notre Dame HS, Mount St. Agnes College; rated 100% by the pro abortion organization NARAL; has strongly promoted the homosexual agenda.
• Patty Murray, Senator from WA: public education, voted against partial birth abortion ban and parental notification, supports federal funding of abortion, was one of the three female Senators to support publicly the mandates when issued.
• Thomas Menino, five-term Mayor of Boston: Thomas Aqinal HS, attended Boston College (jesuit), but did not graduate; has supported abortion and taxpayer financing of it throughout his career. Going one step beyond his colleagues mentioned above, he abused verbally, threatening with retaliation against his business, an owner of a fast food chain “guilty” of expressing in an interview opinions on sexual purity and marriage identical to that taught and commanded by the Catholic Church
• The likely point of origin: Father Robert Drinan, S.J., MA congressman, advocated abortion before Roe v. Wade. After retiring from Congress, taught at Georgetown (1981- to his death in 2007).
Undoubtedly, as long as these politicians are not excised from the Church, the faithful in the pews will treat with indifference the exhortations of the bishops about morality of legislation.
It seems difficult to rationalize the bishops’ acceptance of “Catholics” like those listed. The explanation might be found in the adoption by the bishops (in America and elsewhere) of socialism as the method for helping the poor and achieving equality. According to this social model:
– The poor are not required to work for their living; they are not expected to strive to escape their condition. Poverty becomes permanent, hereditary. The poor are expected to demand to be provided with a living from the resources of the rich.
– The role of assigning people to the “poor” and “rich” categories belongs to the government. The latter provides for the upkeep of the poor, by confiscating a part of the resources of the rich. Expropriation is deemed theologically acceptable.[16](a)
– In practice, the government extends expropriation to the whole productive segment of the society. Additionally, the government refuses to be bound by moral restraints, invoking the separation of church and state.
– The right of the poor to sustenance is not limited to subsistence, but includes gratification, in which the government has included sexual satisfaction.
The virtue of providing for the poor through redistribution by the government seems to redeem every mortal sin and scandal. Being oneself wealthy and not giving to the poor more than the general expropriation does not detract from that virtue.
The Catholic institutions created to address social concerns also have fully embraced the philosophy and methods of the secular state.
The model contradicts the apostles,[17] and also Pope Pius XI,[16](b) therefore it must be more recent.
It was noted that the current situation shows a failure of catechesis in all three forms (from the pulpit, in the classroom and through example). The change in method cannot succeed, however, as long as the subject of catechesis contains basic contradictions. Moreover, these contradictions will continue to reduce the role of Catholic social institutions, until the care for the poor and education of children will be fully taken over by the government. Suits like those currently at the Supreme Court will then become moot.

[1] Editorial, The Wall Street Journal, Feb. 7, 2012
[2] Jake Tapper, Feb. 9, 2012, Policy and Politics of Contraception Rule Fiercely Debated Within White House, ABC News, Feb. 9, 2012,
[7] David B. Rifkin, Jr.& Edward Whelan, Birth-Control Mandate: Unconstitutional and Illegal, WSJ, Feb. 15, 2012
[12] timees
[16] John A. Hardon, S.J., The Catholic Catechism, Doubleday, New York, 1975, (a) pp. 386-388; (b) p. 387.
[17] (a) 2 Thessalonians, 3, 6-10; (b) 1 Corinthians, 9, 5;