HHS and Soft Totalitarianism

Feb 15, 2012
George Weigel

The Obama administration’s recently-announced HHS regulations, which would require Catholic institutions to subsidize health insurance coverage that provides sterilization, abortifacient drugs, and contraceptives, should be located within the context of the administration’s three-year long effort to define religious freedom down.

As the administration has demonstrated in its international human rights policy, it regards religious freedom as a kind of privacy right: the right to freedom of worship, which the administration seems to regard as analogous to any other optional, recreational activity. No serious student of religious freedom, however, takes the redefinition of religious freedom as freedom-to-worship seriously. For if that redefinition were true, there would be “religious freedom” in Saudi Arabia, so long as the “worship” in question were conducted behind closed doors. And that is manifestly absurd.

The HHS regulations announced on January 20 are one domestic expression of defining-religious-freedom-down. The administration does not propose to, say, restore the 1970 ICEL translations of the prayer-texts of the Mass; that, even HHS might concede, is a violation of religious freedom. But the administration did not think it a violation of religious freedom for its Equal Employment Opportunity Commission to try and overturn the longstanding legal understanding which held that religious institutions have a secure First Amendment right to choose their ministers by their own criteria—until it was told that it had gone way over the line in January’s Hosanna-Tabor Supreme Court decision (a judicial smackdown in which the administration’s own Court nominees joined).

Now, with the HHS “contraceptive mandate” (which, as noted above, is also a sterilization and abortifacent “mandate”), the administration claims that it is not violating the First Amendment by requiring Catholic institutions to provide “services” that the Catholic Church believes are objectively evil. That bizarre claim may well be another constitutional bridge too far. But the very fact that the administration issued these regulations, and that the White House press secretary blithely dismissed any First Amendment concerns when asked whether there were religious freedom issues involved here, tell us something very important, and very disturbing, about the cast of mind in the Executive Branch. the rest