Religious liberty versus reproductive freedom

The U.S. Constitution specifies religious freedom in devilishly simple terms in the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

While it is clear that the founders wanted to the avoid persecution of religious minorities that plagued Europe, the ambiguity of what constitutes "the free exercise" of religion continues to spark controversy. The tension between different views of religious freedom are evident in reproductive rights for women.

No woman in this country is required to terminate a pregnancy or use contraception. If abortion or contraception goes against your religious beliefs, no one interferes with your ability to follow your conscience. There are no boundary conditions or constraints for your religious and reproductive rights.

The trouble comes when abortion or contraception do not violate your personal beliefs and you want to do something that religious authorities oppose. That is when you can clearly see how disingenuous the discussion of religious liberty has become in our society. To hell with free will.

Religious conservatives have come out of the woodwork in recent years to push legislation that limits the ability of a woman to have an abortion, affordable access to hormonal contraceptives, and even accurate information about contraception. And they have been remarkably successful in imposing their beliefs on the freedom of sexually active women to make choices about if and when they get pregnant.

Another popular gambit is to have health care professionals refuse to prescribe contraceptives or fill prescriptions based on their religious beliefs. In other words, their beliefs trump the rights of women who do not share their beliefs.

Here is recent example. A physician in Oklahoma refused to provide emergency contraception to a female rape victim.

“I will not give you emergency contraceptives because it goes against my beliefs,” the doctor allegedly told the rape victim and her mother, Rhonda. “She knew my daughter had just been raped. Her attitude was so judgmental and I felt that she was just judging my daughter,” Rhonda told the news station.

When someone can impose their religious beliefs on your behavioral choices, then religious liberty becomes a farce. Under those circumstances, it is more accurate to talk about religious privilege and control rather than liberty. So-called "conscience" clauses have become a very effective method for taking away a woman's right to make choices for herself.

And here is the devilishly ironic twist in this controversy. Since men cannot get pregnant, their personal rights and beliefs are never at risk beyond the impact on their sexual partners. Funny how that works. Men can even get medication to increase sexual performance to counteract the effects of age and disease without raising a peep from the morality police. Yet women have to fight upstream to gain access to the most effective forms of contraception.

Catholic bishops in America are also playing the religious liberty card as they seek to impose their values on access to contraception. They have joined with other religious conservatives in attempting to prevent insurance coverage of hormonal forms of contraception.

 As noted by constitutional law professor Douglas Laycock, the Catholic bishops are not content with having an exemption for the contraceptive coverage requirement by health insurance companies. They want nothing less than repeal of the law covering everyone, whether working for a Catholic institution or not.

Many of these same bishops were personally responsible for playing a shell game with pedophile priests for decades and decades. Let's also not forget that Archbishop Dolan, current leader of the US Catholic bishops, lied about making payments to pedophile priests when interviewed in 2006. Yet now these men are supposed to be taken seriously as moral authorities? What was it Jesus said about those without sin casting the first stone?

Survey after survey has found that the vast majority of Catholic women use contraception in defiance of Church leaders. In fact, a 2011 study by the Guttmacher Institute found that 98% of Catholic women of child bearing age had used contraceptives. Interestingly, the only major difference among religious groups in contraceptive use was that Evangelical women were far more likely to opt for sterilization after having children. There is an enormous divide between pulpit and pew on contraception. Most women do not believe that sex has to have a procreative potential in order for it to be morally acceptable.

The likely consequence of trying to pass off religious privilege and control over society as religious liberty is backlash.

The bishops claim liberty for themselves, and for the large institutions they control, while also fighting to restrict the liberty of others with respect to abortion, emergency contraception, and same-sex relationships. Persistent opposition to the liberty of others makes enemies; many Americans on the other side of these issues now view the bishops as a powerful force for evil. Why should anyone who disagrees with the bishops on sexual morality respect their broad claim to religious liberty? That is the challenge that defenders of religious liberty must answer.

One form that backlash will take will be growing opposition to any federal or state funding for Catholic institutions. Since Catholic charities, education institutions, and hospitals rely heavily on pubic funding, it will be a very tempting target for opponents of the Church. A few examples of those calls to end all public financing of Catholic organizations can be found here, here, here, and here. Those calls are certain to grow in number and volume.

The bishops are playing a cynical game. They have already petitioned and lost court fights against state mandates for contraception coverage in New York and California. The precedent for those cases was one set by none other than Justice Scalia. The snake is going to have to swallow its tail.

Both the New York Court of Appeals and the California Supreme Court relied on a U.S. Supreme Court decision holding that the First Amendment right of free exercise of religion does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." In that decision, Employment Division, Department of Human Resources of Oregon v. Smith (1990), Justice Antonin Scalia quoted Justice Felix Frankfurter's eloquent exposition of the boundary between free exercise of religion and government regulation: "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."

Even more dishonest than religious organizations taking public funds while demanding exceptions from public policy, religious groups have been at the forefront of attacking secular organizations like Planned Parenthood. Whatever arguments can be made about the rights of religious organizations being forced to provide contraception, they do not extend to secular organizations. The attacks on Planned Parenthood indicate how extreme some groups have become in imposing their beliefs on the entire society. It only serves to demonstrate how this fight is more about the exercise of religious privilege and control rather anything remotely resembling freedom of religion.

As a person of faith, I cannot help but wonder in sad amazement over the truly convoluted talk of religious freedom, especially as it applies to reproductive freedom. It is impossible to take seriously people that oppose terminating unwanted pregnancies on one hand and work hard to limit access to contraception on the other hand. It is hypocrisy writ large. A big fat scarlet H.

As a man, I hope and pray that women take a larger leadership role in our political system and in religious organizations. It is the only hope for democracy and religion in our society.