The Contraceptive Mandate and "Religious Liberty"

by Christopher Ferrara

Now that the United States Supreme Court has upheld the Obama administration’s “Patient Protection and Affordable Health Care Act” by the bare majority of 5-to-4, what is popularly known as its “contraceptive mandate” has gone into effect. The mandate requires that employers provide “health” insurance coverage for “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”1

To their credit, the American bishops affirm in the USCCB’s statement “Our Most Cherished Liberty” (OMCL) that “an unjust law cannot be obeyed” and that “Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them.” This episcopal call to civil disobedience in our “culture of death” has been a long time coming and is most welcome. The organized civil disobedience of the Church has nothing less than the potential to renew the face of this nation, and for that reason the powers that be of political modernity have always had an abiding fear of the Church thus aroused. It is a fear as old as Locke’s Essay and Letter concerning toleration, which counsel eternal vigilance in the task of keeping the Catholics down.

But the very need for civil disobedience reveals a far deeper problem than resistance to this or that unjust and immoral law. The problem is systemic: “structures of sin” made possible by the political incapacitation of the Church under America’s regime of “religious liberty.” It is here that the bishops’ opposition to the mandate comes up short. This is not to detract from the good faith effort by certain of the bishops to speak out courageously in defense of the Church in this affair. It is, rather, to observe the quid that must be accepted in return for the quo of “religious liberty” in the modern sense: the Church is granted a certain exempt “space” for her activity, but must accept that the realm of politics is to be governed solely by civil authority and the will of relevant electoral majorities, without restraint by the dictates of revealed truth and the natural law as expounded and defended by the infallible Magisterium.

Consider another statement of protest issued by the USCCB via its Administrative Committee, led by New York’s Archbishop Timothy Dolan, whose chummy relations with Mr. Obama have scandalized traditional Catholics around the world (as the Cardinal himself admits). The statement is tellingly entitled “United for Religious Freedom” (UFRF)—not united for the defense of the divine and natural law against violation by civil authority. UFRF contains an implicit capitulation to the unchallengeable power of the secular state: “[W]e wish to clarify what this debate is—and is not—about. This is not about access to contraception, which is ubiquitous and inexpensive, even when it is not provided by the Church’s hand and with the Church’s funds….”2

Notice, first of all, the reference to a “debate.” In America, as in all Western democratic republics, all questions are debatable, including questions of fundamental morality, such as contraception or whether human life in the womb shall be taken or spared. The “debate” over the mandate, says UFRF, has nothing to do with transgressions of the objective moral order, but only with how “the mandate includes an extremely narrow definition of what HHS deems a ‘religious employer’ deserving exemption—employers who, among other things, must hire and serve primarily those of their own faith.”

In other words, the statement concedes the power of the federal government to mandate payment for abortion and sterilization generally. It objects only that “religious liberty” requires a broader definition of the exempt space to which those who might decline to pay for the mandate on grounds of conscience may retreat. The morality of what is mandated is not challenged in itself. Indeed, the statement hastens to add that the “debate” is “not about the Bishops’ somehow ‘banning contraception,’ when the U.S. Supreme Court took that issue off the table two generations ago.” In other words, supremum iudicatorium locutus est, causa finita est. What the Magisterium teaches regarding the objective moral order, binding on all nations, is implicitly assumed to be inoperative on American soil, once the High Court or John Locke’s “supreme legislature” has spoken to the contrary.

As if to confirm this abdication of moral authority in the face of what John Courtney Murray called the modern state’s “monism of power,” in OMCL we read: “This is not a matter of whether contraception may be prohibited by the government. This is not even a matter of whether contraception may be supported by the government. Instead, it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilization, even if that violates their religious beliefs.”

In other words, the government and “the people” may do whatever they please respecting contraception without opposition from the Church, so long as Catholics and others of similar “beliefs” are not forced to participate. This “most cherished liberty” is not the freedom of the Church to constitute social order by informing and directing the body politic in matters that touch on morality and the welfare of souls so as to lead men, in partnership with the State, toward their final end in eternal beatitude—i.e., the Social Kingship of Christ. Rather, what is most cherished is “the gift of liberty which is ours as American citizens.” And what is this “gift”? It is the “gift” bequeathed to us by the sainted Founders and Framers, who generously provided that the citizens of the Republic may profess any creed they please, so long as they understand that their creed is of no public import whatsoever to a politics now definitively separated from religion. For Catholics, this “gift” means an agreement (as Louis Veuillot put it) to be, in public life, “sufficiently nothing to live in peace with the rest of the world.”3

Catholic hierarchs are expected to be assiduous about keeping their end of the bargain. The modern nation-state views as heresy the teaching of Pope Leo XIII in Libertas, wherein the Roman Pontiff reprobated the thinking of those “who affirm that the morality of individuals is to be guided by the divine law, but not the morality of the State, [and] that in public affairs the commands of God may be passed over, and may be entirely disregarded in the framing of laws.” From this way of thinking, Leo warned, “follows the fatal theory of the need of separation between Church and State.” But, he continued, “the absurdity of such a position is manifest. Nature herself proclaims the necessity of the State providing means and opportunities whereby the community may be enabled to live properly, that is to say, according to the laws of God. For, since God is the source of all goodness and justice, it is absolutely ridiculous that the State should pay no attention to these laws or render them abortive by contrary enactment.”

But the very regime of “religious liberty” depends precisely on this absolutely ridiculous proposition, according to which the laws of God do not bind the federal government of the United States, but rather constitute only private opinion within the exempt space of conscience; the divine and natural laws are not permitted to be publicly true. Thus the Catholic Church in America is left only with an appeal to the “gift of liberty which is ours as American citizens.”

As I show in my book Liberty, the God that Failed, even a group of conservative evangelical Protestants known as the National Reform Association (NRA) petitioned the federal government in the mid-19th century for the following amendment to the Preamble of the Constitution:

“We the People of the United States, [humbly acknowledging Almighty God as the source of all authority and power in civil government, the Lord Jesus Christ as the Ruler among the nations, his revealed will as the supreme law of the land, in order to constitute a Christian government,] and in order to form a more perfect union…”4

The NRA’s extraordinary proceedings, which I explore in the book, defended the Social Kingship in a manner consistent with the same theme in papal encyclicals, warning that America faced certain moral and spiritual collapse unless it acknowledged and submitted to the reign of Christ in its organic law. (The fatal flaw in the NRA’s approach was its Protestant rejection of an authoritative teaching Church allied to the State.)

Today, the vast majority of Catholics, now helpless captives of the Zeitgeist, would consider that proposal madness—a stunning indication of how quickly our once-Christian civilization has degraded into the “silent apostasy” John Paul II lamented, but without identifying the root cause of it all in Western man’s rebellion against the specific influence of the Catholic Church over the res publica. Hence, instead of invoking the Law of the Gospel as the supreme law of the land, as even these conservative Protestants did in the 1800s, OMCL hews to the programmatic abandonment of the Social Kingship since Vatican II: “The Christian church does not ask for special treatment, simply the rights of religious freedom for all citizens.” In other words, leave us alone and we will rest content with the “gift of liberty.”

And then the groveling apology that has become de rigueur for the self-neutered Church Militant of the post-conciliar era: “As Catholics, we know that our history has shadows too in terms of religious liberty, when we did not extend to others the proper respect for this first freedom.” But, says OMCL, the Church has overcome her shameful past—when the State was Catholic and State-subsidized abortion, contraception and sterilization were inconceivable even in nightmares. This happy development is thanks to Vatican II and Dignitatis Humanae: “the teaching of the Church is absolutely clear about religious liberty: ‘The human person has a right to religious freedom.’” In the words of Archbishop Lefebvre: they have uncrowned Him. And they are happy to do so, because “religious liberty” itself requires that very uncrowning.

Murray, whose work supposedly inspired the Council’s embrace of the “American model” in Dignitatis Humanae, lived long enough to be chastened by the outcome of “religious liberty” in practice. He saw that the modern nation-state had destroyed the “Gelasian dyarchy” of two powers, religious and civil, the latter subject to the former where the concerns of the two overlap.5 Political modernity, rather, is founded on “a rejection of the Gelasian thesis…which had been the dynamic of the Christian revolution.”6 The result is that “‘One there is whereby the world is ruled’—the power of the people, expressing itself in the preference of a majority; and beyond or beside or above this power there is no other.” The secular state, with its regime of “religious liberty,” has “declared the Gelasian doctrine to be heretical and has outlawed it in the name of modern orthodoxy, which is a naturalist rationalism.”7

Undermining his own attempt at a Catholic defense of American-style “religious freedom” in the same book, Murray concluded rather bitterly that, despite its boast of religious freedom for all, the modern nation-state has “rejected the freedom of the Church…as the armature of man’s spiritual freedom and as a structural principle of a free society.” The secular State has “denied…the Christian revelation that man is sacredness, and that his primatial res sacra, his freedom, is sought and found ultimately within the Church.”8 Today Murray, the author of immense mischief for the Church and the world, sounds like Archbishop Lefebvre in comparison to the generality of Catholic hierarchs—noble exceptions aside.

It is precisely the freedom of the Church we are expected to surrender in return for “our most cherished liberty,” by which is meant nothing more than immunity from overt legal punishment by a State that has constituted itself an enemy of Christ and the Church He established. The vaunted “opening to the world” at Vatican II has become, with supreme irony, a retreat into a virtual ghetto while society at large descends into an abyss of depravity, with no Church to guide it aright. The post-conciliar Church no longer officially recognizes what Pope Leo remarked in Libertas: “that it is absurd the citizen should respect the Church, while the State may hold her in contempt.” By accepting this absurdity, Catholic hierarchs unwittingly confirm their own prison as they rattle the bars of a gilded cage that is closing ever more tightly around them, and us.


1 See

2 All emphasis mine unless otherwise indicated.

3 Louis Veuillot, L’Illusion Libérale (Palmé, 1866), 96 (English edition).

4 Proceedings (1872), vii.

5 From the historic declaration of Pope Gelasius I in his letter to the Emperor Anastasius (494) on the supremacy of the spiritual over the temporal power in cases of conflict: “There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power. Of these that of the priests is the more weighty.

6 Murray, We Hold These Truths (1960), 206.

7 Ibid., 210.

8 Ibid., 213, 214, 215.