Natural Law, Religious Liberty,

and the 2012 Contraception Mandate

Introduction 

About a decade ago, I participated in a three week summer seminar on faith and public life. Among the many topics, we discussed the relevance of natural law to public discourse. Among our number was an African priest with a great deal of pastoral experience and a great deal of familiarity with the political issues in his own country. Toward the end of our discussion of the natural law, he said: “People dismiss the natural law … and then come around to argue something like it.” The remark stuck with me because it illustrates people presume their moral arguments are correct not because they say so but because those arguments are based on a moral order that others cannot deny; that the authority of anyone’s conscience comes from its conformity with that moral order; that arguments based on other grounds, such as personal or corporate interest or the simple assertion of personal, institutional or public authority, while worthy of respect in certain circumstances, do not ultimately decide moral right and wrong. 

This idea was understood centuries ago. Famously, Sophocles’ play Antigone illustrates the existence of such a moral order unbound to any particular religion. The heroine Antigone buries her dead brother and so defies the command of Creon, King of Thebes, who prohibited the burial of such rebels in the civil war that had afflicted Thebes. When Creon confronts her, Antigone appeals to a law prior to human law:

For her crime, Antigone is executed. Antigone recognizes a law that must be followed despite the opposition of civil authority, even for the good of civil authority. While Creon enforces his law with death, Antigone’s sense of love and justice enforces a law in the heart and the conscience. Thus, she willingly suffers death rather than do evil, knowing that this law would ultimately vindicate her.

Even more famous is the law court at Nuremburg in the 1040’s, which invoked natural law to vindicate the victims of the Holocaust. In an address to the French Bar Association in 1946, Chief Justice Robert H. Jackson said:

“[B]asic relations between legal right and wrong,” “cannot change,” “from time to time,” “which must be respected if we are to have an international order of peace and justice.” Our current social and political debates touch the basic relations between legal right and wrong regarding religious liberty, the value of vulnerable and disabled human lives, the relations of husband and wife, parent and child, humanity and God. Judge Jackson was under no illusions that social and political circumstances create widespread confusion and controversy about how legal right and wrong should be worked out in practice. The Third Reich, after all, happened. Yet he also observed that “we can from time to time discover these basic relationships which must be respected if we are to have an international order of peace and justice.” He observed the existence of “what has sometimes been called a natural law, which binds each man to refrain from acts so inherently wrong and injurious to others that he must know they will be treated as criminal.” If it means anything, the natural law is a “higher” or “prior” law by which to judge human law and thus to vindicate the victims of violence and to form a moral foundation for a better society than the one that had crumbled.

I do not mean that the Obama Administration resembles the Third Reich. Chris Matthews and Cardinal-elect Dolan are not going to be rounded up and executed. I would not use “ruthless” to describe the policies of the Affordable Care Act. But it must be said that there are some experiments there that challenge the basic relation between legal right and wrong: challenging the liberty to articulate religious doctrines, live by them, and organize institutions according to them and challenging the respect due to marriage by promoting more sexual activity that is unencumbered by the possibility of children by lowering cost of contraception and by funding abortion. 

This experiment requires overcoming the opposing arguments, including those of the Catholic Church, or silencing those arguments. Without much success in overcoming those arguments, the current political strategy is to silence them. Denying freedom of social institutions to translate their moral convictions into institutional policy is one of the most effective means of silencing the moral arguments that explain those convictions. For example denying Catholic hospitals the legal right to refuse abortions prevents them from the public expression of their argument against abortion and of their alternatives to that practice. The recent HHS contraception mandate touches those “basic relations of legal right and wrong” regarding religious liberty, marriage, sexuality, and children that enable social peace if laws respect human nature and undermine it if they do not.

Natural Law as the Foundation of Religious Liberty

What is the natural law? Aquinas defines law in general as “an ordering of reason for the common good by one who has care for the community, and promulgated.” The natural law is natural because its principles are inherent in human nature and understandable by human reason reflecting on moral activities. The natural law is the moral order people come up with when they think rightly about how to live happily. 

An analogy: If you would like to buy a car, you come up with the criteria your car must meet: price range, possible colors, features, gas mileage, big, medium, or small, minivan or sports car …. Then you go shopping. You eliminate some cars immediately as not fitting the criteria. You identify others in the range of possibility, deliberate about which one best fits, and buy that one. Now apply this analogy to your reflection upon how people should live. You eliminate some actions as incapable of human happiness, regard others as possibilities, and then deliberate about what course of action is best for you. One difference, of course, is that others might legitimately buy the cars you eliminate while no one rightly performs an action that always and everywhere undermines human flourishing. Moreover, a bad car buying decision leaves you in possession of a lemon, while a bad moral decision makes you yourself immoral, with the consequences of guilt, distrust, broken relationships, and possibly the loss of salvation.

Can we grasp such moral standards based on sound human reason alone? Imagine your neighbor sitting on his front porch reflecting upon life. What you like him to be able to say? At least, “if I would like to get along with my neighbors, I should not take their spouses, children or property. I should not kill them. My parents gave me life, so I should honor and take care of them, even more honor if they raised me well. If I ask about the origins of everything, the question of whether God exists will arise.”

Even before your neighbor seeks an answer the question about God, you both might see and express its importance in several principles: First, whatever is the answer to this question; it represents a truth that does not depend upon either of us. God is real, or not, and if so has a certain way of being. God is not “my God,” but the same God for everyone. If God does not exist, that too is true for everyone. Second, if God exists, then God should be worshipped, especially if that God is all-knowing and loving. There may be different types of worship acceptable to this God, but there are certainly false ones too. Finally, if God is God for everyone, then how I treat my neighbor matters to God as well as to society. Thus the Hebrew prophets castigated their people for idolatry, infanticide and neglect of the poor, and Jesus warns us that “as you did it to the least of my brethren, you did it to me. And thus, no person can really separate social action from faith, and churches cannot separate doctrines regarding contraception from their religious beliefs or concern for the well-being of each member of society.

Some will object that these moral standards come from religion and in particular the Ten Commandments, not from reason. Yet similar reflections of other belief and thought traditions are widely known: The eightfold path of Buddhism overcomes suffering by “Right Understanding, Right Thought, Right Speech, Right Action, Right Livelihood, Right Effort, Right Mindfulness, and Right Concentration.” The moral code of Hinduism includes non-killing, truth, duty, compassion, fortitude, self-restraint, and purity. 

The Catholic Church bases its argument for Religious Liberty in part upon the natural law. The Church’s teaching recognizes that there is truth about God and that there are right and wrong ways of responding: “On their part, all men are bound to seek the truth, especially in what concerns God and His Church, and to embrace the truth they come to know, and to hold fast to it.” (Dignitatis Humanae [DH] 1) This obligation to search for the truth about God is not a limitation of human freedom. Rather, the truth about God answers questions that concern every person in every generation: “Who am I? Where have I come from and where am I going? Why is there evil? What is there after this life?” (Fides et Ratio [FR] 1) The truth about God is a guide to freedom. The Church recognizes that no authority, even its own, should coerce belief: “The truth cannot impose itself except by virtue of its own truth, as it makes its entrance into the mind at once quietly and with power.” (DH 1) The Church imposes no moral order, certainly no political order, upon society. Yet the Church recognizes that true answers exist about those questions that concern everyone, including the basic relationships between legal right and wrong of which Justice Jackson spoke. Grasping these truths have certain requirements: free inquiry into religious matters, the ability to organize with others to learn and discuss them, the ability to establish social institutions to show how religious beliefs are lived out and benefit society, the elimination of barriers to all the above and due regard for the public order. 

The recognition of rights is one essential modern method of enabling such abilities and eliminating obstacles. The Church articulates the right to religious freedom as immunity from coercion: “This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.” (DH 2) Protecting religious freedom, then, requires civil authorities to identify the various ways in which their citizens are habitually forced to act contrary to their religious convictions. The initial HHS regulation did precisely the opposite, and it is revealing that people of every religious and philosophical outlook have joined Catholics in opposing the rule.

Religious Liberty and the Contraception Mandate

If the Church’s religious freedom doctrine protected only certain religious convictions, it would exclude anyone disagreeing with those convictions and be rightly accused of bias and of merely practicing ideology and “maintaining existing power relationships.” On the contrary, the Church argues respect for all serious proposals regarding religious truth and the implications for society: “Truth, however, is to be sought after in a manner proper to the dignity of the human person and his social nature. The inquiry is to be free, carried on with the aid of teaching or instruction, communication and dialogue, in the course of which men explain to one another the truth they have discovered, or think they have discovered, in order thus to assist one another in the quest for truth.” (DH 3) There is no claim that enjoying religious freedom depends upon a person’s, group’s, or government’s acceptance of religion or submission to religious authority. Instead the Church claims that free people “explain to one another the truth they have discovered, or think they have discovered, in order thus to assist one another in the quest for truth.” (DH 3) This teaching acknowledges the reality of bitter debate but that the goal of debate is an understanding of truth in which previous falsehoods, such as the legitimacy of slavery, are eliminated. 

So how might society progress on its most controversial and bitter debates: abortion, contraception…? This question concerns not only the freedom of believers to live out their beliefs but also their genuine concern for society, without which they might rightly be called hypocrites. Hence the importance of religious institutions, such as Catholic hospitals, universities, for the common good:

The idea that religious organizations might contribute to the common good by demonstrating that society is better off without contraception, abortion, IVF, and euthanasia, for example, is a particularly threatening idea in the current political climate. For this reason, only political arguments for the right of religious freedom effectively defend institutions that would oppose prevailing cultural norms. However, we should not lose sight of the long term goal of assembling knowledge to expose laws that undermine human nature and personal dignity. 

It may seem quaint to appeal to truth in a postmodern political context, but even here the truth matters. The Obama Administration justifies the contraception mandate by claiming that “The public health case for making sure insurance covers contraception is clear” and seeks to avoid the abortion debate by claiming that hormonal contraceptives are not abortifacients. Both claims are highly questionable. 

The “Emergency Contraception Education Act of 2010" reflects the common claim of pro-choice Ob/Gyn that “contraception does not terminate an established pregnancy.” They make this claim in good conscience because medical associations in the US and Europe commonly associate the beginning of pregnancy with implantation, not with conception. According to that logic, hormonal contraceptives do not terminate a pregnancy because they work before implantation by preventing ovulation, fertilization, and implantation. Since they do not terminate a pregnancy, the reasoning goes, they do not cause an abortion. 

The moral mistake is that abortion does terminate an embryo, a truth that the medical definition of “pregnancy” obscures. Women obtain abortions so that they will not have children or, in cases of medical necessity, so that the developing embryo or fetus will not endanger their lives. The real question concerns whether contraceptive drugs terminate an embryo. If it does, then those who recognize the humanity of the embryo will also recognize that the same drug acts as a contraceptive or an abortifacient depending upon the presence of sperm and egg or of an embryo. In other words, they will recognize that contraceptives are contraceptive when they prevent ovulation or fertilization but are abortifacients when they prevent implantation.

The public case for making insurance cover contraception appears to claim that contraception is vital to women’s health, prevents health problems later, and is too expensive for many women. Therefore failure to cover contraception will actually increase costs and lower women’s standard of living. The scientific justification for contraception comes in the Institute of Medicine recommendation of several legitimate preventive services such as testing for HPV, HIV, STDs and counseling and support for breastfeeding. Taking preventive action is an excellent example of natural law thinking because many people recognize that if they would like to stay healthy, then they are obliged to take certain actions. Moreover, it is for the common good that civil authorities define some preventive medical services and help the poor to receive them. Yet as we move from these general principles down to the more specific conclusions about which preventive services ought to be used by which people, we can expect disagreement. If there is a such thing as human nature and natural law, then immoral as well as impractical choices reveal their imperfections. In addition to the mandate to fund contraception, the mandate to vaccinate early teens against HPV is thought to promote freedom of sexual choice and protection against poor sexual choices. From another perspective, it also presumes a culture of promiscuity. So it seems fair to ask whether the “public case for making insurance cover contraception” that Kathleen Sabellius claims is so clear is in fact a contribution to the common good, or a grave social mistake that makes the legitimate need to test for HPV, HIV, and STDs into a sort of self-fulfilling prophecy. 

By contrast, Humanae Vitae foresaw that contraception would aggravate, not prevent, tragic social problems. The Church predicted that contraception would lead to a general lowering of moral standards, a rise in infidelity and illegitimacy, the reduction of women to objects used to satisfy the male sex drive, and government coercion in reproductive matters. Here are the facts that two secular writers put together in an article in the secular journal Business Insider:

Conclusion

Truth matters. People dismiss the natural law but then come around to argue something like it. They intend that their arguments have force not because they say so, but because they are based on a moral order that others cannot deny. People ought to enjoy religious liberty because questions arise that demand true answers: Does God exist? How shall I understand myself? What shall I do for my neighbor? What shall we do together? Seeking answers to these questions requires free inquiry into religious matters, the ability to organize with others to learn and discuss them, the ability to establish social institutions to show how religious beliefs are lived out and benefit society, the elimination of barriers to all the above and due regard for the public order. Protecting religious freedom, then, requires civil authorities to identify the various ways in which their citizens are habitually forced to act contrary to their religious convictions while maintaining the public order. As moral and political arguments move from general principles the ordering of society, expect controversy. Yet as Chief Justice Jackson observed: “we can from time to time discover these basic relationships which must be respected if we are to have an international order of peace and justice.”