Last month, as part of implementing the 2010 health-care law, President Obama issued a regulation that expands women’s access to birth-control methods, including drugs that induce abortion.
While Mr. Obama tried to accommodate the pro-life views of the Roman Catholic Church and other religions, he nonetheless took a hard line by defining where their religious activity ends, even if it includes treating health needs in missionary work.
Only in the narrowest way does the rule exempt churches from supporting birth control. It applies strictly to church institutions whose purpose is “the inculcation of religious values” and that hire and serve primarily those of the same religious faith. When a church deals with the public, such as hiring workers not of the faith or running a hospital, it must accept insurance that covers contraception and abortion.
Obama’s attempt to draw a distinction between the teaching of faith and its outward conduct puts government in the business of defining religion. Even when the Supreme Court has been asked to decide what is religious – in the name of protecting the “free exercise” of religion – it has faced trouble. How can you protect religion without first defining it? Government can easily end up discriminating against a faith or affecting it.
The effect of Obama’s birth-control rule may indeed be discriminatory. Catholic hospitals could be forced to close rather than violate church teachings. Such an action would be far different than the effect of past government efforts to prevent religious conduct that many would say is harmful, such as polygamy. Catholic hospitals do no harm by not offering or supporting abortion.
Churches often live with broad laws that impinge on their freedom. But government needs to generously accommodate a church’s definition of its religious activities. In 1987, the high court recognized that “[i]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious.”
Many Democratic critics of the Obama rule point to compromises that would better balance its secular purpose with religious liberty. The president should listen to them.