Trojan War A-Comin’?

In the battle over the Patient Protection and Affordable Care Act, Catholics are sitting on a string of small victories. Richard Doerflinger of the Bishop’s Conference’s Secretariat on Pro-Life Activities has declared compromise a no sale. For every pundit defending President Obama outright — as Salon’s Joan Walsh does when she calls on Catholics to “preach what we practice” regarding birth control — two or three are pleading for reconciliation. In the Washington Post, Melissa Rogers calls for a “Win-Win” solution, i.e., one that will “protect the rights of conscience and secure access to important health care services.”

That’s a tall order — maybe too tall. For that reason, it’s good news for Catholics that so many people persist in trying to place it. One reason may be the suspicion that the regulations won’t hold up in court. The 1993 Religious Freedom Restoration Act holds any law burdening the free exercise of religion up to “strict scrutiny.” The government must prove that the law is: 1) “acting in furtherance of a compelling government interest”; and 2) that it represents “the least restrictive means available” for doing so. There are no guarantees the PPACA could pass both parts of that test.

Another related, equally important reason may be the shrewdness shown by the bishops and their supporters in framing the issue. According to the chorus, expanding conscience exemptions would represent no judgment against contraception. NCR’s Michael Sean Winters begins his denunciation of Obama by insisting he’s no “anti-contraceptive zealot.” U.S.A. Today agrees that the Republicans are launching no “War on Contraception.” Dr. Albert Mohler of the Southern Baptist Theological Seminary has reminded fellow evangelicals, many of whom use artificial contraceptives, that the controversy “is not a Catholic issue,” but a general assault on religious liberty.

That frame is good, so long as it holds. But will it? Or will culture warriors cave in to temptation and take the whole thing to eleven? In Business Insider’s politics section, Brendan Michael Dougherty and Pascal-Emmanuel Gobry proclaim: “Time to admit it: The Church Has Always Been Right on Birth Control.” As Humanae Vitae predicted, argue the authors, the ability to prevent conception has led to a lowering of moral standards, the objectification of women, increased infidelity and illegitimacy and government “coercion” in reproductive issues.

Dougherty and Gobry stop short of demanding that the state prohibit the sale or use of contraceptive devices. Indeed, in Griswold v. Connecticut, the Supreme Court ruled that such prohibitions were unconstitutional. But in the majority decision, Justice Douglas first posited the “right to privacy” found in the “penumbras” of the First Amendment. Of course, Justice Blackmun invoked that very right and those very penumbras in striking down abortion bans in Roe v. Wade. This fact makes them, in some circles, the most hated right and the most hated penumbras in the history of American jurisprudence. To expunge them from the books, as many would like to do, is to put prohibitions on contraception back on the table.

The idea would very likely please Rick Santorum. In an interview with editor Shane Vander Hart, he promised to withdraw all federal funding for contraceptives, and to use the presidency to warn of “the dangers of contraception.” Contraception, he said, “Is not okay. It’s a license to do things in the sexual realm that is counter to how things are supposed to be.” Santorum, an attorney, also criticized the Griswold ruling from a jurisprudential point of view. “The state has a right to [ban contraceptives],” he said in 2006. “The state has the right to pass whatever statues they have. That is the thing I have said about the activism of the Supreme Court, they are creating rights, and they should be left up to the people to decide.”

Now, Santorum has yet to connect that dot between his abhorrence of contraceptives and his belief in judicial restraint. He’s never come right out and said that all rubbers should be contraband. Will that last, I wonder? In the short run, such a statement looks politically foolish — 98% of Catholics have used artificial birth control, and 58% believe that employers should cover contraception and birth control at no cost. But, like Santorum or not, he’s never shown much interest in doing the done thing, politically. It was after losing an election that he affirmed his opposition to the reasoning in Griswold. Three official primary victories (plus an unofficial fourth, Iowa) under his belt ought to redouble whatever courage Santorum has always had in his convictions.

Or maybe what we should expect is an anti-contraceptive groundswell from intellectuals. This past January in First Things, Howard Kainz, professor emeritus of philosophy at Marquette, argued that a very short and slippery slope connects contraception to gay marriage. If taken seriously, this ought to make contraceptives into very potent bogeymen indeed. This very week on Patheos, Christopher West plugs his book, At the Heart of the Gospel: Reclaiming the Body for the New Evangelization, by warning that “the entire world has a vested interest in what happens in our bedrooms.” Citing crumbling marriages and laboratory-manufactured people, he urges readers to give Humanae Vitae “another look.”

Gird your loins, so to speak, gang, and sing, O Muse. Whether or not anyone will declare it in this particular election year, our culture will soon be facing a full-blown Trojan War.

  • jkm

    Terrific job on the legal stuff everybody’s too busy lobbing firebombs to slog through. Implications are so tedious in the heat of battle—and therefore even more important to consider. I fear your particular Muse the will be singing to a very small choir, but it’s a tune worth repeating anyway. Thank you.

  • Holly in Nebraska

    Funny that Trojans aren’t even covered by insurance.

    Anyway, I think you are playing Chicken Little. I guess the word play was too much to resist, but I don’t see a war. There is a big difference between the Fed not paying for contraception and declaring it illegal. The quote you gave from Santorum doesn’t raise any alarms from me but rather seems the right approach. Hearts will have to change before laws do.

  • DWiss

    How about a Trojan horse?

    Humanae vitae was prophetic in many ways, but those ways are so varnished over by popular culture that they’re all but invisible. In addition to the consequences of contraception already mentioned in the Business Insider article, there’s the absolute explosion in the abortion rate (guess contraception isn’t all that effective), and the rapid demographic decline of Western civilization (read America Alone by Mark Steyn). I know that last phrase sounds kooky, but read the book. It’s not kooky, it’s happening right now, and probably irreversible.

    I know from my experience teaching Confirmation prep to 15/16 year olds that the age old Catholic morals are not simply being ignored, they are virtually unknown. Holly, above, mentions that a change of heart is necessary, and she’s right. But a change in catechesis precedes even that.

  • Julia

    I know this is beside the point, but the photo reminded me of the line from “3rd Rock From The Sun” where the John Lithgow character is talking about his first sexual experience. He told his “family” about how they used condoms: “They were ribbed for her pleasure. . .so I turned them inside out”

  • Holly in Nebraska

    I have to apologize. We are in a war. Sebelius said so. I just read an article by Kathryn Jean Lopez (in Voices) that quotes her:

    –Sebelius has actually been refreshing, in a way: much more honest about what the administration’s aims are. “We are in a war,” she told a recent Chicago Power of Choice Luncheon. Opponents of the administration, she said, are trying to “roll back the last 50 years of progress women have made in comprehensive health care in America.”–

    So, my bad. War it is. Although contrary to what Sebelius thinks, we didn’t start it.


  • Euro2012

    David Dean Rusk: “The United States is not just an old cow that gives more milk the more it’s kicked in the flanks.”

  • sjay

    It’s not clear that the Religious Freedom Restoration Act means much in this context. As a federal statute, it’s on the same level so to speak as PPACA. Unlike a conflict between a constitutional provision and a statute, where the former prevails, it’s more up to the discretion of the courts how to sort out the conflict. Judicial approaches which have been taken in the past would include utilizing the precept that wherever possible, statutes should be interpreted so as to eliminate conflict with other statutes or deciding that the later passed statute implicitly amends the earlier statute where in conflict. Alternatively, the passage of PPACA could be interpreted as a finding by Congress that the requirements of RFRA have been met.

    What this means, in effect, is that the Supreme Court can do anything it wants with this.

  • bones

    That 98 stat, where does it come from? Why from the Guttmacher Institute, a wing of Planned Parenthood! That’s interesting and ought to be mentioned, no?

    Reading more about the methodology behind the stat, it appears the 98 percent refers to the women who 1) had sex in the last 3 months and 2) were actively trying not have children. It also appears that the 98 percent is made up of women who are 1) not interested in having children and 2) not using NFP. According to the analysis posted over at What’s Wrong With The World, the ‘actual’ number is more lik 87% (13% said they didnt use contraception, 11% employed no technique, and 2% used a form of NFP) of Catholic women, who’d had sex in the last 3 months, were using some form of contraception. 87% is still a massively large number, though no where near as sexy as 98%.

    Just my unasked for aside, Max, to another excellent article!