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.
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.