Katie Geleris: Current arguments against the HHS mandate might win the battle, but they concede the very ground for which conservatives should be fighting.
Two relatively predictable camps have emerged in the controversy over the contraceptive mandate. Those who traditionally lean to the left of center fall into the “women’s health” camp that sees this issue as primarily about women’s access to a certain set of healthcare products. Those who tend right are generally in the “religious liberty” camp that holds free exercise to be the crux of this issue.
For the purposes of this article, I will simply assert my belief that the former position is completely untenable; much has already been written arguing that that is the case, and I need not rehash those arguments. I would like to highlight a subtler problem with the present state of this controversy. The problem is that the conservative position is not really conservative at all.
Consistency and Compromise
Before I proceed, I must highlight an inherent difficulty in what I want to say. Conservatives have two responsibilities in responding to the contraceptive mandate: First, they must seek to understand the real nature of the situation, taking into account everything they know to be true (including religious truths that are generally unwelcome in the public square). This must be done consistently and without compromise.
Second, conservatives have to get things done—file lawsuits, pass legislation, publish in the popular media, amass public support—to minimize the damage that this administrative rule will produce. This must be done shrewdly and might require that they make some strategic concessions in their rhetoric. The compromise that is permissible where unavoidable should not, however, cause conservatives to abandon an unflinching commitment to the underlying truth.
My purpose here is to address this first aspect of the conservative response—the consistent and unalloyed truth of the matter. Nevertheless, my focus should not be taken to imply that the second aspect is anything less than completely indispensable.
Conservatism and the Common Good
In describing a truly conservative approach to the contraceptive mandate, let’s start at the beginning. In the beginning, God created everything, including humans. God made humans in His own image and gave them a commission, a set of duties. He gave them duties, not rights.
What we now call rights did not enter the political scene until the seventeenth century, when the modern era dawned with more (Hobbes) or less (Locke) secular social contract theories. Liberalism and libertarianism are the contemporary heirs of this momentous philosophical shift. Rights are a modern fiction that was promulgated to counter abuses of duty that resulted in oppression, but that fiction has been taken far beyond those original good intentions. (Patrick Deneen has written more on this here.)
Governments are instituted by God and are natural to human society. Like individual humans, these coercive institutions have a special role to play in the world, a duty toward those they serve. A government’s duty is to seek to effect the common good in ways that are appropriate to its nature. The preamble to the American Constitution lists several elements of the common good that, in this country, constitute the very law of the land. The government’s responsibilities are both positive (establish justice, provide for the common defense, etc.) and implicitly negative (don’t overstep the job description, the enumerated powers).
Contraception and Conscience
With regard to the contraceptive mandate, the relevant facts are as follows:
- Humans are responsible to protect human life rather than destroy it;
- The government is responsible to protect human life rather than destroy it, and to foster (at least not inhibit) the ability of individuals and institutions to do the same;
- Sometimes, other people’s lives interfere with our own lives, yet the human responsibility to protect human life remains in effect (stated in reverse, we have no right to be free from intrusion into our comfort by others);
- Some FDA-approved contraceptive drugs and devices can kill very young humans.
Anyone who accepts these premises must repudiate the HHS rule in the strongest terms. Indeed, everyone, regardless of whether they accept these premises, ought to repudiate the rule, because the premises are true regardless of whether they are believed.
Nevertheless, conservatives have failed to assert and defend the truth of these facts, and are instead attempting to fight the mandate on terms set out for them by modern liberalism. Consider the testimony of Dr. William K. Thierfelder, the President of Belmont Abbey College, at the recent hearing on the HHS mandate:
We are unwavering in our belief that contraception, sterilization, and abortion are against God’s law. This is what we teach our students. We believe it is a sin for us to facilitate access to these services through the funds of our religious college. Providing contraceptive services, abortifacients, and sterilization… is a violation of our conscience. [emphasis added]
This statement makes no claim on anyone but the president and his institution. Does Dr. Thierfelder really think that this mandate is wrong because it forces his institution to do something it thinks is immoral? Or, rather, does he oppose it because it forces his institution to do something that is immoral? Is this controversy about his right to religious freedom? Or is it about his—and the government’s—duty to protect human life?
Most conservatives, like Dr. Thierfelder, have been using this alternate set of “facts” to arrive at the conclusion that the HHS mandate is wrong:
- American citizens have an inviolable right to believe and practice whichever religion they choose;
- Some Americans believe in religions that tell them that:
- Humans are responsible to protect human life rather than destroy it;
- Some FDA-approved contraceptive drugs and devices can kill very young humans;
- The government cannot violate the rights of American citizens to believe and practice whatever religion they want unless it has a compelling interest in doing so;
- Providing free emergency contraception to employees of religious organizations is not a sufficiently compelling reason to justify the government’s forcing religious organizations to violate their deeply held religious beliefs.
These premises still lead to a rejection of the HHS mandate, but what do they concede? By using this argument, conservatives have conceded that the moral duty to protect life and not destroy it obligates only those who accept that responsibility, not every person. Even if this argument succeeds, conservatives will merely have defended subjective, privatized religion—so-called “conscience”—of an acceptably tame modern variety, rather than a worldview that is objectively true and universally binding.
Conservatives should not content themselves with fighting for a larger religious exemption that protects their “right to free exercise” if the government is still able to eschew any notion of its duty toward the good of the society it governs. Freedom of conscience—religious liberty—is an instrumental good, not an end in itself nor a natural right. Appeals to fictional fundamental rights will only take conservatives so far; what will they do the next time such an issue arises?
Conservatives must take their moral convictions seriously if their ideas are to gain any long-term traction in the public square. Taking them seriously involves recognizing that they obligate everyone, regardless of whether everyone acknowledges their validity. Conservatives must aim to free conscience from government coercion so that people can seek truth and live morally, for the good of individuals and of society as a whole.
Katie Geleris, a 2011 John Jay Fellow, is a graduate of Biola University. She currently provides research for the Alliance Defense Fund.
 Catholics and Protestants agree on abortion and, therefore, on these terms. Catholic moral theology, however, prohibits all forms of contraception, not just abortive ones, so Catholics may expand this reasoning to cover the whole range of FDA-approved contraceptive drugs and devices.
 To his credit, I think it likely that Dr. Thierfelder, in fact, opposes it on the latter ground, although he recognizes the reality of testifying before a committee steeped in modern liberalism.