Gerard V. Bradley

What’s behind the HHS mandate?

Gerard V. Bradley
By Gerard Bradley
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June 13, 2012 (thePublicDiscourse.com) - What do the University of Notre Dame, EWTN, and the Archdiocese of New York have in common?

More than you probably think. Each is a Catholic institution, of course. Each is also suing the Obama Administration over the HHS “contraception” mandate. Each is going to be spared the Hobson’s choice between complying with the mandate and betraying its mission if any one of four possible scenarios comes to pass. Each nonetheless continues to stand in grave peril of institutional martyrdom.

The first scenario will play out by June 29, the last day of the current Supreme Court term. If the Court throws out the whole Patient Protection and Affordable Care Act (PPACA), the mandate will go with it. The reason is not that the pending decision is about contraception or religious liberty. It is that the mandate depends entirely for its force upon the survival of PPACA.

The second scenario will go down on November 6. If Mitt Romney is then elected our next president, you can be sure that he will soon thereafter announce his intention to rescind the mandate.

The chances that one of these two scenarios will occur are pretty high. The chances that the Obama administration will fare poorly in the pending lawsuits (by Cardinal Dolan, et al.) are pretty high, too. When those dim prospects become apparent to the administration, it is likely—and this is the third scenario—to invite the complaining Catholic institutions to the bargaining table, to significantly expand the current wafer-thin exemption from the mandate. But if the administration imprudently digs in its heels, some time in 2014 the Supreme Court is likely to rule that the exemption must be expanded in order to comply with the Religious Freedom Restoration Act. That would be scenario number four.

Because it is almost certain that at least one of these possibilities will come to be, the day of reckoning for Notre Dame, Mother Angelica, and Cardinal Dolan will be postponed.

I say “postponed,” and not “canceled,” advisedly. The ideological commitments that have emboldened the Obama administration about contraception are deeply held. They are held to be very important. They are resilient. They are not limited to the reproductive rights supposedly protected by access to contraception, even when contraception is broadly defined to include abortifacient drugs. These deep convictions about liberty and equality and religion entail trouble for religious liberty, no matter which exit route the present mandate takes.

I say “entail” advisedly, too. Religious liberty in the new dispensation is derivative of these deeper moral and (as we shall see) epistemological commitments. Religious liberty is, from this point of view, an afterthought, a residue which is unfortunately too vaporous to protect Catholic institutions from existential crises.

What are these ideological commitments? There are three of special note.

The first is dedication to advancing the ideology of “equal sexual liberty.” This powerful complex of ideas comes in both straight and “gay” versions.

When President Obama announced his phony “compromise” about the mandate on February 10, he plainly stated what the mandate was for: “Every woman should be in control of the decisions which affect her health. Period.” Given the context of these remarks, Obama meant, specifically, what is usually called “reproductive health.” His overriding commitment to this reproductive health—evidenced by, for example, the “contraception” mandate—presupposes that women will and should have lots more sexual intercourse than they have interest in conceiving children. According to this widespread view, sexual license should never impede a woman’s lifestyle, at least no more than it does a man’s. Marking the most recent anniversary of Roe v. Wade, the President said that “our daughters must have the same opportunities as our sons.” Obama’s notion of equal opportunity extends to the bedroom as well as to the boardroom.

Catholic Charities in Boston and Washington, D.C., already have been martyred by the “gay” version of “equal sexual liberty.” They were obliged to abandon their adoption charities when public authority refused to accommodate their objections to same-sex “marriage.” Right now, Catholic schools in Ontario are being bullied by an “anti-bullying” law that compels parochial schools to set up “Gay-Straight Alliances.” These clubs would contradict the sexual morality that every Catholic institution is obliged before God and the Church to teach, by word and by deed. Were they to comply with this “bullying” law, Ontario’s Catholic schools could not give the perspicuous witness to the faith that is their raison d’etre, just as America’s Catholic schools could not, were they to comply with the Obama Administration’s “contraception” mandate.

This far into the Age of Aquarius, no more needs to be said about the meaning and seductive appeal of “equal sexual liberty.” It is the emerging public orthodoxy about where sexual satisfaction, expression, and identity fit into the good life, and about the government’s responsibilities to establish conditions that make this life achievable for all with ease. This orthodoxy commands the cultural heights and has achieved ascendancy in the academy. We are in the midst of a high-stakes fight over its grip on our law. The outcome of this battle is in doubt.

It is easy to see already that “equal sexual liberty” is a natural predator of Catholic institutions, which are standing contradictions of almost all that the new orthodoxy proposes. What is not so apparent, however, is why the new orthodoxy has so totally eclipsed considerations of conscience, tolerance, and liberty in the thinking of self-identifying liberals such as Barack Obama. It is scarcely surprising that he and other like-minded officials are beguiled by “equal sexual liberty.” It is nonetheless curious that they should so remorselessly subordinate religious liberty to the new ideological colossus. One would think that our cherished “first freedom” would have a bit more staying power.

Looking at what Obama and like-minded folks think about religion dispels the curiosity. I do not mean here to consider their opinion about the value of religion, which value Obama (for example) affirms to be very high. I refer instead to their understanding of religion’s relationship to certain strategic moral propositions, and to the truth-value of religious claims as such.

Hence, the second ideological commitment is to treat the moral propositions that undergird the conservative alternative to “equal sexual liberty” as subjective religious beliefs incapable of rational defense. These include the propositions that people begin at fertilization; that marriage is strictly limited to the union of man and woman; and that the norms of sexual morality are many and that they are rooted in the marital relation. These propositions combine to refute the emerging orthodoxy of “equal sexual liberty.” Being propositions about morality, moreover, they are asserted by their adherents as truths of reason, albeit truths that are confirmed by religious authorities and by revelation.

Promoters of the new orthodoxy nonetheless boldly declare these claims to be “religious beliefs,” tout court. They just as boldly declare that, because they are “religious beliefs,” these claims are rationally indefensible. They may be held by the faithful as if they are genuine truths. But in reality these putative truths are subjective projections, verbal formulae which may function as the ligaments of a community, as so many fallible and revisable expressions of the ineffable depths of spiritual experience. They are badges of individual or religious communal identity. Because they are rationally indefensible, they are to be perceived and to be treated by outsiders as prejudice. Religious “doctrine” is thus a species of bias. So, the Church’s moral condemnation of sodomy and opposition to same-sex “marriage” amount to hallowed homophobia.

The third commitment is to identify the public value of institutional ministries, such as Catholic Charities and Saint-Somebody Hospital, entirely with the “secular” services they offer. Adherents of the new orthodoxy can and often do recognize the value of these organizations’ religious identity—to the religious people who staff them. Anyone can see that religion supplies added motivation, enthusiasm, and meaning to many of those working in these ministries. But these peculiar satisfactions are construed by the new orthodox to be private; they are personal delights that do not register as any sort of public good. The public value of these ministries is comprised of just so many hot lunches prepared, heart bypasses performed, and reading competency tests passed. Viewed from the public square, then, these organizations’ religious character is invisible. Being invisible, it cannot have measurable value. Having no detectable value, it cannot serve to justify any allowance that would impair the government’s provision of conditions conducive to “equal sexual liberty.” So, exempting Catholic Charities from placing kids with a “gay” couple is a concession to private bias that is productive only of public mischief, insult, net loss.

An English Law Lord recently expressed this sum of the three orthodox commitments, in a case where he denied relief to a relationship counselor who could not in good conscience endorse the sexual activities of same-sex couples. Lord Justice Laws declared that any exemption would be “unprincipled,” for it would not “advance the general good on objective grounds, but … give effect to the force of subjective opinion.” How so? Laws asserted that it “must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society.” Against the demands of “equal sexual liberty” for homosexuals and lesbians, solicitude for the opaque commitments of the religious subject count for nothing.

It is natural, and right, to say that the HHS mandate undermines religious liberty. But it is important to add that this argument about religious liberty is more about the adjective than it is the noun. It is chiefly an argument about whether religion is about reality, truth, the way the cosmos is really structured, or whether it is about the byways of an individual’s psyche.

Gerard Bradley is Professor of Law at Notre Dame Law School and a senior fellow of the Witherspoon Institute. This article reprinted with permission from thepublicdiscourse.com.

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A Planned Parenthood facility in Denver, Colorado
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Colorado judge tosses suit alleging Planned Parenthood used state funds to pay for abortions

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By Dustin Siggins

Alliance Defending Freedom "will likely appeal" a Monday court decision dismissing their suit alleging Planned Parenthood of the Rocky Mountains illegally used state funds to pay for abortions, an ADF lawyer told LifeSiteNews.

The ADF lawsuit claims that $1.4 million went from state government agencies to a Planned Parenthood abortion affiliate through Planned Parenthood of the Rocky Mountains.

Denver County District Court Judge Andrew McCallin dismissed the case on the basis that ADF could not prove the funds paid for abortions. But ADF maintains that funding an abortion facility is indirectly paying for abortions, which violates state law.

ADF senior counsel Michael Norton -- whose wife, former Colorado Lieutenant Governor Jane Norton, filed the lawsuit – told LifeSiteNews that "no one is above the law, including Colorado politicians who are violating our state’s constitution by continuing to fund Planned Parenthood’s abortion business with state taxpayer dollars."

"The State of Colorado even acknowledges that about $1.4 million of state taxpayer dollars flowed from Colorado government agencies through Planned Parenthood to its abortion affiliate. The Denver court seems to have agreed with that fact and yet granted motions to dismiss based on a technicality," said Norton.

According to Colorado law, "no public funds shall be used by the State of Colorado, its agencies or political subdivisions to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion." There is a stipulation that allows for "the General Assembly, by specific bill, [to] authorize and appropriate funds to be used for those medical services necessary to prevent the death of either a pregnant woman or her unborn child under circumstances where every reasonable effort is made to preserve the life of each."

According to court documents, the Colorado law was affirmed by state voters in 1984, with an appeal attempt rejected two years later. In 2001, an outside legal firm hired by Jane Norton -- who was lieutenant governor at the time -- found that Planned Parenthood was "subsidizing rent" and otherwise providing financial assistance to Planned Parenthood Services Corporation, an abortion affiliate. After the report came out, and Planned Parenthood refused to disassociate itself from the abortion affiliate, the state government stopped funding Planned Parenthood.

Since 2009, however, that has changed, which is why the lawsuit is filed against Planned Parenthood, and multiple government officials, including Democratic Colorado Gov. John Hickenlooper.

According to ADF legal counsel Natalie Decker, the fact that Planned Parenthood sent funds to the abortion affiliate should have convinced McCallin of the merits of the case. "The State of Colorado and the Denver court acknowledged that about $1.4 million of state taxpayer dollars, in addition to millions of 'federal' tax dollars, flowed from Colorado government agencies through Planned Parenthood to its abortion affiliate," said Decker.

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"Without even having the facts of the case developed, the Denver court seems to have granted motions to dismiss filed by the State of Colorado and Planned Parenthood on grounds the term 'indirectly' could not mean what Ms. Norton and Governor Owens said it meant in 2002 when they defunded Planned Parenthood."

"That, of course, is the plain meaning of Colo. Const., Art. V, § 50 which was implemented by the citizens of Colorado, and the reason for Ms. Norton’s lawsuit."

Decker told LifeSiteNews that "Colorado law is very clear," and that the state law "prohibits Colorado tax dollars from being used to directly or indirectly pay for induced abortions."

She says her client "has been denied the opportunity to fully develop the facts of the case and demonstrate exactly what the Colorado tax dollars have been used for." Similarly, says Decker, it is not known "exactly what those funds were used for. At this time, there is simply no way to conclude that tax dollars have not been used to directly pay for abortions or abortion inducing drugs and devices."

"What we do know is that millions of Colorado tax dollars have flowed through Planned Parenthood to its abortion affiliate, which leads to the inescapable conclusion that those tax dollars are being used to indirectly pay for abortions."

A spokesperson for Planned Parenthood of the Rocky Mountains did not return multiple requests for comment about the lawsuit.

The dismissal comes as Planned Parenthood fights an investigation by the state's Republican attorney general over a video by Live Action, as well as a lawsuit by a mother whose 13-year old daughter had an abortion in 2012 that she alleges was covered up by Planned Parenthood. The girl, who was being abused by her stepfather, was abused for months after the abortion.

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Fledgling high-tech pro-life group marks 2,000 babies saved: 2-3 saved per day

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Online for Life, the Dallas-based pro-life marketing agency, saved its two-thousandth unborn baby earlier this year and is well on its way to saving its three thousandth by 2015.

“We are getting better all the time at what we do,” says founder Brian Fisher. “It used to be one baby saved every four to six weeks and now its two or three a day.”

But the most significant save? “It was the very first one,” he says, recalling the phone call from a crisis centre a month after OFL’s 2012 startup.  “And for me personally it was just a massive turning point … because [of] all the work and the money and testing and the volunteers and everything that led up to that moment. All the frustration of that was washed away in an instant because a child had been rescued that was about to be killed.”

Though increasing market savvy has led Online for Life to expand offline, the core of the non-profit, donor-financed operation remains SEO -- search engine optimization -- targeting young women who have just discovered they are pregnant and gone onto the Web to find the nearest abortion clinic.

Instead, they find the nearest crisis pregnancy center at the top of their results page. Since OFL went online it has linked with a network of 41 such centers, including two of its own it started this year, in a positive feedback loop that reinforces effective messaging first at the level of the Web, then at the first telephone call between the clinic and the pregnant woman, and finally at the first face-to-face meeting.

“Testing is crucial,” says Fisher. “We test everything we do.” Early on, Online for Life insisted the clinics it served have an ultrasound machine, because the prevailing wisdom in the prolife movement was that “once they saw their baby on ultrasound, they would drop the idea of having an abortion.” While the organization still insists on the ultrasound, its own testing and feedback from the CPCs indicates that three quarters of the women they see already have children. “They’ve already seen their own children on ultrasound and are still planning to abort.” So ultrasound images have lost their punch.

OFL has had to move offline to reach a significant minority who have neither computers, tablets, or cell phones.  Traditional electronic media spots as well as bus ads and billboards carry the message to them.

As well, says Fisher, “unwanted pregnancy used to be a high-school age problem; now that’s gone down in numbers and the average age of women seeking abortion has gone up to 24.” By that age, he says, they are “thoroughly conditioned by the abortion culture. Even before they got pregnant, they have already decided they would have an abortion if they did get pregnant.”

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What they need—and fast, in the first two minutes of the first phone call—is sympathy, support, and a complete absence of judgement. Online for Life is always gathering information from its network on what responses are most effective—and this can vary city to city. The organization offers training to clinic volunteers and staff that stresses a thorough knowledge of the services on tap. “Any major city has all sorts of services—housing, education, health—available,” says Fisher.

The problem that OFL was designed to address was the crisis pregnancy centers’ market penetration. Three percent of women with unwanted pregnancies were reaching out to the CPCs, and seven per cent of those who did reach out were having their babies. “So about 2.1 children were being saved for every 1,000 unwanted pregnancies,” says Fisher. “That’s not nearly enough.”

So Fisher and two fellow volunteers dreamed of applying online marketing techniques to the problem in 2009. Three years later Fisher was ready to leave his executive position at an online marketing agency to go full-time with the life-saving agency. Now they have 63 employees, most of them devoted to optimizing the penetration in each of the markets served by their participating crisis centers.

The results speak for themselves. Where OFL has applied its techniques, especially with its own clinics, as many as 15-18 percent of the targeted population of women seeking abortions get directed to nearby crisis pregnancy centers. “It depends on the centres’ budgets and on how many volunteers they have to be on the phones through the day and night,” he says. “But we are going to push it higher. We hope to save our 2,500th child by the end of the year.”

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Shock: UK mom abandons disabled daughter, keeps healthy son after twin surrogacy

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By Pete Baklinski

A UK woman who is the biological mother of twins born from a surrogate mom, has allegedly abandoned one of the children because she was born with a severe muscular condition, while taking the girl's healthy sibling home with her.

The surrogate mother, also from the UK — referred to as "Jenny" to protect her identity — revealed to The Sun the phone conversation that took place between herself and the biological mother over the fate of the disabled girl.

“I remember her saying to me, “She’d be a f****** dribbling cabbage! Who would want to adopt her? No one would want to adopt a disabled child,’” she said.

Jenny, who has children of her own, said she decided to become a surrogate to “help a mother who couldn’t have children.” She agreed to have two embryos implanted in her womb and to give birth for £12,000 ($20,000 USD).

With just six weeks to the due date, doctors told Jenny she needed an emergency caesarean to save the babies. It was not until a few weeks after the premature births that the twin girl was diagnosed with congenital myotonic dystrophy.

When Jenny phoned the biological mother to tell her of the girl’s condition, the mother rejected the girl.

Jenny has decided along with her partner to raise the girl. They have called her Amy.

“I was stunned when I heard her reject Amy,” Jenny said. “She had basically told me that she didn’t want a disabled child.”

Jenny said she felt “very angry” towards the girl’s biological parents. "I hate them for what they did.”

The twins are now legally separated. A Children and Family Court has awarded the healthy boy to the biological mother and the disabled girl to her surrogate.

The story comes about two weeks after an Australian couple allegedly abandoned their surrogate son in Thailand after he was born with Down syndrome, while taking the healthy twin girl back with them to Australia.

Rickard Newman, director of Family Life, Pro-Life & Child and Youth Protection in the Diocese of Lake Charles, called the Australian story a “tragedy” that “results from a marketplace that buys and sells children.”

“Third-party reproduction is a prism for violations against humanity. IVF and the sperm trade launched a wicked industry that now includes abortion, eugenics, human trafficking, and deliberate family fragmentation,” he said. 

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