WASHINGTON — To hear some commentators talk about it, the ongoing controversy over the Obama administration's requirement that health plans cover contraceptives and sterilization free of charge is a simple case of the bishops versus the president.
But the debate over the rights of individuals and institutions to refuse to cover drugs, devices or procedures that violate their religious convictions is turning into an epic battle over religious freedom -- with Catholics and non-Catholics alike working to address the problem through legislative, judicial and political channels.
"People are responding to this in all kinds of creative ways," said Richard Doerflinger, associate director of the U.S. bishops' Secretariat for Pro-Life Activities, in a Feb. 7 interview with Catholic News Service. Among the many petitions circulating in cyberspace, for example, is one on the website of the White House itself, calling on the administration to reverse the decision, which was scheduled to take effect for religious organizations on Aug. 1, 2013.
The initial focus is on Congress, where the Respect for Rights of Conscience Act has 164 co-sponsors in the House and 31 in the Senate. The bill would represent a permanent solution to any efforts to take away the religious freedom and conscience rights of groups or individuals, Doerflinger said.
"The best-case scenario would be if Congress passes legislation to reverse this mandate and provide expansive protection to the rights of conscience, and the president feels obliged to sign it to get this issue resolved," he said.
House Speaker John Boehner said Feb. 8 that the House would move to reverse the contraceptive mandate.
"This attack by the federal government on religious freedom in our country must not stand, and will not stand," he said.
President Barack Obama announced a new policy Feb. 10 that would allow religious employers not to include contraception and sterilization in their health insurance plans, but compel insurance companies to provide it free of charge for the employees of religious organizations.
Cardinal-designate Timothy M. Dolan of New York, president of the U.S. Conference of Catholic Bishops, called the revision "a step in the right direction" but said the conference was reserving judgment until all the details of the new policy were made public.
"The past three weeks have witnessed a remarkable unity of Americans from all religions or none at all worried about the erosion of religious freedom and governmental intrusion into issues of faith and morals," he said in a Feb. 10 statement. "We hope to work with the administration to guarantee that Americans' consciences and our religious freedom are not harmed by these regulations."
Meanwhile, efforts against the contraceptive mandate are continuing on the judicial front, as other organizations and individuals consider filing suit, as Belmont Abbey College in North Carolina and Colorado Christian University in Denver have already done.
"A monk at Belmont Abbey may preach on Sunday that premarital sex, contraception and abortions are immoral, but on Monday the government forces him to pay for students to receive the very drugs and procedures he denounced," said Hannah Smith, senior legal counsel at the Becket Fund for Religious Liberty, which is representing the two schools in the lawsuit.
Helen Alvare, an associate professor at the George Mason University School of Law in Arlington, Va., said she believes the Belmont case and other legal efforts against the contraceptive mandate "stand a good chance of success" under the provisions of the 1990 Supreme Court decision in Employment Division, Department of Human Resources of Oregon v. Smith or 1993's Religious Freedom Restoration Act.
The Smith decision held that neutral laws of general applicability do not violate the Free Exercise clause of the First Amendment, as long as the government applies them in the least restrictive way possible.
Alvare believes the contraceptive mandate won't pass muster as a neutral law, as applying generally or as having been implemented in the least restrictive way. As the Belmont Abbey lawsuit notes, the government has been "highly selective" in granting thousands of exemptions to the Patient Protection and Affordable Care Act to various groups, "including large corporations such as McDonald's, often for reasons of commercial convenience."
"And the government allows a variety of other reasons -- from the age of the plan to the size of the employer -- to qualify a plan for an exemption," the Becket brief adds. "But the government refuses to give the same level of accommodation to groups exercising their fundamental First Amendment freedoms."
Although she predicts success in the courts, Alvare also believes the church position on the contraceptive mandate will prevail in the court of public opinion.
Even if people don't agree with the church's stand on contraception, "they like the idea that there are people who think that sex really matters," she said. "And the church has always been that unfailing voice."
If the legal and legislatives avenues fail, Doerflinger said Catholics and others who oppose the contraceptive mandate could be placed in "an untenable position."
"The bishops are for health care for all, and certainly don't want to stop providing health care to their employees," he said. "We're also not going to stop providing care to the needy of all faiths in our charitable institutions. That's one of the other impossible options that the administration has presented -- if you would serve only people of your own faith you might have a better shot at getting the religious exemption -- and that's just insane to us because our faith calls us to help people who are not of our faith."
Many have said they will not comply with the mandate, but that decision could mean stiff fines for both employees and employers.
Benedictine-run Belmont Abbey College, with about 1,700 students and 200 full-time and 105 part-time employees, estimates that it would face fines of $300,000 in the first year, with the amount increasing steeply in subsequent years.
But religious organizations that object to the rule have another option -- their health plans will be "grandfathered" as long as no substantial changes are made.
"There are very complicated rules about this, but basically if the church institutions continue to offer the plans they have now without making substantial changes in them, they don't have to confirm to this mandate until they make those new changes and have to make a new contract," Doerflinger said. "That gives us a little extra time to work on every avenue on this and seek solutions."