DOCSLIB.ORG

Religious Liberty and Moral Courage: the Right to Fight

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Religious Liberty and Moral Courage: the Right to Fight Fellowship of Catholic Scholars Quarterly Vol. 41, No. 3 Fall 2018 _______________________________________________________________ ARTICLES Deacon Thomas J. Davis, Jr. Religious Liberty and Moral Courage: The Right to Fight .. 259 Joshua R. Brotherton The “Our Father” Translation Controversy. 282 FROM THE 2018 CONVENTION Gil Baillie Bells and Whistles: The Technology of Forgetfulness. 287 Richard Francis Crane The Holocaust and Human Perfection. 297 D. C. Schindler ‘Till We Have Facebook’: On Christian Existence in the Age of Social Media. 306 COLUMNS William L. Saunders Washington Insider: The Confirmation of Justice Kavanaugh and Important Recent Cases .. 315 Joseph W. Koterski, S.J. From the Editor’s Desk: The Light of Faith in Times of Trouble.. 325 Jude P. Dougherty Von Hayek Seventy-Five Years Ago. 335 Power and the Community of the Free. 341 BOOK REVIEWS Leo Severino, Going Deeper: A Reasoned Exploration of God and Truth D. Q. McInerny. 347 Alasdair MacIntyre, Ethics in the Conflicts of Modernity: An Essay on Desire, Practical Reasoning, and Narrative D. Q. McInerny. 350 John Loughery, Dagger John: Archbishop John Hughes and the Making of Irish America Thomas W. Jodziewicz. 354 Richard Shaw, The Gregorian Mission to Kent in Bede’s Ecclesiastical History: Methodology and Sources Joseph W. Koterski, S.J.. 357 Books Received. 358 MEMORIAL NOTICE Earl Weis, S.J. (1923-2018) by James Hitchcock. 359 Information about the Fellowship and the Quarterly. 360 Religious Liberty and Moral Courage: The Right to Fight Rev. Deacon Thomas J. Davis, Jr.* ABSTRACT: Emergency contraception (EC) mandates in sexual assault treatment pose an existential threat to authentic Catholic health care. Some impose cooperation in potential embryocide. Shallow grasp of scientific data and confused moral theology are a recipe for disaster, as occurred in Connecticut in 2007, where staunch opposition morphed into pusillanimous “reluctant compliance.“ Subsequent emergence of incontestable evidence that EC efficacy can be explained only by postovulatory mechanism(s) of action (MOA) precludes the necessary level of moral certitude to justify cooperation. Recourse to a First Amendment challenge offers little prospect of success, given the Supreme Court’s constriction of free exercise protection. But legislative reaction to the Court’s jurisprudence offers hope. Federal legislation overcame the onerous “contraceptive mandate” of the Affordable Care Act in the Hobby Lobby case. Parallel state laws in Connecticut and elsewhere offer viable means to challenge EC mandates. Absent the will to fight the outcome will remain scandalous cooperation. I shall not submit to injustice from anyone. Mahatma Gandhi Happiness depends on being free, and freedom depends on being courageous. – Pericles’s funeral oration in History of the Peloponnesian War by Thucydides “This case is an ominous sign.”1 That warning introduces Justice Alito’s dissent from the Supreme Court’s recent refusal to hear a challenge to Washington State’s mandate that pharmacies distribute emergency contraception (EC) drugs2 despite * Thomas J. Davis, Jr. is the Director of the Saint John Paul II Bioethics Center at Holy Apostles College in Cromwell, CT and is an Assistant Attorney General of the State of Connecticut. 1 Stormans, Inc. v. Wiesman, 579 U. S. ___, 136 S.Ct. 2433 (2016) (Alito, J., dissenting). 2 The principal emergency contraception drugs are levonorgestrel (LNG, which is marketed as “Plan B,” “Plan B One-Step,” “Next Choice,” and several other generic brands), and ulipristal acetate (UA, which is marketed as “ella”). 259 260 Religious Liberty and Moral Courage religious or moral objections to their abortifacient potential.1 A district judge took the extraordinary step of enjoining enforcement of the rule after finding that the “great weight of evidence” demonstrated the “predominant purpose” of the regulatory scheme was to “stamp out the right to refuse” and amounted to a “religious gerrymander” directly targeting religious and moral objectors.2 Normal constitutional tolerance of incidental burdens on religious free exercise occasioned by neutral laws is abrogated in such circumstances, giving way to heightened scrutiny in defense of liberty because “a law that discriminates against religiously motivated conduct is not ‘neutral.’”3 The United States Court of Appeals for the Ninth Circuit reversed this decision,4 and a petition to the Supreme Court followed. The Court’s refusal to hear the constitutional challenge points to increasingly necessary reliance by religious objectors on non-constitutional protections of religious liberty. Legis- lative protection of religious liberty was the foundation of Burwell v. Hobby Lobby,5 where a federal mandate for EC coverage in health insurance policies violated the Religious Freedom Restoration Act (RFRA).6 That holding has significant implications in states with parallel religious liberty laws.7 Several 1 “Ominous” understates the threat. The regulations prohibit referral of a customer to other nearby pharmacies that willingly distribute the drugs, of which there were “more than 30” within five miles of the plaintiff’s store. 136 S.Ct. at 2433. Reading Justice Alito’s dissent, which generously notes various findings of fact by the district court, one is left with the impression that an industry was being brought to heel by the zealotry of an ideologically driven governor and a Human Rights Commission that threatened pharmacy board members with personal liability if they permitted religious objectors to make referrals to cooperating pharmacies in lieu of direct distribution. Ibid. at 2434. In fact, the inflexible scheme was imposed despite stipulation that referrals posed no threat to timely access to EC (ibid. at 2435). 2 Ibid. at 2434-35, 2437, and n. 3; Stormans, Inc. v. Selecky, 854 F. Supp. 2d 925, 984 (findings of fact and conclusions of law); Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (WD Wash. 2012) (opinion granting injunction). 3 Stormans, at 8, citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 523 (1993). 4 Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir.2015). 5 573 U.S. ___, 134 S.Ct. 2751 (2014). 6 42 U. S. C. §2000bb et seq. 7 At least twenty-one states have adopted a state version of the federal RFRA: Alabama, Ala. Const. Art. I, sec. 3.01; Arizona, Ariz. Rev. Stat. sec. 41-1493.01; Arkansas, 2015 Senate Bill 975, enacted April 2, 2015; Connecticut, Conn. Gen. Stat. §52-571b; Florida, Fla. Stat. §761.01, et seq.; Idaho, Idaho Code §73-402; Illinois, Ill. Rev. Stat. Ch. 775, §35/1, et seq.; Indiana, SB 101 (March 26, 2015) and SB 50 (April 2, 2015); Kansas, Kan. Stat. §60-5301, et seq.; Kentucky, Ky. Rev. Stat. §446.350; Louisiana, La. Rev. Stat. §13:5231, et seq.; Mississippi, Miss. Code §11-61-1; Missouri, Mo. Rev. Stat. §1.302; New Mexico, N.M. Stat. §28-22-1, et seq.; Oklahoma, Okla. Stat. tit. 51, §251, et seq.; Pennsylvania, Pa. Stat. tit. 71, §2403; Rhode Island, R.I. Gen. Laws §42-80.1-1; South Thomas J. Davis, Jr. 261 states mandate EC-related services for rape victims and three require EC- distribution upon request, regardless of religious/conscience objection.1 Evolving knowledge of the mechanism of action (MOA) of EC presents a quandary. Passive, even reluctant, compliance with EC mandates threaten authentic Catholic identity. State RFRAs provide a mechanism for a challenge.2 The Supreme Court’s denial of review in the Washington pharmacy case signals a narrowing of constitutional protection. State RFRAs are the last best legal hope to preserve what credibility remains of a shattered Catholic healthcare identity shredded by a decade of retreat, compromise, and cooperation with morally impermissible EC mandates. This essay presents the principal factual and legal foundation for that challenge. The Conundrum Connecticut legislates the standard of care for licensed healthcare facilities providing examination or treatment of female victims of rape. They must provide victims with “medically and factually accurate and objective information” about EC, inform of its use, efficacy, and availability, and provide it at the facility on request.3 It prohibits any compliance protocol from requiring testing for anything other than pregnancy, including tests previously utilized to determine if LNG would be offered to rape victims. Four days before the law’s effective date, the Catholic bishops of Connecticut reversed their long-standing refusal to accept the exclusion of such testing and acquiesced to the mandate. In announcing that decision, the bishops explained that “doubt about how Plan B pills and similar Carolina, S.C. Code §1-32-10, et seq.; Tennessee, Tenn. Code §4-1-407; Texas, Tex. Civ. Prac. & Remedies Code §110.003; and Virginia Va. Code §57-1. See http://www.ncsl. org/research/civil-and-criminal-justice/state-rfra-statutes.aspx. 1 Connecticut (Conn. Gen. Stat. § 19a-112e; New Mexico (N.M Stat. Ann. § 24-10D- 3), and South Carolina (S.C Code Ann. § 16-3-1350(B)). At least sixteen states and the District of Columbia require hospital emergency rooms to provide EC related services ranging from providing information about EC to actually dispensing EC. One state, Pennsylvania, specifically allows a hospital to refuse provision of EC on religious, moral, or conscience grounds. See http://www.ncsl.org/research/health/emergency-contraception- state-laws.aspx. Thirteen states and the District of Columbia require provision of EC to victims of sexual assault at emergency rooms. http://www.guttmacher.org/statecenter/spibs/ spib_EC.pdf. 2 See Thomas Davis, “Plan B and the Rout of Religious Liberty,” Ethics & Medics (December 2007). 3 Connecticut permits a facility to contract with a third party “independent provider” but must permit the provision of EC in its facility. Conn. Gen. Stat. 19a-112e(a)(6) and 19a-112e(b)(c). Independent providers must be licensed as a physician, physician’s assistant, APRN or RN, or nurse-midwife and must be trained to conduct a forensic exam in accordance with specified sexual assault guidelines.
Load more

Recommended publications
  • CQR Young Voters
    Published by CQ Press, an Imprint of SAGE Publications, Inc. www.cqresearcher.com Young voters Can White House hopefuls win over Millennials? s the 2016 presidential election approaches, can - didates are trying especially hard to show they’re heeding the concerns of voters in their teens, 20s A and mid-30s, known as millennials. many politi - ca l experts say the 75-million-member group — the country’s biggest generation — is up for grabs. Indeed, a recent poll showed 40 percent of under-30 voters call themselves politically independent, with 37 percent identifying as Democrats and 22 percent as Re - publicans. well-educated and more technologically savvy than older Young supporters rally for Vermont Sen. Bernie Sanders, a socialist independent who has voters, they share a distaste for traditional political posturing. They garnered surprising backing in his quest for the 2016 Democratic presidential nomination, have proved — most notably with Barack Obama’s presidential in Los Angeles on Aug. 10, 2015. Candidates are targeting their efforts at the 75-million-member Millennial generation, the nation’s largest. elections in 2008 and 2012 — that they can mobilize behind a politician who connects with them. Democrats and Republicans are embracing many of the causes that young voters consider important, such as education, student debt and entrepreneurship. I The campaigns and political parties also are devoting considerable THIS REPORT N THE ISSUES ....................819 attention to getting out their messages on popular social-media S BACKGROUND ................825 sites such as Snapchat and facebook. I CHRONOLOGY ................827 D CURRENT SITUATION ........831 E CQ Researcher • Oct. 2, 2015 • www.cqresearcher.com AT ISSUE ........................833 Volume 25, Number 35 • Pages 817-840 OUTLOOK ......................834 RECIPIENT Of SOCIETY Of PROfESSIONAL JOURNALISTS AwARD fOR BIBLIOGRAPHY ................838 EXCELLENCE N AmERICAN BAR ASSOCIATION SILvER GAvEL AwARD THE NEXT STEP ..............839 YOUNG vOTERS Oct.
    [Show full text]
  • Domestic Trafficking Exposed Hearing Commission On
    EXPLOITING AMERICANS ON AMERICAN SOIL: DOMESTIC TRAFFICKING EXPOSED HEARING BEFORE THE COMMISSION ON SECURITY AND COOPERATION IN EUROPE ONE HUNDRED NINTH CONGRESS FIRST SESSION JUNE 7, 2005 Printed for the use of the Commission on Security and Cooperation in Europe [CSCE 109–1–11] ( Available via http://www.csce.gov U.S. GOVERNMENT PRINTING OFFICE 31–873 PDF WASHINGTON : 2007 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 COMMISSION ON SECURITY AND COOPERATION IN EUROPE LEGISLATIVE BRANCH COMMISSIONERS House Senate CHRISTOPHER H. SMITH, New Jersey, Co- SAM BROWNBACK, Kansas, Chairman Chairman GORDON SMITH, Oregon FRANK R. WOLF, Virginia SAXBY CHAMBLISS, Georgia JOSEPH R. PITTS, Pennsylvania CHRISTOPHER J. DODD, Connecticut ROBERT B. ADERHOLT, Alabama RUSSELL D. FEINGOLD, Wisconsin MIKE PENCE, Indiana HILLARY RODHAM CLINTON, New York BENJAMIN L. CARDIN, Maryland VACANT LOUISE McINTOSH SLAUGHTER, VACANT New York VACANT ALCEE L. HASTINGS, Florida MIKE McINTYRE, North Carolina EXECUTIVE BRANCH COMMISSIONERS VACANT, Department of State VACANT, Department of Defense WILLIAM HENRY LASH III, Department of Commerce (II) EXPLOITING AMERICANS ON AMERICAN SOIL: DOMESTIC TRAFFICKING EXPOSED JUNE 7, 2005 COMMISSIONERS Page Hon. Christopher H. Smith, Co-Chairman, Commission on Security and Cooperation in Europe ........................................................................................
    [Show full text]
  • The Washington Two-Step One Step Forward, One Step Back
    L THE WASHINGTON TWO-STEP ONE STEP FORWARD, ONE STEP BACK Federal Legislative and Regulatory Action on Reproductive Health in 2009 R The Washington Two-Step: One Step Forward, One Step Back Federal Legislative and Regulatory Action on Reproductive Health in 2009 This publication is made possible with the generous support of the Robert Sterling Clark Foundation. Table of Contents I. Introduction ������������������������������������������������������������������������ 6 II. Issue Summaries ................................................................. 7 a. The Economic Recession ................................................................. 7 I. The Stimulus Package .............................................................. 7 II. As Goes the Economy, So Goes Health Care ............................ 7 III. The Recession’s Impact on Family Planning ................................. 7 b. Health Care Reform ....................................................................... 9 I. The Plan and Process for Health Care Reform ............................. 9 II. The Senate HELP Committee Becomes the First Congressional Committee to Pass Health Care Reform ................................................................. 9 III. Three Committees, One Bill in the House ................................. 10 IV. After Months of Delay, the Senate Finance Committee Produces the Final Committee Bill ........................... 11 V. Health Care Reform Passes the House ..................................... 11 VI. Senate Overcomes Roadblocks
    [Show full text]
  • The Mexico City Policy/Global Gag Rule: Its Impact on Family Planning and Reproductive Health
    THE MEXICO CITY POLICY/GLOBAL GAG RULE: ITS IMPACT ON FAMILY PLANNING AND REPRODUCTIVE HEALTH HEARING BEFORE THE COMMITTEE ON FOREIGN AFFAIRS HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS FIRST SESSION OCTOBER 31, 2007 Serial No. 110–121 Printed for the use of the Committee on Foreign Affairs ( Available via the World Wide Web: http://www.foreignaffairs.house.gov/ U.S. GOVERNMENT PRINTING OFFICE 38–605PDF WASHINGTON : 2008 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON FOREIGN AFFAIRS TOM LANTOS, California, Chairman HOWARD L. BERMAN, California ILEANA ROS-LEHTINEN, Florida GARY L. ACKERMAN, New York CHRISTOPHER H. SMITH, New Jersey ENI F.H. FALEOMAVAEGA, American DAN BURTON, Indiana Samoa ELTON GALLEGLY, California DONALD M. PAYNE, New Jersey DANA ROHRABACHER, California BRAD SHERMAN, California DONALD A. MANZULLO, Illinois ROBERT WEXLER, Florida EDWARD R. ROYCE, California ELIOT L. ENGEL, New York STEVE CHABOT, Ohio BILL DELAHUNT, Massachusetts ROY BLUNT, Missouri GREGORY W. MEEKS, New York THOMAS G. TANCREDO, Colorado DIANE E. WATSON, California RON PAUL, Texas ADAM SMITH, Washington JEFF FLAKE, Arizona RUSS CARNAHAN, Missouri MIKE PENCE, Indiana JOHN S. TANNER, Tennessee JOE WILSON, South Carolina GENE GREEN, Texas JOHN BOOZMAN, Arkansas LYNN C. WOOLSEY, California J. GRESHAM BARRETT, South Carolina SHEILA JACKSON LEE, Texas CONNIE MACK, Florida RUBE´ N HINOJOSA, Texas JEFF FORTENBERRY, Nebraska JOSEPH CROWLEY, New York MICHAEL T. MCCAUL, Texas DAVID WU, Oregon TED POE, Texas BRAD MILLER, North Carolina BOB INGLIS, South Carolina LINDA T.
    [Show full text]
  • The Children's Bureau Legacy: Ensuring the Right to Childhood
    The Children’s Bureau Legacy ENSURING THE RIGHT TO CHILDHOOD The Children’s Bureau Legacy: Ensuring the Right to Childhood Published by the Children’s Bureau, U.S. Department of Health & Human Services This book is dedicated to the thousands of child welfare workers across the Nation who work tirelessly to improve the lives of children and families. Public Domain URL: http://cb100.acf.hhs.gov/CB_ebook For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 Available in these eBook file formats: ePub ISBN: 9780160917226 MyiLibrary ISBN: 9780160917240 PDF ISBN: 9780160917257 For more information about the Children’s Bureau, visit http://www.acf.hhs.gov/programs/cb. For more on Children’s Bureau history, visit https://cb100.acf.hhs.gov. U.S. Department of Health and Human Services Administration for Children and Families Administration on Children, Youth and Families Children’s Bureau Contents Foreword Chapter 1: America’s Conscience Gives Birth to the Children’s Bureau Chapter 2: Saving Babies and Restoring Childhood (1912–1929) Chapter 3: The Great Depression and Social Security (1930–1939) Chapter 4: Wartime and Recovery (1940–1956) Chapter 5: A Growing Government Shrinks the Children’s Bureau (1957–1973) Chapter 6: Sharpening the Focus on Child Welfare (1974–1992) Chapter 7: Partnering With Families and Working to Improve Outcomes (1993–2012) Afterword Acknowledgments Foreword On April 9, 1912, the U.S. Children’s Bureau became the first national government agency in the world to focus solely on the needs of children.
    [Show full text]
  • The Right's Reasons: Constitutional Conflict and The
    Lectures THE RIGHT’S REASONS: CONSTITUTIONAL CONFLICT AND THE SPREAD OF WOMAN- PROTECTIVE ANTIABORTION ARGUMENT REVA B. SIEGEL† INTRODUCTION In Gonzales v. Carhart,1 the Supreme Court upheld the Partial- Birth Abortion Ban Act,2 emphasizing that government may regulate the methods employed to perform an abortion “to show its profound respect for the life within the woman”3 and to vindicate the interest in protecting potential life first recognized in Roe v. Wade.4 Carhart discussed an additional justification for restricting abortion—to protect women as well as the unborn: Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852-853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22– 24. Severe depression and loss of esteem can follow. See ibid. Copyright © 2008 by Reva B. Siegel. † Nicholas deB. Katzenbach Professor of Law, Yale University. This Lecture was given as the 2007 Brainerd Currie Lecture at Duke Law School and benefited from lively discussion on that occasion. I am grateful to Bruce Ackerman, Kris Collins, Denny Curtis, Ariela Dubler, Sarah Hammond, Serena Mayeri, Joel Paul, Judith Resnik, Casey Pitts, and Robert Post, as well as participants in the faculty workshops at Columbia Law School, Washington University School of Law, University of Pennsylvania Law School, and U.C. Hastings College of Law, for comments on the manuscript.
    [Show full text]
  • The Final Countdown the Last Year of the Bush Administration
    THE FINAL COUNTDOWN THE LAST YEAR OF THE BUSH ADMINISTRATION Federal Legislative and Regulatory Action on Reproductive Health in 2008 The Final Countdown: The last year of the Bush Administration Federal Legislative and Regulatory Action on Reproductive Health in 2008 This publication is made possible with the generous support of the Robert Sterling Clark Foundation. Table of Contents I. Executive Summary ............................................................ 5 II. Issue Summaries ................................................................. 6 a. Title X Family Planning ................................................................... 6 i. Fiscal Year 2009 Appropriations ........................................... 6 ii. New Research on the Impact of Family Planning ...................... 7 iii. DASPA Resignation ............................................................. 9 b. Preventing Unintended Pregnancy ................................................. 10 i. The Prevention First Act ...................................................... 10 ii. Other Federal Legislation ................................................... 10 c. The War on Contraception ........................................................... 11 i. HHS Provider Refusal Regulations ........................................ 11 ii. Pharmacy Refusals ............................................................ 13 d. Contraceptive Use and Access ...................................................... 14 i. States Take Action on Contraceptive Access .........................
    [Show full text]