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.