ROLL CALL: Nothing Changes with Obama’s Birth Control Compromise (by: Mark Rienzi)

Image: ROLL CALL: Nothing Changes with Obama’s Birth Control Compromise  (by: Mark Rienzi)

By Mark Rienzi

In an episode of “The Twilight Zone,” a creepy man comes to the door of a poor family’s house holding a box. He offers them the following proposition: If they will push a button on the box, two things will happen. They will receive a large sum of money. And someone far away, whom they do not know, will be killed.

The family struggles over the moral implications of the choice. They need the money but are concerned about the killing. They know if they press the button, they will be causing someone to die. But they are not actually killing anyone directly — they are not plunging a knife or firing a gun — so perhaps they are not really doing anything wrong in pushing the button.

Does it make a moral difference that someone else would carry out the consequence they would cause by pushing the button? The family thought so and decided to press.

President Barack Obama’s proposed “compromise” announced last week leaves religious employers holding a similar box on the issue of drugs the Food and Drug Administration calls contraceptives, including some that cause abortions.

The president says his proposal should make them feel better because they will not actually be directly purchasing these services. Instead, the president promised that if these religious objectors offer insurance, he’ll simply force someone else (their insurers) to hand out the drugs for free instead.

Even if it is technically true that the religious objectors are not providing the services (and there are good reasons to believe it is false), there is no dispute that the mere offering of the policy is what triggers the employee’s right to obtain the drugs from the insurer. In other words, the act of offering an insurance policy is now like pressing the button in the “Twilight Zone” episode. The instant it is done, it triggers an unavoidable consequence, namely an automatic right to receive the drugs and services at issue.

For some religious objectors, the fact that it will technically be the insurance company providing the drugs may be enough to ease the conscience. They may believe that because they are just pushing the button to trigger someone else’s legal obligation to give the drugs out, they are not really involved. The First Amendment surely protects their right to make that moral judgment on their own.

Other religious objectors, however, take a different view. They look at the alleged compromise and believe nothing has changed. The instant they offer health insurance, they will be triggering an automatic right to these services. The drugs will flow from the insurer they selected to the employee they hired, and they will flow solely because of the religious objector’s decision to offer health insurance. For these people, the fact that they will be pushing a button that legally requires someone else to distribute the services is a distinction without a moral difference.

Who has the better moral argument? Our Constitution doesn’t care.

What matters is that all of us have the right to make our own decisions about whether an act is morally permissible. Therefore, while much has been made of the approval of some of the president’s Catholic supporters, their views are completely irrelevant to the religious objections raised by other Catholics.

Our constitutional protection of religious liberty is not a least-common-denominator proposition, in which all Quakers would lose their right to conscientious objection to war just because some can be convinced to fight. Rather, our laws protect the right of each individual to his or her own religious beliefs, regardless of whether those beliefs are reasonable, consistent or widely shared with anyone else. The approval of some Catholics is not a license for the government to force other Catholics to violate their own beliefs.

The president argues that religious objectors should be fine pushing the button to force insurance companies to give out these drugs. But for millions of Americans, slamming the door in the face of the creepy guy with the box would be an easy moral call. Of course the president and his supporters are entitled to their own moral calculus on that question, but so too are the objectors.

And therein lies the problem with the president’s approach. He is trying to micromanage the rules by which individual Americans will make decisions of conscience. This is an impossible task and one our laws rightly put beyond the reach of government.

That is why the only proposal that will make the president’s religion problem go away is also the simplest one: a complete and unconditional religious exemption for anyone who objects to any type of involvement with these drugs.

Mark Rienzi is senior counsel at the Becket Fund for Religious Liberty and a professor of constitutional law at Catholic University of America.

5 Responses to “ROLL CALL: Nothing Changes with Obama’s Birth Control Compromise (by: Mark Rienzi)”

  1. February 24, 2012 at 5:45 am, ginny busch said:

    I was looking for a place to say thank you. Thank you, thank you, a thousand times thank you!


  2. February 18, 2012 at 9:48 pm, jeniffer said:


    Thanks for jogging my memory. I made a comment on this site today following a different article. It was on Laura Ingram’s show I heard exactly what you heard about the money for abortions coming out of our pockets. Also, it was brought out there would be some sort of committee, headed by Sebilius that would make decisions on whether what you needed you would get regarding healthcare.

    If that is the same program do you remember that they are exempting the Amish? I do remember reading somewhere when this was first voted in that Muslims were another group being exempted. How can they force this on some religious organizations yet exempt others?


  3. February 17, 2012 at 7:31 pm, Dana Becker said:

    Someone should commission a cartoon based on the final scene of the Wizard of Oz when the wizard is found out to be a fraud when Toto reveals him behind the curtain. In an attempt to distract Dorothy et al, the wizard blusters with smoke spewing from the his machine “Pay no attention to the man behind the curtain!”

    This is the image that came to mind as I read about Obama’s actions throughout the HHS mandate controversy – especially his assertion that the courts need not address the legal claims being made – after all, he is the great Wizard, right?


  4. February 17, 2012 at 3:45 pm, Michael Long said:

    Constitutional scholar? Then you should know that the Free Exercise Clause does not necessarily prevent government from requiring the doing of some act or forbidding the doing of some act merely because religious beliefs underlie the conduct in question.

    The United States is a democracy, and a society that contains and embraces many different religions. It is also a society of laws. Sometimes they conflict.

    By the logic presented above, the society, and the majority, must suffer if a law violates the “principles” of just one single individual. That, unfortunately, is unacceptable, and is not how our government works.

    SCOTUS once wrote that the Free Exercise Clause ”embraces two concepts– freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.”

    In one of its first free exercise cases, involving the power of government to prohibit polygamy, SCOTUS invoked a hard distinction between the two, saying that although laws ”cannot interfere with mere religious beliefs and opinions, they may with practices.”

    Mormons, Jehovah’s Witnesses, Seventh-Day Adventist’s and working on the Sabbath, home schooling, prayer in school, drug use by religions, military service. The list goes on.

    The line has been crossed and reversed and crossed again many, many, many times.


  5. February 16, 2012 at 6:38 pm, Ed Reinhart said:

    The conscience of every American must be protected. Today I heard Dorinda Boardly say that there is a mandate which will require every policy holder to write a separate check to their insurer which will be put in a separate fund by the insurer to pay for the abortions ( and contraceptive medicines, devices, procedures?) of all who request them. Do you know about that or have I got it wrong? I heard this on the Laura Ingraham show today. This will be discussed on the World Over on EWTN tonight.


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