Aleteia Board of Experts Member Preparing Hobby Lobby Brief Against HHS Mandate
Helen M. Alvaré is a Professor of Law at George Mason University School of Law, where she specializes in Family Law, Law and Religion, and Property Law. In addition to being a member of Aleteia’s Board of Experts, she serves as faculty advisor to the law school’s Civil Rights Law Journal, chair of the Task Force on Conscience Protection of the Witherspoon Institute (Princeton, NJ), president of the Chiaroscuro Institute (New York, NY), chair of the Catholic Women’s Forum, a consultor for the Pontifical Council of the Laity (Vatican City), an advisor to the U.S. Conference of Catholic Bishops (Washington, D.C.), and an ABC news consultant. She cooperates with the Permanent Observer Mission of the Holy See to the United Nations as a speaker and a delegate to various United Nations conferences concerning women and the family.
The following is an exclusive interview with Prof. Alvaré.
The former spokeswoman for the U.S. Conference of Catholic Bishops’ pro-life activities office is writing a friend-of-the court brief for Hobby Lobby as it prepares to argue its case before the U.S. Supreme Court.
Christian-owned businesses Hobby Lobby and Conestoga Wood Specialties Corp. are fighting the HHS mandate, which compels them to make provision for their employees to obtain free contraception, sterilization, and abortion-inducing drugs in their healthcare plans. The high court will hear oral arguments on March 25.
Helen Alvaré, the former USCCB spokeswoman, who is now a law professor at George Mason University, co-authored a letter known as “Women Speak for Themselves” in response to the HHS mandate. Alvaré says some 45,000 women have signed the letter since early 2012. She spoke this week with Aleteia on her ongoing fight against the mandate.
It may be surprising for many that there is a group of intelligent, open-minded women opposed to free birth control.
Yeah, I know — when you put it that way, it does sound kind of shocking. It’s stunning to me how much of a discussion still exists about the place of birth control, not to mention abortion, in American society. You may have noticed a little of it on the fiftieth anniversary of the Pill, which was pretty recently, but the HHS mandate definitely brought a lot of this conversation more into the fore.
I wrote this letter with two prongs; one says that women actually care about religious freedom, and you can’t buy us off of religious freedom easily. It’s not just an old white guys’ concern — a celibate bishops sort of thing. Number two, your idea of women’s freedom is really very narrow and even demeaning, and we think it’s led to some harmful results. And now that I’m in the thick of writing the Hobby Lobby brief, it’s become even more clear, because the government said very clearly in its brief that one of its two main reasons, other than women’s health, is “Women need to enter into society without barriers, like men.” I mean, the clear implication to that is that children weigh women down. Children are a barrier to women’s entry into society and to their equality. We’ve known that this is people’s belief, but our government is saying that now.
I was not surprised but I was a little amazed at the ferocity of the anger about birth control as a solution for women. Particularly, I’m hearing from women who have had terrible health experiences with it.
Tell me more about your amicus brief.
It’s based on a very lengthy law review article that I published several months ago in the Villanova Law Review. And I think it must be good, because Linda Greenhouse at the New York Times attacked it by name in her Thanksgiving column, so I value it even more now.
Basically, the amicus brief goes after a narrow point, as these things do, which is the question of whether the government has a compelling interest that it can claim in exchange for burdening religious freedom. The law of free exercise says that if the government does burden religious freedom, then, under the Religious Freedom Restoration Act, and even under the First Amendment under certain conditions, it has to demonstrate that it has a “compelling state interest”; it has a very high burden of proof. And what I did was go through every single line of the medical evidence that the government’s briefs rely on, and I was able to debunk it quite thoroughly, to the point where it should frighten ordinary citizens that their government has so little to say for itself with such a sweeping mandate.
Many of the cases against the mandate involve religious entities and even businesses that are run by lay people trying to lead good Christian lives. What about people who have to purchase health insurance as individuals — are they forced to have a plan that includes contraceptive coverage?
Every plan, except if you are a church or a diocese, has to have this coverage in it. There’s no way to get out of it. I’m not familiar with citizen lawsuits about citizens that don’t want to be part of such a plan. I get questions from the public about this, and I say … there really isn’t a way around buying coverage with this. It has to be included in every insurance package.
The government’s usual response when citizens don’t want to do something is not to recognize a claim or a cause of action on the part of citizens because there are so many things that citizens have to do that they think are against their consciences, for instance, pay taxes for things that they directly oppose, like abortion, capital punishment, etc.
Have you consulted with any moral theologians on just what your culpability would be if you were forced to cooperate in paying for abortion and/or contraception?
No; there is literature on that [from the National Catholic Bioethics Center] and it applies to all of us who don’t work for a religious entity already.
Doesn’t the way the Obama Administration has set this up — by arranging that a third party provide the coverage and not the employer — remove any moral difficulty for the employer, even if it’s a religious employer?
Again, you’d need to talk to a moral theologian to get all the details on this, but what I understand is that you’re not providing formal cooperation in the sense that Catholic moral theology talks about, intending the bad thing that results. But you do have some material cooperation in that, even by what the Little Sisters are being asked to do, which is to sign a form that says, “I’m not going to provide it, so I want you to do it, or you have to do it under the law and I’m making that possible by passing the buck over to you via this form.” The Little Sisters of the Poor regard this as morally problematic. I don’t know if that’s because of the teaching about formal cooperation, but I do suspect one of the aspects of that is the teaching about scandal — that to have religious institutions, without objection, cozily just going along with this program that says, “You are obliged as part of your employment relationship to take this step, even though someone else will be doing the paying. You pick the company; you pick the plan; it will be attached to the plan that you enable for your employees; you sign the document that opens up the possibility for their providing it.” I think that whether material cooperation is at stake or whether it’s scandal, those would be the bases on which a religious entity would hang its argument.
What will happen if the government wins this fight over the HHS mandate? What will our nation look like then?
Compelling religious entities to affirmatively take a step… Now, it’s one thing to say you’re not going to be allowed in to such-and-such a program, or there’s something we’re going to do that you’re not going to like as citizens. But to compel us to cooperate in something that, frankly, is so important to them — this is political for them; this has no relevance to women’s health and well-being, or poverty, or anything. To force us to become involved in that because the government’s power has put us there, when there’s no reasoned argument behind it, will really lead them next to implicating us in anything else they decide, by their whim, is a social good. It really paves the way to mandate abortion in some fashion — insurance, providing it in our health care.
But I also think it paves the way for euthanasia. As the population ages — even as a lot of otherwise nice, ordinary religious people are going to come to believe that it’s not a good idea to live as long as healthcare can let us live, spending what that will cost in the difficulties of old age — I think a lot of people are likely to move toward embracing euthanasia and assisted suicide. That could easily become the next thing the government decides is now a neutral law for the social good and coerces us. So I think the stakes on this are very high.
You also testified recently in support of HR7, the No Taxpayer Funding for Abortion Act. What do you see are the prospects for that bill?
I don’t know that we can get it through the Senate — though I could be wrong — not because we couldn’t win the day on the argument if they take it up, but just because they would refuse to take it up.