Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, February 1, 2012

Gerson on the HHS "power grab"

It's tough-talk, but I think it's true, what Michael Gerson writes:  The HHS mandate, coming as and when it did, despite the efforts of more than a few of his Catholic supporters to stop it, is an "edict delivered with a sneer."  This is also right, I think:

Obama’s decision also reflects a certain view of liberalism. Classical liberalism was concerned with the freedom to hold and practice beliefs at odds with a public consensus. Modern liberalism uses the power of the state to impose liberal values on institutions it regards as backward. It is the difference between pluralism and anti-­clericalism.

An attractive liberalism is one that does not insist on liberalism "all the way down."


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Prof. Garnet, could I possibly get you to opine on my pet theory, laid out in multiple comments to your Jan. 26 post (Confusion about "conscience") and to Prof. Berg's post today?

I suggest that this attack is not a clumsy mistake, but a well-calculated attack on the Catholic hierarchy, intended to demonize them and to put a wedge between them and rank-and-file Catholics. It's also intended to fire up the secular base, who, sadly, revel in anti-Catholicism.

Doesn't that fit the evidence much better than seeing it as a tin-eared oops? The sneer is deliberate.

Posted by: joe reader | Feb 1, 2012 2:34:17 PM

I consider myself a liberal, somewhere on the sliding scale between classical and modern I guess, but I agree with joe reader to the extent that this seems more a political ploy than "a clumsy mistake." I don't know that I agree that it was intended as an "attack" on the hierarchy, but I certainly see it as wedge politics intended in this instance to peel away from the hierarchy the majority of Catholics who oppose, or blithely ignore, the proscription in contraceptives in Humanae Vitae. While I don't think that President Obama had a direct hand in parsing all the political angles and ramifications, I have a gut feeling (but no proof) that his Catholic Secretary of HHS did. She's been criticized by the hierarchy for years--as both Governor of Kansas and as HHS Secretary--for her positions on bioethical issues such as abortion and embryonic stem cell research, that it wouldn't in the least be surprising to me if she were to have used her current position to try to drive a political wedge on the insurance/contraception regulation issue. When pressed hard on the regulation yesterday by a reporter, the administration's press secretary tried to divert further discussion of the issue by saying that HHS had studied the issue thoroughly.

Posted by: Bill Collier | Feb 1, 2012 3:05:59 PM

"liberalism "all the way down.""

Or as Mark Shea likes to say, "tolerance is not enough, you must approve."

Posted by: CK | Feb 1, 2012 3:28:42 PM

Bill -- I'm not sure what evidence there is that it's intended as "wedge politics." The simpler explanation is that it's simply indicative of a reality of American politics (as uncomfortable as it may be for the more conservative members of the Catholic Church): there is a significant divide between Catholic doctrine and Catholic belief. I suspect that Sibelius's (and others') actions in this and other matters have more to do with their view of the role of government and of moral issues than they do with some sort of plot to drive a wedge between the hierarchy and the large percentage of "liberal" Catholics. That wedge would already seem to exist, without any such devious machinations.

Posted by: Andrew MacKie-Mason | Feb 1, 2012 4:33:22 PM

You may be right, Andrew. As I noted, I don't have any proof, but I don't think ther influence of politics can be completely divorced from the HHS decision. Given the influence of the Catholic vote in recent national elections, if the great majority of Catholics in this presidential election year were instead strong supporters of HV, I think at a minimum the administration (1) wouldn't have handled this issue so clumsily and (2) would have worked much harder to find a compromise that would be more acceptable to the Church. The jaded among us, and I try hard but not always successfully not to be jaded, might see the one-year stay on enactment as breathing space more benefical to the administration than it is to the Church.

Posted by: Bill Collier | Feb 1, 2012 5:07:57 PM

Obama may be a politician, but I don't think he is the antichrist, intent on destroying the Catholic Church or waging some kind of war on religion. It is reasonable to assume that if the Obama administration believed there would be a firestorm among large numbers of Catholics, he would have been more accommodating to the bishops. But as someone has already said, a vast majority of Catholics don't view contraception the way the bishops do (or at least not when they have to make decisions about their own fertility).

Obama, Sebelius, and others involved COULD believe that this is important for all women's health, and not just the health of women who aren't employed by Catholic organizations. That would explain the narrow exception (which I agree something must be done about).

If you read the Institute of Medicine report titled Clinical Preventive Services for Women: Closing the Gap, the report that recommended the “contraceptive mandate,” you will find the medical justification given for it. About half of all pregnancies in the United States are unplanned (that is, unwanted or mistimed), and 42% of those end in abortion.

According to the IOM Committee on Unintended Pregnancy, women with unintended pregnancies are more likely than those with intended pregnancies to receive later or no prenatal care, to smoke and consume alcohol during pregnancy, to be depressed during pregnancy, and to experience domestic violence during pregnancy (IOM, 1995). . . .

Pregnancy spacing is important because of the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced (within 18 months of a prior pregnancy). Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small for gestational age births (Conde-Agudelo et al., 2006; Fuentes-Afflick and Hessol, 2000; Zhu, 2005). In addition, women with certain chronic medical conditions (e.g., diabetes and obesity) may need to postpone pregnancy until appropriate weight loss or glycemic control has been achieved (ADA, 2004; Johnson et al., 2006). Finally, pregnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension (etiologies can include idiopathic pulmonary arterial hypertension and others) and cyanotic heart disease, and for women with the Marfan Syndrome (Meijboom et al., 2005; Regitz-Zagrosek et al., 2008; Warnes, 2004).
The National Academies Press at http://www.nap.edu/catalog.php?record_id=13181

It is not a wacky idea to believe that contraception is an important aspect of the medical needs of women of childbearing age.

Posted by: David Nickol | Feb 1, 2012 5:41:52 PM

Here's another take on the Obamacare, arguing that it suggests a problem all the way back at the American Founding:


Posted by: SocratesPelican | Feb 1, 2012 5:53:07 PM

David, all of what you said makes at most a good case for contraception, but that does not necessarily translate to a mandate for Catholic employers. For example, the mandate for employers to provide health insurance in the first place is all-or-nothing: provide full care, as the feds define it, including free contraception, OR drop all health insurance and pay the full fines. There's no smaller fine for coverage that's only "98 % good enough." Or how about openly funding government free pills, if it's so important, for anyone whose insurance doesn't already cover it?

In short, there wasn't much effort to find any common ground.

On the other side of the equation, I think you are overstating and strawmanning the case I and others have made about deliberate wedge politics. I didn't say Obama was being the Antichrist etc. I suggested that he saw an issue where the bishops were already apart from the flock, and exploited it deliberately. After all, as you put it, "It is reasonable to assume that if the Obama administration believed there would be a firestorm among large numbers of Catholics, he would have been more accommodating to the bishops." The flip side of your statement, which I think is equally true, is that he DID KNOW there would be a firestorm from the bishops, because he told them so.

Thus, he fully expected a big explosion from bishops, but expected the flock to think differently. That's the very definition of a wedge issue: It's not about creating a gap, it's about taking an existing gap and making it wider and more noticed.

As you've rightly said, options for accommodation existed. You rightly said that if he expected major pushback from regular Catholics, he'd have accommodated. The corollary implication is that if even if expected no broader pushback from the regulars, he still could have accommodated if he wanted to AVOID, rather than engage, the fight with the bishops. Ergo, he saw it coming, and chose to engage rather than avoid, i.e., he picked a fight with the bishops.

That might also coincide with his beliefs about women's health needs, but he's too canny a political operator to have been surprised by this fight.

What in that is wrong? Do you really think he was surprised by the degree of the bishops' fight?

Posted by: joe reader | Feb 1, 2012 6:46:32 PM

I don't see how this is "exploiting" a gap between the bishops and the lay-folk, or "wedge politics" or anything bad of that sort. My guess is that Obama sees the bishops like he sees other cultural elites: people who are generally well-informed, who have influence over lots of people, but who are ultimately just a single vote. That he didn't bow to their influence when they didn't have the masses behind them isn't evidence of trying to drive more of a wedge between the bishops and the laity. It's just evidence that the bishops are less influential when they don't have as many people behind them. No surprise there, in a non-theocratic democracy.

Posted by: Andrew MacKie-Mason | Feb 1, 2012 7:19:30 PM

It could be a wedge ploy, I suppose, but it seems to me a quite sufficient explanation that the administration got lots of pressure from the pro-contraception side. Relatively few politicians would alienate one side (when many on that side are in his base, and the administration is inclined to that side on the policy merits anyway) if they think they'll lose relatively few votes on the other side. Obama has been willing to anger that base when he thought there was widespread sentiment on the other side.

A major lesson is that there's tremendous work to do in educating laypeople about the importance of the freedom of the Church even on issues where most disagree with the magisterium. It's good that, as I understand, the bishops' religious-liberty commission is making education of the laity a priority.

Posted by: Tom Berg | Feb 1, 2012 11:28:13 PM

Let me restate/clarify my comment. The administration didn't think there was widespread opposition to the contraception mandate in the middle, for example among Catholics who don't already oppose the administration on many other grounds. Obviously--and I should have said--there is a lot of opposition to the mandate, but the administration calculates that most of those folks are unwinnable anyway. I hope that the administration proves to be wrong: that there are (or will be) many more who, though they've been open to or supportive of Obama, are angered by this decision as a matter of freedom for the Church. But that requires showing the importance of religious freedom, even for views with which one disagrees, to people today--including to religious liberals and those in the middle (Catholic and otherwise).

Posted by: Tom Berg | Feb 2, 2012 8:47:11 AM

"But that requires showing the importance of religious freedom, even for views with which one disagrees, to people today--including to religious liberals and those in the middle (Catholic and otherwise)."

I think Tom is absolutely right, and that will not be an easy task, judged by (among other things) some of the pushback I've gotten on this from some of my progressive Catholic friends. Persuading those who do not support the Church's view on contraception (and other issues) that they should take seriously the religious freedom issue is no easy task.

Posted by: Susan Stabile | Feb 2, 2012 9:35:12 AM

"But that requires showing the importance of religious freedom, even for views with which one disagrees, to people today--including to religious liberals and those in the middle (Catholic and otherwise)."
One obvious way for proponents of “religious freedom” in the current debates to show its importance (and give content to their claimed principles) is for them to state clearly what related religious freedoms they acknowledge belong to their opponents. Wouldn’t the conservative Catholic demand for exceptions to the contraceptive mandate be stronger if you acknowledged that people of other faiths have a right based in religious freedom to buy and use contraceptives? What religious-freedom based rights do conservative Catholics recognize for persons who live in anti-same-sex marriage jurisdictions, but whose religions celebrate same-sex marriage?

Posted by: william brennan | Feb 2, 2012 10:18:38 AM

Re william brennan's comment:
"Wouldn’t the conservative Catholic demand for exceptions to the contraceptive mandate be stronger if you acknowledged that people of other faiths have a right based in religious freedom to buy and use contraceptives? "

I suppose that's worth mentioning in the abstract, but the Supreme Court said in Griswold in 1965 that everyone has a privacy-based right to use contraception. So there's no need for a "religious freedom" right for contraception. On top of that, I know that many religious traditions allow contraception, but I'm not aware of any that require it. On top of that, I don't see the Catholic Church trying to stop anyone from buying or using contraception; the Church just doesn't want to be forced to provide it.

With that many layers of difference, how is this even relevant?

Posted by: joe reader | Feb 2, 2012 1:31:24 PM

I second what Susan Stabile said about the difficulty of defending religious freedom in principle, as distinct from defending the Church's particular view on contraception.

I add that this difficulty is present not only with Catholics who disagree with the Magisterium, but also with trying to persuade those of other faiths that this isn't just a "Catholic issue."

In that regard, perhaps the bishops can and should do more to support other faiths' efforts for accommodation. That would be a (1) a sign of good faith about our commitment to the broader principle, (2) practical coalition-building, and (3) the right thing to do, period.

And beyond joining in actual battles going on, perhaps it would help to define the danger in terms that people could understand better than contraception. For example, what if the federal government, in defining a balanced diet for school lunches, required Jewish and Muslim schools to buy pork weekly, and to offer it to students? That seems parallel. One could say that "well, no one will make the students eat it - the school just has to pay and offer it." Sure, such a mandate is quite unlikely, but wouldn't most agree that such a mandate would offend religious freedom?

Posted by: joe reader | Feb 2, 2012 1:40:04 PM

"the Church just doesn't want to be forced to provide it"

joe reader,

I don't know how you would define "the Church," but by any definition I can think of, the government is not forcing "the Church" to provide contraceptives to anyone.

Posted by: David Nickol | Feb 2, 2012 2:44:31 PM

Tom Berg: "But that requires showing the importance of religious freedom, even for views with which one disagrees, to people today--including to religious liberals and those in the middle (Catholic and otherwise)."

As one person who considers himself relatively supportive of religious freedom and also supports the mandate (at least in principle, without very much knowledge of the details), let me just say that this is far from all that's required to make your point. This isn't just a debate between people who support religious freedom and those who don't understand its importance. It's a debate between people who think that this is a critical issue of religious liberty not outweighed by the state interest in the mandate, and those who either think that religious freedom shouldn't extend into the market this much, or who see the damage to religious liberty as small enough when weighed against the public benefit of the mandate.

Even if you honestly think that no one could in good faith understand the importance of religious freedom and still support the mandate, can I suggest that alienating those other people is not the best strategy to win hearts and minds? This is a debate both about principles and prudential balancing, but the difference in principles is much finer than some of the rhetoric would suggest.

Posted by: Andrew MacKie-Mason | Feb 2, 2012 3:06:27 PM

"For example, what if the federal government, in defining a balanced diet for school lunches, required Jewish and Muslim schools to buy pork weekly, and to offer it to students? That seems parallel."

joe reader,

It is difficult to come up with a good analogy, but this one doesn't even come close. There is solid medical justification for the contraceptive mandate. There is no possible justification for requiring anyone to add pork to his or her diet. Now, what if there was a charity that was responsible for feeding the poor, and for some reason they did not include any vitamin C in the food they served, and those people were getting scurvy? There would be a justification for the government doing *something*, although exactly what I don't know.

There seems to be a tendency to disregard the medical justification for the government requirement and discuss it merely as a violation of religious freedom. But there certainly are times when government has a goal important enough to override religious freedom. I think the goal regarding the contraceptive mandate is to find some way to guarantee to all women what HHS recommends, but without those demanding an exemption feeling they are participating too actively in providing funds for contraceptives.

Posted by: David Nickol | Feb 2, 2012 3:07:42 PM

David, I'll concede that it's shorthand, but I think it's fair shorthand. First, I count Notre Dame as part of the Church in the larger sense, even if it has a Board and articles of incorporation. Second, I think it counts as "providing" if ND "provides" insurance that includes contraception in the bundle.

Which part of the equation do you object to -- counting Catholic schools (etc.) as the Church, or counting it as "providing" when you pay for it through layers of agents?

I'll try to anticipate some issues on the second piece. I don't think that the chain is broken by routing it through an insurer and a dcotor and pharmacist etc. I think the chain is broken when, say, the Church pays wages in cash and the employee buys contraceptives. But I think that intervening cause is not because of the mere presence of another actor in there, but specifically because the money isn't flagged for use in that way.

With the mandate, it's saying "send us the bill for THAT product," even if the billing is processed through many layers. For example, some employers pay a per diem for business travel, and the money can be used for any food or beverage. Other employers will reimburse for dinner, but exclude alcohol. So a $40 entree is covered, but a $20 receipt that includes a $5 drink gets cut to $15. That may seem silly to some, but I think it's fair to say that the second employer is refusing to provide alcohol, while the first, by just giving unrestricted cash, isn't necessarily in the business of providing alcohol, even if the employee might buy alcohol. With the mandate, there's an express requirement to allow for contraception.

But again, is that second step where we disagree, or do you object to calling Notre Dame (or any other Catholic-affiliated institution beyond running the parish itself) "the Church"?

Posted by: joe reader | Feb 2, 2012 3:08:03 PM

Note that no one is arguing against religious liberty, per se. Religious organizations of certain kinds are officially exempt from the contraceptive mandate. The argument isn't over whether or not we should have religious liberty in the United States. That is a given. The argument is over how broad the exemption should be.

How many millions of people right now pay at least some of the cost of their own medical insurance that covers both contraception and abortion? Most employer-provided insurance covers one or both, and most employees pay part of the cost of their coverage. How many Catholics opt out of receiving employer-provided insurance so as not to pay something toward contraception and/or abortion?

Posted by: David Nickol | Feb 2, 2012 3:17:03 PM

joe reader,

I disagree on both issues. Notre Dame is not "the Church." If Notre Dame is the Church, then so are Fordham University, Georgetown University, and DePaul University, and they all provide insurance that covers contraception. I also would maintain that paying for contraceptives directly is quite different from offering insurance that pays for contraceptives. I think it basically does break the link, but I am nevertheless in some kind of compromise that lets religious organizations put even more distance between themselves and payment for contraception.

Over on dotCommonweal, when someone criticizes the Church, Fr. Komonchak will often demand to know what is meant by "the Church." I think the same should apply when someone purports to speak on behalf of the Church. I really don't think this issue is a matter of "the Church" paying for contraception.

Posted by: David Nickol | Feb 2, 2012 3:51:25 PM

It is precisely their desire to force us to pay for contraception and abortion. That is what the culture of death dearly wants. We are their main opponents and they know that. The 1st amendment used to protect us from the government, but they want to simply ignore the Constitution. There is no compromise. We will not pay. I have said before that the secular culture wishes to ultimately persecute us and eliminate us. This is a perfect example of soft persecution. I am told to not be so pessimistic. Yet time and again I am proved right. We must fight this, and the other issues, tooth and nail. No compromise.

Posted by: Fr. J | Feb 2, 2012 4:15:52 PM

So J., do you think it is important to support the religious freedom of those with whom you disagree?

Posted by: william brennan | Feb 2, 2012 5:16:43 PM

Fr. J,

You say: "I have said before that the secular culture wishes to ultimately persecute us and eliminate us."

Who is "us"?

Someone on another blog dug up the following statistics:

• The USDA increased its grant to Catholic Charities (for food) from $12.5 million in ‘08 to $58 million in ‘11.
• In ‘08 Catholic Charities received $440 million in federal grants. In ‘10 they got $554 million.
• Department of Labor grants to Catholic Charities of Kansas totaled $300K in ‘09. By ‘11 the grants increased to $5 million.
• HHS increased its grants to the Catholic Medical Mission Board from $500K in ‘08 to $7 million in ‘11.

This is a strange way to go about persecution and elimination! According to Obama's press secretary, the Obama administration has provided over $2 billion to Catholic organizations since Obama took office.

Posted by: David Nickol | Feb 2, 2012 7:56:24 PM

The actions of those who disagree with J (and other conservative Catholics) are persecution by definition; facts are beside the point. Persecution sola fide.

Posted by: william brennan | Feb 3, 2012 9:11:34 AM

There is no Catholic Moral Theology that supports the use of contraception.

Posted by: N.D. | Feb 3, 2012 10:41:50 AM

David, on the prongs about "Notre Dame is not the Church" and "not 'providing' through insurance." On the latter, I agree it's not simple, but I think we've maxed out and will agree to disagree.

On the first, though, there's this: Of all the reasons to count an entity as falling inside or outside the realm of Church, I think the weakest is the one you cite, namely, that many colleges already give contraception coverage. Straying from Church teaching might be a reason for the Church's own hierarchy to disown them at some point, but the government can't separate Church from non-Church based on obedience/dissent. After all, suppose an entity is clearly the Church - a parish, or better yet, the bishop and chancery staff. Would the downtown Church office lose "Church" status, and become subject to legal regulations that exclude the Church, if a bishop started dissenting? I say no, even if the bishop personally hands out condoms to his assistants, performs gay marriages, and announces to all that Jesus was just a nice guy and that There is but one God named Allah and Muhammad is His Prophet. Otherwise, the government's capacity to regulate would turn on measuring allegiance to doctrine, which they can't do.

Now, I can see other reasons for claiming ND is not the Church, whether because they engage non-Catholic employees and customers, or because too broad an umbrella would let broad swaths of society escape regulation, etc. I disagree with those, too, but at least they'd be measure by some function, and not by weighing dissent.

As to the that, though, I think Hosanna Tabor answers the "entity as Church" question. True, ministerial exception is different from the mandate here, but on the limited question of "what entities are the Church," it seems to me that (1) if you have ministers, you're a church, and (2) if an elementary school is a church, so is a college (or a hospital). It might be that such an entity is a peripheral arm, so that it doesn't get as much protection as the "core," but I don't think it's categorically out of the "Church" tent for all purposes.

Posted by: joe reader | Feb 3, 2012 4:29:53 PM

David, on the separate point about the "pork in the Jewish school cafeteria" example:

I concede that it is not close on the point you make regarding the "government interest" side of the equation. I grant wholeheartedly that the case for a one more diet option is not the same as the case for contraception.

However, I was not claiming it was parallel for accounting on that column, and I apologize if I was unclear. I said, and still maintain, that it was a good example in demonstrating to others how some of us see the nature of the burden on the Church side, and to that extent, it is parallel. Both are making someone pay for a product that our faith says not to consume. (One could add the insurance analogue if the purchase is through a third-party cafeteria service, etc.)

It very well might be that both the pork and contraception cases involve similar burdens on conscience, but that the government interest outweighs in the contraception case but not in the pork case. But there are many in the debate who are saying that the Church interest here is a zero, not that it's a legitimate nonzero interest that is outweighed by the government interest.

In that respect, my point is a variation on Andrew's point: he rightly reminds mandate opponents that some mandate defenders DO give weight to religious liberty but merely disagree on the weighing. I agree that Andrew is right on that re SOME mandate defenders, but other mandate defenders are giving zero weight to the religious concerns, and thus those defenders are not balancing, but are ignoring one side. For them, I think the pork example validly illustrates the burden, and asks them to at least do the balancing, and ask, "is this interest compelling enough to justify that burden," or "could we meet our interest another way"? If someone rates the Church interest as zero, then of course the slightest gain would outweigha zero. You have all along rightly and admirably pointed to the missed opportunities for alternatives, and I suspect that those were not adequately explored in part because some players were not "balancers," but instead saw NO legitimate interest that needed to be accommodated.

In that regard, I think the Administration has sent mixed messages. At some points, they've said they balanced competing concerns, but the message from the latest "senior officials" conference call has suggested that there are NO religious liberty rights here -- at least no legal ones, if not policy ones -- and that devaluing is, I believe, wrong as a matter of policy, and also as a matter of law. Hosanna Tabor is different, of course, but it does point out that the Administration's view of constitutional law is far off from the entire Court's.

I appreciate the give and take, in any case. I don't see much of that on other boards out there.

Posted by: joe reader | Feb 3, 2012 4:53:13 PM

David, us is faith Catholics. They don't care about the unfaithful ones. Yes, Catholic Charities receive some government funds to do jobs the government can't or won't do. That will eventually end because they see us as being just another arm of the all powerful government. The old rules about religious accommodation and the 1st amendment are ending. They think they bought and paid for us. It is getting closer to the time when we will have to choose. Perhaps it will be like China, a patriotic church and the underground Church.

You are so quick to sacrifice religious liberty on the altar of the culture of death.

Posted by: Fr. J | Feb 3, 2012 5:14:05 PM


You say: "There is no Catholic Moral Theology that supports the use of contraception."

Actually, there are circumstances under which the Church approves of contraception, for example in the case of rape or threat of rape. In the early 1990s, the Vatican approved the use of oral contraceptives for women in Bosnia who were in danger of rape. In the early 1960s, nuns in the Belgian Congo in danger of rape were permitted to use oral contraceptives. Contraception is not intrinsically evil. Now, that may have little to do with the contraceptive mandate in insurance, but neither do broad statements like the one you made.

Posted by: David Nickol | Feb 3, 2012 5:28:29 PM

Fr J.,

You say: "You are so quick to sacrifice religious liberty on the altar of the culture of death."

Actually, I have noted several times, including on MoJ, that I think the current position of the Obama administration is not acceptable.

I am wondering why you and others have so little faith in the Supreme Court, for example, or in Congress. Didn't a unanimous victory in the Supreme Court in Hosannah-Tabor give you at least a little hope that all is not lost?

Also, I am wondering if you are as concerned about religious liberty for Muslims as for Christians. It does not appear so, from past discussions.

Finally, I am wondering why you seem to be so sure Obama will be reelected.

Posted by: David Nickol | Feb 3, 2012 5:42:47 PM

David, thanks for mentioning the rape threat issue. I'll have to go read the documents, but at first glance, it seems to me not merely allowable under Catholic teaching as some sort of loophole or marginal fudging of the "rules," but instead seems to perfectly follow Humanae Vitae and the rest. The whole idea is that the procreative function and unitive (within marriage, of course) functions should not be separated.

In rape, the unitive function is absent entirely, and is being sinned against. Allowing the procreative function to go forward, when the true unitive function is absent, is not just allowed, but is the better course.

That is also consistent with Church opposition to in vitro fertilization, as that is procreation without the unitive function. While that, too, is criticized, it shows the consistency of the approach, and that it's not just about "no sex without babies." It's also about "no babies without sex." Many people criticize that, of course, but the consistency makes sense.

So if rape is just a weird twist on "procreative without unitive," it all makes sense, at least as far as internal consistency goes.

Also, that same logic justifies post-rape contraception, to the extent it's still about stopping fertilization, but runs into trouble regarding potentially abortifacient backup effects. As I understand it, most Catholic authority, such as a USCCB statement, allows for such emergency contraception. But I believe there's some debate over whether such situations should require testing to narrow down the likelihood of which effect will operate.

Posted by: joe reader | Feb 3, 2012 5:51:27 PM

David, I do think that the SCOTUS will overturn the decision. You are right about that, thanks to the Justices appointed by GOP Presidents. I believe that Muslims should have freedom of religion and that they must grant the same freedom to Christians in their countries. But freedom of religion for Muslims does not include honor killings or terrorism. The real problem here is that the administration feels we are so weak that they can spring this on us and get away with it. They have revealed their real agenda.

Posted by: Fr. J | Feb 4, 2012 4:10:07 PM