Judge Brown to the Rescue

On the first day of the month, the D. C. Circuit Court of Appeals, the most important federal court of appeals beneath the Supreme Court, blocked the enforcement of the mandates of Obamacare on contraception and abortion. This bit of news is especially worth reporting, because the opinion of the court moved mainly along the lines that I have been arguing for in these columns as I’ve made the plea for a recasting of the argument over religious freedom.  But where the argument took a turn in its logic, it is a turn that finds the religious crafting their own undoing.

I’ve sought to remind readers in these columns that the Catholic position is wrongly cast when the argument pleads for a tolerance merely of religious “beliefs.”  The Catholic position, say, on abortion has been woven of the evidence of embryology and the moral reasoning of the natural law.  As Bishop Lori insisted for the bishops, the mandates on abortion are not wrong only for Catholics; they are part of an “unjust law” and binding rightly on no one.  

But when the argument is cast merely in terms of “beliefs,” the result is to produce an argument seeking only an “exemption” for Catholics from the laws imposed on others.  Not only does that argument subtly abandon Catholic teaching, but it forgoes an arsenal of defenses that would readily come into play in defending other freedoms under the Constitution.

The case of Gilardi v. U.S. Department of Health and Human Services involved two brothers, Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics.  The Gilardis offer a self-insured plan of medical care for the 400 people they employ.  And they would be forced under Obamacare to become accomplices in policies they have been taught to regard as serious wrongs. 

The decision of the court was handed down by a panel of three judges, with the main opinion written by the formidable Janice Rogers Brown.   Judge Brown noted at the outset what was “not at issue”: the case was not about “the sincerity of the Gilardis’ religious beliefs, nor does it concern theology behind Catholic precepts on contraception.”  

In my columns here, I’ve argued that the law should bear the burden of supplying, in these cases, justifications as persuasive as the justifications it would be obliged to supply in other cases when it seeks to override the freedom of people to pursue the notion of the “good” that animates and justifies their own acts.   

In the case of abortion, the government should be obliged to show why the Gilardis are mistaken in thinking that abortions destroy innocent human lives. But the Gilardis would be compelled also to act directly in providing abortions, and that fact would bring into play another ensemble of constitutional arguments.  The government should be compelled then, as I’ve said, to meet a standard more demanding than something only “vaguely called” the public interest or safety.

     The formidable Judge Janice Rogers Brown

And that is precisely the argument made by Judge Brown. Even if there is a “right” on the part of people to contraception, the Gilardis are not blocking the access of anyone to contraception.  And so, as Judge Brown observes:

the government has failed to demonstrate how such a right – whether described as noninterference, privacy, or autonomy – can extend to the compelled subsidization of a woman’s procreative practices. Again, our searching examination is impossible unless the government describes its purposes with precision.

Judge Brown has marked off a path here for holding the government to a standard quite demanding in order to justify the imposition of these policies. The lawyers often use the term “strict scrutiny,” but that strictness should apply in the testing the justification for virtually anything imposed with the force of law.

And in the path carved out by Judge Brown, many other powerful arguments will come into play in challenging the assumptions and rationales of the government. It hardly makes sense to invoke the “public safety” in order to foster the killing of small humans in the womb.  And on the matter of “health” and contraception, Judge Brown notes that the case may be rendered equivocal, for “the World Health Organization classifies certain oral contraceptives as carcinogens, marked by an increase for breast, cervical, and livers cancers.”

But then the conflict comes into play again between the claims of belief and the reasoning of natural law: Judge Brown argues that a right to contraception does not entail a right to compel the Gilardis to buy contraceptives for other people. But that moral argument would work just as powerfully to protect all other businessmen, even those who are not Catholic.  

Judge Brown insists that the case is not about “religious beliefs,” and yet she and her colleagues have upheld the Gilardis under the Religious Freedom Restoration Act, a law that was passed distinctly for the protection of the religious.  If that is the ground of the judgment, it produces, ironically, a rationale at odds with the natural law teaching of the Church, but it may also produce an inversion. 

George Washington famously said that we no longer speak of religious freedom as though it were merely “the indulgence of one class of people that another enjoyed in the exercise of their inherent natural rights.”  And yet, some of the religious have come to invert Washington by pleading now for a mere “indulgence” or exemption from the laws imposed on others.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.