In the US, it's an election year, and the atmosphere is toxic. The incumbent president Barak Obama is up for re-election in November. The Republican primaries have taken a lot of airtime.
One of the contested policy issues is Obama's 2010 Affordable Care Act (ACA). Many of the US Catholic Bishops have been critical of this law on the ground that it might contribute to even more abortions in the US.
The Catholic religious orders which conduct health facilities are broadly supportive of the law because it would extend basic healthcare to millions of Americans otherwise deprived a basic right. The US Supreme Court is yet to determine the constitutionality of the law.
On 15 February 2012, the US Administration published draft regulations as a follow-up to the ACA. The legislative regime mandates three actions: each person must take out insurance; each employer must provide health cover; and every health plan must include preventive health measures including access to contraception, sterilisation and abortifacients.
Preventive health measures are mandated so as to reduce long term the overall costs of health care. Religious employers who have religious objections to such preventive health measures would be exempt.
On 14 March, the Administrative Committee of the US Conference of Catholic Bishops declared the exemption for religious employers was too restrictive in part because it would apply only to employers who hired and served those primarily of their own faith. But what about Church institutions responding to the gospel imperative to provide health, education or welfare to persons of all faiths and none, employing persons of all faiths and none?
The bishops said, 'We will continue to accept any invitation to dialogue with the Executive Branch to protect the religious freedom that is rightly ours.'
Feeling the heat from the bishops, the Obama Administration a week later issued 'a request for comments in advance of proposed rulemaking on the potential means of accommodating such organisations while ensuring contraceptive coverage for plan participants and beneficiaries covered under their plans (or, in the case of student health insurance plans, student enrollees and their dependents) without cost sharing'.
On 12 April 2012, the US Catholic bishops issued a statement on religious liberty entitled 'Our first, most cherished liberty'. The bishops are worried that religious liberty is under attack by an Administration that just does not get it and by an increasingly secularist environment which produces 'a naked public square stripped of religious arguments and religious believers'.
The bishops are not seeking a sacred public square which privileges religious citizens but 'a civil public square, where all citizens can make their contribution to the common good'.
They have asked Catholics to participate in a 'fortnight for freedom' in June–July in the lead up to the elections, and given notice that they intend a campaign of civil disobedience. Claiming that an unjust law is not law at all, they proclaim, 'An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices.'
While highlighting half a dozen concrete examples of religious liberty under attack, the bishops' major concern is the Administration's insistence that contraception be made available to all persons under their health plans. According to the bishops, the preventive services mandate amounts to an unjust law.
Twenty-eight States already require such coverage, and in the past, Catholic institutions such as Catholic universities arranging health insurance for their faculty and students have found a mode of accommodation.
As these church sponsored employers do not themselves provide contraception, they have been able to argue in the past that they are involved only in 'remote material cooperation' with the provision of health insurance which makes contraception available, and this is morally acceptable.
These church related institutions do not provide, counsel or pay for contraception or other practices inconsistent with Church teaching; they simply allow their employees or customers to avail themselves of these practices.
The State is wanting to guarantee a minimum of preventive health measures for all citizens, including the availability of contraception. The bishops are claiming that 'it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilisation, even if it violates their religious beliefs'.
Here in Australia, our taxes and health insurance premiums undoubtedly help to fund abortions, sterilisations, and the provision of contraceptives at more affordable rates. Most Australian Catholics, including most of our bishops, accept that universal health cover includes some remote material cooperation with activities which might not pass muster with the strictest codes of Catholic moral behaviour. We do not lose any sleep over this.
Let's hope the agitation by the US bishops does not lead to a similar campaign here.
If such a campaign were launched in Australia, we would all need to fill in a questionnaire on our tax return and health insurance applications indicating which medical procedures we thought consistent with our consciences informed by Church teaching. The questionnaire in principle could be extended to approval or disapproval of all other taxpayer funded government functions including war and border protection.
We would contribute only to those universally available citizen services of which we morally approved. Very soon, our public square would be toxic too.
Such a proposal would be not only unworkable; it would be wrong. As citizens and taxpayers we are committed to the common good which includes government provision of basic entitlements to all citizens regardless of their religious faith or ability to pay. Living in a pluralistic democratic society, we all need to make compromises.
Indeed it would be wrong for government to force us to cooperate formally in activities of others which we judged morally reprehensible. But we all know that some of our taxes will go towards activities in which we would not engage ourselves or which we think morally questionable.
The US bishops' emphasis on the primacy of conscience is welcome. They observe that 'if we are not free in our conscience and our practice of religion, all other freedoms are fragile', and ask, 'If citizens are not free in their own consciences, how can they be free in relation to others, or to the state?'
But they do not consider the conscience of those in Catholic organisations who think that their employees should have access to preventive health services at affordable rates, provided only that they do not have to be formally involved in the provision of the services.
There is a risk that the US bishops are escalating a campaign of civil disobedience in the name of conscience when they are not willing to allow members of their own church to act according to a rightly formed and informed conscience on matters relating not to their own faith and morals but to civil entitlements of others in a pluralistic democratic society.
To invoke conscience against Obama while imposing an iron Vatican will on all Church organisations does raise questions, and not just with the secularists in the public square.
Two years ago when warning of threats to religious freedom in the US, Cardinal Francis George of Chicago, one of the intellectual leaders of the US bishops, said: 'I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square.'
Thankfully none of our bishops has had cause to sound so shrill here in Australia. Let's hope we can keep our public square less toxic and more accommodating than the American one.
Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.