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The Confederate Lawyer
January 27, 2013

Conscientious Objection, Part II
by Charles G. Mills
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GLEN COVE, NY — In my last column, I discussed the great deference that American law pays to religious conscientious objections to specific acts like fighting wars, going to high school, reciting the pledge of allegiance, or shaving. Another example is the respect for conscientious objection to participating in abortions, a respect that is recognized by Congress in several laws.

Many Americans believe that direct, intentional abortion is the moral equivalent of the murder of a child. The Catholic Church, for example, is unequivocal in this view and imposes severe automatic canonical penalties on those who participate in abortions. Many others share the Catholic view.

The regulations promulgated by the Obama Administration under the new Obamacare law group three kinds of drugs together: contraceptives, drugs that can work both as contraceptives and as abortion producers, and abortion producers. These regulations require that all health insurance policies cover them. All three types of drugs are morally objectionable to many, but the ones that produce abortion are especially so because of the huge injustice they involve.

The regulations contain an exemption for churches but not for religious schools, hospitals, nursing homes, and other institutions. They also have no exemption for privately owned businesses that are opposed to abortion. The Obama administration is completely inflexible in its determination to force compliance in this matter, even on those with conscientious objections. In its singlemindedness, the administration may force many Catholic institutions to close their doors. Such an outcome may well be what some in the Obama administration want.

The Little Sisters of the Poor is an international organization of women religious dedicated to the care of the impoverished elderly. It is preparing, if necessary, to simply pull out of the United States. It has pointed out that in the past it has left countries in which the Catholic Church was persecuted. This would not diminish the Order's worldwide service but would seriously cut the services to America's elderly.

At least one large American diocese of the Catholic Church is contemplating the possibility of emptying and padlocking its hospitals and waiting for better days. This could involve closing a major heart surgery center.

Some people in high positions in the Obama administration are nominal Catholics but do not believe what the Catholic Church teaches. It is possible that they would welcome the closing of truly Catholic schools, hospitals, and nursing homes so that the voice of nominally Catholic institutions that reject the Catholic doctrines would be strengthened. These people may have written these regulations deliberately to undermine the Catholic faith from within.

The United States Court of Appeals for the District of Columbia Circuit has given the Catholic Church a significant if partial victory. In the Belmont Abbey College case, it has ruled that the regulations must be rewritten to cover the conscientious objections of religious institutions like colleges. This is only a three-judge ruling and could possibly be reviewed by the whole court en banc. It will probably be reviewed by the United States Supreme Court along with related cases.

The Hobby Lobby Stores, Inc., case illustrates perfectly the problem of the government trying to force private people to do something they are prohibited from doing by strong religious duty. Hobby Lobby has been told by the 10th Circuit Court of Appeals that it is required to provide insurance to its employees, including coverage of abortion-producing drugs. The company refuses to do so. Justice Sotomajor has ruled that while the company may win in the long run in the Supreme Court, this likely outcome is not a sufficient reason to stop fines from accruing against it on a daily basis. A different result could occur in another circuit in which a different Supreme Court justice would review an application for an injunction against the accrual of fines.

Eventually, it seems the Supreme Court will have to decide whether the administration can force a closely held corporation — all of whose stockholders regard abortion as an equivalent of murder due to religious teaching -- to underwrite the abortions of its employees. The issue that the administration seems to be determined to bring to a head might be resolved if a future administration decides that it does not want to compel the unwilling to finance the mass killing of babies or if a reawakened Congress decides to stop it.

If, however, it falls to the Supreme Court to decide the issue, the Court should make it clear that refusing to fund abortions is not the Constitutional equivalent of polygamy or drug use. The Court should no more allow fines of a million dollars a day for those who refuse to finance abortions than it should allow the drafting of religious pacifists into the Army, the filling of reform schools with conscientious Amish and Mennonite children, the forced shaving of military defendants awaiting their dishonorable discharge and execution, or the corporal punishment of Jehovah's Witness children who do not pledge allegiance to the flag.

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The Confederate Lawyer column is copyright © 2013 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

This column may be forwarded, posted, or published if credit is given to Charles Mills and fgfBooks.com.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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