John L. Allen Jr., Forget spanking; bishop accountability is the big pope story, Crux Now

Why Democrats might want to retreat on mandates

On Wednesday this week, attorneys representing the Catholic media network EWTN were in a federal courtroom in Atlanta trying to fend off millions of dollars in IRS fines because of the network’s refusal to comply with mandates issued by the Obama administration that non-profit employers must cover contraception and other drugs that critics regard as abortion-inducing.

It’s clear why EWTN would choose to fight this battle, beginning with the fact that it takes its Catholic identity seriously. In fact, part of what rankles for EWTN is the administration’s suggestion that it’s not sufficiently “religious” to qualify for a narrow exemption for religious entities.

Beyond that, EWTN’s core market is made up of conservative Catholics in the United States, and it’s tough to imagine anything those folks would applaud more strenuously, or be more willing to open their checkbooks to underwrite, than seeing the network take on Obama and his minions.

What’s less clear is why the administration insists on continuing in what seems increasingly like an exercise in futility.

Last year, the US Supreme Court ruled in the pivotal Hobby Lobby case that closely held for-profit companies can’t be forced to provide contraception if they have religious objections to doing so. One would think that outcome signals fairly clearly how the court would rule on a non-profit institution too, giving the administration a strong incentive to find a political resolution to the mandates dispute.

Moreover, the handwriting on the wall seems clear in several other ways.

In late January, the Supreme Court by a 9-0 decision ruled that the Arkansas prison system could not arbitrarily prevent Muslim prisoners from growing beards in keeping with the tenets of the faith. Just this week, a federal court also rejected an attempt to sue InterVarsity Christian Fellowship, a conservative Protestant campus ministry program, because it had fired a staff member for getting divorced.

In both cases, the logic was the same: That broad requirements of public law need to include exemptions for religious conviction.

At the same time, there are currently 55 challenges to the contraception mandates from non-profit entities such as universities, dioceses, and charities currently making their way through the system. So far the challengers have won at lower levels 33 times, as opposed to just 6 losses — yet another hint about which way the courts are leaning, and one that doesn’t seem to require a law degree to decipher.

Given all that, it’s difficult to explain why the administration would toss good money after bad, spending both its political and administrative capital to defend a requirement whose eventual collapse seems probable.

Some will attribute the tenacity to a genuine conviction that contraception deserves to be part of the country’s basic health care package, while others probably will suspect an ideologically-drive agenda to stick it to institutional religion and to the Catholic Church in particular.

Whatever the case, Democrats with an eye on the Catholic vote in the 2016 elections might have an incentive for pushing the White House to beat a face-saving retreat before Pope Francis arrives in September for his first visit to the United States.

In the abstract, Francis’ core social and political priorities — solidarity with the poor, immigrant rights, environmental concern, and conflict resolution — generally skew towards the Democrats in American politics. His September visit, and the overall energizing impact of his papacy, might give a boost to the Catholic vote for whomever the Democrats end up nominating in 2016.

The odds of such a “Francis effect”, however, would be significantly reduced if Obama puts the pontiff in the position of having to deliver what will be seen as a public rebuke because the contraception mandates dispute is still alive when the pontiff comes, and Francis feels obliged to address it.

In other words, aside from the mounting legal futility of keeping this battle going, the Democrats may also have a solid political motive for cutting their losses.

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