The HHS Regulations on Contraceptives and Abortifacients: We’ve Been Here Before!

On February 16th, ten representatives of U.S. church-bodies and synagogues, including President Harrison of The Lutheran Church-Missouri Synod, gave testimony in a hearing before a U.S. House Committee. The hearing dealt with the impact of the recently proposed regulations of the U.S. Department of Health and Human Services (hereafter H.H.S.) on their respective church-bodies and religious institutions. The regulations mandate that all employers must provide FDA-approved contraceptives to their employees, including abortifacients like “Ella” and “Plan B,” and sterilization. The regulations exempt houses of worship, but do not exempt any other church-related institutions, such as universities, charities, or hospitals. The “accommodation” revision, announced by President Obama on February 10th, does not change the mandate, only how it will be paid. Did I mention that this affects parochial schools run by Catholics, Lutherans, and Evangelical Protestants?

The problem that this poses to many church-related institutions is severe. It forces those institutions to either disobey the law, and incur whatever penalties the U.S. government will decide to impose, or not “practice what they preach” when it comes to their moral doctrines regarding contraception and/or abortion. At the present time, there is no third option. For conservative Lutherans, such as the Missouri Synod, Wisconsin Synod, and the Evangelical Lutheran Synod, it poses a severe problem with respect to abortion, which they have vocally and consistently opposed since it was legalized in 1973. Did I mention that this affects parochial schools?

For all religious people that oppose contraception or abortion, the H.H.S. regulations are a violation of their freedom of conscience, a violation of their free exercise of religion, and a violation of their civil liberties. An eloquent statement of these issues has just been published by “Evangelicals and Catholics Together,” titled “In Defense of Religious Freedom” (see here).

In effect, the H.H.S. regulations penalize religious people who are opposed to abortion or contraception, when they voluntarily unite in a religious or charitable organization with employees to help and assist their neighbors. The law says, in effect, “You cannot help your neighbors through organized-charitable action unless you violate your beliefs about the immorality of contraception or abortion.” So, apparently, the U.S. government doesn’t want any more “Good Samaritans” from those churches that oppose abortion-on-demand. Did I mention that this affects parochial schools?

As Lutheran Church-Missouri Synod President Harrison said at the hearing, “This situation is surreal!” Could you have ever imagined that the U.S. government would EVER discourage any of its citizens from helping their neighbors, especially the hungry-poor, the sick, the developmentally-disabled, disabled seniors, and victims of disasters? How could the U.S. government ever come up with ANY anti-religious law?

Well, folks, don’t be surprised. It is not the first time this has happened! Those who are familiar with the history of parochial schools in the United States know that we have been here before. A little bit of history might give Lutherans, Evangelicals and Catholics a little bit of encouragement in this affair, as well as a little bit of insight into what comes next.

It all started with Boston’s “Committee of One Hundred” that was directing an attack on Roman Catholicism and Catholic parochial schools (see Walter H. Beck, “Lutheran Elementary Schools in the United States” [St Louis: CPH, 1939], 226-227). In 1888 this Committee presented to the Massachusetts legislature a bill that became the basis of the 1889 Edward’s Attendance Bill in Illinois and the Pond Bill and Bennett Law in Wisconsin the same year. These attempts at squelching the parochial school had further effect in the New York Compulsory Education Act of 1894 and subsequent legislation in other states. Those promoting the laws included Republicans and the anti-Catholic secret society called the “American Protective Organization” (Beck, 242 & 248). The enactment of these laws initiated a wide-spread campaign by all Lutheran churches, the Catholic Church, and the Democratic Party working together to defeat the anti-parochial-school laws (Beck, 227-50).

The Lutheran Church-Missouri Synod took a leadership role among Lutherans in the battle to protect its schools (Beck, 231-237, 245-248). For example, in Illinois there was the widely distributed tract: “Objections to the Present Compulsory School Law of Illinois, Respectfully submitted by the German Lutheran Committee on the Present Compulsory School Law,” a committee chaired by the Rev. Louis Hoelter of First Immanuel Lutheran Church, Chicago (see C.S. Meyer, “Moving Frontiers” [St Louis: CPH, 1964], p. 373 n. 105; original on file at Concordia Historical Institute; cf. Beck, 245).

The result of the related political battles in Wisconsin was that, in 1889, proponents of the anti-parochial-school law were defeated decisively in the spring municipal elections (Beck, 242). The spring elections of 1891 brought a crushing defeat to Wisconsin Republicans, who had hoped that enactment of the anti-parochial-school law would cause a tremendous rally around their party platform (Beck, 242-243). Instead the large German and Norwegian elements in the state, who were usually Republican in sentiment, voted solidly for the Democratic candidates. As a result the Democrats came into state control on a landslide for the first time in Wisconsin history (Beck, 243; for more detail on the Bennett Law, see William F. Whyte, “The Bennett Law Campaign in Wisconsin, “Wisconsin Magazine of History,” Vol. 10 #4 (June 1927): 362-390, available online at here). End of Round One.

The parochial schools again became the center of controversy during and after World War One, as legislation around the country tried to curtail the teaching of German in schools (Beck, 326). This was especially pronounced in anti-German-language legislation in 1919 in the states of Nebraska, Iowa, and Ohio. After losing cases in the state courts, the Missouri Synod appealed to the Supreme Court of the U.S. (Beck, 333). This involved the criminal prosecution of LCMS schools represented by: August Bartels of Iowa; Henry Herman Bohning and Emil Pohl of Saint John Lutheran School, Garfield Heights, Ohio; Robert Meyer of Zion Lutheran School of Hamilton County, Nebraska; as well as the Nebraska District of the LCMS (Beck, 333). The U.S. Supreme Court upheld the Missouri Synod’s position in the case, “Meyer vs. State of Nebraska, 262 U.S. 390 (1923),” which then determined the other cases (see here and here). As a result, the use of German in parochial schools was upheld as legal, although the Missouri Synod began to anglicize all its institutions in the late 1920s. End of Round Two.

Opponents of Lutheran and Catholic parochial schools organized–again–in Oregon and Michigan in 1922. In Oregon, a bill prohibiting parochial schools was proposed by Scottish Rite Masons and backed by federated “patriotic societies” and the Ku Klux Klan (Beck, 338). Three years later, on June 1, 1925, it was declared unconstitutional by the U.S. Supreme Court (see here). During the controversy, it became clear that the Masons and Grand Lodges were behind much of this anti-parochial-school legislation (Beck, 344-345). This explains the antipathy among many folks in the LCMS to lodgery of all types. End of Round Three.

For more information about the political and legal challenges that have faced the Lutheran parochial school in its history, see Wayne E. Schmidt, “The Lutheran Parochial School” (St Louis: Concordia Seminary, 2001); available here.

To obtain copies, for a fee, of the relevant pages in: Walter H. Beck, “Lutheran Elementary Schools in the United States” (St Louis: CPH, 1939), pp. 225-249, 316-358; you may contact Concordia Historical Institute here. This history demonstrates that Lutheran churches in the United States have worked together effectively with a political party, with the Roman Catholic church, and with other Christian denominations to protect their vital interests against politically-hostile forces. Pastors, laymen, and teachers have all played leading roles. Tracts have been written and impassioned speeches have been delivered before sympathetic audiences. Cases have come before court; then lost, appealed, then won, appealed, then lost, etc.; all the way to the U.S. Supreme Court.

All this has been done before by our religious fore-fathers and fore-mothers; and it can be done again. To not defend our churches and institutions in a lawful way is to accept the will of our politically-hostile opponents. We don’t need any “hotheads leading the charge”; we don’t need any loss of tempers; we don’t need any threats or intimidation of anyone by anyone. All that is required, and all that will be productive, is the slow-and-steady use of our civil rights of appeal through the court system and the electing of persons who are tolerant and not anti-religious.

Who are the people that would support the H.H.S regulations? By definition, supporters will be those who believe that conservative Lutherans, Catholics, Evangelicals, and other religious people should be penalized by the federal government for opposing abortion-on-demand. We can expect intolerant, anti-religious people to lead the charge here, since that has been the nature of their politics in U.S. history, but there are also religious groups that could join them. It is easier to list the few religious groups that are in favor of abortion-on-demand than the many that are against it.

Those religious groups in favor of abortion-on-demand include The United Church of Christ, The United Methodist Church, The Episcopal Church in the USA, The Presbyterian Church (USA), The Evangelical Lutheran Church in America, The Christian Church (Disciples of Christ), and the Community of Christ. These seven churches represent only 12.4% of the Christian population in the U.S. and only 7.8% of the total U.S. population. Christian churches opposing abortion-on-demand represent 54.9% of the U.S. population (for statistical basis of these numbers, see here). For nuances on the abortion positions of these churches, see here. For the positions of other religions on abortion, see here.

Although the seven churches listed above are officially in favor of abortion-on-demand, it is highly doubtful that all, or even the vast majority, of their members are in favor of penalizing other religious groups for their positions. After all, these churches all claim to be “liberal,” which in its essence means to be tolerant. If every single member of the pro-abortion churches believe that anti-abortion churches should be penalized (which is highly improbable), and all the religiously-non-affiliated people in the U.S. are added to that group (which is also highly improbable), it only results at an absolute maximum of 45.1% of the population in favor of the present H.H.S. regulations, if put to a vote.

With President Harrison of the LCMS, I pray for our national President and other governing leaders every day. President Obama is a smart man and he has made many smart decisions. He really needs to ask himself–not his favorite advisors–whether there really is enough popular support for the H.H.S. regulations as they presently stand and whether the courts will uphold challenges to those regulations in light of the precedents I have mentioned and the many other legal precedents I have not mentioned. Did I mention that this affects parochial schools?

Leave a Reply

Your email address will not be published. Required fields are marked *

Notify me of followup comments via e-mail. You can also subscribe without commenting.

This site uses Akismet to reduce spam. Learn how your comment data is processed.