I have done a great deal more study of this and my position has evolved further. I could bore you for hours with all the things I have learned, so I will try to hit the high points and be as brief as possible.
First, here is the rational of the Department of Health and Human Services regarding the birth control mandate:
Scientists have abundant evidence that birth control has significant health benefits for women and their families, is documented to significantly reduce health costs, and is the most commonly taken drug in America by young and middle-aged women. This rule will provide women with greater access to contraception by requiring coverage and by prohibiting cost sharing.
This decision was made after very careful consideration, including the important concerns some have raised about religious liberty. I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services. The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health care providers.
It is perceived not just by our government but by the current culture (and unfortunately many Lutherans) that birth control is a matter of "healthcare" that all women have a right to equal access. It is easy to see from the the government's perspective that they are simply protecting the rights the majority of Americans believe in. We as a church have contributed to this mistaken perspective. Even Rev. Harrison's February 14 letter refers to birth control as "medicine." Medicine is by definition "a compound or preparation used for the treatment or prevention of disease." If we refer to birth control as "medicine" then we are contributing to the assumption that it is of benefit to women's health.
It's hard to believe, but this is the world we live in, and the government we live under. Conservative efforts to overturn this mandate have already failed in the senate. I do not believe we have any realistic hope of reversing the trend of government limiting our religious liberties.
I was interested to read that a new Public Religion Research Institute poll released March 15—which was done in partnership with Religion News Service—found that a 56 percent of Americans do not believe that the right of religious liberty is being threatened in America today. Even worse, 57 percent of Catholics and 58 percent of independents polled specifically do not view this mandate as an infringement on religious liberty. I do not see how making more people aware of this mandate and telling them that we feel it is an intrusion on religious liberty is going to change public opinion. The only realistic effort to reverse this ruling has already failed in the senate. Nothing is going to change the current status of this issue, at least not before the next political election. However, if more people were made aware of the abortifacient nature of all these methods of birth control, perhaps at least those who are pro-life might change their minds about this mandate, not to mention changing their minds about their own use of these horrible drugs and devices.
In addition, most of our members do not understand the source and nature of religious liberty. Religious liberty is not something granted by the First Amendment. The Bill of Rights limited the powers of Congress, but not the states. States still had the right to establish religion well into the 1800s. Religious freedom has its proper locus in the inalienable rights spoken of in the Declaration of Independence, and in the writings of the founding fathers on the subject. While courts have come to define religious liberty according to the First Amendment through a misapplication of the Fourteenth Amendment, this is not the proper locus. In fact, it is not Congress, but rather the executive branch that has created this mandate. This opens a whole new discussion of the nature of religious freedom and the HHS mandate, not to mention its support in current federal judicial precedence.
Most people also do not understand that Christianity should not benefit from any "favored status" and that religious freedom has always been limited. These limits have been defined in various ways since the founding of our nation. The proper limits on religious liberty are why polygamy and Sharia law are still ruled illegal. Just as one does not have the freedom of speech to falsely yell "fire" in a crowded theater, religious rights end where the government perceives the public good is endangered.
This is why the root problem as I see it is that birth control is considered "medicine" that is an important part of women's "healthcare." I believe this belief is shared even by the majority of Lutherans. As such, it can be argued that the right to this supposed public good trumps religious liberty. In fact, the only thing the majority of Lutherans seem to be against is a couple methods they wrongly perceive are the only abortifacient drugs covered by this mandate. When people approve of all other hormonal birth control drugs, implants, injections, and IUDs, they are being hypocritical to point the finger at the government and at women who use post-coital birth control. As I hope I have made abundantly clear on this blog many times before, all prescribed birth control drugs and devices are abortifacient. Granted, most people are unaware of these facts and, therefore, their hypocrisy is unintentional. However, I would argue that the church and her members should take the log out of their own eye first before they can see clearly to criticize the government for this action.
I would argue that when Christians broke with the historic Biblical teaching against contraception and subsequently came to approve of birth control drugs and devices as "medicines" and "healthcare" for woman, they effectively lost the right to oppose any of these prescribed birth control methods for religious reasons.
C.P. Krauth taught that error first seeks tolerance, then it seeks equality, then it seeks dominance. Tolerance of birth control by Christians began with Anglicans in 1930 approving of birth control in very limited circumstances. By 1959, this included Lutherans, and now those who approve of birth control include even the majority of Roman Catholic laity. It took less than a century for tolerance in the church to lead to the dominance of a contraceptive mentality which inevitably gave birth to the right to abortion in our culture.
So, here is my current position on this question of publishing any statement on the HHS mandate. Before we as individuals or as congregations make any public statements about this, we need to further educate ourselves about religious liberty and both its proper and its current legal limitations. We need to better understand the "Two Kingdoms" and other theological issues. We all need to understand that, even in the absence of religious freedom, no one can ever force us to violate our conscience.
God's providence does not guarantee religious freedom. In fact, it has been a common "alien work" of God throughout history to allow persecution in order to bring us closer to God. Christianity has often flourished the most during times when the Church has faced her greatest persecutions. Our consciences belong to God and cannot be taken captive. They can jail us and even kill us, but they cannot take Christ from us or force us to act against our conscience.
I would also argue that, before making further comments in the public square, we also first need to clean our own house with regard to the horrible mistakes on the question of birth control that have been made by our synod, our church, and most of her members. Such errors and misconceptions have contributed greatly to our current predicament, as explained above. This will require the application of a great deal of patient, compassionate, and pastoral teaching on the scientific and theological issues surrounding birth control - information that will inevitably weigh heavily on the consciences of many members.
How much easier it would be if all Christians had retained the belief that contraception is worse than murder, and that it's not our business to interfere with God's creative work at any point in the process. Onan practiced contraception and was killed by God himself. St. John Chrysostom admits the inability to even describe from a biblical standpoint what contraception is:
"Why do you sow where the field is eager to destroy the fruit, where there are medicines of sterility [oral contraceptives].... Indeed, it is something worse than murder, and I do not know what to call it; for she does not kill what is formed but prevents its formation. [Chrysostom, Homilies on Romans, 24 [A.D. 391]
Lord have mercy,
Erich
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