This column by ACRU Senior Fellow Ken Blackwell and ACRU Senior Legal Analyst Ken Klukowski was published on February 5, 2013 on USA Today.
If you missed the Obama administration’s “clarified” version of the notorious “contraception mandate” last Friday, you can be forgiven. In fact, even if you delved into the text of the new proposal, you probably emerged more muddled than before. The “clarification” is simple recrafting of language; the law’s religious liberty problems have not been fixed. The government’s message is the same as before: provide the medical services we demand, even if it means violating your faith and beliefs, or face steep fines. Even a Slate column noted, “Unless there’s some invisible bureaucratic weirdness going on that’s not being reported, nothing has changed.”
Even the Department of Health and Human Services admits “this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended.” The exemption is primarily limited to houses of worship and religious orders.
Aside from the main issue with the mandate in the first place–the violation of First Amendment religious liberty rights of charitable organizations, entrepreneurs, universities and hospitals opposed to contraception and abortion for religious reasons–the proposal raises questions about the limits of government authority. The Obama administration has sidestepped the legislative process. Yes, the Affordable Care Act was voted into law, but this was only the beginning. That vote gave HHS the task of developing regulations for preventive services. The House and the Senate have never been able to vote on the deeply flawed and unconstitutional result.
In its great wisdom, the government has decreed that certain drugs and services–like the morning- and week-after pills, IUDs, and sterilization–qualified as preventive services and thus mandated coverage. (Note that these “preventive” services are already covered for the poor with taxpayer money by Title X programs and Planned Parenthood.) The intent was to require most employers to pay for these services. When the public responded with a cry of protest against the rule, the government quickly decided that the answer was to propose shifting the forced coverage to the insurance companies. The question of how insurance companies would pay for this free coverage, without raising premiums or billing exempt employers directly, was left vaguely unanswered.
On the public relations front, the administration appears to be winning. Popular opinion seems to support universally-covered contraception and outrage over sidestepping the legislative process seems minimal. But there’s one thing the administration seems to be ignoring: they are losing in court. Not only on this mandate, either.
Last January, the administration stood before the U.S. Supreme Court and argued that government has the right to interfere in hiring and firing by religious congregations and their leaders. Even President Obama’s appointees disagreed. The Court voted 9-0 to uphold the rights of houses of worship. Concurring, Justice Elena Kagan explained that religious groups provide a “critical buffer” against the power of government, and that religious autonomy “has often served as a shield against oppressive civil laws.”
This decision, Hosanna Tabor, seems to have hit a nerve. In response, President Obama later that year took it upon himself to celebrate “freedom of worship,” an ominous shift from “freedom of religion.” This seemingly small change would confine religion to churches and private homes. It is a denial of what has been the birthright of American believers since our nation’s founding: the right to live a public expression of faith. The Supreme Court has affirmed this right over and over. If the only place you can express your faith is within the four walls of your house or church, then we have come a long way from the intentions of our forefathers. And, in this particular fight, we are not talking about creches and menorahs in the public square. We are talking about the rights of all Americans to live according to their consciences, not just at home but in their communities and businesses. We are protecting the same First Amendment that guarantees the right to conscientious objection to war.
Contraception is not war. That is where the current administration made a smart tactical decision. The administration chose a widely used and supported service as their first fight. But the point is that it should not matter what the objection concerns. What matters is that there is a documented, religiously-grounded objection to a government mandate. So far, the government is winning control over the vocabulary used in this fight. That’s dangerous, because it means they are controlling public opinion. But, in the long run, we are a nation of laws. What happens in the courts is the ultimate test. There, all freedom loving Americans have the advantage, because we have the Constitution on our side.