People have been falsely proclaiming that objections to ObamaCare's anti-conscience mandate is a "Catholic" issue or that Republicans want to ban contraception. Having become sick and tired of these lies and falsehoods, I have decided to debunk these myths. I also want to show that this proposal is unconstitutional.
First, no Republican has submitted to Congress any bills or proposals banning contraception. Moreover, under title 10, people can obtain contraception free. The objections to the latest Obamacare proposal are based upon conscience and the First Amendment.
Second, it is not just a "Catholic" issue. To prove this point, look at the seven lawsuits that have been filed against this proposal.
Two of the recent lawsuits were filed on behalf of Geneva College, a private college associated with the Reformed Presbyterian Church, and Louisiana College, a Southern Baptist school. Their suits are based upon arguments that "the mandate’s coercive requirement and lack of a robust religious exemption infringes against First Amendment rights to due process." They also assert that the mandate violates existing federal laws, including the Religious Freedom Restoration Act.
The remaining 4 lawsuits from institutions were put forward by the Becket Fund for Religious Liberty, which has filed suits against the mandate on behalf of Belmont Abbey College, a Catholic college in North Carolina, Colorado Christian University, a non-denominational Christian institution, Eternal Word Television Network (EWTN), a Catholic television network, and Ave Maria University, a Catholic university.
The seventh and final suit was from an individual. The American Center for Law and Justice (ACLJ) has filed a lawsuit against the Department of Health and Human Services (HHS) on behalf of a private business owner from Missouri who claims that the HHS contraception mandate is in violation of his First Amendment-protected religious liberties. The lawsuit is the first filed by a private citizen.
So, of the seven suits, only three were filed on behalf of Catholic institutions. This means the majority of the objectors who have filed suit were not.
Finally, let's talk about what these objections are really about. It is not banning contraception and attacking women. It is about constitutional freedoms.
President Obama and the Department of Health and Human Services are, by their actions and orders, attempting to force individuals, churches of various denominations, institutions, and others to pay for services and other items which they consider sinful or morally wrong.
People who believe in abortion are able to have one in the United States. People who want contraception can get it in the United States. There are people, however, who believe that abortion and contraception are morally wrong. They cannot be forced to have an abortion or be forced to use contraception. The question is then should they be forced to pay for it for others? If a person who believes abortion or contraception is wrong, why should they be mandated by the federal government to violate their religious beliefs?
Religious liberty and the rights to practice religion and/or obey one's conscience free from government interference and tyranny is a foundation of constitutional law. Many of the original 13 colonies were founded by religious groups fleeing persecution from the England against their religious beliefs. By order of King Henry VIII, the official church was the Church of England. All those believing otherwise risked persecution, jail, torture, or even death. The United States was formed with the clear constitutional understanding that government was to make no law blocking the Freedom of Religion.
As the Supreme Court has issued decisions on the First Amendment, they have developed a multi-part legal test. First, one looks to whether the law in question is a neutral, generally-applicable law, not one specifically aimed at religious expression.
Second, if said law is neutral in its application, courts then ask two further questions. Does the law's burden on religion serve a "compelling government interest"? Second, is it "narrowly tailored" or the least restrictive means to furthering the government's interest?
This is the constitutional standard for all laws and regulations potentially infringing upon religious liberties. Let us examine the law using this test.
If we assume that the new rule is a neutral regulation (which is perhaps a large assumption), it clearly imposes a substantial burden on the free exercise of religion. The new mandate demands that many religious institutions do precisely what their religion forbids them from doing.
The Catholic Church requires that "human life must be respected and protected absolutely from the moment of conception." Yet, the mandate demands that Catholic schools, charities, and hospitals must provide their employees with health insurance plans that pay for contraception, sterilization, and even abortion causing drugs. Effectively, this forces Catholics (or anyone who believes similarly) to violate either their conscience and their religion, or federal law.
Now, looking at the second half of the equation, we know that law may substantially burden religious exercise and be constitutional if, and only if, the government can show that the rule is the least restrictive means to accomplishing a compelling government interest.
So, what is the reason for the law? Well, according to HHS Secretary Kathleen Sebelius, the purpose is to "provid[ing] women with greater access to contraception." This is not compelling when one knows the facts.
Contraception is readily available for those who want it at the local drug store. Title X allows it to be obtained for no cost. Is acknowledged by the same federal department that birth control is the most commonly taken drug in America by young and middle-aged women. There are no true barriers for women who want birth control.
The Administration's alleged interest in "greater access to contraception" essentially means that it wants to provide free contraception, sterilization, and abortion drugs free by having someone else pay for it. Whether the third party wants to pay for it or has religious beliefs to the contrary are of no apparent concern to the administration. This is nowhere near to meeting the burden of "compelling".
Finally, if the government interest was found by a court to be "compelling", it cannot be said to be narrowly tailored.
The Obama Administration has not employed the least restrictive means to achieving their end. If the government wants to distribute free birth control, it could do so on the taxpayer's dime and distribute it through federal agencies. Under this approach, no religious organization would be compelled to violate its faith, beliefs, or conscience. It would be far less restrictive than the President's mandate. The reason the President is not doing it this way is because the Congress would not likely pass it, especially since recent polls show a majority opposed to the idea.
Lastly, this entire analysis assumes the law to be neutral. It is not. One of the many provisions of the law provides an exemption for only those employers or religious organizations whose purpose is "the inculcation of religious values."
Sounds great until you realize that this sets up the government as arbiter of which religious organizations or ministries "inculcate religious values". The Supreme Court has not looked kindly on government interference or meddling in such affairs.
In the recent case of Hosanna-Tabor Evangelical Lutheran Church v. EEOC, the Court dealt with an employment discrimination case that focused on the "ministerial exception" and the First Amendment rights of religious institutions to appoint their own ministers free from government coercion. The opinion of the Chief Justice referred to previous decisions of the Court that have held "that it is impermissible for the government to contradict a church's determination of who can act as its ministers". Additionally, in the concurring opinions, signed by Justices Thomas, Alito, and Kagan (an Obama appointee), it is strongly suggested that religious organizations will continue to enjoy wide latitude in conducting their own affairs and determining for themselves who represents the religion and serves its mission.
The current proposal places the government has the body to decide who is a minister, who speaks for a church or religious institution, and whether an institution's purpose is "the inculcation of religious values."
Ask yourself a question, should the government be telling you whether your religious beliefs are up to snuff? Should some bureaucrat decide if your church or organization has the correct purpose? Clearly, they should not.
This extremely long posting has one purpose. It sets forth the unconstitutionality of the anti-conscience mandate from President Obama and the HHS. The issue is not one of Catholicism or banning contraception or even an assault on women. Those defenses are political nonsense designed to distract people from the truth.
This is an issue of constitutional freedom. Are we a free country or are we once again under the rule of tyranny?