The Obama administration stirred up a hornet's nest with the contraception mandate, which will require religious-affiliated employers to provide free contraception to employees. The angry response from religious groups, Notre Dame and the Archdiocese of New York among them, was predictable. As many as 43 organizations are challenging the constitutionality of the mandate.
Critics claim the requirement is a violation of the First Amendment, of freedom of religion. Perhaps we are arguing the wrong point. Before the nation muddies the waters -- and the political arena -- with yet another Constitutional issue, I ask that we all pause. There is a limit to religious freedom. Reasonable people do not suggest the law carve out exceptions for human sacrifice, hard-core drug use, or bigamy.
The debate actually centers on where the line between religious freedom and a citizens' secular obligations to society should be drawn. This is not a Constitutional issue, but a less glamorous and equally compelling statutory issue.
Let's work through it.
Whether religious groups are to be exempted from laws is a political question, according to current Constitutional precedent. In 1990, the Supreme Court ruled that users of the narcotic peyote could be denied unemployment benefits even if their use was religiously motivated. The Court ruled that as long as laws were neutral toward religion -- and generally applicable -- they didn't violate Freedom of Religion just because they failed to carve out a few exemptions.
Critics of the decision, however, believed that any infringement upon religious liberty could be justified only by a compelling government interest and only if the measure provided the least restrictive means to achieve it.
Critics of Smith won the day politically and by 1993 turned that power into the Religious Freedom Restoration Act. This statute prohibits the government from imposing a "substantial burden" upon a person's free exercise of religion unless it can demonstrate both that "compelling government interest" and the "least restrictive means" of achieving it. The statute -- now only pertinent to federal legislation -- says one more thing: It applies to all subsequent federal legislation.
In other words, it applies to President Obama's Patient Protection and Affordable Care Act. Ultimately, whether the contraceptive mandate will survive depends on the answer to three questions based on this Act.
First, does mandatory contraception coverage "substantially burden" the free exercise of religion? Requiring a religious organization to offer a product or service contrary to its principles may well impose a substantial burden. The Court recently ruled in an employment case that "government interference with an internal church decision that affects the faith and mission of the church itself" is prohibited. It's not clear whether the ruling includes church-run hospitals, universities, and other institutions whose missions can be fairly described as secular.
I understand that a mandate that violates a deeply held belief may cause anguish. On the other hand, it is also plausible that any burden imposed by the mandate is not substantial because the requirement in no way alters the group's doctrinal beliefs, does not require any employee to violate her conscience and use the coverage provided. Plus, it's applicable in an employment context, not a sectarian context.
Second, if so, does mandated contraception coverage further a compelling government interest? I believe the government can demonstrate that cheap and easy access to contraceptives is a compelling government interest to reduce unwanted pregnancies. Anyone can take notice of the societal costs imposed by them. Moreover, access to contraceptives assists in a women's right to reproductive freedom, a right deemed fundamental in Roe v. Wade.
Finally, does the rule further that interest by the least restrictive means? The third question is perhaps the most difficult for the government. Despite the administration's recent compromise, there may be less restrictive means of accomplishing the same result. For example, employees of exempt religious-affiliated employers could be provided contraceptives through a government-funded program that eliminates any connection to the employer. Costs could be kept low, given that the exemption would apply to a narrow group of employers and the fact that the administration initially imposed the costs upon private insurers without much push-back. If necessary, a mechanism for funding the program could be enacted.
In one sense, removing the Constitution from the debate is a good thing. It brings the issue squarely into the political arena. The immediate, loud, and visceral response to the mandate has shown that the political process can handle extremely sensitive subjects.
Whether the federal government exceeded its constitutional authority will be decided shortly. Whether the narrower mandate regarding contraception coverage violates the First Amendment is not clear. What is clear is the administration will run this mandate through the gauntlet of the Religious Freedom Restoration Act.
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“The benefits included a major policy change that would potentially end the ability of seniors to purchase cheaper prescription drugs from offshore sources.”
Weber said that the issue is not whether a deal was cut, but who cut the deal, the White House or Senate surrogates. He cited Texas Congressman Mike Burgess who said the documents describe “a sequential, planned, organized strategy for the White House to trade policy for politics.”
If you don't like gays, don't marry one.
In the meantime, do something Christlike for the planet, like feed the hungry or heal the sick.
That is the suggestion that the Government could offer contraceptives through a Government funded program.
I believe this too would cause a big uproar from those same religious people who are objecting now, on the grounds that "their" tax dollars are funding contraceptives.
Isn't that exactly the grounds that they have been trying to, and have been shutting down Planned Parenthood Clinics?
Lets not forget that side also. Religion wants to run its own course, so be it. Let it pay for it
reminds me of the bruha in IL re civil unions and the church shutting down its adoption service, claiming it was being forced to let gays adopt.
Convenienty forgetting that it could do as it pleased, as long as it didnt state 677 mil of state money. Isnt lieing a sin?
NO because the employee is paying for the coverage, not the employer.
First, nobody’s “mandating contraception”. What the law requires is that these things be covered under health insurance policies. Framing the “argument” this way is inflammatory and distorts the subject.
Second, as pointed out, this is an employee benefit. It is not "paid BY the EMPLOYER", but, rather, it is a tax exempt component of compensation paid TO EMPLOYEES. It’s no different than the withholding taxes that these same entities have "paid" since they were enacted generations ago.
These payroll taxes go to fund such diverse programs as capital punishment, food cattle and hog research and waging war, all of which are against some religion or another. Yet these "payments" have never been questioned nor has any entity fought to prevent their responsibility to make those payments ON BEHALF OF EMPLOYEES.
If a comprehensive health care plan is to include contraceptive benefits, “religious employers” are free to stop offering health care in their compensation packages. They could increase base pay to cover the value of such packages (and the payroll taxes associated with that value) and leave the entire health care coverage issue up to the employees.
Religious groups are great at rationalizing things when it suits them. The “Sabbath elevators” in hospitals that protect observant Jews from violating the “no work” tenant and fish fries and pizza for observant Catholics during Lent are but two examples.
There’s no “First Amendment” issue here.
F & F'd.
=P
We could have saved ourselves an incredible amount of headache, not to mention increasing our international economic competitiveness, if we had abandoned employer-based health insurance the minute WWII ended and the wage controls were lifted. If everyone simply purchased their health insurance the same way they get their auto insurance health care costs would never have skyrocketed in the first place.
I purchase my auto/homeowners insurance through an insurance co-operative in another state which returns me a dividend yearly. The cost is about 30% less than the brands you see advertised on TV. There is no reason health insurance shouldn't be sold the same way.
But you say they won why sue, it is no longer about contraception, it is about them doing their part to help Romney defeat Obama. If Obama gets relected and any of the old men on te Supreme court die, then the makeup of the court will swing back to the left and they will have missed their chance to overturn Roe.
So if a company pays for health care, it owns the bodies of its workers. And can therefore interpose itself between their employees and their employee's doctors.
Since we do not have a state religion, and no one is compelled to attend a particular church or any at all, it is up to the individual not the government to determine whether or not they will adhere to their religion's dictates. The government has absolutely no business telling any church run business--or any business run by an individual or board of directors which happens to be very religious--that they must provide coverage for something which is anathema to them.
Second, the Pope has finally relented on allowing African Catholics to use condoms because too many wives were dying of Aids.
Thirdly, it has NOTHING to do with religion and everything to do with defining what health care coverage consists of. Once defined then the Church groups are either providing healthcare or they are not. If they are not they pay a fine and the employee can get subsidized health care through the exchanges. But the Church wants to force their dogma on non-members and also NOT pay the fine. That makes employees of Catholic instituions second class citizens and that's a NO NO.
Lastly, I'm surprised that you didn't comment on Wendall's piece about the fact that under Obamacare there is federal funding available for the creation of CO-OP's. But I do agree that employer-based health care has got to go.