Commentary Magazine


Topic: HHS Mandate

Free Contraception v. the Constitution

Liberal anger over last week’s Hobby Lobby decision increased on Thursday when the U.S. Supreme Court granted a provisional exemption to a Christian college that objected to being compelled to pay or even be complicit in the distribution of abortion-inducing drugs. This will cause the left to redouble efforts to recycle its “war on women” meme. But like many of the recent criticisms of the court, this argument seemed to have everything to do with politics and nothing with the Constitution.

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Liberal anger over last week’s Hobby Lobby decision increased on Thursday when the U.S. Supreme Court granted a provisional exemption to a Christian college that objected to being compelled to pay or even be complicit in the distribution of abortion-inducing drugs. This will cause the left to redouble efforts to recycle its “war on women” meme. But like many of the recent criticisms of the court, this argument seemed to have everything to do with politics and nothing with the Constitution.

The decision that granted Wheaton College the right to avoid even the appearance of complicity in the use of such drugs provoked a particularly angry response from the court’s three female members. Speaking on behalf of the liberal trio, Justice Sonia Sotomayor wrote that allowing Wheaton to opt out of the Health and Human Services Department’s ObamaCare contraception mandate gave the lie to the conservative majority’s assurances in Hobby Lobby. In that decision, Justice Samuel Alito ruled that all they were doing was ensuring that requirements to provide free contraception coverage in insurance plans were enforced in the manner that would not place a “substantial burden” on the religious freedom of those affected.

Sotomayor believed the plan proposed by the government that would require religious non-profits like Wheaton to submit forms to their insurance carriers instructing them to provide the drugs, albeit without payment from the institutions in question, was an adequate fix. The majority rightly disagreed. While a provision to allow the government to step in and pay for the drugs was legal, demanding those with religious objections to the use of such drugs to take part in their distribution in this manner clearly violated the First Amendment protections of religious freedom.

But the debate about this decision, and the subsequent distortions of it on the Sunday talk shows and on MSNBC, demonstrate something far more insidious than merely the latest iteration of what is generally put down as a “culture war” issue. After all, no one, not even Wheaton College or the Green family that owns the Hobby Lobby company are advocating for the ban of contraception or believe that what they are doing in these suits is part of a campaign to end or even limit legal abortions in this country. Rather, what we are witnessing is a liberal meltdown in which they have come to believe the First Amendment is a technicality that should brushed aside when it comes into conflict with the “right” to free contraception.

The notion of such a right dates only to the aftermath of the passage of ObamaCare in 2010 when HHS interpreted the law as an authorization for a mandate that would require all employers, regardless of whether they were religious institutions or not, or the beliefs of their owners, to pay for a wide range of contraception, including those drugs that are believed to cause abortions.

Most Americans are not opposed to any form of contraception and may even approve of drugs or devices that some believers see as abortion inducers. But one doesn’t have to share the convictions of the Greens or the board at Wheaton to understand that a bureaucratic mandate that runs roughshod over their faith trashes the First Amendment protection of free exercise of religion that all Americans rely upon.

Yet for the political left, the concept of religious liberty has been re-interpreted as to only mean the right to be allowed to pray in private but not to live one’s faith in the public square. When faith conflicts with policy initiatives such as the free contraception mandate, they assume that religion must always lose. However, the court majority has rightly reminded us that the freedoms guaranteed in the First Amendment cannot be trashed simply because a lot of Americans want not only access to contraception but also think their employers ought to be compelled to pay for it.

But to liberals, a decision that reaffirms the primacy of religious freedom is just the latest iteration of a Republican “war on women.” As a political slogan, that meme has been political gold for Democrats who believe its use guarantees their stranglehold on the votes of unmarried women. But as infuriating and wrongheaded the war on women arguments may be, what is really troubling about them is that they reflect a utilitarian approach to the Constitution that regards any of its protections as expendable if they are obstacles to a liberal policy goal.

It should be pointed out again that the Religious Freedom Restoration Act that the court has rightly referenced in its decisions granting relief to opponents of the HHS mandate once had bipartisan support. But Democrats appear to be willing to sacrifice it now that its protections for faith are making implementation of this notion of free contraception for all difficult.

This is significant not because that goal is unreasonable or immoral. No-cost contraception is no more absurd than many other federal entitlements, though even its most fervent advocates must understand that the cause of free condoms and birth control pills has none of the moral authority that efforts to guarantee food, shelter, or even basic health care for the poor can command. But even if we were to agree that this particular prooposal is a laudable program, the idea that providing these items free of charge at the expense of all employers—including those with deep religious convictions—is so important that it must take precedence over religious freedom is insupportable. Indeed, it can only be asserted in the context of a belief that no constitutional protections of any kind can stand against it.

Do single women truly believe that their desire for free contraception is a principle of such importance that it trumps the First Amendment? That is a doubtful proposition. But it makes sense in a liberal political environment in which the Constitution no longer commands the respect of one side of the political aisle.

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Sebelius’s Dangerous Legacy of Incompetence and Deception

President Obama’s cheerleaders like to compare him to Abraham Lincoln. In most respects, this is a travesty that both inflates the meager accomplishments of our 44th president and demeans the heroic achievements of our 16th. But in seeking the right moment to dump Health and Human Services Secretary Kathleen Sebelius after her shocking failures during the ObamaCare rollout, the president did take a page out of Lincoln’s handbook.

When Lincoln was thinking about the right moment to unveil the Emancipation Proclamation he told his Cabinet that it had to wait until after the Union won a victory over heretofore-ascendant rebel armies. Though the victory he seized upon for the announcement—the battle of Antietam—was really a bloody draw from which the Confederate army was allowed to escape, it was enough to provide cover for a great and historic act that was intensely controversial at the time. Similarly, President Obama knew that the necessary transition at HHS would have to wait until after the storm of criticism that had come down on Sebelius during the ObamaCare rollout had subsided. But after the administration was able to pump up the number of those enrolled in the program to the 7 million figure by the April 1 deadline, the president declared a victory in the battle over the unpopular program that was far shakier than even the Union’s claims after Antietam.

In announcing Sebelius’s departure and the appointment of Sylvia Matthews Burwell to succeed her at a White House pep rally today, the president continued the pretense that all is well is with ObamaCare and that Sebelius’s tenure at HHS was one of success achieved over immense odds because of the enrollment of over 7 million people in the program. But rarely has any single public official done more to undermine the public’s confidence in the ability of government to function than Kathleen Sebelius. Her incapacity to manage a huge federal bureaucracy was never exactly a secret prior to the October 1, 2013 rollout of the misnamed Affordable Care Act, but from that date on, Sebelius’s out-of-touch leadership style gave new meaning to the term clueless. Her departure for the more competent Burwell is a relief even for those who oppose the president’s signature health-care legislation. But what she leaves behind will always stand as a warning to both presidents and their appointees about the damage they can do.

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President Obama’s cheerleaders like to compare him to Abraham Lincoln. In most respects, this is a travesty that both inflates the meager accomplishments of our 44th president and demeans the heroic achievements of our 16th. But in seeking the right moment to dump Health and Human Services Secretary Kathleen Sebelius after her shocking failures during the ObamaCare rollout, the president did take a page out of Lincoln’s handbook.

When Lincoln was thinking about the right moment to unveil the Emancipation Proclamation he told his Cabinet that it had to wait until after the Union won a victory over heretofore-ascendant rebel armies. Though the victory he seized upon for the announcement—the battle of Antietam—was really a bloody draw from which the Confederate army was allowed to escape, it was enough to provide cover for a great and historic act that was intensely controversial at the time. Similarly, President Obama knew that the necessary transition at HHS would have to wait until after the storm of criticism that had come down on Sebelius during the ObamaCare rollout had subsided. But after the administration was able to pump up the number of those enrolled in the program to the 7 million figure by the April 1 deadline, the president declared a victory in the battle over the unpopular program that was far shakier than even the Union’s claims after Antietam.

In announcing Sebelius’s departure and the appointment of Sylvia Matthews Burwell to succeed her at a White House pep rally today, the president continued the pretense that all is well is with ObamaCare and that Sebelius’s tenure at HHS was one of success achieved over immense odds because of the enrollment of over 7 million people in the program. But rarely has any single public official done more to undermine the public’s confidence in the ability of government to function than Kathleen Sebelius. Her incapacity to manage a huge federal bureaucracy was never exactly a secret prior to the October 1, 2013 rollout of the misnamed Affordable Care Act, but from that date on, Sebelius’s out-of-touch leadership style gave new meaning to the term clueless. Her departure for the more competent Burwell is a relief even for those who oppose the president’s signature health-care legislation. But what she leaves behind will always stand as a warning to both presidents and their appointees about the damage they can do.

In fairness to Sebelius, it must be noted that she was not the architect of ObamaCare. The president and House Minority Leader Nancy Pelosi deserve principle credit for the monstrosity that emerged from Congress in 2010. But her hands-off management led to disaster as she failed to alert the president to the fact that her department was simply nowhere near ready to launch the law in October. The result was the infamous Healthcare.gov website that made a laughingstock of Sebelius but also called into question the basic competence of the administration.

Of course, the real problem with ObamaCare was never the “glitchy” website but the entire concept of a government takeover of health care that would hurt as many, if not more, people than it helped. Yet Sebelius’s foolish confidence and stonewalling of Congress about the disaster will forever stick in the public consciousness as a symbolic of what can go wrong when a career politician is asked to do the job only a technocrat can deal with.

But there’s more to Sebelius’s legacy than incompetence. By refusing to tell the truth about how many of those being counted as enrollees (including the 20 percent of those who signed up on the website but never paid for their coverage) and by delaying much of the more unpopular aspects of the rollout until after this year’s midterm elections, Sebelius not only deepened the cynicism about the law but further undermined the credibility of the government. President Obama claimed today that the “final score speaks for itself” in terms of what Sebelius accomplished, but the real pain inflicted by this program and the massive dislocation in the health-care system as well as job losses and skyrocketing insurance costs that will be felt in the years to come will always be associated with Sebelius.

It should also be noted that by imposing an HHS mandate to force all employers, even those with religious objections, to pay for free contraception and abortion drugs (a provision that is not in the text of ObamaCare but was instead promulgated by her department), Sebelius struck a formidable blow against religious liberty that can only be repaired by the U.S. Supreme Court.

What occurred this year was no victory for health care, President Obama, or Kathleen Sebelius. But her legacy of incompetence and deception will live on long after her departure or even that of her boss.

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Sotomayor Gives Hope to ObamaCare Foes

For most of the last three years since ObamaCare was passed by Congress, liberals have dismissed efforts to overturn the portion of the law mandating that employers pay for contraception and abortion drugs as the province solely of right-wing extremists. They have mocked the notion that the religious rights of churches, religious groups, and believers who own private businesses have been violated by the government’s order.  Even as lawsuits challenging the legality of the Department of Health and Human Services’ mandate have gradually made their way through the federal system, the reaction from the White House and prominent liberal outlets such as the New York Times has been to deny the legitimacy of the debate. Even worse, they have maliciously tried to turn the discussion from one of religious liberty to a false charge that it is the plaintiffs in these suits that are trying to impose religious views on their employees.

But with the Supreme Court already agreeing to consider some challenges to the law, the effort to ignore the appeal to religious liberty received another blow this week when Justice Sonia Sotomayor agreed to issue an injunction against enforcement of the mandate pending resolution of litigation. While in no way a guarantee of future success in court, the liberal Sotomayor’s ruling preventing the government from imposing fines against the Denver-based Little Sisters of the Poor for refusing to obey the ObamaCare dictate is a sign that the plaintiffs have not only a strong argument but a reasonable chance to prevail. This should encourage those who entertain the hope that the administration’s abuse of power may yet be reversed. But it also demonstrates the seriousness of an argument that liberals would prefer to ignore.

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For most of the last three years since ObamaCare was passed by Congress, liberals have dismissed efforts to overturn the portion of the law mandating that employers pay for contraception and abortion drugs as the province solely of right-wing extremists. They have mocked the notion that the religious rights of churches, religious groups, and believers who own private businesses have been violated by the government’s order.  Even as lawsuits challenging the legality of the Department of Health and Human Services’ mandate have gradually made their way through the federal system, the reaction from the White House and prominent liberal outlets such as the New York Times has been to deny the legitimacy of the debate. Even worse, they have maliciously tried to turn the discussion from one of religious liberty to a false charge that it is the plaintiffs in these suits that are trying to impose religious views on their employees.

But with the Supreme Court already agreeing to consider some challenges to the law, the effort to ignore the appeal to religious liberty received another blow this week when Justice Sonia Sotomayor agreed to issue an injunction against enforcement of the mandate pending resolution of litigation. While in no way a guarantee of future success in court, the liberal Sotomayor’s ruling preventing the government from imposing fines against the Denver-based Little Sisters of the Poor for refusing to obey the ObamaCare dictate is a sign that the plaintiffs have not only a strong argument but a reasonable chance to prevail. This should encourage those who entertain the hope that the administration’s abuse of power may yet be reversed. But it also demonstrates the seriousness of an argument that liberals would prefer to ignore.

The injunction in this case is significant because it stops the government from stifling challenges to ObamaCare before the legal process is completed. With organizations and companies that defy the mandate subject to crippling fines that could put them out of business, plaintiffs can be effectively destroyed before a definitive ruling has been reached. While the lower courts in 18 out of 20 such cases have rightly granted such injunctions in the federal system, Sotomayor’s rescue of this group of charitable nuns who had been previously denied judicial relief is a signal victory. That a liberal who is an Obama appointee would act in this way demonstrates that the challenge to the mandate is not a case of conservative groups tilting at windmills.

Liberals have used complaints about the mandate to promote the myth that conservatives were waging a “war against women” as if free contraception were a basic constitutional right. It also ignores the government’s effort to restrict the rights of those being asked to pay.

As some federal courts have already ruled in related cases, the imposition of the president’s vision of a health-care system where all employers — including religious believers whose faith precludes such actions — must pay for contraception or abortion drugs places a severe burden on the free exercise of the religious freedom of those involved. In the absence of the demonstration of a compelling government interest that would force nuns or other groups or individuals opposed to such practices to pay for such services, the law is a clear violation of the Religious Freedom Restoration Act as well as a blow to First Amendment rights. In response to these appeals, the Justice Department has dismissed the idea that anyone’s rights are violated and instead argued that those who work for the nuns or any other religious group or company owned by believers are entitled not only to access to such services but that their employers must pay for it. If this argument were to prevail, the result could be a new and dangerously restrictive definition of religious freedom that would confine the right to practice one’s faith to houses of worship and in the home but not in the public square.

Anyone who attempts to predict how the Supreme Court will rule on any aspect of ObamaCare is unwise, as Chief Justice John Roberts’s illogical opinion, upholding the law as a tax, proved in 2012. But the injunction from Sotomayor, who has already upheld the constitutionality of the law, has to scare liberals who have assumed there was no merit whatsoever to the religious freedom challenge.

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Religious Liberty Triumphs Over OCare

The Obama administration’s effort to force religious organizations and employers to pay for services that violate their beliefs largely provided the basis for the presidential reelection campaign’s faux “war on women” talking point. As such, it must be considered a success as it turned a debate on the constitutionality of the ObamaCare mandate forcing all employers to pay for contraception and abortion drugs into one about the supposed indifference to the rights of women on the part of conservatives. But the legal battle over the fate of the Health and Human Services Department mandate in the courts is not going quite so well for the president. Yesterday, the administration received its sternest judicial rebuke yet as the Federal District Court in Brooklyn, New York granted a permanent injunction against the enforcement of the mandate against four nonprofits operated by the Catholic Diocese of New York. As the New York Times reports:

The ruling, by Brian M. Cogan of Federal District Court in Brooklyn, found that forcing the groups to authorize a third party to provide contraceptive care still violated their religious beliefs even if they were not financially supporting contraception. Churches are already exempt from the mandate to provide contraceptive care.

This is just one of the 88 cases that have been brought against the government by those rightly citing the mandate as a violation of their constitutional rights. But this is the first time the plaintiffs have received a permanent injunction that prevents the government from either enforcing the provision or levying crippling fines against violators. The U.S. Supreme Court will eventually settle this question. But until that happens lower courts still have the ability to bring down financial ruin upon dissenters against the mandate. Though liberals have attempted to spin this issue as one in which church-run agencies (in this case, two high schools and two health-care systems) or private employers are imposing their beliefs on their employees, in fact it is the government that is forcing believers and faith-based institutions to violate their beliefs. The victory in Brooklyn, like other triumphs for the mandate critics in other courts, is one more indication that the legal tide may be turning against a liberal effort to prioritize a vision of national health care over the First Amendment.

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The Obama administration’s effort to force religious organizations and employers to pay for services that violate their beliefs largely provided the basis for the presidential reelection campaign’s faux “war on women” talking point. As such, it must be considered a success as it turned a debate on the constitutionality of the ObamaCare mandate forcing all employers to pay for contraception and abortion drugs into one about the supposed indifference to the rights of women on the part of conservatives. But the legal battle over the fate of the Health and Human Services Department mandate in the courts is not going quite so well for the president. Yesterday, the administration received its sternest judicial rebuke yet as the Federal District Court in Brooklyn, New York granted a permanent injunction against the enforcement of the mandate against four nonprofits operated by the Catholic Diocese of New York. As the New York Times reports:

The ruling, by Brian M. Cogan of Federal District Court in Brooklyn, found that forcing the groups to authorize a third party to provide contraceptive care still violated their religious beliefs even if they were not financially supporting contraception. Churches are already exempt from the mandate to provide contraceptive care.

This is just one of the 88 cases that have been brought against the government by those rightly citing the mandate as a violation of their constitutional rights. But this is the first time the plaintiffs have received a permanent injunction that prevents the government from either enforcing the provision or levying crippling fines against violators. The U.S. Supreme Court will eventually settle this question. But until that happens lower courts still have the ability to bring down financial ruin upon dissenters against the mandate. Though liberals have attempted to spin this issue as one in which church-run agencies (in this case, two high schools and two health-care systems) or private employers are imposing their beliefs on their employees, in fact it is the government that is forcing believers and faith-based institutions to violate their beliefs. The victory in Brooklyn, like other triumphs for the mandate critics in other courts, is one more indication that the legal tide may be turning against a liberal effort to prioritize a vision of national health care over the First Amendment.

It bears repeating that one needn’t share the Catholic beliefs about contraception or abortion put forward by the church or other believers (such as the owners of the Hobby Lobby chain of stores that will have their appeal of the mandate heard by the Supreme Court) to realize that what is at stake in these cases is nothing less than the future of religious freedom in this country.

Neither the church nor private businesses are preventing their employees from using contraception or having abortions. What they are doing is saying is that a law that forces them to pay for such services despite their religious principles against doing so is patently unconstitutional. Only in the legal universe of ObamaCare, which puts forward the dubious notion that not only do Americans have the right to use contraception or abortion but also that everyone is entitled to have their employers pay for it regardless of their religious principles, is this controversial. The notion that the refusal of religious believers to subsidize behavior that offends their faith is a form of discrimination against women is a legal absurdity. As the Diocese correctly noted in a statement:

“The court has correctly cut through the artificial construct which essentially made faith-based organizations other than churches and other houses of worship second-class citizens with second-class First Amendment protections,” Joseph Zwilling, a spokesman for the archdiocese, said in a statement.

The point here is that a definition of religious liberty in which faith has no place in the public square is one that is inconsistent with the Constitution as well as with the principles of a free society. Religious freedom is not just the right to pray at home or in church, synagogue, or mosque but the ability to live one’s faith in public. While the Obama administration’s effort to provide universal health-care coverage may be well-intentioned, the fact that it views its mandates as superseding the First Amendment rights of citizens is an ominous indication of what happens when government gives itself such powers.

The injunction granted in Brooklyn is but one skirmish in what has been a long legal war. But it is encouraging to see that in this case, as in others, there are judges who still value freedom more than a belief in the power of big government to impose its values on the people.

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SCOTUS Gives Religious Freedom a Hearing

Finally, after three years of debate and litigation, the nation will get an answer. The Health and Human Services Department’s ObamaCare mandate that forces all employers to pay for abortion drugs has been challenged by religious believers in courts across the nation since the passage of the president’s signature health-care legislation in 2010. The federal district and appellate courts have handed down mixed verdicts with some saying that the owners of companies must pay for coverage of services that violate their religious beliefs and others holding that the Religious Freedom Restoration Act protects their rights to refrain from supporting acts that violate their conscience. But now that the Supreme Court of the United States has agreed to hear appeals of two such cases in which the appeals courts handed down contradictory rulings, the issue will be settled once and for all.

But more than just the fate of two companies–one an Oklahoma City-based crafts store chain owned by Catholics and the other a Pennsylvania custom furniture manufacturer owned by Mennonites–are at stake in the legal battle that will probably be decided next spring. If the HHS Mandate is overturned by the high court, it will mark a signal victory for religious liberty over the efforts of the Obama administration to keep faith off the public square and out of public life. Liberal defenders of the government say the owners of Hobby Lobby and Conestoga Wood Specialties Corporation are wrong to say their personal First Amendment right to religious freedom extends to their business. But the plaintiffs and their supporters rightly maintain that what HHS is doing is to strong-arm these business owners into compliance with ObamaCare via a rule that will force them to choose between their faith and the survival of their enterprises. If the HHS Mandate is upheld, it will create a new, cribbed definition of religious freedom that will effectively mean that faith is only something to be practiced in private.

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Finally, after three years of debate and litigation, the nation will get an answer. The Health and Human Services Department’s ObamaCare mandate that forces all employers to pay for abortion drugs has been challenged by religious believers in courts across the nation since the passage of the president’s signature health-care legislation in 2010. The federal district and appellate courts have handed down mixed verdicts with some saying that the owners of companies must pay for coverage of services that violate their religious beliefs and others holding that the Religious Freedom Restoration Act protects their rights to refrain from supporting acts that violate their conscience. But now that the Supreme Court of the United States has agreed to hear appeals of two such cases in which the appeals courts handed down contradictory rulings, the issue will be settled once and for all.

But more than just the fate of two companies–one an Oklahoma City-based crafts store chain owned by Catholics and the other a Pennsylvania custom furniture manufacturer owned by Mennonites–are at stake in the legal battle that will probably be decided next spring. If the HHS Mandate is overturned by the high court, it will mark a signal victory for religious liberty over the efforts of the Obama administration to keep faith off the public square and out of public life. Liberal defenders of the government say the owners of Hobby Lobby and Conestoga Wood Specialties Corporation are wrong to say their personal First Amendment right to religious freedom extends to their business. But the plaintiffs and their supporters rightly maintain that what HHS is doing is to strong-arm these business owners into compliance with ObamaCare via a rule that will force them to choose between their faith and the survival of their enterprises. If the HHS Mandate is upheld, it will create a new, cribbed definition of religious freedom that will effectively mean that faith is only something to be practiced in private.

Liberals are mocking the claim that these business owners have any rights to refuse to fund abortion drugs or even contraception. But the constitutional right to religious freedom is not just about the ability to choose which house of worship to attend or to say private prayers without government interference. Government has no right to tell individuals that they must fund practices that violate their conscience or faith.

Even more contemptible is the attempt by the government and its leftist cheering section to claim that these business owners are imposing their beliefs on their employees, an assertion made by the New York Times earlier this month when it lamented that an appeals court had upheld religious freedom in a related case. The company owners are not requiring their employees to believe as they do or to refrain from having abortions. But they are within their rights to say that if an employee wishes to have one, they should not look to their employers for a subsidy for that act. If the mandate is upheld, then it is not freedom of conscience that is being protected but instead a dubious right to free abortion pills or contraception that cannot be found in any fair reading of the Constitution. It is faith that is under siege in these cases, not abortion rights.

As Appeals Court Justice Janice Rogers Brown wrote in a related case, “The Framers of the Constitution embraced the philosophical insight that government coercion of moral agency is odious.” She went on to write that the mandate is a “compelled affirmation of a repugnant belief” and therefore an unconstitutional burden on free exercise of religion. The Supreme Court will therefore not be deciding the right to abortion or contraception but whether the government’s belief that employers must pay for such services can supersede an employer’s right to free exercise.

Though the fate of ObamaCare will not be decided in these cases, it must be understood that the legislation’s vision of government making decisions about health care practices and policies is integral to the mandate’s attempt to abrogate fundamental constitutional rights. As wrongheaded as Congress was to impose governmental fiats on health care in this manner, the government’s attempt to trample on the rights of religious believers in this fashion is even more offensive. One need not agree with conservative Christians on either abortion or contraception to understand that the underlying principle in this case is the protection of the religious liberty of all Americans. It is to be hoped that the hearing and the decision rendered by the Supreme Court will check the efforts of the federal government to impinge on religious liberty in the name of universal health care. 

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Religious Freedom Isn’t Discrimination

With the country focused on a dysfunctional website and President Obama’s lies and half-baked apology, an important development in the ObamaCare story was largely overlooked earlier this month. After years of litigation, the question of whether the Health and Human Services Department can enforce the ObamaCare mandate requiring employers to pay for services that violate their religious convictions moved a step closer to final resolution when the United States Court of Appeals for the District of Columbia issued a crucial ruling. In a 2-1 vote, the court rightly decided that the president’s signature health-care legislation violated the First Amendment to the Constitution by forcing owners of businesses to pay for insurance coverage for contraception or abortion-causing drugs. The case, Gilardi v. U.S. Department of Health and Human Services, one of many challenges to the mandate that have been making their way through the federal system since ObamaCare’s passage, may now come before the U.S. Supreme Court to decide the question once and for all.

The decision by Justice Janice Rogers Brown was an important blow struck for the cause of religious liberty. But it is telling that supporters of the mandate and the bill that created it are labeling the attempt to defend the rights of religious believers as an act of discrimination. That was the conceit of a New York Times editorial on the subject published Friday that asserted that what was at stake was the attempt by religious believers to impose their prejudices on their employees. As Justice Brown pointed out in her ruling, that argument doesn’t hold water. The fact that liberals are trying frame their attempt to impose a national health plan that will trample the rights of religious Americans is clear. But that the Times editorial page is so contemptuous of opposing views that it cannot conceive of the defense of religious freedom as anything other than an attempt “to discriminate against women” says more about the liberal mindset these days than it does about the plaintiffs in this case.

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With the country focused on a dysfunctional website and President Obama’s lies and half-baked apology, an important development in the ObamaCare story was largely overlooked earlier this month. After years of litigation, the question of whether the Health and Human Services Department can enforce the ObamaCare mandate requiring employers to pay for services that violate their religious convictions moved a step closer to final resolution when the United States Court of Appeals for the District of Columbia issued a crucial ruling. In a 2-1 vote, the court rightly decided that the president’s signature health-care legislation violated the First Amendment to the Constitution by forcing owners of businesses to pay for insurance coverage for contraception or abortion-causing drugs. The case, Gilardi v. U.S. Department of Health and Human Services, one of many challenges to the mandate that have been making their way through the federal system since ObamaCare’s passage, may now come before the U.S. Supreme Court to decide the question once and for all.

The decision by Justice Janice Rogers Brown was an important blow struck for the cause of religious liberty. But it is telling that supporters of the mandate and the bill that created it are labeling the attempt to defend the rights of religious believers as an act of discrimination. That was the conceit of a New York Times editorial on the subject published Friday that asserted that what was at stake was the attempt by religious believers to impose their prejudices on their employees. As Justice Brown pointed out in her ruling, that argument doesn’t hold water. The fact that liberals are trying frame their attempt to impose a national health plan that will trample the rights of religious Americans is clear. But that the Times editorial page is so contemptuous of opposing views that it cannot conceive of the defense of religious freedom as anything other than an attempt “to discriminate against women” says more about the liberal mindset these days than it does about the plaintiffs in this case.

Much is being made of the fact that Justice Brown ruled that companies owned by Francis and Phillip Gilardi—Freshway Foods and Freshway Logistics—do not have the right to challenge the mandate in their own right, as the plaintiffs in this case and other ObamaCare challengers have insisted. But by ruling that the owners have that right, that proves to be in practice a distinction without a difference. At the core of the case is the provision of the Religious Freedom Restoration Act, which forbids the federal government from placing a substantial burden on the free exercise of religion, even when a law is religiously neutral, except if there is a compelling government interest and has been crafted in such a way as to minimize restrictions on religious belief.

The government claims the ObamaCare mandate to enforce a universal right to free contraception and abortion drugs is just such a compelling government interest. But the plaintiffs rightly assert the mandate is an unconstitutional infringement on their religious liberty. As Justice Brown noted, “The Framers of the Constitution embraced the philosophical insight that government coercion of moral agency is odious.”

As the ruling states:

The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase— is a “compelled affirmation of a repugnant belief.” That standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their fait, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not “substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met.

It should be understood that by striking down the Mandate, the court is not allowing owners of businesses to prevent their employees from using contraception or having abortions. But, as Justice Brown ruled, extending that personal right to an entitlement to have one’s employer pay for such services, even when they clearly violate the religious beliefs of the individuals involved, “trammels the right of free exercise.”

But to liberal ObamaCare supporters like the Times, none of this matters because it impedes their vision of a national health-care system in which free contraception and abortion drugs must trump even fundamental constitutional rights. Religious freedom is not just a right to gather in houses of worship and pray but for citizens to be able to live their faith in the public square. Should the government ultimately prevail in this and related cases it would create a new, cribbed vision of religious freedom that would substantially restrict the ability of believers to practice their faith. 

The argument against putting health care in the hands of the federal government is substantial. But just as compelling is the fight that has been going on in the courts to stop the federal government from using this bill to trample on the rights of religious believers. One need not oppose contraception or even abortion—as the Catholic businessmen who are the plaintiffs in this case do—to understand that a broader principle that protects all Americans is at stake here. Let’s hope that Supreme Court takes up this case and finally rules to spike the HHS mandate and protect the religious liberty that ObamaCare is threatening.

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A Victory For Religious Freedom

The decision last year by the U.S. Supreme Court to deem ObamaCare constitutional was a blow to opponents of the president’s signature health care legislation, but it also added to the worries of those Americans who considered it a threat to their religious freedom. In particular, the decision by the Health and Human Services Department to demand that employers provide certain types of health services placed those religious believers who opposed the use of abortion-inducing drugs in a difficult position. They could go along with the HHS mandate and thus betray their consciences and beliefs, or resist the ruling and face complete financial ruin due to the draconian penalties imposed on businesses that do not comply with the government’s rulings.

But with the aid of the Becket Fund for Religious Liberty, the Green family, which owns the Hobby Lobby chain of stores, sued to prevent the government from imposing the mandate on their business. Yesterday, the Greens won a key victory when the 10th Federal Circuit Court of Appeals overruled the district court and said Hobby Lobby should not have been denied an injunction that would have prevented the government from imposing millions in fines while the case was still pending. In doing so, the majority of the appellate court judges said the Greens had a good chance of prevailing on the merits of their case—Hobby Lobby v. Kathleen Sebelius—which claims that the Federal Religious Freedom Restoration Act ought to prevent HHS from imposing practices on the business that effectively deny the religious freedom of its owners. While the Hobby Lobby case still has a long way to go, this is an important win that not only holds out the possibility of eventual triumph for the plaintiffs but also removes a key weapon from the government that might have made it impossible for the suit to go on.

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The decision last year by the U.S. Supreme Court to deem ObamaCare constitutional was a blow to opponents of the president’s signature health care legislation, but it also added to the worries of those Americans who considered it a threat to their religious freedom. In particular, the decision by the Health and Human Services Department to demand that employers provide certain types of health services placed those religious believers who opposed the use of abortion-inducing drugs in a difficult position. They could go along with the HHS mandate and thus betray their consciences and beliefs, or resist the ruling and face complete financial ruin due to the draconian penalties imposed on businesses that do not comply with the government’s rulings.

But with the aid of the Becket Fund for Religious Liberty, the Green family, which owns the Hobby Lobby chain of stores, sued to prevent the government from imposing the mandate on their business. Yesterday, the Greens won a key victory when the 10th Federal Circuit Court of Appeals overruled the district court and said Hobby Lobby should not have been denied an injunction that would have prevented the government from imposing millions in fines while the case was still pending. In doing so, the majority of the appellate court judges said the Greens had a good chance of prevailing on the merits of their case—Hobby Lobby v. Kathleen Sebelius—which claims that the Federal Religious Freedom Restoration Act ought to prevent HHS from imposing practices on the business that effectively deny the religious freedom of its owners. While the Hobby Lobby case still has a long way to go, this is an important win that not only holds out the possibility of eventual triumph for the plaintiffs but also removes a key weapon from the government that might have made it impossible for the suit to go on.

When the HHS mandate was first handed down, the key battle was fought over the government’s desire to impose the contraceptive mandate on the institutions of the Catholic Church. While the administration was able to manipulate the discussion of this direct attack on religious freedom into one about a so-called “war on women,” eventually a campaign of public pressure led the government to back down on their desire to enforce the mandate on both churches and then church institutions. But that still left individual business owners who had strong religious convictions in the cross-hairs of the HHS mandate. The administration calculated that if it removed the church from the fight on the mandate, it would be able to easily defeat the efforts of people like the owners of Hobby Lobby to resist.

They may eventually prevail, but the decision of the 10th circuit gives hope to those who believe the willingness of the government to intrude on individual consciences in this manner is outrageous.

It should be specified that the owners of Hobby Lobby are not attempting to prevent their employees from having access to contraception. But making religious Catholics pay for abortion drugs crosses the line between reasonable insurance regulations and a concerted attack on religious liberty.

Liberal defenders of the HHS mandate have characterized resistance to the mandate as an attack on women’s health while claiming the regulation does not deny the store owners’ right to worship or to personally refrain from any practice that offends their religion. But if the government eventually prevails, it would impose a cribbed version of religious liberty that would significantly impair the First Amendment rights of believers.

The government and its defenders seem to believe that religious freedom means only the right to believe something and to practice it in private. If the HHS mandate were upheld, it would signal to the country that faith is fine at home or in houses of worship but not in the public square. Religious believers would be told that if they wish to practice their faith they must refrain from commerce or any public activity. Forcing the Greens to pay for abortion drugs is no different from telling them they must keep their stores open on Sunday (they are closed on that day due to the owners’ religious beliefs) or to require a Jew to keep his business running on the Sabbath or that they must serve non-kosher food at kosher restaurants.

It may be that the Greens’ views on these drugs are not universally held and may, in fact, be unpopular. But one needn’t agree with them on contraception in order to realize that an attack on their religious freedom is a blow to the liberty of every American no matter what their faith, or even if they believe in no religion. This preliminary win for Hobby Lobby and the Becket Fund is a hopeful sign for the future of American liberty.

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Church Shouldn’t Stand Alone on Mandate

If President Obama thought he could separate the Catholic Church from other critics of the ObamaCare mandate compelling believers to pay for services that violate their faith, he was wrong. The administration thought the compromise it announced February 1 would accomplish just that objective since it broadened the narrow exemptions from the Health and Human Services Department mandate to include religious non-profits. But while the U.S. Conference of Catholic Bishops welcomed this movement, it rightly noted that it fell far short of guaranteeing that persons of faith would have their religious freedom protected from the dictates of the federal government. As the organization’s statement made clear, the head of the conference, Cardinal Timothy Dolan of New York City, listed three major problems with the proposal:

He [Cardinal Dolan] listed three key areas of concern: the narrow understanding of a religious ministry; compelling church ministries to fund and facilitate services such as contraceptives, including abortion-inducing drugs, and sterilization that violate Catholic teaching; and disregard of the conscience rights of for-profit business owners.

In refusing to be co-opted into the mandate to pay for abortion and contraceptive services, the bishops have made it clear that the fight against the strong-arming of faith by the government will not go unchallenged. In doing so, they deserve the support of all faith groups as well as all persons of conscience who value the protections guaranteed Americans by the First Amendment to the Constitution.

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If President Obama thought he could separate the Catholic Church from other critics of the ObamaCare mandate compelling believers to pay for services that violate their faith, he was wrong. The administration thought the compromise it announced February 1 would accomplish just that objective since it broadened the narrow exemptions from the Health and Human Services Department mandate to include religious non-profits. But while the U.S. Conference of Catholic Bishops welcomed this movement, it rightly noted that it fell far short of guaranteeing that persons of faith would have their religious freedom protected from the dictates of the federal government. As the organization’s statement made clear, the head of the conference, Cardinal Timothy Dolan of New York City, listed three major problems with the proposal:

He [Cardinal Dolan] listed three key areas of concern: the narrow understanding of a religious ministry; compelling church ministries to fund and facilitate services such as contraceptives, including abortion-inducing drugs, and sterilization that violate Catholic teaching; and disregard of the conscience rights of for-profit business owners.

In refusing to be co-opted into the mandate to pay for abortion and contraceptive services, the bishops have made it clear that the fight against the strong-arming of faith by the government will not go unchallenged. In doing so, they deserve the support of all faith groups as well as all persons of conscience who value the protections guaranteed Americans by the First Amendment to the Constitution.

The point of this exchange as far as the administration was concerned was an effort to isolate those who are still pursuing legal challenges against the mandate by offering the church a plausible path to retreat from the confrontation. Doing so would have been taking the easy way out for the church since most of their institutions have now been rendered exempt. But Cardinal Dolan and his colleagues have rightly pointed out that the underlying compulsion of the Mandate would still compromise their faith as well as leave private business owners vulnerable to such coercion.

It needs to be reiterated that you don’t have to agree with the Church’s views about abortion or contraception to support their stand on this issue. Contrary to the false narrative on this issue alleging that a faux “war on women” was being waged by opponents of the mandate that was used by the president during his re-election campaign, what is at stake here is an attempt by the administration to narrowly redefine the concept of religious liberty. If the president prevails on this point, the right to dissent on religious grounds from prevailing views about these matters will be swept out of the public square and confined to the right to preach about it in houses of worship.

By entangling the Church in the ObamaCare system in this manner and allowing neither agencies nor their employees or private businesses to opt out, the government is enacting a rule that tramples on their freedom.

Cardinal Dolan eloquently summed up this dilemma:

In obedience to our Judeo-Christian heritage, we have consistently taught our people to live their lives during the week to reflect the same beliefs that they proclaim on the Sabbath. We cannot now abandon them to be forced to violate their morally well-informed consciences.

There is no reasonable argument to be made on behalf of the idea that there is a constitutional right to free contraception or abortion, but if the government decides, as it has with ObamaCare, to enact a new entitlement to provide such services it may do so. Yet the desire to implement this entitlement cannot be allowed to override or negate the constitutional right to freedom of religion. This is an issue that cannot be dismissed on the ground that the majority of Americans don’t oppose contraception or do not otherwise share the faith of those groups and individuals who are challenging the mandate in court. If the rest of the country watches passively as the mandate is fought in the name of religious liberty, we will all be the losers. The Church is right to stand its ground. It should not be allowed to stand it alone.

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An Inadequate Contraception Compromise

Last year’s Supreme Court decision declaring ObamaCare constitutional ensured that the massive expansion of government power would go forward, but it did not remove all legal challenges to the legislation. Religious organizations rightly objected to the bill’s mandate that even those who objected on religious grounds had to pay for services that violated their beliefs. Opponents of the mandate were falsely portrayed last year as taking part in a Republican “war on women” that helped whip up support for President Obama and the Democrats. Yet Church groups and others who opposed being compelled to pay for abortion drugs and contraception services rejected those slurs and challenged the mandate in court with lawsuits that were proceeding with mixed success.

But after today, some of those suits will be dropped after the White House announced a limited retreat on the issue. According to reports, the administration will no longer insist that religious non-profits observe the mandate or be in any way made to pay for services that offend their consciences. This is very good news for church institutions that were not previously exempted. But it is by no means the end of the story. Under the revised rules, individual business owners—such as those who run the Hobby Lobby store chain—who similarly object on religious grounds, are still liable to ruinous penalties amounting to millions of dollars. This amounts to a cribbed definition of religious freedom that limits its expressions only to non-profits and houses of worship, but forces all others to bend to the dictates of the federal government even at the cost of their right to practice their faith.

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Last year’s Supreme Court decision declaring ObamaCare constitutional ensured that the massive expansion of government power would go forward, but it did not remove all legal challenges to the legislation. Religious organizations rightly objected to the bill’s mandate that even those who objected on religious grounds had to pay for services that violated their beliefs. Opponents of the mandate were falsely portrayed last year as taking part in a Republican “war on women” that helped whip up support for President Obama and the Democrats. Yet Church groups and others who opposed being compelled to pay for abortion drugs and contraception services rejected those slurs and challenged the mandate in court with lawsuits that were proceeding with mixed success.

But after today, some of those suits will be dropped after the White House announced a limited retreat on the issue. According to reports, the administration will no longer insist that religious non-profits observe the mandate or be in any way made to pay for services that offend their consciences. This is very good news for church institutions that were not previously exempted. But it is by no means the end of the story. Under the revised rules, individual business owners—such as those who run the Hobby Lobby store chain—who similarly object on religious grounds, are still liable to ruinous penalties amounting to millions of dollars. This amounts to a cribbed definition of religious freedom that limits its expressions only to non-profits and houses of worship, but forces all others to bend to the dictates of the federal government even at the cost of their right to practice their faith.

It needs to be restated that one needn’t share the views of the Catholic Church about contraception or abortion to understand that what is at stake here is a principle of religious freedom that ought not to be sacrificed. The notion of universal and free contraception insurance coverage may be popular and even desirable for those who have no qualms about the government’s intrusion into this sphere of the economy or the consequent ruinous costs to both the taxpayers and the healthcare system. But however much the idea of free contraception appeals to some people, it is not a constitutional right. Nor is it a value that ought to trump the primary guarantees of the First Amendment that protect liberty of faith.

The White House retreat on the issue to the extent of exempting church institutions including schools is a sign of progress. It’s also intended to separate the church from individual believers whose rights will not be protected by this compromise. The church has been wrongly portrayed as trying to thwart the availability of contraception even though it is doing no such thing. The point of the administration’s campaign on this issue was not, as they claimed, to protect the health of women but to demonize those who stood up for their rights. But however much this retreat will be welcomed, it should not cause those who have fought this mandate to back down from their efforts to ensure that all believers and not just those registered as non-profits are allowed to opt out of a system that tramples on their faith.

At the core of this struggle is the question of whether a government that has given itself more power has the right to run roughshod over the First Amendment in order to satisfy the liberal ambition to move toward a national health care system. Religious freedom does not consist merely of the right to preach in churches or synagogues, but in allowing those who believe to fully participate in society. If the mandate tramples faith by individuals in this manner, it means that faith is no longer welcome in the public square but instead must be segregated and confined to houses of worship. Though the church is happily no longer in peril of such compulsion, others remain in the government’s cross hairs. Their challenge should continue and be rewarded with success in the courts.

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Sotomayor’s Blow to Religious Liberty

Chief Justice John Roberts’s decision to uphold the constitutionality of ObamaCare ended the discussion about the president’s signature health care legislation as far as most of the media was concerned. But for Americans whose rights have been infringed by the bill’s mandate requiring business owners to pay for services that violate their religious beliefs, the issue remains a matter of vital concern. On January 1 the penalties associated with that mandate went into effect and the battle in the courts to head off this grievous infringement of religious liberty is meeting with mixed success.

One federal judge blocked the enforcement of the mandate in a lawsuit brought by the founder of Domino’s Pizza, saying the legislation “substantially burdens the exercise of religion.” In doing so, the court prevented the government from levying massive fines on Thomas Monaghan’s property management firm while his challenge to the constitutionality of the provision proceeds through the courts. That ruling comes in the wake of decisions from federal appeals courts in St. Louis and Chicago that stopped the Department of Health and Human Services from punishing those who are fighting the mandate to pay for contraception and abortion drugs. But in a signal defeat for the cause of freedom, U.S. Supreme Court Justice Sonia Sotomayor turned down a similar request from the owners of Hobby Lobby stores and a Christian book store firm. That means these companies will be subjected to millions of dollars in fines for violating the law even though they claim it is a matter of conscience.

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Chief Justice John Roberts’s decision to uphold the constitutionality of ObamaCare ended the discussion about the president’s signature health care legislation as far as most of the media was concerned. But for Americans whose rights have been infringed by the bill’s mandate requiring business owners to pay for services that violate their religious beliefs, the issue remains a matter of vital concern. On January 1 the penalties associated with that mandate went into effect and the battle in the courts to head off this grievous infringement of religious liberty is meeting with mixed success.

One federal judge blocked the enforcement of the mandate in a lawsuit brought by the founder of Domino’s Pizza, saying the legislation “substantially burdens the exercise of religion.” In doing so, the court prevented the government from levying massive fines on Thomas Monaghan’s property management firm while his challenge to the constitutionality of the provision proceeds through the courts. That ruling comes in the wake of decisions from federal appeals courts in St. Louis and Chicago that stopped the Department of Health and Human Services from punishing those who are fighting the mandate to pay for contraception and abortion drugs. But in a signal defeat for the cause of freedom, U.S. Supreme Court Justice Sonia Sotomayor turned down a similar request from the owners of Hobby Lobby stores and a Christian book store firm. That means these companies will be subjected to millions of dollars in fines for violating the law even though they claim it is a matter of conscience.

At stake in this battle is whether the Religous Freedom Restoration Act passed by Congress will prevent the government from compelling Catholics and others to violate the dictates of their faith. On the face of it, they have a strong case for striking this provision down, but the full power of the Justice Department and its army of lawyers who have the enthusiastic support of pro-abortion grops and much of the liberal mainstream media are arrayed against them. That’s why persons of faith who seek to overturn the law have always faced an uphill battle.

Sotomayor’s decision illustrates just how difficult that task may turn out to be. Even if the owners of Hobby Lobby eventually prevail in court and their rights are upheld, a vengeful Obama administration determined to make an example of anyone who crosses them could have already destroyed their business. By sinking them under the weight of fines, the government could drive them out of business before any final decision is handed down.

One needn’t agree with the religious beliefs of the Hobby Lobby owners, or those other individuals who have brought dozens of lawsuits in various federal courts to stop the mandate, in order to see the value of the principle they are attempting to uphold. Nor need one agree with them about abortion or share their qualms about the morality of contraception. The point here is that if ObamaCare is allowed to give the government the power to render Catholic doctrine beyond the pale in this manner, then no one’s faith is safe.

Sotomayor could have ruled in the same manner as some of the appellate panels have already done and simply held off any punishment of the petitioners until the courts decided the case. But in claiming that the rationale for their request was insubstantial, the Obama appointee signaled that she and other liberals view the question of religious freedom as irrelevant to their quest to impose their diktat of universal coverage for contraception and abortion. While Justice Roberts strove to have the courts rise above partisan politics by refusing to let the court stop ObamaCare despite the fact that it violated the Commerce Clause of the Constitution, Sotomayor did not scruple from acting in a manner that seeks to ensure that the president will get his way on this issue one way or the other.

Should Hobby Lobby, Monaghan and other religious believers lose, the result will be a new, more cribbed definition of religious liberty that will bear little resemblance to the sweeping freedom promised in the First Amendment. Though some business owners may falter along the way toward the final resolution of these cases, it is to be hoped that in the end, the Supreme Court will not let this outrageous attack on the Constitution prevail.

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Even Moderate Mitt Should Talk About Religious Freedom

In the aftermath of the second presidential debate, Democrats are attempting to reboot the “war on women” theme that was the keynote for President Obama’s re-election campaign during the spring and summer. That’s being driven in large part by Mitt Romney’s “binders of women” comment, but it was also the product of the exchange at Hofstra between the two about insurance coverage of contraception. The president slammed Romney for opposing universal coverage of contraception under his ObamaCare bill, while the Republican claimed he wanted to ensure full access to it for all women.

Democrats are claiming this is another example of the new “Moderate Mitt” that has replaced the “severely conservative” candidate that campaigned in Republican primaries, and to some extent they are right. Romney was telling the truth in that he clearly does not oppose denying access to contraception to anyone, nor does he think that “employers should tell someone whether they could have contraceptive care or not.” But he passed on the chance to explain to voters how the ObamaCare mandate infringes on the religious freedom of religious institutions and individuals, since it forces them to pay for services that violate their consciences and their faith. This was just one of a number of flubbed opportunities to hit the president on issues where he is vulnerable on Tuesday, but it reinforced the impression that in his desire not to offend moderates and especially women voters, he is willing to abandon the principles he campaigned on up to this point. Given the stakes that might be understandable, but the Romney campaign ought not to confuse the need to portray the candidate as a reasonable person that women can trust with a less laudable desire to fudge the differences with Obama on important issues. Romney should be speaking more about religious freedom, not abandoning the issue to the president.

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In the aftermath of the second presidential debate, Democrats are attempting to reboot the “war on women” theme that was the keynote for President Obama’s re-election campaign during the spring and summer. That’s being driven in large part by Mitt Romney’s “binders of women” comment, but it was also the product of the exchange at Hofstra between the two about insurance coverage of contraception. The president slammed Romney for opposing universal coverage of contraception under his ObamaCare bill, while the Republican claimed he wanted to ensure full access to it for all women.

Democrats are claiming this is another example of the new “Moderate Mitt” that has replaced the “severely conservative” candidate that campaigned in Republican primaries, and to some extent they are right. Romney was telling the truth in that he clearly does not oppose denying access to contraception to anyone, nor does he think that “employers should tell someone whether they could have contraceptive care or not.” But he passed on the chance to explain to voters how the ObamaCare mandate infringes on the religious freedom of religious institutions and individuals, since it forces them to pay for services that violate their consciences and their faith. This was just one of a number of flubbed opportunities to hit the president on issues where he is vulnerable on Tuesday, but it reinforced the impression that in his desire not to offend moderates and especially women voters, he is willing to abandon the principles he campaigned on up to this point. Given the stakes that might be understandable, but the Romney campaign ought not to confuse the need to portray the candidate as a reasonable person that women can trust with a less laudable desire to fudge the differences with Obama on important issues. Romney should be speaking more about religious freedom, not abandoning the issue to the president.

Far from a minor point, ObamaCare remains one of the key points at stake in this election. If the president is re-elected, the legislation will be fully implemented. Opponents of the bill, among whom Romney presumably numbers himself, believe that the president’s efforts to impose this mandate unconstitutionally infringes on our first freedom — religious liberty — and must be stopped. If it is implemented it will mark a turning point in which liberals will be able to redefine religious freedom in such a way as to restrict to it the home and the church, but to rout it out of the public square.

It is vital that Romney show himself not to be the monster that is shown in Democratic attack ads. The first debate was important because it was the first opportunity for many American women to take a good look at the Republican alongside the president. The boost in Romney’s popularity among women was far more the result of their favorable opinion of him than the president’s lackluster performance.

Maintaining that momentum among female voters doesn’t require Romney to backtrack on ObamaCare or religious freedom. To the contrary, these are issues that are as important to women as to men. The idea that free contraception is the issue on which the female vote will turn is a liberal myth. Women won’t be threatened by a discussion that centers on the rights of believers so long as he makes it plain that he isn’t interested in stopping anyone from doing what they want in their personal lives. Romney’s failure to explain his differences with the president on the issue won’t help him win the women’s vote, or anybody else’s for that matter.

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Biden’s Lie About Religious Freedom

Here’s one final note about the vice presidential debate. Both Vice President Biden and Paul Ryan had their weak moments. Ryan couldn’t explain what Mitt Romney would do differently in the future to deal with the tragedy in Syria even if he was right about President Obama’s mistakes. He was also flummoxed by Biden’s comeback about his request for stimulus funds for his Wisconsin congressional district, something for which he should have been prepared. The list of Biden’s mistakes is much longer. Biden told a flat out lie when he claimed he opposed the Iraq War and the add-on of the prescription drug plan to Medicare. He voted for both of the wars and the free drugs for seniors. But as bad as that was, far more offensive was the lie about the administration’s attack on religious freedom via ObamaCare.

In response to Ryan’s accurate charge that the HHS Mandate under ObamaCare forces religious institutions to violate their consciences to pay for services their faith opposes, Biden claimed the following:

With regard to the assault on the Catholic Church, let me make it absolutely clear. No religious institution—Catholic or otherwise, including Catholic social services, Georgetown hospital, Mercy hospital, any hospital—none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact. That is a fact.

Nothing could be farther from the truth. Indeed, one might ask Biden if Georgetown is not being compelled to pay for contraception, then what exactly was behind the ruckus about Sandra Fluke’s complaints about the university’s refusal to do so. Biden’s claim was not only an offensive falsehood, it was a stupid one since even his liberal supporters know that is what is happening.

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Here’s one final note about the vice presidential debate. Both Vice President Biden and Paul Ryan had their weak moments. Ryan couldn’t explain what Mitt Romney would do differently in the future to deal with the tragedy in Syria even if he was right about President Obama’s mistakes. He was also flummoxed by Biden’s comeback about his request for stimulus funds for his Wisconsin congressional district, something for which he should have been prepared. The list of Biden’s mistakes is much longer. Biden told a flat out lie when he claimed he opposed the Iraq War and the add-on of the prescription drug plan to Medicare. He voted for both of the wars and the free drugs for seniors. But as bad as that was, far more offensive was the lie about the administration’s attack on religious freedom via ObamaCare.

In response to Ryan’s accurate charge that the HHS Mandate under ObamaCare forces religious institutions to violate their consciences to pay for services their faith opposes, Biden claimed the following:

With regard to the assault on the Catholic Church, let me make it absolutely clear. No religious institution—Catholic or otherwise, including Catholic social services, Georgetown hospital, Mercy hospital, any hospital—none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact. That is a fact.

Nothing could be farther from the truth. Indeed, one might ask Biden if Georgetown is not being compelled to pay for contraception, then what exactly was behind the ruckus about Sandra Fluke’s complaints about the university’s refusal to do so. Biden’s claim was not only an offensive falsehood, it was a stupid one since even his liberal supporters know that is what is happening.

In truth, the attempt to force both church institutions and individuals to bow to the dictates of the president’s signature health care legislation is the subject of legal challenges that are still making their way through the courts. As the Becket Fund for Religious Liberty noted today, there are currently 33 such cases representing over 100 hospitals, universities, businesses and schools that are seeking to defend their constitutional rights against the administration’s attempt to compel them to do exactly what Biden says they are not being asked to do. These plaintiffs face potential government fines of millions of dollars, but they are determined to stand up for their faith and their beliefs in spite of the government’s efforts to intimidate them.

There is a lively debate going on about the future of health care, but there may be no more insidious aspect to the ObamaCare issue than this threat to religious liberty. Both Biden and his party support the HHS Mandate, something that was made abundantly clear at the Democratic Convention at which Ms. Fluke was unveiled as a prime time liberal star. But the vice president’s willingness to lie about that support tells us that he understands just how unpopular this stand is outside of the precincts of the left. He should have had the guts and the honesty to say so.

Democrats repeating their “liar, liar” mantra about Romney and Ryan (and claiming that this justified Biden’s boorishness) need to own up to the barefaced lies Biden told at the debate.

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Real Election Stakes: ObamaCare Advances

While much of the political discussion in the last couple of weeks centered on marginal or made up issues such as Mitt Romney’s tax returns or whether or not he committed gaffes abroad, the implementation of ObamaCare this month is placing the real stakes of the fall election in focus. On August 1, the preventive mandate ordered by the Department of Health and Human Services went into effect, forcing nearly all employers in the country, including those whose religious and moral scruples forbid it, to pay for abortion-inducing drugs, contraception and sterilization. The implementation of the HHS mandate, only staved off in some instances by challenges from religious institutions and individuals, will compel businesses around the nation to choose between violating their religious beliefs or give up providing insurance and face heavy government fines.

At the same time, as the New York Times reported yesterday, the federal government is moving quickly to set up health exchanges in states that are refusing to take part in ObamaCare. This means Washington will be operating health markets in perhaps half of the states in the union. With the refusal of Republican governors and legislatures to take part in this massive expansion of federal power, the result of their principled decision will be to give the Obama administration the opportunity to set up an even more massive and unwieldy bureaucracy than even its opponents envisioned. Combined with the merciless advance of the HHS Mandate, it’s clear that while the two parties and their presidential candidates will be trading blows on a wide array of issues, the one thing we know for sure that will hang on the outcome will be whether the government will be proceeding after January to continue the implementation of ObamaCare.

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While much of the political discussion in the last couple of weeks centered on marginal or made up issues such as Mitt Romney’s tax returns or whether or not he committed gaffes abroad, the implementation of ObamaCare this month is placing the real stakes of the fall election in focus. On August 1, the preventive mandate ordered by the Department of Health and Human Services went into effect, forcing nearly all employers in the country, including those whose religious and moral scruples forbid it, to pay for abortion-inducing drugs, contraception and sterilization. The implementation of the HHS mandate, only staved off in some instances by challenges from religious institutions and individuals, will compel businesses around the nation to choose between violating their religious beliefs or give up providing insurance and face heavy government fines.

At the same time, as the New York Times reported yesterday, the federal government is moving quickly to set up health exchanges in states that are refusing to take part in ObamaCare. This means Washington will be operating health markets in perhaps half of the states in the union. With the refusal of Republican governors and legislatures to take part in this massive expansion of federal power, the result of their principled decision will be to give the Obama administration the opportunity to set up an even more massive and unwieldy bureaucracy than even its opponents envisioned. Combined with the merciless advance of the HHS Mandate, it’s clear that while the two parties and their presidential candidates will be trading blows on a wide array of issues, the one thing we know for sure that will hang on the outcome will be whether the government will be proceeding after January to continue the implementation of ObamaCare.

The August 1 date is just the start of an era which, if not derailed by a change at the White House, will mean a raft of intrusive federal health care regulations that will allow an increasingly powerful federal government to severely restrict religious freedom.

As the Heritage Foundation wrote on its blog last week, the attempts to delay the religious exemptions being offered by the administration are so limited as to create a narrow definition of religious liberty. Yet this unprecedented attack on individual rights is proceeding without much coverage in the media except those few stories devoted to scattered protests or the lawsuits launched to stave off the law’s implementation.

The same can be said about the federal health exchanges that are in the works. Though Republicans who have opted their states out of the mess are in the right, the administration is leaping into this opening. While we can be sure that the scope of this task and the details are so daunting so as to ensure a healthy dose of corruption and incompetence, the bottom line is that by next spring, the government will be knee-deep in running health markets around the country with negative consequences that we are only just beginning to envision.

All of this means the sooner the Republicans stop playing defense about Romney’s record and return to hammering the president on his unpopular health care boondoggle and speaking up in defense of religious freedom, the better their chances will be in November.

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A Small Victory for Religious Freedom

In recent months, I’ve written in support of the Catholic Church’s effort to fight back against the Obama administration’s attempt to force it to pay for services that contradict the teaching of its religion via the Health and Human Services insurance mandate. But this issue is not just about church institutions, it is also about the ability of individuals to conduct business without violating their faith. The Newland family, owners of an HVAC distribution company named Hercules Industries and devout Catholics, believe the HHS mandate created by the ObamaCare legislation that would force them to pay for free contraception, sterilization, and abortion-inducing drug coverage to their employees is a violation of their religious freedom. In response, they sued, and fortunately, days before an August 1 deadline that would have forced the company to begin making changes in its insurance plan to comply with the dictates of the administration, a federal district court judge appointed by Jimmy Carter granted a temporary injunction against the government. This victory in the case of Newland v. Sibelius will allow them to bring their case to court before crushing fines (the penalties could amount to as much as $10 million per year) are levied against them.

While the Obama administration has issued a narrow religious exemption to houses of worship, it has not extended that to other religious institutions, let alone individual business owners. As Judge John L. Kane ruled, any delay in enforcing the government’s demand “pales in comparison to the possible infringement upon [the Newlands’] constitutional and statutory rights.” While the injunction is limited to the Newlands rather than to all private businesses, the family’s fight is one on which hinges the future of religious liberty in this nation.

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In recent months, I’ve written in support of the Catholic Church’s effort to fight back against the Obama administration’s attempt to force it to pay for services that contradict the teaching of its religion via the Health and Human Services insurance mandate. But this issue is not just about church institutions, it is also about the ability of individuals to conduct business without violating their faith. The Newland family, owners of an HVAC distribution company named Hercules Industries and devout Catholics, believe the HHS mandate created by the ObamaCare legislation that would force them to pay for free contraception, sterilization, and abortion-inducing drug coverage to their employees is a violation of their religious freedom. In response, they sued, and fortunately, days before an August 1 deadline that would have forced the company to begin making changes in its insurance plan to comply with the dictates of the administration, a federal district court judge appointed by Jimmy Carter granted a temporary injunction against the government. This victory in the case of Newland v. Sibelius will allow them to bring their case to court before crushing fines (the penalties could amount to as much as $10 million per year) are levied against them.

While the Obama administration has issued a narrow religious exemption to houses of worship, it has not extended that to other religious institutions, let alone individual business owners. As Judge John L. Kane ruled, any delay in enforcing the government’s demand “pales in comparison to the possible infringement upon [the Newlands’] constitutional and statutory rights.” While the injunction is limited to the Newlands rather than to all private businesses, the family’s fight is one on which hinges the future of religious liberty in this nation.

Though supporters of the administration have tried to represent the attempt to halt the administration’s push for these mandates as a “war on women,” what is really going on is an effort to redefine religious freedom as merely the right to public worship rather than the ability to live and conduct business while respecting one’s religious precepts. If successful, the Obama drive to force individuals as well as institutions to break with their faith in order to do business would mean that such freedom would only exist in the privacy of one’s home, church and synagogue and not in the public square. Such an interpretation would effectively drive believers not just out of public life but out of the marketplace as well. This constricted view of religion bespeaks an attitude that regards the commitment of believers to act on their principles in every aspect of their lives, including business, as outside the protection of the Constitution. That is not a position that can be sustained if faith is to be protected and allowed to thrive in this nation.

This case merely illustrates the intrusive nature of ObamaCare and the way it gives the federal government unprecedented power to impose its will on almost every aspect of American life. Allowing the Newlands and any other business owner who thinks they have a right to abide by their own consciences does no injury to women or to anyone. The right to contraception or even abortion is not being abridged if they are allowed to choose an insurance plan that does not include them. But if they are compelled by government fiat to trample on their beliefs, their First Amendment rights to free exercise of religion will be trampled.

This Newland injunction is a minor victory in what will be a long, hard fight against the administration’s drive to squelch religious freedom as groups such as the Alliance Defending Freedom (which represented the Newlands) and the Becket Fund for Religious Freedom take the issue to the courts. Nevertheless, it gives believers and all those who wish to resist the tyrannical impulse to aggrandize federal power hope that liberty will ultimately prevail.

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