September 9, 2012 in slideshow
This month at etcetera, we are going to look at HHS and the contraception mandate. This is an issue where public health care and personal conscience clash in the realm of sex, but it is hardly the only area where the public square and private belief clash (blood transfusions, the possible funding of abortions with tax dollars, and conscientious objection to war come to mind). We are a country that values the individual freedom to practice faith and follow the dictates of our own conscience – and yet not every individual freedom is promoted or even allowed no matter how firmly held the belief.
Join us on Thursday, September 27, as we take a look at not only this particular issue, but the broader questions surrounding the clash between conscience and law. Meanwhile, here are a number of links to fill in some background information about the contraception conundrum.
“This decision was made after very careful consideration, including the important concerns some have raised about religious liberty. I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services. The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health care providers.”
What I do find remarkable—even amazing (to reprise Justice Kagan’s term)—is that the HHS mandate appears to be so clearly unlawful. In particular, I don’t see how the Obama administration could actually believe that the HHS mandate is compatible with the federal Religious Freedom Restoration Act. (The Supreme Court held in City of Boerne v. Flores (1997) that Congress lacked the power to apply RFRA against the states, but the Court recognizes, as its decision in Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal (2006) makes clear, that RFRA applies against the federal government.)
“On Wednesday, the HHS mandate requiring insurance companies to provide free contraceptive services that include controversial abortion-inducing drugs went into effect. The other milestone came Friday, when a key court decision in Colorado cast doubt on the mandate’s long-term survival.”
“The government has now re-written the ‘safe harbor’ guidelines three times in seven months, and is evidently in no hurry to defend the HHS mandate in open court,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which represented Wheaton in the case. “By moving the goalposts yet again, the government managed to get Wheaton’s lawsuit dismissed on purely technical grounds. This leaves unresolved the question of religious liberty at the heart of the lawsuit.”
“The HHS regulation is a law of general application. Courts have held nearly identical state contraceptive coverage laws to be constitutional in decisions the Supreme Court has declined to review. Given this reality, those promoting the idea that the HHS rule is “a radical violation of the First Amendment,” without any argument as to why Smith would not apply or might be overturned, appear to be either uninformed or disingenuous.”