LifeNet

WSJ op ed - it's basic: "Birth-Control Mandate: Unconstitutional and Illegal"

A sraightforward and easy to understand explanation as to why the Obama/HHS contraception/sterilization/abortion mandate is unconstitutional. The op ed is not very long - 16 paragraphs - but very comprehensive.

"It violates the First Amendment and the 1993 Religious Freedom Restoration Act."

The birth-control coverage mandate violates the First Amendment's bar against the "free exercise" of religion. But it also violates the Religious Freedom Restoration Act. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.

That case limited the protections available under the First Amendment's guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test.

The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may "substantially burden" a person's "exercise of religion" only if it demonstrates that application of the burden to the person "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest.

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The refusal, for religious reasons, to provide birth-control coverage is clearly an exercise of religious freedom under the Constitution. The "exercise of religion" extends to performing, or refusing to perform, actions on religious grounds—and it is definitely not confined to religious institutions or acts of worship. Leading Supreme Court cases in this area, for example, involve a worker who refused to work on the Sabbath (Sherbert v. Verner, 1963) and parents who refused to send their teenage children to a public high school (Wisconsin v. Yoder, 1972).

In the high-school case, the Supreme Court found that even a $5 fine on the parents substantially burdened the free exercise of their religion. Under the Patient Protection and Affordable Care Act, employers who fail to comply with the birth-control mandate will incur an annual penalty of roughly $2,000 per employee. So it is clearly a substantial burden.

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Does the mandate further the governmental interest in increasing cost-free access to contraceptives by means that are least restrictive of the employer's religious freedom? Plainly, the answer is no. There are plenty of other ways to increase access to contraceptives that intrude far less on the free exercise of religion.

Health and Human Services itself touts community health centers, public clinics and hospitals as some of the available alternatives; doctors and pharmacies are others. Many of the entities, with Planned Parenthood being the most prominent, already furnish free contraceptives. The government could have the rest of these providers make contraceptive services available free and then compensate them directly. A mandate on employers who object for religious reasons is among the most restrictive means the government could have chosen to increase access.

The mandate also fails the "compelling government interest" test. Given the widespread availability of contraceptive services, and the far less restrictive other ways to increase their availability, the government can hardly claim it has a "compelling" interest in marginally increasing access to birth control by requiring objecting employers to join in this effort.

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In an effort to rally its base in the upcoming November election, the Obama administration seems more interested in punishing religiously based opposition to contraception and abortion than in marginally increasing access to contraception services. ...

... the birth-control mandate violates both statutory law and the Constitution. The fact that the administration promulgated it so flippantly, without seriously engaging on these issues, underscores how little it cares about either.

 

WSJ on Obama accommodation: "Makes the birth control mandate worse"

Yesterday's announcement by the President that all insurance companies simply had to make contraception, et al, free to everyone has pleased some of the lap dog Catholics who support him, like EJ Dionne and Sister Carol Keehan. It is most charitable to say these people are merely stupid and not trying to actually undermine their Church.

The Wall Street Journal points to the total and utter bogusness:

An 'accommodation' that makes the birth-control mandate worse.

... you almost have to admire the absurdity of the new plan President Obama floated yesterday: The government will now write a rule that says the best things in life are "free," including contraception. Thus a political mandate will be compounded by an uneconomic one—in other words, behold the soul of ObamaCare.

Under the original Health and Human Services regulation, all religious institutions except for houses of worship would be required to cover birth control, including hospitals, schools and charities. Under the new rule, which the White House stresses is "an accommodation" and not a compromise, nonprofit religious organizations won't have to directly cover birth control and can opt out. But the insurers they hire to cover their employees can't opt out. If that sounds like a distinction without a difference, odds are you're a rational person.

Say Notre Dame decides that its health plan won't cover birth control on moral grounds. A faculty member wants such coverage, so Notre Dame's insurer will then be required to offer the benefit as an add-on rider anyway, at no out-of-pocket cost to her, or to any other worker or in higher premiums for the larger group.

But wait. Supposedly the original rule was necessary to ensure "access" to contraceptives, which can cost up to $600 a year as Democratic Senators Jeanne Shaheen, Barbara Boxer and Patty Murray wrote in these pages this week. The true number is far less, but where does that $600 or whatever come from, if not from Notre Dame and not the professor?

Insurance companies won't be making donations. Drug makers will still charge for the pill. Doctors will still bill for reproductive treatment. The reality, as with all mandated benefits, is that these costs will be borne eventually via higher premiums. The balloon may be squeezed differently over time, and insurers may amortize the cost differently over time, but eventually prices will find an equilibrium. Notre Dame will still pay for birth control, even if it is nominally carried by a third-party corporation.

This cut-out may appease a few of the Administration's critics, especially on the Catholic left—but only if they want to be deceived again, having lobbied for the Affordable Care Act that created the problem in the first place. The faithful for whom birth control is a matter of religious conviction haven't been accommodated at all. They'll merely have to keep two sets of accounting books.

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Yesterday's new adventure in damage control and bureaucratic improvisation makes the compliance problem much worse. There is simply no precedent for the government ordering private companies to offer a product for free, even if they recoup the costs indirectly. Why not do that with all health benefits and "bend the cost curve" to zero? The shape of the final rule when the details land in the Federal Register is anyone's guess, including the HHS gnomes who are throwing it together on the fly to meet a political deadline.

One major problem will be how the rule applies to large organizations that self-insure. Arrangements in which an employer pays for care directly and uses insurers to manage benefits and process claims (not to take on insurance risk) account for the majority of the private market. In these cases there isn't even a free lunch to pretend exists.

And the last point is a major one - most large organizations self-insure and use the insurer to manage and administrate benefits, so the insurer only pays on large claims (what's called a stop loss). The small claims - say under $25,000 or $50,000 - are paid by the organization themselves, from a fund they've set aside.

Hit the link for the whole editorial.