Department of Health and Human Services in Washington D.C.

OLC Board Member Jack Painter and OLC liaison for Liberty Alliance Cincinnati, recently spoke about the U.S. Health and Human Services Contraception Mandate (HHS Mandate) within the Patient Protection and Affordable Care Act, more commonly known as “Obamacare”.  This is the final part of a two part series which summarizes a number of observations and points from Jack’s speech.  We think you will find both insightful and helpful in understanding the HHS Mandate.

Does the HHS mandate violate the U.S. Constitution?

  • The Constitution says, “Congress shall make no law . . . prohibiting the free exercise” of religion.
  • Thomas Jefferson said, “No provision of our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.”
  • In the recently-decided Hosanna case, the Supreme Court unanimously rejected an attempt by the Administration to give the government a say in the hiring and firing of ministers.   In effect, the government claimed it could decide who qualifies as a minister for purposes of the application of anti-discrimination laws.
  • Here, the government is saying it can decide what acts qualify as a religious ministry.  The question is whether good works are a religious ministry and therefore are entitled to protection as a free exercise of religion.
  • Ironically, at the National Prayer breakfast earlier this year, President Obama justified tax increases on the rich on religious grounds.  He said that raising taxes “coincides with Jesus’ teaching that ‘for unto whom much is given, much shall be required.’’’ In other words, he took the position that good works are the essence of religiosity.   He is now taking the opposite position.
  • Several organizations have filed lawsuits challenging the HHS mandate, and presumably the Supreme Court will eventually decide the issue.
  • It should be noted, though, that the issue might become moot if the Supreme Court strikes down the entire health care reform law.

Does the HHS mandate violate other federal laws?

  • Until the HHS mandate was issued, no federal law required anyone to purchase, sell, sponsor, or be covered by a private health plan that violates his or her conscience.
  • Opponents claim that, at the very least, the HHS mandate violates the spirit of longstanding federal laws that protect freedom of religious conscience.   For example a 1973 law says no individual is required to take part in any government funded health service program or research activity that is “contrary to his religious beliefs or moral convictions.” (42 USC 300a-7(d)).
  • Opponents also argue that the HHS mandate violates the express terms of the 2004 Hyde-Weldon Conscience Amendment, which banned discrimination against health care organizations that object to abortion. That’s because one of the mandated drugs, which is called “Ella,” is chemically and functionally similar to the morning after pill, RU-486, and apparently works after an embryo is implanted seven to ten days after fertilization. In other words, it induces an abortion.
  • Finally, it appears the HHS mandate also violates the Religious Freedom Restoration Act. This law bars all federal agencies from imposing a substantial burden on a person’s exercise of religion unless the burden is the least restrictive means to further a compelling government interest. Here, the decision to decline coverage of medical services that violate sincere religious beliefs is an “exercise of religion”, the threat of fines for noncompliance with the HHS mandate is a “substantial burden” and, based on existing court decisions, the HHS mandate does not further a “compelling government interest.”
  • Legislation has been introduced in Congress called the “Respect for Rights of Conscience Act” that would prevent health care reform from being used to violate insurers’ and purchasers’ moral and religious beliefs.

Isn’t this really about access to contraceptives for women?

  • The Obama Administration says this isn’t about religious freedom – It’s about access to contraceptives by women. People who oppose the mandate are engaged in a “war on women.”
  • It’s hard to square that argument with the fact that women already have wide access to affordable contraceptives.
    • According to the Guttmacher Institute, nine out of ten health insurance plans currently cover contraceptives.
    • In the few cases where a woman wants access to contraceptives but doesn’t have insurance coverage for that, she can purchase it. (A generic brand of the pill costs about $9 a month.)
    • If she can’t afford that, the government provides subsidized (or often free) contraception through Title X government-funded family planning clinics. (The federal government spent $2 billion on domestic family planning programs in 2011.)
    • In any event, women are always free to attend school or work for a non-religious organization.
  • Even if you accept the Obama Administration’s argument that this controversy is about access to contraceptives, the Administration is really saying that the right to contraception is more important than religious freedom. This issue came up recently in connection with Congressional testimony on the HHS mandate by Sandra Fluke, a third year law student at Georgetown University. Ms. Fluke argued that Congress should require Georgetown to provide her with free birth control pills. One commentator summed it up as follows: “Should Ms. Fluke give up a cup or two of coffee at Starbucks each month to pay for her birth control, or should Georgetown give up its religion?”


The first article in this series can be found here:
The HHS Contraception Mandate and Religious Freedom, Part 1 of 2

Jack Painter lives in Cincinnati and is a corporate lawyer in private practice. He founded Liberty Alliance Cincinnati and is on the board of the Ohio Liberty Coalition.