Undermining the First Amendment in the name of “Health Care”

Short memories make for bad public policy. I can’t help but reflect on that.

As I write this, Congress is about to take a vote on doing something-or-another with Obamacare: repeal, replace, whatever. I’m not sure they know what they’re doing, despite good intentions all around. In all the tinkering, I am not hearing much from Members of Congress about what made the “Affordable Care Act” utterly unacceptable to so many Catholics, including me: the contraceptive mandate. Continue reading “Undermining the First Amendment in the name of “Health Care””

Weekend reading (and viewing) on life & conscience

A new report from the Charlotte Lozier Institute is just the thing for your weekend reading. “Unconscionable:  Threats to Religious
Freedom and Rights of  Conscience in the Abortion
Debate” is a new report by the Institute’s Timothy Bradley.   “While society continues to debate whether and when abortion should be permitted, a second question concerns whether to force pro-life individuals and institutions to participate in or facilitate abortions.” Indeed.

Bradley describes cases where the conscience rights of pro-life Americans are being challenged, and he includes recommendations for strengthening and enforcing those rights.

And now for something completely different…

Enjoy this video, just because it’s lovely: a two-minute drone’s- eye view of a beautiful church’s interior. h/t Aleteia via Granite Grok.

 

Alito: “those who value religious freedom have cause for great concern”

In declining to hear a case about conscience rights, a decision coinciding with Fortnight for Freedom, the U. S. Supreme Court just underscored the vulnerability of professionals who refuse in the course of their work to participate in ending human life.

The case involved pharmacists in Washington state who challenged a rule by the Washington Board of Pharmacy. Americans United for Life issued a recent statement summarizing the case.

The U.S. Supreme Court [on June 28, 2016] declined an opportunity to hear Stormans v. Wiesman, a challenge to a 2007 Washington Board of Pharmacy rule that punishes pharmacists and pharmacy owners with religious objections to stocking drugs with known life-ending effects. “Despite this missed opportunity to correct an unconstitutional abuse of power, the Washington State rule that punishes pharmacists and pharmacy owners who respect unborn life can and should be immediately repealed,” said Clarke Forsythe, AUL Acting President and Senior Counsel.

“The rule at issue in the Stormans case is unfortunately one of many examples where abortion advocates are pushing an extreme agenda of coercion under the faulty guise of ‘choice.’  As AUL has written about extensively, Planned Parenthood’s fingerprints are all over the unnecessary and unconstitutional rule,” continued Forsythe.

Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito disagreed with their colleagues who voted not to hear the Stormans appeal. As this year’s Fortnight for Freedom comes to a close, the words of Alito’s dissent are timely.

I would [hear the case] to ensure that Washington’s novel and concededly unnecessary burden on religious objectors does not trample on fundamental rights….

This case is an ominous sign. At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.

 

 

“Game-changer”: Supreme Court helps the Little Sisters, though mandate stands

For now, the Little Sisters of the Poor and the numerous other faith-based agencies fighting the HHS contraceptive mandate will NOT be subject to federal penalties for refusing to be a party (via employer-provided health insurance) to provision of goods and services that violate their faith. A unanimous U.S. Supreme Court decision today made that clear, while sending thirteen challenges to the mandate back to lower courts.


“This is a game-changer,” said Mark Rienzi of the Becket Fund, representing the Little Sisters. “The Court has accepted the government’s concession that it can get drugs to people without using the Little Sisters. The Court has eliminated all of the bad decisions from the lower courts. And the Court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government’s will. It is only a matter of time before the lower courts make this victory permanent.”

I admire Mr. Rienzi’s optimism. I hope he’s right.

The eight Justices declined to rule on the legality of the mandate, which is a regulation that followed the federal Obamacare fiat that contraception for women is a basic “preventive” health service. This federal policy that women are basically broken and in need of fixing is left untouched by today’s Court action.

The federal government can go ahead and provide the coverage for contraceptives and abortion-inducing drugs and devices, under today’s Court action.

The bad news is that this means no majority could be mustered in the Court to reject the mandate altogether. That was the “decision” of the day: the mandate is still legal, despite numerous carve-outs and exemptions. From SCOTUSblog:

“The two issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the [Affordable Care Act] mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the ‘least restrictive means’ to carry out the mandate.”

“A decision not to make a decision is still a decision.” Those words were drummed into my head by my public-policy professor more than three decades ago as I studied landmark Supreme Court cases. An important non-decision was made today: the mandate stands. So do at least thirteen challenges to it, though, and that’s good news.

(See earlier Leaven coverage at “Religious Liberty and the HHS/Obamacare mandate.”)

Supreme Court, minus Scalia, takes on religious liberty

If I could see the Supreme Court Justices today for one minute, all I’d say to them is this: leave the nuns alone, already. The president’s not listening. Maybe the court will.

The fuss over Obamacare’s contraceptive mandate may have been off the front pages for awhile, but the Little Sisters of the Poor are raising the mandate’s visibility again. Good for them. They and several other petitioners are at the U.S. Supreme Court today, politely asking the Justices to prevent the federal government from forcing the petitioners to act in violation of their faith.

The contraceptive mandate (also known as the HHS mandate, in a backhanded tribute to the federal agency that promoted it) is based on Obamacare’s definition of contraception as a “preventive” service for women. (Not for men, mind you.) The idea was for insurance plans, including employer-provided plans, to cover contraception without a co-pay. Employers offering health insurance as a benefit would thus have to subsidize contraceptive use by employees.


The Little Sisters, women one and all, are having none of it. So far, litigation has spared them the punishment the government promises to mete out to balky employers. Today, the litigation begins its final stage.

Contraceptives include abortion-inducing drugs and devices. You’ll recall that the Hobby Lobby decision, decided on extremely narrow grounds, rested on the company’s willingness to pay for most kinds of contraception but not the ones that actually induce abortion.

Where does that leave Catholic entities like the Little Sisters, when providing contraception goes against their religious beliefs? Making contraception available under their health insurance for employees, even indirectly, makes the Sisters complicit in activities their religion sees as immoral. When the federal Obamacare exchanges exist, allowing people to buy insurance independent of their employers, why should employers be threatened with ruinous fines for not bowing to the mandate?

This isn’t solely a Catholic thing. Other petitioners today include Baptist and Nazarene institutions. What unites the petitioners is a firm belief that the government has no business telling them what their respective religions allow. Read more about the challenges to the mandate on the web site of the Becket Fund for Religious Liberty.

The feds have come up with one supposed “accommodation” after another in an attempt to make religious objections to the mandate go away.  The feds have failed.

One fact is particularly damaging to the government’s dogged insistence that “free” contraceptives for women are a basic right: companies and agencies employing a total of one-third of Americans are already exempt from compliance with the mandate. The federal government has let the military, the city of New York, and Exxon off the hook, to name just a few. For some reason, though, the Little Sisters of the Poor have to go to court to vindicate their rights.

The Sisters’ ministry is to the elderly poor. Fines for noncompliance with Obamacare will harm not only the Sisters themselves but the people they serve. “So cover the contraceptives,” say mandate supporters, sounding a bit thuggish. Nice clients you have there. It’d be a shame if anything happened to them.

The Supreme Court split 5-4 in favor of Hobby Lobby, with an extraordinarily bitter dissent from Justice Ginsburg. One of the five in the majority, Antonin Scalia, has since died and has not been replaced. A 4-4 split would leave lower court decisions intact, which would be bad for today’s petitioners.

The lawyers for the petitioners can do math. They know the odds. They also know the First Amendment is alive and well, including protection for freedom of religion. As with the rest of the Bill of Rights, the First Amendment was not put in place to protect selected majorities but to protect all Americans.

You go, girls.