Week In Review, Days Ahead

Several topics and observations today. Something for everyone, I hope. Copy and forward as you wish.

Tenacity and patience have thus far kept a few important bills going. I expect that both the partial birth ban and fetal homicide bills will be scrutinized anew by House committees on Tuesday. The Senate amended both bills, and the House may choose to concur, requiring no further action except a trip to Governor Lynch’s desk, or request a committee of conference. Concurrence would be the right outcome, since the Senate amendments didn’t gut either bill.

Lynch’s spokesman was finally moved to take note of HB 217 (the fetal homicide) a few days ago, and his remarks were not encouraging.

Keep an eye on the Cornerstone Policy Research Facebook page and @nhcornerstone Twitter feed for Tuesday coverage of House committee votes on these bills.

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Nongermane amendments are nothing new in legislative work, rules or no rules. If leadership wants one, in it goes, productive or not. Such moves always seem like a good idea at the time, at least to the person making the amendment.

The Senate sent a late term abortion ban (HB 1660) to interim study. Not so fast, replied the House last Thursday. The ban was added as an amendment to a bill on pulse oximetry for newborns (SB 348) by a four-vote margin. Less than ten minutes later, the House reversed itself. The sponsor of SB 348, the indisputably pro-life Rep. Lynne Blankenbeker (R-Concord), pleaded for the main bill, stressing that the Senate would kill it if it contained the abortion amendment.

The nongermane amendment in this case resulted in nothing more than two confusing House votes. The proponents of late-term abortions can breathe a sigh of relief, knowing that New Hampshire will continue to keep abortion legal through all nine months of pregnancy.

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Filing period for the fall elections is coming up June 6-15. Details here. Some good pro-lifers have chosen not to run again, so anyone who wants to step up may find an open seat available.

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Mark your calendar for Friday, June 8th at noon. There will be a Standing Up for Religious Freedom rally outside the federal courthouse in Concord, where a similar rally was held a few months ago. As long as the federal HHS mandate is still part of Obamacare, religious freedom is under attack and no church is safe. See you there – and bring your kids, your neighbors, your minister, and even your state rep. I’ll be one of the speakers. (Please be there anyway.) There was a  Bush II era bumper sticker displayed back in the day by some disaffected voters: “Dissent is the highest form of patriotism.” Okay, then. Let’s all be utterly patriotic on June 8th.

Mandate Rationale? Try Checking Under the Penumbra

Back in 1965, Justice Douglas of the U.S. Supreme Court wrote for the majority in the Griswold case that the right to privacy, while not explicit in the U.S. Constitution, could be derived as an “emanation” within the “penumbra” of enumerated rights. (That’s his language, not mine.) Emanations and penumbras can of course be toxic, as we learned in ’73 when Roe was handed down, buttressed by Griswold’s reasoning.

Forty-seven years later, HHS Secretary Kathleen Sebelius is apparently all on board with penumbras. She was on Capitol Hill yesterday to face Congressional questioning. One bold soul asked her how she decided the HHS contraceptive-coverage mandate could square with religious liberty. Madam Secretary’s reply:

“Congressman, I’m not a lawyer and I don’t pretend to understand the nuances of the constitutional balancing tests […] I am not going to wade into constitutional law, I’m talking about the fact that we are implementing a law that was passed by the Congress, signed by the President, which directed our department to develop a package of preventive health services for women. We have done just that with the advice of the Institute of Medicine, and promulgated that rule.”

I am indebted to Calvin Freiburger (here) and his unbeatable commentary on that answer, published in Live Action News today:
“Note well that the combination of congressional votes, presidential signatures, and the opinion of the Institute of Medicine amount to somewhere between nada and zilch when it comes to constitutional law.”

It Takes a Village to Kill a Mandate

The Nashua Telegraph is reporting this afternoon that a NH Senate committee has recommended “polite death” for HB 1546, a bill to repeal the state’s mandate that health insurers cover contraception. It was tough enough getting that one through the House. The full Senate has yet to vote, so the outcome is still open. The committee’s recommendation will be overturned if and only if enough senators recognize that this mandate and its federal counterpart are attacks on religious liberty.

When NH’s mandate passed a dozen or so years ago, I didn’t recognize its significance.  I opposed the bill, but I settled for quietly shaking my head instead of taking up the argument. After all, in accordance with my religious faith, I wasn’t using contraceptives, and I wasn’t working for a religious institution with moral objections to contraception. It did not occur to me or to anyone else in the room that NH’s mandate, and similar measures in other states, would help pave the way for the federal government’s Department of Health and Human Services (HHS) to require that all Americans purchase health care, define contraception and abortifacient drugs as “preventive care”, and refuse to recognize conscientious objections to this arrangement.

(I’ll save for another day a fuller treatment of just what kind of health problem contraception “prevents”.)

Back in 1999, that would have seemed a huge leap. Now, looking back, I wonder how I could have failed to see what was coming. It is to the great credit of American Catholic bishops that they have been so outspoken in defending religious liberty against this encroachment (see their statement here). That’s a start. The bishops have done their job. It’s now for the rest of us to bring the no-mandate message to Concord and Washington.

The HHS mandate plays strange games with health care, and thus with people’s lives. It says certain procedures are “preventive” and thus must be free to women. No co-pay. Except that’s not really free: everyone, including women with religious objections to the procedures, must pay, since everyone will be required to carry insurance. Religious institutions providing insurance to employees will have to pay to include that coverage even if the procedures violate the tenets of the religion in question. There is no opting-out. In response to protests, the President has delayed implementation of the mandate to August 2013, as though the outrage will cool by then.

What will happen at that time to religious institutions, such as hospitals and adoption agencies, that will not pay into such a health care system? They can knuckle under, which is undoubtedly what HHS expects, or they can close down, or they can continue to operate but pay heavy fines to the government.

But what about the First Amendment? The HHS mandate attempts to get around that by exempting certain religious employers – but not the ones that serve people of other religions. As others have pointed out, Jesus and the apostles would flunk that test. Employers refusing to submit to the mandate will be fined.

A government that attacks my religion today can attack yours tomorrow. Today, I am being told that I can hold whatever beliefs I want, as long as I’m prepared in August 2013 to pay a fine for taking those beliefs seriously. Tomorrow, or next week, or next year, you could be getting that message.

It does not matter if those of us who reject the mandate are in a minority. The Bill of Rights was not put into the Constitution to protect majorities.

When the American bishops spoke up earlier this year, they were greeted with a well-orchestrated & well-funded campaign promoting a lie: that anyone opposing the mandate is waging war on women.

I don’t have an advertising budget. I don’t have Nancy Pelosi’s phone number to ask her to set up a mock hearing for me. I am not a photogenic 30-year-old Georgetown law student with a publicist. I’m simply a New Hampshire neighbor, here to get my message across as best I can.

A co-pay is not a war.  Respecting Catholic beliefs is not an act of war. When you keep your hands out of my pocket when you pay for your preventive care, that’s not an act of war.

On the other hand, a federal mandate that threatens the Catholic Church’s ability to operate thousands of schools and hospitals and adoption agencies DOES amount to a war on women. When this mandate imposes a fine a on a church that is one of the foremost health care providers in the nation, that’s not only a First Amendment violation. It’s stupid, shortsighted policy that will have a devastating effect on American women.

Today’s hearing in Concord featured women complaining that repealing the state mandate would inhibit access to contraception. Note to senators: access doesn’t mean free. Ask any store owner. At least eleven agencies in our state offer family planning services on a sliding fee scale, so financial need is not barrier to access.

The HHS mandate, and the state-level mandates as well, are not really about preventive health care except to those who consider women’s fertility to be a disease. A mandate that threatens Catholic health care providers undermines the very meaning of health care. In fact, if you’re concerned about women’s health, you’ll defend the church’s freedom to do its work.

Up to now, people of faith have “rendered unto Caesar”, as the saying goes, on things like this. Just as I behaved when NH’s mandate was enacted, we’ve gone along to get along. The HHS mandate is a line in the sand, drawn by Caesar, and it’s time to say “we’ve rendered enough.”

I’m not asking for any favors here. I am a citizen, and I claim the protections of the First Amendment against those who would force individuals and institutions of any religion to participate in providing procedures they recognize as immoral. That’s solid ground on which to stand.

A co-pay is not a war, fertility is not a disease, and religious faith is not a crime. Senators in Concord and HHS bureaucrats in Washington evidently need to be reminded of this.

(This post is based in part on remarks I delivered to the Standing Up for Religious Freedom rally in Concord last month.)