March for Life stands up for religious liberty, opposes O’care HHS mandate

banner from 2013 March for Life in DC
banner from 2013 March for Life in DC

The national March for Life is organized by a nonprofit business of the same name, which is one of many groups challenging the Obamacare contraceptive mandate (also known as the HHS mandate) in court. March for Life recently prevailed in federal court. Yesterday, the Obama Administration – specifically, the Secretaries of the Treasury and Health and Human Services – filed an appeal.

And by the way, what’s the Treasury secretary doing signing on to the appeal against March for Life? Is that a heavy-handed way of serving notice that the March’s tax-exempt status is on the line here?

This Administration can’t stand the thought of a business owner not paying for or subsidizing an employee’s contraception insurance coverage (with no co-pay), even if that “contraception” is actually abortifacient. Further, the Administration can’t stand challenges from people who believe in the right to live out religious beliefs seven days a week, not just freedom to worship one hour a week. When the Hobby Lobby decision came down, exempting a narrow group of business owners from the mandate, Obamacare apologists whined that employers were making birth control decisions for employees. “Not my boss’s business,” was the cry.

Here’s a cry right back: Not my boss’s problem – and a co-pay isn’t a war.

CAM00569The Washington Times has a brief story about the Administration’s appeal in the March for Life case. The story quotes the federal judge whose ruling in favor of March for Life – the ruling the Administration seeks to overturn – is at issue: “HHS may be correct that this objection [to the mandate] is common among religiously affiliated employers. Where HHS has erred, however, is in assuming that this trait is unique to such organizations. It is not.”

Hobby Lobby should have settled that question. The company isn’t a religious organization, but its owners have religious beliefs that they refuse to shelve in order to accommodate the mandate.

This all started when “contraception” was classified as a preventive service under Obamacare, with no co-pay for the user, and with coverage required under health insurance policies. Why suppression of women’s fertility should be such a federal priority is an argument the President has never successfully made to me. Our federal government is spending money litigating against not only March for Life but other people as well – Little Sisters of the Poor, for example – in a an effort to get them to buy in, literally, to that misplaced priority.

The federal government can litigate indefinitely if the Chief Executive so chooses. Must be nice. The March for Life and fellow mandate resisters aren’t in that position, many of them relying on public interest law firms which themselves rely on donor support. David vs. Goliath, of course.

A few days before the Hobby Lobby decision, I posted “Why Sue Over the Mandate?”

Why not just go along? Because religious liberty matters. It’s not simply a matter of worship, taking place in a building once a week. The mandate forces the question of how Americans may exercise their beliefs in everyday life. If an American holds the religiously-based belief that contraception and abortion are immoral, can that American be forced to pay for them? How about a business owner who wants to provide employees with health insurance, but on religious grounds wants no part of helping fund contraception and abortion as “preventive care”?

Now, more than a year after the limited but welcome Hobby Lobby victory, those questions are still hanging.

Quite a Fortnight, with more religious-liberty questions than before

It’s appropriate, no matter which side one supports, that the Supreme Court’s decision on marriage came down during Fortnight for Freedom. It also came just a couple of days after this blog linked to a provocative speech on the difference between freedom of worship and freedom of religion.

Liberty Bell replica, New Hampshire State House (E. Kolb photo)
Liberty Bell replica, New Hampshire State House (E. Kolb photo)

The marriage decision seems to bump into that difference. Here’s something from Justice Kennedy’s opinion, addressing dissenters from the decision. Substitute “abortion rights” or “contraceptive mandate” for “same-sex marriage” and see how it sounds. This statement is now part of constitutional law. If it applies to differing beliefs about marriage, it ought to apply to other issues as well.

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. 

So if “it must be emphasized,” I’ll do so:

…religions, and those who adhere to religious doctrines, may continue to advocateThe First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths …

So does “proper protection” mean protecting freedom of worship or freedom of religion? Do “advocate” and “teach” refer to speech and action in the public square, or merely the right to advocate and teach within the walls of a house of worship or a private home?  Just how does all this translate into the daily give-and-take of civic action?

It’s not lawyers who have to make these decisions in the first instance. Ordinary citizens (and I count myself as one) going about their business day-to-day are the ones wondering if they have what the Court calls proper protection. It’s fitting that long before the marriage decision came down, the country’s Catholic bishops chose “freedom to bear witness” as the theme of this year’s Fortnight for Freedom.


The Fourteenth Amendment now covers marriage between any two consenting adults. The First Amendment covers religion (or is it worship?), presumably including the religions that hold to one-man-one-woman marriage. So what happens when lawsuits and criminal charges are filed against business owners who decline on religious grounds to participate in same-sex marriage ceremonies? Early signs are not encouraging for the business owners. One can take either side of the proposition that Jesus would bake the cake, and still see that for the people who are now marriage dissenters, Justice Kennedy’s reassurance that they may “advocate” for their view is a little shaky.


Abortion rights rest on a “penumbra” of constitutional rights adding up by some judicial calculus to “privacy.” Abortion dissenters have the First Amendment, including, for those who so choose, a right to pray outside abortion facilities – or do they? New Hampshire legislators seeking to discourage pro-life presence outside abortion businesses could have resorted to any of several methods that have been found to be constitutional. Instead, in 2014, with the full cooperation of the governor, the legislature made it illegal for most people regardless of intention or behavior to stand on public property outside an abortion facility for any reason, at times and locations to be determined by the abortion facilities’ management. Legislators actually left the interpretation and implementation of the buffer zone law up to abortion providers.

To the surprise of no one but the law’s sponsors, the law has been enjoined by a federal judge. It has not yet had a full hearing in court. It’s still on the books, and a repeal effort failed this year. I have yet to hear any of the buffer zone’s fans in New Hampshire announce a change of heart on the basis of Justice Kennedy’s assurance that advocacy of dissent may continue. What’s to stop any legislative body from following New Hampshire’s egregious example of supporting a law to suppress peaceful demonstrations?

The HHS mandate

Obamacare’s HHS/contraceptive mandate is in place, buffeted but not bowed. The President and the members of Congress who passed Obamacare allowed HHS regulations to define contraception as “preventive care.” There are people who own businesses and who out of religious belief do not wish to participate in the provision of contraceptives and abortion-inducing drugs to female employees. In the face of the HHS regulations enforcing the Affordable Care Act, they hold the dissenting view that women aren’t broken and that it’s not “preventive care” for women to be chemically altered. The Administration has issued accommodations in a piecemeal manner to certain institutions dissenting from the mandate, and Hobby Lobby won at the Supreme Court on behalf of owners of closely-held businesses.

Yet litigation goes on, because religious institutions still must wait for a determination that they’re religious enough to be covered under one of the Administrations “accommodations,” and it’s still an open question whether those accommodations are adequate. Are owners of public-stock corporations going to be accommodated? Fines will be punitive for anyone who dissents, sues, and loses. Are dissenting business owners being given proper protection for their advocacy of their beliefs? Or so Justice Kennedy’s words mean must that advocacy remain private?

The Court majority that gave us Obergefell left Americans with much to think about beyond a definition of marriage. At the end of another Fortnight for Freedom, only days after a landmark Supreme Court decision, the religious-liberty landscape remains unsettled. Are Justice Kennedy’s words true reassurance that each American is free to exercise a religion, publicly as well as privately?

There’s a way to divert attention from this question: call marriage dissenters bigots. Say that people opposed to the Affordable Care Act want to deny health care to their neighbors. Claim that opponents of buffer zones are endangering women (never mind that six of the seven plaintiffs challenging the New Hampshire buffer zone law are women). Say anything – just keep that pesky First Amendment offstage.

Justice Kennedy won’t let me. He says the First Amendment gives us all proper protection. We have yet to see what that means.

SCOTUS term is over – but they suspended Texas abortion regs before leaving

Abortion regulation, the HHS/Obamacare contraceptive mandate, and the death penalty got some attention from the U.S. Supreme Court (SCOTUS) before the Court’s term ended Monday. The day was somewhat anticlimactic in view of last week’s decision re-defining marriage nationwide.

Justice Anthony Kennedy ( photo)
Justice Anthony Kennedy ( photo)

> New Texas abortion regulations are on hold by order of the Court, pending a full hearing of the case – possibly next term. The vote was 5-4. Stop me if you’ve heard this one: Justice Anthony Kennedy joined with “the Court’s liberals” (Politico’s term, not mine) in the majority.

> In the latest order – again, not a decision – on Obamacare’s insurance-coverage contraceptive mandate, the Court upheld for now a Solomonic decision by the Third Circuit that figuratively splits the baby. A group of Catholic entities in Pennsylvania challenged the mandate. The Third Circuit upheld the mandate, but okayed a mother-may-I procedure for religious entities objecting to it. Whether the Constitution allows mother-may-I is yet to be decided by the top court. I’ll let the legal eagles at SCOTUSblog summarize this one.

“First, the religious groups must provide some type of notice to the federal Department of Health and Human Services that they want and are entitled to a religious exemption from the mandate.   If the groups do that, the government may not enforce the mandate directly against them, while the Court is pondering whether to review the case itself.

“Second, the women who are employed by or are students at the religious organizations are assured that they will have access, at no cost to them, of birth control methods and devices approved by the federal Food and Drug Administration.   The government can go ahead, the Court made clear, and make arrangements for the health insurance plans in effect for the religious groups to assure free access to the contraceptives.  The government will reimburse the cost.

“The Court’s order stressed that it did not mean that the Justices were ruling on the correctness of the Third Circuit decision.   That will be the issue if the Court grants review in the pending case of Zubik v. Burwell (docket 14-1418).”

> This one was a full-blown decision: in Glossip v. Gross, the Court upheld the use of a particular drug for executions. Challengers had claimed it amounted to cruel and unusual punishment. Among the original petitioners, according to Justice Scalia, was someone convicted of the rape and murder of an 11-month-old baby. I feel nothing but revulsion at that; “cruel and unusual” seems just about right for such a criminal. My opposition to the death penalty, though, doesn’t depend on how lovable the criminal might be.

Justice Stephen Breyer ( photo)
Justice Stephen Breyer ( photo)

I have to wonder whether “humane” execution is designed for the prisoner’s sake or the onlookers’. The less we squirm, the better – is that the idea? Justice Breyer – not a man whose decisions respect any right to life for preborn children – dissented from the Glossip decision, and he apparently didn’t parse the which-drugs-are-better question. He flat-out asked for a briefing on the constitutionality of capital punishment.

This wasn’t the case for that. Apparently, the Court is cautious about overreaching on the death penalty. Their delicacy is amusing in view of their marriage decision. Perhaps I’ll live to see a day when boldness prevails in defense of the right to life.

#FITN: how about asking about the mandate?

#FITN: that means First in the Nation, as in first-in-the-nation Presidential primary. We use the hashtag with pride here in New Hampshire. Potential candidates are already swarming, including some Democrats (rumors of Secretary Clinton’s inevitable nomination are a tad premature). I attend candidate events when I can.

At five events recently, during Q&A, I heard the same question asked in almost the same words. A different person asked the question each time; two of them actually read it off a card. Coincidence? Nah. The cards were a giveaway. The well-organized questioners all wanted to know what the candidates would do to stop “the corrupting influence of money in politics” that is wielded by corporations. What that means is “are you willing to overturn the First Amendment in order to get rid of the Citizens United decision?” But this isn’t the forum for that discussion. I’m simply noting the coordinated questioning.

One other thing is brought up at every candidate Q&A I’ve attended, although in a less-scripted manner, and that’s Common Core. The candidates know they have to have some kind of response ready.

So where’s the demand for an answer to any of these question?

  • What are you going to do about the Obamacare contraceptive mandate and its threat to religious liberty?
  • What’s your take on the Hobby Lobby decision?
  • What do you think of last week’s Supreme Court ruling in favor of Notre Dame University, which is seeking exemption from the mandate? As a Catholic institution, the University wants no role in providing benefits like contraception and abortion-inducing drugs through health insurance policies for students and employees.
  • Do you even know what the mandate is? Do you understand it’s not just a Catholic thing? The owners of Hobby Lobby identify as Pentecostals, for example, and the owners of Conestoga Wood Products (whose case was decided with Hobby Lobby) are Mennonites.
  • Must a business owner give up religious liberty rights under the First Amendment in order to offer Obamacare-compliant health insurance?
  • For any candidate who’s a fan of the Obamacare contraceptive mandate, here’s another one: where in the Constitution is there a right for a woman to have birth control paid for by someone else? How does that supercede the First Amendment?

I’m also listening for any candidate who says that by choosing not to be involved in employees’ birth control decisions, an employer is “making health care decisions for employees.” That’ll help me narrow down my list of candidates to consider.

So where are the half-dozen or so voters – that’s all it would take – willing to follow the candidates around New Hampshire and ask about the mandate? Catholics who take Church teaching seriously have the most at stake, given their numbers and the number of health care ministries they administer. Or are we (yes, I’m Catholic) going to stay under the radar and just hope that we’ll get a President who’ll fix the mess?

As the saying goes, hope is not a method.

Will first-in-the-nation voters ask the right questions about the mandate, or will they let candidates get away with avoiding the issue?


Will the Senate throw a Hobby Lobby tantrum?

“We’ll show that mean ol’ Supreme Court!” (Pixabay photo)

The New Hampshire Senate will vote Thursday on a measure designed to shame employers who choose not to play any role in providing contraception to employees. [Note: on March 5, the Senate voted to table the bill.] Senators David Pierce (D-Lebanon) and Martha Fuller Clark (D-Portsmouth) want to make sure the world knows how displeased they are by the Supreme Court’s Hobby Lobby decision, and SB 42 is their megaphone. They need only eleven of their Senate colleagues to join them in order to send the bill over to the House. The Commerce committee has already approved the bill on a 4-1 vote.

The bill has been amended since its introduction, but its essence is intact. If it passes, any employer who wants to provide health insurance as an employee benefit via a self-funded health plan, but who refuses to cover any or all forms of contraception, has to put that refusal in writing on job applications, or include it as a separate notice to be handed out with each application.

Not with each new-hire human resources package – but with each job application. Keeping employers disentangled from employees’ birth control decisions is simply an unacceptable concept to Senators Pierce and Fuller Clark. Apparently, they are not equally offended by insurance plans that fail to cover cancer treatments, or drugs to manage chronic conditions, or therapy for disabled children, or the cost of your bifocals. You might think that applicants ought to be advised of those exclusions in writing before filling out a job application. But no; the only health insurance information Senators Pierce and Clark want to see “prominently displayed” on job applications is a warning that a boss won’t pay for your birth control. Remember that the owners of Hobby Lobby claimed (and won) the right to refuse coverage for only four particular contraceptive methods, all of them abortion-inducing. They apparently cover about sixteen other methods without objection. That’s not enough for the likes of the sponsors of SB 42, who want to marginalize employers who demur even slightly from paying for employees’ birth control decisions. A “Catholic Citizenship News” email from the Diocese of Manchester (N.H.) this weekend took a tone far calmer than the bill deserves. “SB 42’s stated intent is to require employers to specify the details of contraceptive coverage to prospective employees, but based upon the text of the bill and testimony at the hearing, this measure clearly targets employers with religious objections to providing contraceptive coverage.” I was at the hearing, and I can vouch for that. The diocesan email continues:  “…[I]f SB 42 becomes law, when individuals apply for jobs with Catholic parishes, schools, or institutions in New Hampshire, their first introduction to our ministries will be a ‘prominently displayed’ notice that the diocesan insurance plan does not cover contraception or abortifacients. As a State, we have been reluctant to place restrictions on employers requiring these types of burdens – additional paperwork or particular forms at the time of hire. It is troubling that SB 42 would create this first mandate that is clearly aimed at employers that decline to offer coverage that includes abortion or other life-denying drugs or devices that violate their moral and religious convictions.” Troubling? That’s one way to put it.


Who’s Your Senator?

Earlier coverage of SB 42: Busy Day in Concord