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Is the contraception mandate constitutional?

Probably, argues Joseph D. Becker.

Churches that preach the immorality of contraception are excused from federally imposed obligations to promote the practice. But federal law will soon require that the employees of hospitals and other charitable institutions run by such churchesnotably, the Catholic Churchhave the option of adding coverage for contraception to the health insurance offered by their employer. Whether or not the cost of such coverage is passed to insurers, the question remains, does the requirement violate the First Amendment guarantee of free exercise of religion by such churches?Let us suppose the formation of a new religious sect centered in, say, Florida. Seeking novel forms of worship, the sect, misunderstanding Exodus 32:16, elects to pray to a golden calf, made of melted jewelry donated by the faithful.

Read the rest here.


Commenting Guidelines

John Borst: Thanks for your reply regarding the Catholic bishops of Canada being conservative Catholics in certain other ways.

I see no reason for anybody to view the Catholic bishops sympathetically.They still have not come clean about the role of Catholic bishops in the U.S. in bringing us the priest-sex-abuse scandal. Instead, the current Catholic bishops are still covering up the role of the bishops in bringing us the priest-sex-abuse scandal.For this reason, I see their present interest in protesting the contraception mandate as yet another way for them to try to distract attention from their ongoing cover-up of the role of bishops in bringing us the priest-sex-abuse scandal.

Isnt it the case, however, that in New York and California, those challenging the constitutionality of state contraceptive mandates lost in state supreme courts? The courts found the state mandates constitutional applying Employment Division v Smith, and the Supreme Court declined to hear appeals.Here is a contemporary analysis of the case is CA. Note the last line describing the sort of idea which was rejected 9-0 in the recent Hosanna-Tabor case. The outcome is arguable.In a 6-1 decision, the California Supreme Court disagreed, giving short shrift to Catholic Charities's constitutional claims. The court relied on the U.S. Supreme Court's 1990 decision in Employment Division v. Smith for the proposition that sincerely held religious objections "do not excuse compliance with otherwise valid laws regulating matters the state is otherwise free to regulate."Justice Janice Brown, nominated by President Bush to the federal D.C. Circuit Court of Appeals, wrote the masterful dissent. She noted that Smith applied directly only to individual religious claimants, not to the religious conduct of religious organizations. Religious organizations are clearly entitled to an exemption from government regulation when they are engaged in "ministerial" activities central to their religious mission. One could hardly imagine, for example, that the government could force the Catholic Church to hire female priests without violating the Church's free exercise rights.Indeed, the California legislature exempted churches from WCEA, implicitly acknowledging that church activities are constitutionally protected from government regulation. However, WCEA was drafted to ensure it covered Catholic Charities and other religious social service agencies. By failing to exempt Catholic Charities from WCEA, the legislature implicitly determined that ministering to the poor is not central to Catholicism, a conclusion the Church itself would undoubtedly dispute.

Missing from all this splitting of fine legal hairs is a definition of "religion" that non-lawyers can understand. If it is generally accepted among the ruling class that the Constitution is so murky that only legal experts can understand what it means - or, worse, that it means only what the group in power wants it to mean - then the democratic foundations of the country have been seriously eroded. Perhaps, though, the problem is simply that we've given lawyers far too much control over our lives. If that's the case - and I'd guess that even many lawyers would say it is - how can it be fixed?

Surely Mr. Becker's article is published in jest. He does not consider what the Supreme Court required be considered, that the Affordable Care Act's many exemptions, waivers, and exceptions, notably even in this very mandate (the exception for insular churches), which makes the mandate *not* generally applicable. He fails to even mention the obvious alternative the government could use to achieve this same goal: give away contraceptive coverage for free itself instead of forcing objecting employers to do so. And he fails to mention RFRA, which requires strict scrutiny regardless of Smith. Then at the end he suggests that other people, and not himself, are playing politics with legal analysis? Why would you present a non-legal audience with shoddy legal analysis that just happens to reinforce their support for their favored party's political attack on religious freedom? Serious journalism would at least offer the legal perspective from both sides. But in that format Mr. Becker's inadequacies would be exposed, and that might interfere with playing politics.

Btw, regarding the mandate itself: there have been a couple of developments:" After repeatedly stating that it will not back down on its controversial contraception mandate, the Obama administration has announced a 90-day comment period on possible ways to implement its Feb. 10 accommodation. ..."The administration simultaneously issued a final rule on student health plans, which will require colleges to treat student health care plans like employee plans, making them subject to the mandate as well."Under the rule that the administration is considering proposing, insurance issuers would be required to provide "separate coverage" for contraception and would not be allowed to charge a premium for this coverage to the religious organization, plan participants or beneficiaries."Instead, it said, the issuer would pay for the coverage from "the estimated savings" of eliminating the need for "services" that arise from not covering contraception. It did not acknowledge a recent survey of insurance companies indicating that the mandate will not actually cut costs."For self-insured religious organizations, which were not addressed in the Feb. 10 accommodation, the notice outlined several possible approaches to having a "third-party administrator" assume responsibility for the coverage."These suggestions included using revenue from drug rebates and service fees, credit from a reinsurance program, funds from a private non-profit organization or a contract between the Office of Personnel Management and an insurer offering a multi-state plan."

I thought the letter from Georgetown law professors to the president about implementing contraception coverage as a health issue was an interesting aftermath of the latest administration posture.

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