HHS Mandate 101
Why you should care

Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty


LOPEZ: Why is this such a big deal? Most states have a mandate like this, don’t they?

RIENZI: No. To the extent states have mandates, most of those mandates have religious exemptions much broader than the one at issue here. And for those that don’t, there are ways for religious individuals and institutions to avoid the requirement, such as by dropping prescription coverage, self-insuring, or moving to a federal ERISA plan. What is new and different with this mandate is that it is truly mandatory. The only choice for most employers is to either give up their religious objections or to kick all of their employees off of health insurance and incur hundreds of thousands of dollars or millions of dollars in annual fines. If the administration’s goal is to drive religious people out of the public square, this is a great way to accomplish that goal.

So when the government says that other states already have these mandates, it is a half-truth. Obviously if this was already going on, you wouldn’t see anything like the outcry and outrage the administration has generated.

LOPEZ: What is this Hawaii solution people talk about? Is it a real solution?

RIENZI: The supposed Hawaii solution may look better than the current mandate, but it still isn’t constitutional. The Hawaii approach would force religious employers to give instructions to their employees about how and where to obtain abortion-causing drugs and contraceptives. Obviously people who have religious objections to paying for the drugs will usually have objections to telling people how to get them. In both cases, the government is forcing the religious objector to facilitate distribution of the drug.

Of course, the Hawaii plan points to a simple and obvious solution for the government: Why doesn’t the government just tell people where to get it? Why should there be some obsessive need to force religious objectors to be involved in this? If this were actually about access, the government would do just that.

LOPEZ: I’m an atheist. I’m on the pill. Why should I care about this?

RIENZI: You should care because you are an American, and this is a fundamental liberty issue. Religious liberty is just one aspect of liberty. The same First Amendment that protects your right to be an atheist — which is a wonderful and noble thing that our First Amendment does — protects the rights of other people to have other views. Just as you wouldn’t want the government to force you to follow Catholic views about the pill, we also don’t want the government to force Catholics to follow your views. It’s a free country. If you want the pill, you can buy it, you can work for one of the millions of employers who happily pay for it, or you can get it for free from the federal government. But everyone should oppose this forced conscription of unwilling people to participate.

LOPEZ: Is this a Catholic issue?

RIENZI: No, it is a liberty issue. That’s why you’ve seen such a huge outpouring of criticism of the Obama administration from people of all religious faiths. The editorial pages of the Washington Post and USA Today are hardly tools of the bishops — yet both, to their great credit, have publicly rebuked the administration for this.

It is also worth remembering that the key federal law the Obama administration is violating here — the Religious Freedom Restoration Act — isn’t some right-wing conspiracy. It was co-sponsored by Ted Kennedy and signed by Bill Clinton. To their credit, those pro-choice Democrats could at least see that the government should not steamroll religious objectors into forced participation in abortion. I think it says a lot that Obama is not only out of step with religious believers throughout the country, but also with past leaders of his own party.

— Kathryn Jean Lopez is editor-at-large of National Review Online.