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The HHS Mandate Goes into Effect

Health and Human Services secretary Kathleen Sebelius speaks at the White House in 2011.

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This day — August 1 — is a dark one for religious freedom in the United States. The Obama administration’s requirement that all insurance plans cover contraceptives and abortion-inducing drugs — the HHS mandate — goes into effect today. This requirement is now binding on countless employers who have religious and moral objections to providing such insurance. This is not a dispute about contraception or abortion, but about our constitutional order: All Americans, regardless of whether they share those objections, should protest the Obama administration’s willful assault on religious liberty.

Six months ago, Health and Human Services secretary Kathleen Sebelius announced that health-insurance plans offered by private employers would be required to cover all federally approved forms of contraception — including contraceptives that operate as abortifacients — as well as sterilization. The absurdly narrow exemption that HHS offered for certain “religious employers” — likely comprising only a small subset of churches — helped trigger a firestorm of opposition. Seeking political cover, the White House trotted out incoherent ideas about a proposed “accommodation,” supposedly to be implemented well after the coming elections. The very same day, the administration finalized the rule adopting the HHS mandate with no modification at all.

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As things now stand, a tiny sliver of “religious employers” are exempt under the HHS mandate, and some (but not all) other religious employers may avail themselves of a safe harbor against executive-branch enforcement until August 1 of next year. But religious believers who operate ordinary businesses are subject to the HHS mandate as of today, as are those religious employers who don’t qualify for the safe harbor.

In the absence of compelling reasons, the government should not force any person to act against his sincerely held religious beliefs. The American tradition of religious liberty has long reflected this principle, and it is embodied in the federal Religious Freedom Restoration Act, which was signed into law by President Bill Clinton. The HHS mandate violates this principle. That’s why a federal district judge last week (an appointee of President Carter, no less), in the first ruling to touch on the merits of the legal challenges to the HHS mandate, granted the owners of a Colorado manufacturing company an injunction that prohibits the government from enforcing the mandate against them while the case is being adjudicated.

But fighting Washington in court is a difficult business, and there are many employers with religious objections to the HHS mandate who lack the means to pursue legal relief. The Obama administration should not force them to. Instead, it should immediately suspend the HHS mandate, and, if it feels it necessary to advance its contraceptive agenda, it should do so by means that do not include dragooning religious business owners into actions that violate their consciences.

The Obama administration won’t take our advice, of course, because it embraces a shriveled view of religious liberty that is alien to the American tradition. Under its view, religious liberty is not an independent good essential to the flourishing of civil society. Traditional religious believers stand in the way of the progressive agenda, and they are to be coerced, stigmatized, penalized, and ultimately crushed.

Some conservatives are wary of making the fight for religious liberty a prominent issue in the upcoming elections and seek to place legislative remedies on the backburner. That’s a mistake. The administration’s heavy-handed tactics may play well with the Democratic party’s most convinced activists, but they won’t win many voters among the independents who will decide the election. Republican candidates should be prepared to explain this critical issue to voters at length between now and November.

Those among the president’s supporters who condone the administration’s running roughshod over the freedom of conscience would do well to remember that there will be another Republican in the White House some day, and that the precedent set here will be available to presidents of all philosophical orientations. The purpose of the Bill of Rights is to explicitly limit the power of government over critical spheres of life: the press, the private home, and the church among them. A government that intrudes into one will intrude into the others soon enough.



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