In the last few days, I’ve seen a number of observers—even people opposed to the administration’s willingness to force religious charities to act contrary to their moral convictions—say that conservatives should stop short of advocating that all employers, regardless of their religious character, have the freedom to decide whether to offer contraceptive coverage to their employees. An exemption that extends beyond religiously affiliated charities, warns Michael Gerson, would be “an overreach,” “a bridge too far in our current cultural and political context.”
Allowing employers to make decisions of this kind without the interference of federal law would be as extreme as. . . current federal policy, which offers exactly that freedom. There were no federal mandates on contraception until Obamacare narrowly passed the House with no explicit contraceptive mandate. (It would probably not have passed had it contained one.) Today’s controversy concerns the administration’s decision to use the Obamacare law to create this mandate.
Under current federal policy, an employer may choose not to provide contraceptive coverage. Moreover, Ed Whelan makes a strong case that the contraceptive mandate is illegal not only as applied to religious charities but as applied to employers with contrary religious convictions. The Religious Freedom Restoration Act—passed with near unanimity by Congress and signed by President Clinton—protects the freedom of these employers, and it includes a provision requiring that any future law be read as compatible with it unless it includes an explicit override.
The ability of employers to make these decisions has not led to sectarian strife or a crisis of contraceptive inaccessibility. And every Republican who has pledged to repeal Obamacare is already on record opposing the contraceptive mandate unless he adds that he wants to pass a new law authorizing one. It is not extreme to insist that religious freedom be left as robust as it was before Obamacare was enacted.
"Under current federal policy, an employer may choose not to provide contraceptive coverage."
I don't believe this is true, as the ACA is considered to be 'current federal policy.'
Reply to this commentLinkReport AbuseWay too many Republicans have no objection to big govt. They just want to be the ones in charge of passing out the goodies.
Reply to this commentLinkReport AbuseThis is the leftward ratchet in full click-click, and people like Michael Gerson, who do not understand the separation of powers issue at hand, are always the ones with their fingers wrapped around the wrench's handle. And to TheFish: the ACA is "current federal policy," but it says nothing about a contraceptive/abortifacient mandate. Rather, it grants an absurd amount of power to the executive branch, the abuse of which is what is enacting the mandate. The distinction is important for this reason: although no agency of the federal government should violate the First Amendment by enacting such a mandate, it is even more disturbing when it emanates from an executive that has shown other signs of seeking dictatorial powers. And technically, since the mandate has yet to be implemented, Ponnuru is entirely correct about what is "current federal policy."
Reply to this commentLinkReport AbuseThe fact that the mandate hasn't gone into effect yet doesn't change the fact that it is current federal policy. It's current federal policy for taxes to rise in 2013 after the current round of breaks expires; the fact that this hasn't yet occurred doesn't change the policies at all.
I reject the argument that the mandate violates the 1st amendment in any fashion. I also specifically disagree that the amount of power delegated to HHS is 'absurd.' Furthermore, I think it's ridiculous to say that Obama has shown 'signs of seeking dictatorial powers.' This is just an exaggeration for effect on your part.
I would also point out that polling has yet to show any damage to Mr. Obama over the contraception issue - even amongst regular church-going Catholics. I submit that this entire issue is a ginned-up controversy and a losing one for the GOP - Obama wins out with the groups he needs to come out and vote (youth and women) and loses out with people who weren't going to vote for him anyway (hard-right wing Catholics and Evangelicals).
If Obama and his crew continue to own the framing of this issue - access to contraception for women being a fundamental value that they support - the GOP will lose this fight. But, seeing as the strategy and tactics displayed over the last few years by this group have been horrendous, who is surprised by that?
Reply to this commentLinkReport AbuseThe point Ponnuru and the other commenters are making is that the policy that the Executive branch is promulgating based on broad powers granted under the obamacare law - is superseded by the prior religious freedom Federal law as that law specifically states that unless it is specifically abrogated in a Federal law (e.g. the abrogation is apparent in the law as it is voted upon)...then the prior religious freedom law holds power over any subsequent law that does not specifically abrogate it.
You are wrong.
Also, your characterization of the issue at stake as access to contraception is ridiculous. That is not remotely the issue at hand. Access to contraception is as easy as pulling out before climax, or, alternatively, removing the male instrument before climax. Barring that...the next rung is a bathroom in a gas station...or a free clinic...or one of the aisles in a gas station/drugstore/grocery store...etc... Contraception is easy and easily accessible.
You're not interested in being truthful or correct though. That much is evident from all your comments.
Also, Obama has wistfully talked about dictatorial powers (something Bush never even dreamed of)...he has mentioned it in speeches...he has done it (Libya, GM/Chrysler creditors, the passing of Obamacare (ok - the Democrats in charge of the Legislative Branch assisted), the budgetary process these past few years...).
Reply to this commentLinkReport AbuseI reject the argument that the mandate violates the 1st amendment in any fashion.
Gee, what a surprise. What part of "free exercise thereof" is so hard to understand? Birth control is a right, huh? Supersedes all religious concerns. What if the opposite happened: birth control outlawed because a religious-minded Congress or state legislature decided as much. Would you and your lefty pals be so cavalier about it then?
I also specifically disagree that the amount of power delegated to HHS is 'absurd.'
Duh. You lust for government power. What's out of bounds? Whatever we on the left say. Disagree, pay a fine, go to jail. Spend the country into the ground. Who wouldn't want more of that?
Reply to this commentLinkReport Abuse"Gee, what a surprise. What part of "free exercise thereof" is so hard to understand?"
The part where providing your employees basic health insurance removes that ability. This argument hasn't been forwarded very well by those who oppose the current rule; it seems to shift constantly depending on the day.
"You lust for government power."
On the contrary; I merely recognize that there's very little difference between the previous state of affairs and the current one. Only in the minds of those who are actively seeking to pick a fight with Obama - and a losing fight on a losing issue at that - is this some sort of sea change.
Reply to this commentLinkReport AbuseDon't share your awful interpretation of the Constitution, sorry. But I like how you often pretend you aren't something when you clearly are. If you didn't lust for state power you wouldn't be in favor of the current administration (like me), or any other administration that lusts for state power, in whatever form it takes. So you fall back on another characteristic of the left - muddled, twisted thought (e.g., don't change anything regarding contraceptives and insurance but pretend you are.) When you say there is "little difference between the previous state of affairs and the current one" - I don't even know what the hell that means, except it's gobbledygook masqueraded as something kinda sorta maybe profound.
Reply to this commentLinkReport Abuse"Don't share your awful interpretation of the Constitution, sorry."
You disagree with Scalia and I regarding the primacy of Civil law over religious authority?
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Reply to this commentLinkReport AbuseWould that be a crime? I doubt Scalia would argue that no one can disagree with his views on the law. He has certainly disagreed with previous Justices. My main criticism of him is that while stare decisis is an important concept, a bad ruling is a bad ruling and should be overturned. The more liberal members seem to have no problem with this and it kind of tilts the playing field when you have a bias towards the left( they will overturn conservative rulings, the right won't overturn liberal ones) like that.
Meanwhile, if the Fed didn't impose itself into so many aspects of our lives, this would be less an issue.
And I would remind you that the Religious Freedom Restoration Act mentioned in the post was passed to PREVENT just this this sort of thing once it was clear the the courts wouldn't.
Reply to this commentLinkReport AbuseActually I don't agree with the Scalia/Fish view expressed in the Employment Division case, but in any event that case is distinguishable. As the Becket Fund explains in its filing, the HHS mandate fails the test of being a "neutral and generally applicable" law under Employment Division and also implicates free speech rights.
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Reply to this commentLinkReport AbuseYou kidding me? You might want to look up a different precedent. This was the constitutional question (from Sandra Day O'Connor): "whether the Free Exercise Clause protects a person's religiously motivated use of peyote from the reach of a State's general criminal law prohibition."
That answer was, yes, the state could deny unemployment benefits for using an illegal, hallucinogenic drug. Not sure if you've noticed, but birth control doesn't have either of those adjectives attached to it.
The greater point of that case was that the SCOTUS didn't want federal judges deciding whether every single religious act violated general laws on the books. Scalia said if that happened, you'd have courts deciding every ridiculous thing under the sun, like whether throwing rice at a church wedding was legal. Forcing birth control, etc., on insurance policies isn't the same as the people on those policies trying to skirt laws already on the books that prohibit illegal behavior.
Reply to this commentLinkReport Abuse"The fact that the mandate hasn't gone into effect yet doesn't change the fact that it is current federal policy. It's current federal policy for taxes to rise in 2013 after the current round of breaks expires; the fact that this hasn't yet occurred doesn't change the policies at all."
If you want to play semantic games, the current policy is that in a year you will have to provide Contraceptive coverage but for now you don't. So current policy is that you don't currently have to provide it.
Reply to this commentLinkReport AbuseIs there any reason the next Sec.HHS can't roll coverage back to the PPACA bare minimum?
Reply to this commentLinkReport AbuseNo, there's no reason at all PPACA provisions can't be rolled back -- which underlines the problem with an executive branch on steroids: too much unaccountable power. We don't need Congress at all if the executive branch can legislate by fiat.
The Constitution begins 'We the People', not 'I the President' or 'We the Executive Branch', and for Obama to usurp such power is dangerous for us all, regardless of political stripe. (Think what a radical right President could do by executive order if he/she took a mind to! That ought to make your eyelashes curl.)
It is the unaccountable power that Obama is claiming for the executive branch that is the overarching wrong. Our ancestors fought a revolution to be free of the whims of a king, and yet here we are again.
Reply to this commentLinkReport AbuseIf we are really concerned about letting religious institutions preserve their moral convictions, shouldn't we grandfather polytheism into the Religious Freedom Restoration Act?
Or would this moderate-right rag argue that that's going too far? That the intention of conservatism is only to argue for the retention of the moving moral average that was mainstream attitudes from 30 years prior?
What's the point in merely slowing the tide of progress--so that what you dread doesn't arrive in 15 years, but 30 instead?
Reply to this commentLinkReport AbuseIrrelevant much? A polytheist such as a Hindu would most certainly be covered by the act. And even non-theists such as Buddhists. I wonder what certain Buddhists would say about abortifacients, since they won't even take the life of an ant or a cockroach. The RFRA doesn't specify it only covers monotheists--or do you have a special copy?
Really, the quality of progressive thinking around here has deteriorated.
Reply to this commentLinkReport AbuseIrrelevant much? A polytheist such as a Hindu would most certainly be covered by the act. And even non-theists such as Buddhists. I wonder what certain Buddhists would say about abortifacients, since they won't even take the life of an ant or a cockroach. The RFRA doesn't specify it only covers monotheists--or do you have a special copy?
Really, the quality of progressive thinking around here has deteriorated.
Reply to this commentLinkReport AbuseWould you be ok with a dedicated atheist, who generally feel like continuing life support to a person in a vegetative state is a profound insult to human dignity, having a policy which refuses to cover life support for people with little to no chance of recovery?
Would you be ok with a Muslim employer refusing any coverage for transplants?
I keep asking this question, and every conservative I have ask wiggles away from this question and refuses to answer it.
Reply to this commentLinkReport AbuseYour examples point out a key reason why insurance coverage should be disentangled from employment. Each person should purchase insurance consistent with his needs and values.
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