Thomas Jefferson predicted that future generations would be happy as long as they could “prevent the government from wasting the labors of the people, under the pretense of taking care of them.” Earlier this week, I attended arguments at the Supreme Court on the constitutionality of Obamacare, and I am hopeful that the Court will save us from such wasted labors by striking the Affordable Care Act down in its entirety. For now, though, we are stuck with the myriad regulations and mandates that the Affordable Care Act has spawned. That is why, on March 22, the State of Alabama joined a lawsuit against the recent mandate requiring the insurance plans of all employers, with the exception of some houses of worship, to cover contraceptives, abortifacients, and sterilization procedures.
The lawsuit was originally filed by the Becket Fund for Religious Liberty, on behalf of the world’s largest Catholic media network, Eternal World Television Network, Inc. (EWTN), which happens to be headquartered near Birmingham. EWTN has taken great pains to provide insurance to its employees without also subsidizing services that violate its religious mission and contravene the teachings of the Catholic Church. But now, the contraception mandate would require EWTN and other religious employers and individuals to choose between paying fines and subsidizing practices that contradict their beliefs.
The contraception mandate is unconscionable and unconstitutional, but my reasons for joining EWTN’s lawsuit are broader than this single dispute. This latest mandate is the natural consequence of a federal government that has run amok and inserted itself into every corner of our lives. When the federal government took over one-sixth of the country’s economy and unconstitutionally mandated that individuals and businesses buy insurance, there were bound to be some unintended consequences. The contraception mandate is just the down payment on that bill.
The states have traditionally regulated their insurance markets consistent with their own constitutions and the needs of their citizens. Not anymore. After Obamacare, if a state creates a health-insurance exchange, the federal government tells it what the plans on that exchange must cover. And citizens and organizations with special insurance needs like EWTN’s get nowhere when they complain to state officials about the availability of insurance, because state officials are hobbled by federal fiats.
Adding insult to injury, this particular mandate is unnecessary. Unlike some other states, Alabama law does not require that health insurers cover contraception or sterilization, and I doubt it could do so without robust religious exemptions. That is because, in 1998, Alabama voters overwhelmingly ratified an amendment to our constitution to expressly forbid state officials from burdening a person’s freedom of religion unless there was no other way to accomplish a compelling policy result. Alabama is one of only a dozen states that have enacted such a law, and it is the only state to have done so by an amendment to its constitution through a popular referendum.
But this debate is not about contraception. The absence of a contraception mandate has not prevented Alabamians from accessing those services; contraception is widely available. It is unclear how the federal government’s mandate benefits society or how anyone would be harmed if organizations such as EWTN could opt out. In other words, there is a particularly large measure of wasted labor here.
This debate is about first freedoms and religious liberty. It is about whether we, as a society, value the right of conscience and support the freedom of individuals to say “no.” If the federal government can mandate what we have to spend our own money on, then the federal government can make us buy something even if we are morally opposed to paying for it. This time it is contraception, but that is not where it will end.
No one outside of the White House has been surprised by the public backlash against the contraception mandate. Governing through federal ultimatum grates against our history, traditions, and, most importantly, our Constitution. But unless the Supreme Court strikes down Obamacare in its entirety, I fear that the fight over the contraceptive mandate is just the first skirmish in what will be a long war.
— Luther Strange is the Alabama attorney general.