Politics & Policy

HHS Mandate 101

Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty
Why you should care

The Obama administration and its allies continue to defend a regulation mandating that Catholics offer and purchase health-insurance plans that violate their consciences. The administration is counting on confusion to keep this from becoming a permanent political wound. But Obama voters — including prominent ones — see this not as an issue about birth control or even abortion (an issue they’ve overlooked in Obama’s case before), but as an issue of religious liberty and the nature of our nation.

Mark Rienzi walks through some of the most frequently asked questions with National Review Online’s Kathryn Jean Lopez. Rienzi is senior counsel at the Becket Fund for Religious Liberty and a professor of constitutional law at the Catholic University of America (Lopez’s alma mater).

#ad#KATHRYN JEAN LOPEZ: So what exactly is the problem with the HHS mandate?

MARK RIENZI: The mandate forces individuals and organizations to violate their religious principles by providing their employees with drugs that cause abortion, as well as with contraception and sterilization. Whatever one thinks about the debate between “choice” and “life,” we should all be able to agree that only willing people should have to participate in abortions.

This country was founded by people of all different faiths and backgrounds. We have a great tradition of finding ways to work with people so as not to force them to violate their religious beliefs. The Obama administration’s refusal to do that here violates the Constitution and federal law.

LOPEZ: Is there a smart shorthand that captures that?

RIENZI: Sure: Tyranny.

LOPEZ: But there is an exemption in the mandate. Why is that not enough?

RIENZI: The existing exemption is incredibly narrow and actually penalizes those charitable organizations that are kind enough to help people who are not members of their own faith. A Catholic soup kitchen, for example, would fail to qualify simply because they serve hungry Jews, atheists, and Muslims along with hungry Catholics. The same would be true for inner-city Catholic schools, which frequently educate poor children of all faiths. On top of that, the exception would apply only to organizations that refuse to hire members of other religions and that file tax returns as churches or religious orders. The conscience clause also applies only to organizations and not to individual business owners who may not want to pay for these services. It is, by far, the narrowest conscience clause in federal or state law.

LOPEZ: Is this a “war on religion”? Has Kathleen Sebelius even suggested as much?

RIENZI: Well, at the very least, it is a clear rejection of our long historical tradition of respecting individual religious freedom in this country. With this mandate and the incredibly narrow conscience clause, President Obama treats religious liberty as something that belongs to religious organizations alone, and even then only to religious organizations that behave the way he wants them to (i.e., refusing to serve and hire members of other faiths). He completely ignores (or worse, deliberately violates) the religious-freedom rights of many other religious organizations, and of many religious individuals who do not want to pay for these services.

Secretary Sebelius did say she was at war over contraceptives and abortion. I have no idea if this is what she had in mind. But whether they wanted it or not, she and the president have now provoked a powerful, cross-party, multi-faith resistance that is not about to give up its religious freedom without a fight. Who says this president can’t bring people together?

#page#LOPEZ: Is this about birth control or religious freedom?

RIENZI: The only issue here is whether the government will force unwilling religious objectors to give up their religious beliefs. There is no problem of access to birth control in this country. As the administration never stops saying, the stuff is popular and provided by most private employers. And when private employers don’t provide it, the federal government already gives it out to people who want it through Title X funding.

#ad#Let me give you an example. At the Becket Fund for Religious Liberty, we represent the monks at Belmont Abbey College in North Carolina. They are Catholic, and they have religious objections to providing these drugs. According to the Alan Guttmacher Institute, the federal government already provides contraception to more than 100,000 people in North Carolina, from more than 100 federally funded Title X clinics. There is simply no reason that the government can’t provide contraception to any employee of Belmont Abbey who happens to want it.

So the question is not whether people will be able to get birth control — they can, and they will. People get plenty of contraception today without making Catholic monks give it out. The question is whether the government will use the issue to force a small religious minority to conform to the government’s view that birth control is a great idea. And that’s something the Constitution and federal law clearly forbid.

LOPEZ: What’s this “conscience” word all about?

RIENZI: James Madison famously said that conscience is “the most sacred of all property.” Conscience — particularly in the religious sense — is the right all of us have not to be forced by the government to violate our religion. It is the idea that in a free country, the coercive power of the government should not be used to deny people the right to freely and peacefully practice their faith. It is a right that we have always recognized in this country — from religious exceptions for Quakers who did not want to fight in the military, to religious exceptions for corrections workers who don’t want to be involved in capital punishment, to religious exceptions for health-care personnel who do not want to be involved in abortions. It is a bedrock principle of our Constitution, our history, and our basic liberty.

LOPEZ: Can the Obama administration tweak this mandate in some way to make the complaining stop?

RIENZI: A “tweak” probably won’t cut it. What they need to do is provide a complete exception to any individual or organization that has religious objections to providing these drugs. That would be simple, straightforward, and fair. It also happens to be exactly what the law requires.

LOPEZ: There is a Jeff Fortenberry/Roy Blunt bill and a Marco Rubio bill. How are they the same? How are they different? What should I be for?

RIENZI: The Rubio bill directly targets the part of the health-care law that authorized HHS to impose this type of requirement and very specifically makes clear to HHS what they should have known all along: They can’t trample on religious liberty when issuing their mandates. The Fortenberry/Blunt bill is much broader — it creates a far wider variety of protections for conscience in the health-care context. Passing it would protect not just employers, but health-care institutions and workers of all kinds. It would be a significant step forward in protecting religious liberty.

Both bills are of vital importance. One of the abortion-debate mantras is “choice.” Well, is it too much to ask that the people who pay for and provide health care also be given choice about whether they will be involved in abortions? The same Constitution that protects the right to choose abortion also protects the right not to participate in abortion. Both statutes will help protect that right and both should be enacted.

#page#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.

#ad#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.

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