Religious Freedom and the Health-Care Law

Thomas M. Messner, a visiting fellow at the Richard and Helen DeVos Center for Religion and Civil Society at the Heritage Foundation, writes frequently on religious liberty. He has a few things to say about the current debate over the Department of Health and Human Services mandate requiring Americans to purchase and offer health-care plans that include abortion, contraception, and sterilization coverage.

KATHRYN JEAN LOPEZ: What is the HHS contraception mandate about? What do you wish every American knew about it?

THOMAS M. MESSNER: Every American should realize just how much spin and misinformation this issue has received from the Obama administration, far-left activists, and their allies in the mainstream media.

Let’s set the record straight: Fundamentally, the HHS mandate is about whether federal bureaucrats should dictate what products and services private employers must provide in employee health-care plans.

More specifically, the HHS mandate is about whether government should force individuals and institutions to purchase or provide insurance plans that include goods and services that violate deeply held religious and moral beliefs.

In short, the HHS mandate is about freedom in general and religious freedom in particular.

Everyone who values freedom in general and religious freedom in particular — both men and women and both religious and secular institutions — have a stake in the country standing up to the Obama administration and getting it right on this important issue.


LOPEZ: Defenders of the HHS mandate think the debate is about contraception and opponents say it is about religious freedom. Is this “religious freedom” you’re talking about here anything more than a talking point?

MESSNER: In this case, religious freedom is much more than a talking point — it is the main point.

That’s because the HHS mandate is about whether government should force individuals and institutions to purchase or provide insurance plans that include goods and services that violate deeply held religious and moral beliefs.

In general, government should not force private citizens and institutions to violate deeply held religious and moral beliefs. That’s a principle, not a talking point.

LOPEZ: Is there any fix for the HHS mandate short of rescinding it?

MESSNER: The Obama administration could have included robust protections for religious freedom in the mandate. Instead, it finalized the mandate with what the Becket Fund for Religious Liberty calls “the stingiest definition” of a religious organization ever to appear in federal law.

There has been a lot of talk about the so-called “accommodation” proposed by the administration in February and now subject to public commenting in an advanced notice of proposed rule-making. But as James Capretta has explained in a recent analysis for NRO, this approach is no solution at all.

The truth is that freedom of conscience goes hand in hand with greater freedom in general. This particular mandate is just the first in what could become a long list of problems for religious and moral conscience under the Obamacare regulatory regime.

People and groups with sufficient energy and financial resources can try to find ways to exempt their way through the mess on a regulation by regulation basis. But for those who support a robust vision of religious freedom in America, it is time to start thinking more strategically.

The best way to fix the HHS mandate is to rescind it along with the rest of Obamacare. That way the country can start with a clean state and implement authentic health-care reforms that respect freedom and fulfill the moral responsibility many Americans feel for the poor, sick, and needy.

LOPEZ: How is the HHS mandate related to the individual mandate and this week’s Supreme Court case?

MESSNER: The common theme is freedom. As most people probably know, this week the Supreme Court considers arguments about whether the federal government is constitutionally permitted to force American citizens to enter the market for health insurance. The HHS Mandate is about what drugs and services health-care plans must include. These various mandates are really just different sides of the big box that Obamacare builds around freedom. When freedom in general gets trapped inside the Obamacare box, freedom of religious and moral conscience is likely to get trapped too.

LOPEZ: Is it crucial to have the Hosanna-Tabor case in mind when thinking about the HHS mandate?

MESSNER: Hosanna-Tabor is a recent religious-freedom case in which the Supreme Court made clear that religious institutions enjoy special protections under the First Amendment of the U.S. Constitution. The HHS mandate tramples the freedom of religious institutions, so the Court’s opinion in Hosanna-Tabor could not have been timelier.

Some people today might not like the fact that, in America, religious freedom receives special protection. But saying this is pretty much the same as saying you have a problem not only with the Constitution but also with a core part of what makes America so great.

LOPEZ: You often write about the marriage debate. Is there a connection here in the HHS-mandate debate?

MESSNER: There is a connection between the marriage debate and the HHS mandate debate. It involves the question of freedom.

Redefining marriage in a way that rejects the traditional understanding as irrational prejudice will increase the number of conflicts between religious freedom and various nondiscrimination laws and policies that somehow restrict or compel the conduct of private individuals and institutions. Under these laws and policies, there is a danger that government will force individuals and institutions to engage in conduct that offends their religious or moral beliefs.

Of course, forcing individuals and institutions to violate deeply held beliefs is also what the government is doing with the HHS mandate.

It is possible, perhaps even likely, that in both cases the government is trying to do something that it thinks is good. But even when government does things it thinks are good it can still increase burdens on freedom in general and religious freedom in particular.

The question is when the American people are going to say, whether or not we think a certain policy is well-intentioned, we simply cannot tolerate continued encroachments on our freedom, including on our religious freedom.

As we become a more diverse and pluralistic society, the important good of social peace will require greater flexibility and respect for freedom of private action at both the individual and institutional levels.

LOPEZ: How do we keep talking about this issue in ways that are clarifying and important — that don’t get sucked into presidential-year partisanship?

MESSNER: The key is to focus on freedom. In general, the question of government forcing individuals and institutions to violate deeply held religious and moral beliefs should not be a partisan issue.

On some questions, such as how society defines marriage in its civil laws, government cannot and should not avoid the moral considerations that such questions properly and inescapably present. In these kinds of situations, the American people should be free to manifest their moral considerations in ways that are consistent with the Constitution.

In many situations, however, we should agree to disagree and to respect the freedom of individuals and institutions to live and operate according to their own vision of truth and morality. Private employers, including private religious employers, who want to provide contraception in their employee health plans are free to do so. Private employers that have a different viewpoint should be free to act accordingly, especially if they do so to honor religious or moral convictions about the issue.

People such as President Obama and Secretary Sebelius might very well have deeply held beliefs about contraception and some of the other controversial items covered by the HHS mandate. That’s fine. Things get political, however, when such views lead them to force private citizens and institutions to engage in conduct that violates deeply held religious and moral beliefs.

The better approach is to respect the freedom of the American people and to continue to honor the American tradition of according religious freedom a special place in the life and laws of our country.

LOPEZ: Is this the tipping point on religious freedom — even freedom itself?

MESSNER: Tipping points, by nature, can be hard to predict. But they are a reality, and the American people should be very concerned that, if they allow the foundations of their freedoms to gradually erode over time, the entire structure could start to crumble in a hurry.

Most people are familiar with the analogy of the frog that boils to death because it doesn’t notice that the water in the pot is gradually getting hotter. Of course the same frog would jump right out if put directly into boiling water.

This is an apt analogy for questions involving the erosion of our freedoms. I think the Obamacare legislation, including the various Obamacare mandates that intrude on freedom in general and religious freedom in particular, is pretty warm water for most Americans. The people who say, “Hey, the water is really starting to heat up folks, we might want to do something about it,” deserve to be respected and carefully considered, not shunned as extremists.

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