In the latest twist in the ongoing saga over the HHS Mandate — the Obama Administration’s effort to force all employers to pay for their employees’ birth control and abortion-causing drugs regardless of the employer’s religious objections—the Department of Health and Human Services released today yet another variation on the regulations that ignited a firestorm of protest when first announced about a year ago.
The previous version of the Mandate granted a “religious employer exemption” that was so narrowly drawn it would not have applied to Christ and his Apostles. It certainly didn’t apply to the Little Sisters of the Poor, or Louisiana College. Several dozen religious groups, Catholic dioceses, Evangelical colleges, and other religious organizations sued HHS in a series of cases across the country. At the same time, owners of for-profit businesses, who share the same religious objection as the churches and schools, also sued, claiming that the Mandate violated their rights too. So far, eleven federal courts have granted injunctions to for-profit business owners, finding that the owners have a strong likelihood of succeeding on their claims that the Mandate violates the Religious Freedom Restoration Act. You might think that, by now, the Administration would be starting to get the message that it can’t legally force people to give up their religious beliefs as a condition of doing business.
But no. As today’s announcement shows, the Obama team still doesn’t get it. Today’s proposal fails to extend the previous exemption at all. Instead, it offers to “accommodate” only religious organizations that are, more or less, church-affiliated. But the accommodation is more of a shell game than a real accommodation. The policies these organizations purchase will, somehow (magic?) conjure into existence separate policies that will provide the objectionable drugs and services to their employees. The religious organization supposedly won’t have to pay anything more for this additional coverage. Who will pay? Nobody seems to know. Perhaps the Elf on the Shelf.
As for the for-profit employers who object, the revised Mandate offers them exactly nothing. You see, the Obama Administration believes – as its lawyers have been arguing in court in our cases – that religion is something people only do within the confines of church, synagogue, or mosque. There is no room in their worldview for the idea – basic to Christianity certainly – that a person’s faith is something that’s reflected in their daily lives and, yes, their daily work.
The Administration’s crabbed view of religion is not what the Founders thought. The First Amendment’s Free Exercise of Religion Clause protects the religious exercise of all persons – not the exercise of only “religious” persons. Our laws and Constitution protect the religious freedom of all Americans, whether organized into religious bodies or not. Religious believers who simply want to conduct their businesses in a manner consistent with their religious beliefs have the same right to religious liberty as everybody else.
There is simply no good reason for this sort of religious intolerance. Even assuming one agrees with the Administration’s goal of providing free contraception to all at no cost, there is no reason why that needs to be accomplished through coercing unwilling employers into providing it. For instance, for years Congress has had a contraception mandate in its federal employees’ health benefits plan; but it has specifically exempted from compliance individuals, health care providers, and insurance companies with religious objections to contraception. Not just churches, not just religious schools: anybody with religious objections. There is absolutely no reason the Administration couldn’t do the same with the HHS mandate.
Today’s action by HHS doesn’t look like it will do much to quell the firestorm the Administration ignited last year. It changes nothing for the thousands of Americans who, like our clients, simply want to run their businesses in a way that doesn’t force them to violate their faith. The ACLJ intends to carry on this fight until we secure, once and for all, the religious liberty of our clients. It has never been, and is not now, the law that Americans are required to leave their religious principles at the factory gate or office door. We are prepared to take this issue all the way to the Supreme Court of the United States.
Francis J. Manion is Senior Counsel with the ACLJ who emphasizes First Amendment law and pro-life legal matters before state and federal courts. A 1980 graduate of Seton Hall School of Law, Manion honed his litigation skills with more than 15 years of experience as a trial attorney in private law firms where he served as trial counsel on behalf of pro-life demonstrators. He joined the ACLJ in 1996 and emphasizes protecting constitutional rights in the public school, the work environment, and the public arena. Manion also emphasizes defending the public displays of the Ten Commandments and other historic displays that are part of our nation’s heritage. He also focuses on safeguarding the rights of medical personnel who are often required by employers to violate their consciences and religious beliefs by participating in pregnancy-ending procedures.
Used with the permission of the ACLJ.