Contraception Mandate Doesn't Protect Religious Liberty

About Hannah Smith:

Hannah Smith is senior counsel at the Becket Fund for Religious Liberty, which is challenging the mandate in federal court.

No. Because of the First Amendment and the Religious Freedom Restoration Act—a federal civil rights statute sponsored by Ted Kennedy and signed by President Clinton—the clear answer is "absolutely not."

Proponents of this federal HHS mandate would like you to believe the main question is whether and how to increase access to contraception. But the real question here is whether the government can force religious organizations to either pay for activity that contradicts their religious beliefs or pay government fines. The First Amendment exists to shield believers and their institutions from exactly this kind of brute force.

[Catholic Birth Control Fight About Healthcare, Not Just Religion.]

Constitutional prohibitions aside, the "access" argument advanced by HHS's defenders is thin. Affordable contraception is already available to the majority of Americans. In fact, the federal government already spends hundreds of millions of dollars a year funding free (or nearly free) family planning services under its Title X program. Incrementally increasing consumption rates may be a government policy objective, but that misses entirely the superseding constitutional point: Whom can the government force to pay to make it "free."

Proponents of the HHS rule argue that religious groups must provide these services—whatever their religious convictions—because they receive federal funding. Not so. It would be one thing if the mandate required religious organizations to choose between their convictions and federal funding. But this mandate is much worse: It applies with full force to every religious school, hospital, and soup kitchen, even if every single dollar of funding comes from private donations.

Advocates of better healthcare and education should think carefully through the foreseeable consequences of forcing religious groups to choose between offering what they view as morally unacceptable services or closing down because they can't afford the heavy penalties for not offering them. For Catholic Charities alone, if all of its 70,000 employees have health insurance, then not complying with the mandate would result in a $140 million fine the first year. This mandate risks eliminating a vast swath of religious charitable organizations from our country's social safety net. And if HHS enforces this mandate, many religious organizations could be forced to close and all of their employees—including their non-Catholic employees—would be out of a job. Particularly in light of our struggling economy, it should concern every American that the government is cornering religious groups into that choice.

[Obamacare Birth Control Mandate Tramples Religious Liberty.]

State governments have already recognized this risk and avoided it by permitting religious groups to opt out of various state contraceptive mandates. There is no opting out under the federal mandate, which is unquestionably broader in scope and narrower in its exemption for religious groups than all of the 28 states' comparable laws. Religious organizations in states with a mandate—even those where there is no express exemption—may opt out by simply self-insuring, dropping prescription drug coverage, or offering ERISA plans. The federal mandate permits none of these alternatives, and therefore is less protective of religious liberty, which is the central issue in this debate.

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