Obamacare Birth Control Mandate Tramples Religious Liberty

The Obama administration's contraceptive requirements aren't just bad politics, they're unconstitutional.

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For most Americans the idea of religious liberty is sacred. It's the reason the country came into being, the Massachusetts Bay colony having been founded by religious pilgrims seeking the right to worship as they chose without interference from the state. Yet this most elemental of our freedoms is now in jeopardy thanks to an effort by the Obama administration to force religious institutions to offer healthcare benefits that violate the basic tenets of their faith.

A provision of the 2010 healthcare reform law mandates that basic birth control services for women be included in as part of any employer-provided health insurance plan. Among the institutions that will feel the impact of this new rule are those affiliated with the Catholic Church—including its hospitals, charities, and universities.

The Catholic bishops have made it quite clear that this is an attack on their denomination's right to religious liberty since the church does not condone birth control. House Speaker John Boehner told the president Wednesday that, because of this rule, he has a fight on his hands.

"In recent days, Americans of every faith and political persuasion have mobilized in objection to a rule put forth by the Obama administration that constitutes an unambiguous attack on religious freedom in our country," Boehner said Wednesday from the House floor. "This rule would require faith-based employers—including Catholic charities, schools, universities, and hospitals—to provide services they consider immoral. Those services include sterilization, abortion-inducing drugs and devices, and contraception."

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Boehner said the House would not rest until the issue is resolved in favor of the right of conscience, a stance that has earned him plaudits from much of the commentariat.

Legal scholars who have looked at the issue say the new regulation may not just be bad politics—leaving the White House in the position of alienating the crucial Catholic electoral bloc—but that it is probably also unconstitutional.

"The new HHS rule represents a radical departure from the traditional treatment of religious organizations in America," Horace Cooper of the National Center for Public Policy Research said. "If the White House doesn't overturn this regulation, the courts will," he predicted.

Cooper, a legal commentator who taught constitutional law at George Mason University, is the author of the just-released white paper "The Birth Control Mandate is Unconstitutional.”

[Peter Roff: Obamacare Free Birth Control Decision Is About Raw Politics]

According to Cooper, a unanimous decision by the U.S. Supreme Court reaffirmed relevant religious freedom protections only a few weeks ago in Hosanna-Tabor Evangelical Lutheran Church v. EEOC.

"This regulation is a cruel use of federal power that rejects over 200 years of understanding about religious freedom in America," Cooper said in a statement. "It furthermore threatens our long-held belief that all Americans may worship and serve God free from governmental interference.”

"No American, employer or worker, should be forced to choose between their religious precepts and obedience to the law," he continued. "It's beyond bizarre to argue that the only way to ensure that the 'morning after' pill or other abortifacients are available is to force religious organizations to pay for them."

Forcing religious schools, charities, and healthcare providers to choose between the moral dictates of their faith and the obligations forced upon them by Obama's new rule is, for the president, a losing proposition. Unfortunately, the cat is already out of the bag. The administration has telegraphed its intentions and, if re-elected, can reasonably be expected to push this same rule again after the 2012 election even if it withdraws it beforehand. It will be hard for the White House to escape the political consequences of its newest initiative.

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