Undermining the First Amendment in the name of “Health Care”

Short memories make for bad public policy. I can’t help but reflect on that.

As I write this, Congress is about to take a vote on doing something-or-another with Obamacare: repeal, replace, whatever. I’m not sure they know what they’re doing, despite good intentions all around. In all the tinkering, I am not hearing much from Members of Congress about what made the “Affordable Care Act” utterly unacceptable to so many Catholics, including me: the contraceptive mandate.

Catholics knew long before the U.S. Government what authentic health care means. Catholic institutions provide health care to more Americans than does any other network. Before the ACA, Catholics had served their neighbors very well without  adopting the fiction that “health care” meant contraception, including abortion-inducing measures.

Implementing the ACA, the Department of Health and Human Services announced that as of 2012, birth control for women was henceforth “preventive” health care that had to be covered under all health insurance policies, with no co-pay by users. The HHS contraceptive mandate meant that Catholics, and others who have religious objections to contraception, were expected to violate their consciences by helping employees procure contraception.  That was the earliest manifestation of the anti-religious-liberty aspect of Obamacare.

What had been a private decision – whether to use contraception – suddenly became a public matter. Bosses weren’t just invited into their employees’ bedrooms; HHS dragged them in there.

The U.S. Catholic bishops did the nation a service by speaking with one voice against the mandate. Catholics in over 100 cities rallied in support of religious liberty in the face of the mandate.

Attempts by the government to “accommodate” a select few institutions were inadequate. Litigation began, and continues to this day, as people like the Little Sisters of the Poor fight the government to be relieved of the mandate.

Catholics haven’t been the only ones to stand up for the First Amendment’s religious liberty protections. The most famous anti-mandate court case so far, Hobby Lobby et al., was won by people who were Mennonites and evangelical Protestants – not Catholics.

Five years ago this week, I spoke at a religious liberty rally in my state’s capital city, prompted by the threat posed by the HHS mandate. While the rally was organized by Catholics, it was an ecumenical group that gathered. We rallied outside a federal courthouse, straining to hear each other through the crowd. We got thumbs-up from drivers. Faith in God and respect for the Constitution energized and united us.

If in the past five years we have lost that faith and respect and energy and unity, then we deserve to be ignored – but our children don’t. For their sake, let’s remember why we refused to accept a government mandate that attempted to tell us what was OK under our religion. Let’s refuse to buy into any public policy, present or future, that interferes with our First Amendment rights.

This is what I told my fellow Granite Staters at the rally five years ago. The only things that have changed since then are that Hobby Lobby has won a very narrow Supreme Court victory, and the ruinous fines that loomed in 2012 have been kept at bay by litigation. That’s a reprieve, not a solution.

Standing up for Religious Freedom rally, Concord, March 2012 (with Catherine Adair & her family)

When my own state’s contraceptive mandate passed a dozen or so years ago, I didn’t recognize its significance.  I opposed the bill, but I settled for quietly shaking my head instead of taking up the argument. After all, in accordance with my religious faith, I wasn’t using contraceptives, and I wasn’t working for a religious institution with moral objections to contraception. It did not occur to me or to anyone else in the room that New Hampshire’s mandate, and similar measures in other states, would help pave the way for the federal government’s Department of Health and Human Services (HHS) to require that all Americans purchase health care, define contraception and abortifacient drugs as “preventive care”, and refuse to recognize conscientious objections to this arrangement.

(I’ll save for another day a fuller treatment of just what kind of health problem contraception “prevents”.)

Back in 1999, that would have seemed a huge leap. Now, looking back, I wonder how I could have failed to see what was coming. It is to the great credit of American Catholic bishops that they have been so outspoken in defending religious liberty against this encroachment (see their statement here). That’s a start. The bishops have done their job. It’s now for the rest of us to bring the no-mandate message to Concord and Washington.

The HHS mandate plays strange games with health care, and thus with people’s lives. It says certain procedures are “preventive” and thus must be free to women. No co-pay. Except that’s not really free: everyone, including women with religious objections to the procedures, must pay, since everyone will be required to carry insurance. Religious institutions providing insurance to employees will have to pay to include that coverage even if the procedures violate the tenets of the religion in question. There is no opting-out. In response to protests, the President has delayed implementation of the mandate to August 2013, as though the outrage will cool by then.

What will happen at that time to religious institutions, such as hospitals and adoption agencies, that will not pay into such a health care system? They can knuckle under, which is undoubtedly what HHS expects, or they can close down, or they can continue to operate but pay heavy fines to the government.

But what about the First Amendment? The HHS mandate attempts to get around that by exempting certain religious employers – but not the ones that serve people of other religions. As others have pointed out, Jesus and the apostles would flunk that test. Employers refusing to submit to the mandate will be fined.

A government that attacks my religion today can attack yours tomorrow. Today, I am being told that I can hold whatever beliefs I want, as long as I’m prepared in August 2013 to pay a fine for taking those beliefs seriously. Tomorrow, or next week, or next year, you could be getting that message.

It does not matter if those of us who reject the mandate are in a minority. The Bill of Rights was not put into the Constitution to protect majorities.

When the American bishops spoke up earlier this year, they were greeted with a well-orchestrated & well-funded campaign promoting a lie: that anyone opposing the mandate is waging war on women.

I don’t have an advertising budget. I don’t have Nancy Pelosi’s phone number to ask her to set up a mock hearing for me. I am not a photogenic 30-year-old Georgetown law student with a publicist. I’m simply a New Hampshire neighbor, here to get my message across as best I can.

A co-pay is not a war.  Respecting Catholic beliefs is not an act of war. When you keep your hands out of my pocket when you pay for your preventive care, that’s not an act of war.

On the other hand, a federal mandate that threatens the Catholic Church’s ability to operate thousands of schools and hospitals and adoption agencies DOES amount to a war on women. When this mandate imposes a fine a on a church that is one of the foremost health care providers in the nation, that’s not only a First Amendment violation. It’s stupid, shortsighted policy that will have a devastating effect on American women.

Some people warn that removing the mandate ans requiring a co-pay would inhibit access to contraception. Access doesn’t mean free; ask any store owner. At least eleven agencies in our state offer family planning services on a sliding fee scale, so financial need is not barrier to access.

The HHS mandate, and the state-level mandates as well, are not really about preventive health care except to those who consider women’s fertility to be a disease. A mandate that threatens Catholic health care providers undermines the very meaning of health care. In fact, if you’re concerned about women’s health, you’ll defend the church’s freedom to do its work.

Up to now, people of faith have “rendered unto Caesar”, as the saying goes, on things like this. Just as I behaved when NH’s mandate was enacted, we’ve gone along to get along. The HHS mandate is a line in the sand, drawn by Caesar, and it’s time to say “we’ve rendered enough.”

I’m not asking for any favors here. I am a citizen, and I claim the protections of the First Amendment against those who would force individuals and institutions of any religion to participate in providing procedures they recognize as immoral. That’s solid ground on which to stand.

A co-pay is not a war, fertility is not a disease, and religious faith is not a crime. Politicians and bureaucrats evidently need to be reminded of this.

[Cross-posted at ellenkolb.com]

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