Another Federal judge rules for HHS mandate, against religious liberty


Turning the founding principles of this country inside-out.

For abortion defenders, many words don’t quite mean the same thing as they do for everybody else. Whenever they invoke “autonomy,” for instance, it’s to claim a right to kill someone else. But actual autonomy – like, for instance, the right to run your own business the way you want – is alien to them.

Unfortunately, such confused souls sometimes hold positions of great power over the rest of us. On Friday, federal district court judge Carol Jackson threw out a small Catholic business owner’s lawsuit against ObamaCare’s HHS mandate, saying Frank O’Brien doesn’t qualify as a “religious employer” and that his business won’t be “substantial[ly] burden[ed].” Saith Judge Jackson:

The challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

[T]he health care plan will offend plaintiffs’ religious beliefs only if an OIH employee (or covered family member) makes an independent decision to use the plan to cover counseling related to or the purchase of contraceptives.   Already, OIH and Frank O’Brien pay salaries to their employees—money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.

This morning, National Review judicial analyst Ed Whelan dismantled Jackson’s reasoning, noting that the fine’s financial burden – “a $100/per day tax for every employee” and “annual fines of $2000 for every employee” – is indeed “substantial,” and that by conceding that “it is appropriate [to] take into account the effect on the religious beliefs of certain religious employers,” the Department of Health & Human Services has implicitly conceded that the determination whether or not to cover contraception is an exercise of religion. Whelan also points to Professor Rob Vischer’s observations:

[T]he court accepts the equivalency (for “substantial burden” purposes) of paying salaries and paying for particular services under a health plan.  (“Already, [plaintiffs] pay salaries to their employees — money the employees may use to purchase contraceptives or to contribute to a religious organization.  By comparison, the contribution to a health care plan has no more than a de minimis impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.”)  This misses the scandal that is created by more direct complicity with the illicit ends.  If a Belmont Abbey College employee were to bring the invoice from an abortion provider to work and demand that her employer pay it, is that really the same as using salary to pay the abortion provider?  For purposes of determining whether a government requirement amounts to a substantial burden on the employer’s religious exercise, apparently it is.

At its heart, the HHS mandate is founded on flawed understandings of the nature of government power and religious liberty that completely reverse the meaning of both principles. First is the presumption that the federal government’s scope is open-ended, extending to most anything a majority decides would be a good idea and its only limits being whatever the Constitution specifically forbids. The truth is precisely the opposite: the Constitution doesn’t give the feds power to do anything except the limited number of duties it expressly authorizes. It is the people’s freedom, not the government’s, which should be presumed to be open-ended in matters that don’t infringe on their neighbors’ rights. Neither Congress nor the federal bureaucracy has been constitutionally authorized to manage private businesses’ insurance policies, and the decision of what to offer your employees falls firmly within the scope of personal freedom and voluntary association.

Second, the idea that we’re entitled to religious freedom only if we fit some narrowly defined subset of religious organizations is downright poisonous. The First Amendment guarantees everyone’s right to the “free exercise of religion” by ordering Congress to make “no law” that would infringe on it. As a principle America owes its very existence to perhaps more than to any other, religious liberty is non-negotiable, and any attempt to undermine it should be met with the deepest suspicion and resistance. Government deciding whom it will and won’t recognize as “religious” is a naked attempt to get around the Free Exercise Clause, and accepting such a precedent would all but destroy religious liberty in this country.

Lest you feel inclined to give the Obama administration’s intentions the benefit of the doubt, recall that they barely even pretend to care about the constitutionality of their actions. Our leaders respect neither our rights nor their responsibilities.

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