The HHS Mandate Matters
Our president recently decreed that American employers must subsidize the cost of certain healthcare products regardless of whether doing so would violate any religious convictions of the employer. (The mandate is part of the Patient Protection and Affordable Care Act commonly referred to as “Obamacare”). Churches are exempt for now, but religiously affiliated colleges, hospitals, and charities have been given one year to comply with the law or face fines of up to $100/day for each employee. A small Christian college with 400 employees that chooses to abide by the values of its faith would face annual fines of up to $14.6 million. Health and Human Services Secretary Kathleen Sebelius says such an arrangement “strikes the appropriate balance between respecting religious freedom and increasing access to preventative health services.”
The Obama administration believes the “appropriate balance” between the First Amendment right to the free exercise of religion and the non-existent right to subsidized contraception is to give religious organizations one year to plan how best to violate their consciences or pay crippling fines.
Persecution is a regular occurrence for Christians around the world. At the time of this writing, Iranian pastor Youcef Nadarkhani has been imprisoned 885 days for refusing to recant his Christian faith. He faces execution at any moment. In Sudan, the government has enacted an ethnical cleansing policy barring “Southerners” (Christians) from citizenship. Chinese pastor Yi Ling who was released last month after 12 years in prison. Her crime? Working for an underground Christian magazine.
The HHS mandate is not religious persecution. Christians in America must remember that domestic skirmishes over Crèches and contraception pale in comparison to the war on Christianity being waged elsewhere. Yet incremental infringements on religious freedom in America do matter. We have seen the gradual marginalization of Christianity in the West and cases of religious persecution. Sweden criminalized criticism of homosexuality and jailed a pastor for preaching the biblical position on the issue. In Canada, a man was fined $9,000 for printing three scripture references regarding homosexuality in an ad in his local paper.
In neither example are mere beliefs deemed unacceptable. For now, so long as so-called “hate speech” remains private people are free to believe whatever they want. The HHS mandate takes the United States one step closer towards such a system. It is reasonable to presume a nation that can force religious adherents to pay for things their faith compels them to avoid could criminalize the preaching of their religious tenets. The elimination of faith from the public square is impossible for Christians who have a mandate to spread the Good News. It is also contrary to foundational American principles.
Church-State relations have always been a messy business. In America, our founders recognized that the free and pluralistic society they envisioned would require constant attention to the tension between religious freedom and civil society. They provided a framework: there would be no establishment of a state religion nor would the state limit the free exercise of religion. We’ve been debating ever since.
The relevant principle inherent in the Constitution is that vibrant and active religious communities are good for society. The President may believe that religion should take a backseat to women’s rights (or golf, as evidence suggests) and many Americans agree. But many don’t. Within the Constitutional framework upon which we base our laws, the HHS mandate is clearly out of bounds. Whether a majority of Supreme Court justices find a path through the labyrinth of bad precedent is an open question. Something tells me we’ll soon see.
This is not a new requirement. Contraceptive coverage was first required of insurance companies who provide preventative medicine in December 2000. The silence over doing this was deafening, since it did not add cost then, nor will it now. What is different is that opting out of insurance altogether involves a fine – not over contraception only, but for not providing insurance at all. This compensates for the likelihood that some of those not covered will have to rely on charitable care. There is no reason, however, for the Church to opt out of this coverage, since they are not doing so now.
This is not a new requirement. Contraceptive coverage was first required of insurance companies who provide preventative medicine in December 2000. The silence over doing this was deafening, since it did not add cost then, nor will it now. What is different is that opting out of insurance altogether involves a fine – not over contraception only, but for not providing insurance at all. This compensates for the likelihood that some of those not covered will have to rely on charitable care. There is no reason, however, for the Church to opt out of this coverage, since they are not doing so now.
This is not a new requirement. Contraceptive coverage was first required of insurance companies who provide preventative medicine in December 2000. The silence over doing this was deafening, since it did not add cost then, nor will it now. What is different is that opting out of insurance altogether involves a fine – not over contraception only, but for not providing insurance at all. This compensates for the likelihood that some of those not covered will have to rely on charitable care. There is no reason, however, for the Church to opt out of this coverage, since they are not doing so now.
Mr. Bindner, I assume you are referring to the federal Equal Employment Opportunity Commission (EOC) rule promulgated in December 2000 requiring that employer-provided health insurance plans include contraceptives for female employees. From what I just read online, failure to do so under this regulation is considered a violation of the 1978 Pregnancy Discrimination Act (which is related to the 1964 Civil Right Acts). The only difference with the recently revised HHS contraceptive regulation is that the 2000 EOC rule did not require contraceptives to be provided to employees for free. I do not have the empirical data to refute your claim that the Catholic Church, its affiliates, or other objecting religious organizations are not exempt from the 2000 EOC rule or have not otherwise found a way to opt out of funding access to contraceptives. But I can at least say that the HHS version takes the situation a step further by exacting fines and requiring employees to have access to contraceptives without any copays or deductibles. Since I reject the premise that government should mandate any institution or organization to pay for their employees’ access to contraceptives (directly or indirectly through insurance premiums), I am even more alarmed that HHS has gone beyond what EOC did in 2000. If Catholics and other Christians were silent in 2000, we made a mistake.
Mr. Bindner, I assume you are referring to the federal Equal Employment Opportunity Commission (EOC) rule promulgated in December 2000 requiring that employer-provided health insurance plans include contraceptives for female employees. From what I just read online, failure to do so under this regulation is considered a violation of the 1978 Pregnancy Discrimination Act (which is related to the 1964 Civil Right Acts). The only difference with the recently revised HHS contraceptive regulation is that the 2000 EOC rule did not require contraceptives to be provided to employees for free. I do not have the empirical data to refute your claim that the Catholic Church, its affiliates, or other objecting religious organizations are not exempt from the 2000 EOC rule or have not otherwise found a way to opt out of funding access to contraceptives. But I can at least say that the HHS version takes the situation a step further by exacting fines and requiring employees to have access to contraceptives without any copays or deductibles. Since I reject the premise that government should mandate any institution or organization to pay for their employees’ access to contraceptives (directly or indirectly through insurance premiums), I am even more alarmed that HHS has gone beyond what EOC did in 2000. If Catholics and other Christians were silent in 2000, we made a mistake.
Mr. Bindner, I assume you are referring to the federal Equal Employment Opportunity Commission (EOC) rule promulgated in December 2000 requiring that employer-provided health insurance plans include contraceptives for female employees. From what I just read online, failure to do so under this regulation is considered a violation of the 1978 Pregnancy Discrimination Act (which is related to the 1964 Civil Right Acts). The only difference with the recently revised HHS contraceptive regulation is that the 2000 EOC rule did not require contraceptives to be provided to employees for free. I do not have the empirical data to refute your claim that the Catholic Church, its affiliates, or other objecting religious organizations are not exempt from the 2000 EOC rule or have not otherwise found a way to opt out of funding access to contraceptives. But I can at least say that the HHS version takes the situation a step further by exacting fines and requiring employees to have access to contraceptives without any copays or deductibles. Since I reject the premise that government should mandate any institution or organization to pay for their employees’ access to contraceptives (directly or indirectly through insurance premiums), I am even more alarmed that HHS has gone beyond what EOC did in 2000. If Catholics and other Christians were silent in 2000, we made a mistake.
Mr. Teetsel, I wanted to respond to what you said not to challenge anything but to complement your essay with remarks on the idea that religious freedom is not absolute, and therefore, this issue really is also about women’s health and the extent to which the HHS mandate legitimately furthers women’s health.
I begin with the proposition, agreeing with Mr. Teetsel, that contraception does not warrant public subsidy. Before all other debates take place, this point must be confirmed or refuted. Many want to characterize this entire debate as either about women’s health or the liberty of religious institutions. It is actually about both. But since religious liberty for individuals and institutions is not absolute, we necessarily are drawn back to consider whether the government aim in question legitimately justifies violating religious freedom. Take, for example, certain elements of Sharia Law, the practice of polygamy, or even certain forms of Christian pacifism. Individuals or institutions could hold to these things with great religious fervor, but that would not mean they should be recognized and protected by law as absolutely inviolable. Criminal law should still protect women (and seek to prosecute male assailants) involved in certain practices of Sharia Law. The same could be said for those involved in the practice of polygamy, even if the practice is based on religious belief. And certain Christian pacifists who unconditionally condemn all government uses of force should not get a tax refund consistent with the percentage of the budget that goes to defense and law enforcement spending to signify that their tax money did not fund government any uses of force. In each of these instances, the free exercise of religion is violated in some way.
So, we’re back to the question, does the aim of government in a particular case justify violating an otherwise critical constitutional principle, the free exercise of religion. In my three examples above, I argue the legitimate government aim does justify violating those exercises of religion. Can the same be said for free access the contraception? No. At the beginning I said that this debate over the HHS mandate is about both religious freedom and women’s health. It is about religious freedom in that this constitutional principle raises the bar very high in terms of justifying a legally mandated violation of that freedom. It is about women’s health in that we must ask whether access to free contraceptives impact women’s health in such a way as to justify violating the religious freedom of institutions and organizations that believe contraceptives are immoral, and, by extension, to pay for them would be immoral.
Why does free access to contraceptives fail this “test”? Fertility is not a preexisting medical condition, and pregnancy is not an illness requiring preventative care. Aside from instances of rape, a woman’s fertility can only become a pregnancy if she has sex with a man. If a woman and her male partner want to prevent pregnancy they can avoid sex or share the costs of contraception. If the question was about whether to criminalize, or severely restrict through regulation, the sale, possession, or use of contraceptives, then we would have a completely different discussion. In reality, however, the debate is over whether government can force institutions to pay for contraceptives so that the people using them don’t have to pay at all. Providing free access to contraceptives cannot possibly justify this kind of violation of religious liberty. Furthermore, we (Christians) should not support public policy that promotes further disconnection of sexual activity from the kinds of loving, permanent relationships for which it is meant and from which its main fruits, intimacy and children, are meant to emerge.
Mr. Teetsel, I wanted to respond to what you said not to challenge anything but to complement your essay with remarks on the idea that religious freedom is not absolute, and therefore, this issue really is also about women’s health and the extent to which the HHS mandate legitimately furthers women’s health.
I begin with the proposition, agreeing with Mr. Teetsel, that contraception does not warrant public subsidy. Before all other debates take place, this point must be confirmed or refuted. Many want to characterize this entire debate as either about women’s health or the liberty of religious institutions. It is actually about both. But since religious liberty for individuals and institutions is not absolute, we necessarily are drawn back to consider whether the government aim in question legitimately justifies violating religious freedom. Take, for example, certain elements of Sharia Law, the practice of polygamy, or even certain forms of Christian pacifism. Individuals or institutions could hold to these things with great religious fervor, but that would not mean they should be recognized and protected by law as absolutely inviolable. Criminal law should still protect women (and seek to prosecute male assailants) involved in certain practices of Sharia Law. The same could be said for those involved in the practice of polygamy, even if the practice is based on religious belief. And certain Christian pacifists who unconditionally condemn all government uses of force should not get a tax refund consistent with the percentage of the budget that goes to defense and law enforcement spending to signify that their tax money did not fund government any uses of force. In each of these instances, the free exercise of religion is violated in some way.
So, we’re back to the question, does the aim of government in a particular case justify violating an otherwise critical constitutional principle, the free exercise of religion. In my three examples above, I argue the legitimate government aim does justify violating those exercises of religion. Can the same be said for free access the contraception? No. At the beginning I said that this debate over the HHS mandate is about both religious freedom and women’s health. It is about religious freedom in that this constitutional principle raises the bar very high in terms of justifying a legally mandated violation of that freedom. It is about women’s health in that we must ask whether access to free contraceptives impact women’s health in such a way as to justify violating the religious freedom of institutions and organizations that believe contraceptives are immoral, and, by extension, to pay for them would be immoral.
Why does free access to contraceptives fail this “test”? Fertility is not a preexisting medical condition, and pregnancy is not an illness requiring preventative care. Aside from instances of rape, a woman’s fertility can only become a pregnancy if she has sex with a man. If a woman and her male partner want to prevent pregnancy they can avoid sex or share the costs of contraception. If the question was about whether to criminalize, or severely restrict through regulation, the sale, possession, or use of contraceptives, then we would have a completely different discussion. In reality, however, the debate is over whether government can force institutions to pay for contraceptives so that the people using them don’t have to pay at all. Providing free access to contraceptives cannot possibly justify this kind of violation of religious liberty. Furthermore, we (Christians) should not support public policy that promotes further disconnection of sexual activity from the kinds of loving, permanent relationships for which it is meant and from which its main fruits, intimacy and children, are meant to emerge.
Mr. Teetsel, I wanted to respond to what you said not to challenge anything but to complement your essay with remarks on the idea that religious freedom is not absolute, and therefore, this issue really is also about women’s health and the extent to which the HHS mandate legitimately furthers women’s health.
I begin with the proposition, agreeing with Mr. Teetsel, that contraception does not warrant public subsidy. Before all other debates take place, this point must be confirmed or refuted. Many want to characterize this entire debate as either about women’s health or the liberty of religious institutions. It is actually about both. But since religious liberty for individuals and institutions is not absolute, we necessarily are drawn back to consider whether the government aim in question legitimately justifies violating religious freedom. Take, for example, certain elements of Sharia Law, the practice of polygamy, or even certain forms of Christian pacifism. Individuals or institutions could hold to these things with great religious fervor, but that would not mean they should be recognized and protected by law as absolutely inviolable. Criminal law should still protect women (and seek to prosecute male assailants) involved in certain practices of Sharia Law. The same could be said for those involved in the practice of polygamy, even if the practice is based on religious belief. And certain Christian pacifists who unconditionally condemn all government uses of force should not get a tax refund consistent with the percentage of the budget that goes to defense and law enforcement spending to signify that their tax money did not fund government any uses of force. In each of these instances, the free exercise of religion is violated in some way.
So, we’re back to the question, does the aim of government in a particular case justify violating an otherwise critical constitutional principle, the free exercise of religion. In my three examples above, I argue the legitimate government aim does justify violating those exercises of religion. Can the same be said for free access the contraception? No. At the beginning I said that this debate over the HHS mandate is about both religious freedom and women’s health. It is about religious freedom in that this constitutional principle raises the bar very high in terms of justifying a legally mandated violation of that freedom. It is about women’s health in that we must ask whether access to free contraceptives impact women’s health in such a way as to justify violating the religious freedom of institutions and organizations that believe contraceptives are immoral, and, by extension, to pay for them would be immoral.
Why does free access to contraceptives fail this “test”? Fertility is not a preexisting medical condition, and pregnancy is not an illness requiring preventative care. Aside from instances of rape, a woman’s fertility can only become a pregnancy if she has sex with a man. If a woman and her male partner want to prevent pregnancy they can avoid sex or share the costs of contraception. If the question was about whether to criminalize, or severely restrict through regulation, the sale, possession, or use of contraceptives, then we would have a completely different discussion. In reality, however, the debate is over whether government can force institutions to pay for contraceptives so that the people using them don’t have to pay at all. Providing free access to contraceptives cannot possibly justify this kind of violation of religious liberty. Furthermore, we (Christians) should not support public policy that promotes further disconnection of sexual activity from the kinds of loving, permanent relationships for which it is meant and from which its main fruits, intimacy and children, are meant to emerge.