Diary

Understanding the Contraception Mandate Case

To understand the controversy over Obamacare’s contraception mandate is to understand the Obama’s misunderstanding of religion.    The mandate exempts the health plans of churches and houses of worship.  Further, it provides an accommodation from the mandate for plans of religious colleges, social services agencies and the like.  Finally, a non-profit that is not categorically exempt can opt out with self-certification- a written notice to HHS of the contraceptives to which it objects and the name of the insurer or third party administrator.  HHS then notifies them (the insurer or TPA) of its legal obligation to provide the contraception.

The non-profits in this case (to be heard next Wednesday) assert that the self-certification substantially burdens the practice of their religious beliefs under the Religious Freedom Restoration Act (RFRA) by triggering coverage of contraceptives with which they disagree.  The crux of this claim is that courts can only inquire about the sincerity of the claim.  Once the sincerity is established, the substantial burden of the claim is firmly established and immune from governmental or judicial challenge.  The “substantial burden” test was a last minute addition to the RFRA out of fears that prisons and public schools would be inundated with costly RFRA claims.

For the religious non-profits in this case- most notably the Little Sisters of the Poor- they assert that the accommodation does not exempt them from the mandate, but merely shifts the responsibility for its implementation in contradiction of their beliefs.  The required form even states such.

Several courts have said that the filing of the form is basically no big deal and not a substantial burden on their exercise of religion.  In essence, these courts have decided for themselves the moral implications to the religious organization rather than the religious organization coming to those conclusions.  Take the following example: Germany in the 1990s allowed abortion in the first trimester if the mother underwent counseling.  In many cases, that counseling was done by Catholic organizations who urged the mother to forego abortion.  Regardless, if they opted for the abortion, the church counseling service was obligated to issue a statement that they counseled the woman to meet the requirements of the law.  The German bishops asked the Vatican for guidance and Pope John Paul II concluded that by issuing the certification of counseling, the Church was complicit in the act of abortion which the Catholic Church opposes.

The same dynamics are at work here and how the Obama administration views this issue.  They are under the mistaken impression that by signing and sending off a form to the government somehow this absolves the religious institution of moral responsibility.  One wonders when a form preempts the firmly held religious beliefs of people?  Simply, when did it become the role of courts to second-guess these firmly held beliefs which is what has happened here?  The reason is that the Obama administration and those on the Left believe that one’s religious beliefs and practices stop at the church door.

Some have cited statistics and studies indicating that a majority of Catholic women practice and use contraception despite the expressed doctrines of the Church.  In other words, personal choice trumps the demands of the church hierarchy.  But, established religions do not espouse doctrine based on the latest Gallup poll.  These arguments are absurd from the start.

Instead, religious commitments and beliefs must be accommodated in a society that values religious freedom.  That does not mean that religious freedom exists for an hour every Sunday behind closed church doors.  If we are a society that truly values religious freedom, then we must adjust our demands and it is the government that must assume the cost and inconvenience to avoid placing burdens on religions by effectively and surreptitiously having them endorse and condone a practice with which they sincerely disagree.  Claiming that such an accommodation would be a logistical and informational minefield is no excuse to avoid that governmental responsibility of respect for religious freedom.

It would be difficult to prognosticate the outcome of this case.  One understands the importance of contraception to a large segment of the population.  One can argue that a pregnancy prevented is better than a pregnancy terminated.  But it is not the role of robed judges to make that determination.  Courts should not delve into the theological or philosophical reasons for religious doctrines.  And courts and legislators must realize that the practice of religion for many Americans extends beyond the physical boundaries of the church grounds.

{NOTE: A 4-4 tie would be a defeat for the religious organizations challenging the mandate in the Affordable Care Act}