The morality and legality of the HHS mandate and the "accommodations".

AuthorMilhizer, Eugene R.
PositionDept. of Health and Human Services

The Department of Health and Human Services' mandate requires employers to provide insurance coverage for contraception, sterilization, and abortifacient (abortion inducing) drugs. (1) The fight against the HHS mandate is the most important issue of religious freedom and conscience in our lifetimes, so it is important to dig into the subject matter in some depth.

I will begin by addressing a few of the basics. The HHS mandate, as originally designed, required that all employers provide so-called preventative health care products and services to their employees that include contraception, abortifacients, and sterilization, even if the employer is a religious institution that opposes such practices as a matter of faith, morals, and religious doctrine. (2) The only religious-based exception recognized by the mandate is extremely narrow and applies, in essence, exclusively to entities such as churches, seminaries, and convents) This is because in order

to qualify for a religious-based exception, the entity's membership and activities, for all practical purposes, must be exclusively limited to a single religious denomination. Thus, Catholic hospitals, charities, universities, and Catholic law schools, like Ave Maria School of Law, would not be exempted from the mandate because they employ and serve non-Catholics, (4) and thus they would be forced to provide coverage for morally objectionable products and services for all of their employees. In fact, it has been contended that Jesus Christ himself and His Apostles would not be exempted from the mandate as they ministered to people of many religious traditions.

Why would such a narrow definition of a religious organization be adopted? The purpose is to relegate religious expression and influence to the confines of houses of worship, separating religion and its influence from the broader culture. In other words, the government has no objection to people of faith gathering together on Sundays and engaging in quaint rituals and singing hymns, provided that their beliefs and convictions do not spill over into the public square and have any influence in the marketplace of ideas. This impoverished conception of religion is wholly at odds with the American experience, and it amounts to putting the judicially imposed doctrine of "separation of church and state" (5) on steroids. This reductionist view of religion comports with the rhetoric we hear so often from the left, including President Obama and others in his Administration, when they increasingly refer to freedom of worship rather than freedom of religion. (6)

Before proceeding further, I should explain what is meant by the term mandate in the context of the HHS mandate. The HHS mandate is not a law; that is, it is not legislation that is passed by Congress and signed by the President. Nor is it a policy statement or guideline that merely encourages rather than compels compliance. Rather, it is a requirement imposed by a non-elected bureaucrat, in this case the Secretary of Health and Human Services, Kathleen Sebelius, based on authority delegated to her by Congress. (7) Further, the HHS mandate compels adherence with its terms under penalty of law, which in this case is a substantial fine. (8) One final point of clarification: the HHS mandate is different than the Affordable Care mandate (9) (popularly known as the Obamacare mandate) that was affirmed by the Supreme Court in June. (10) The Obamacare mandate is part of legislation passed by Congress, and it requires non-exempt individuals to purchase health insurance or suffer, according to a five-justice majority of the Supreme Court, a penalty in the form of a tax. (11) The HHS mandate is an executive edict, not legislation, that requires religious organizations to cover the costs of contraception, abortion-inducing drugs, and sterilization for their employees.

Also, it is important to understand that even though the Supreme Court affirmed the Obamacare mandate, this does not necessarily mean that the HHS mandate will be found constitutional. These are two distinct, albeit related, legal questions. Two principle distinctions between the mandates should be emphasized when discussing the possible unconstitutionality of the HHS mandate. First, as previously mentioned, the Obamacare mandate is a law, while the HHS mandate is an executive edict. Accordingly, the HHS mandate is deserving of less deference from the courts and would be more susceptible to being declared unconstitutional. (12) Second, while the Obamacare mandate does not implicate the First Amendment, the HHS mandate directly burdens religious liberty protected by the First Amendment, (13) and thus courts should be much less willing to affirm the HHS mandate. (14)

Before addressing various aspects of the HHS mandate and the so-called "accommodations," it is important to address the characterization of contraception as "preventive health care." (15) Those who support the HHS mandate frame the issue as whether religious organizations and institutions should be required to provide preventative health care by providing contraception to their employees. In response to this deceptive characterization, I would first observe again that the mandate extends beyond mere contraception, and includes abortion-inducing drugs and sterilization. (16)

But even leaving this aside, it cannot be fairly said that the contraception services covered by the mandate constitute "preventative health care" (17) in any way, except insofar as they are dispensed for the ostensible and comparatively rare purpose of addressing a serious medical issue unrelated to contraception. (18) Pregnancy is not an illness or disease; therefore, the prevention of pregnancy cannot be considered "preventative health care." (19) After all, when a doctor treats a pregnant woman, his professional training says he has two patients rather than a single patient suffering from a disease. Also, contraceptives themselves can be harmful. Studies show that besides the serious harm that sometimes can be caused directly by the use of some contraceptives, (20) women on contraceptives are more susceptible to sexually transmitted diseases because contraceptives can compromise their immune systems. (21)

Further, if the government was truly interested in promoting preventative health care, then, in addition to allowing insurance companies to raise premiums for smokers, (22) it should similarly allow insurers to raise premiums for those who are sexually promiscuous and thus more susceptible to disease and illness. But of course it does not. Finally, and more broadly--and while I am certainly not advocating this--if the government was really concerned about subsidizing and protecting so-called reproductive rights, one would assume that it would require coverage for in vitro fertilization as well as contraception, which it does not. For these and other reasons, the characterization of the HHS mandate as being concerned with preventative health care for women is false, cynical, politically-motivated, and designed to obfuscate the real issues that are involved.

But even assuming, for the sake of argument, that the HHS mandate is actually concerned with "preventative health care," the fact remains that its requirements are categorically wrong--both morally and legally. The mandate is morally wrong because it obligates institutions--whether they are Catholic or not--to engage in activity that is immoral as a matter of natural law apart from any religious teaching. It is fundamentally true that to deliberately kill children, whether they are born or unborn, is contrary to natural law. (23) Nothing could be clearer. It is also contrary to the natural law to sterilize people to prevent reproduction, or to use artificial methods of contraception to accomplish the same purpose. (24) To compel individuals to provide such services against their strongly held convictions, especially religious convictions, is doubly immoral.

It is likewise abundantly clear to faithful Catholics that the services and products required by the mandate are contrary to Catholic moral teaching. (25) You may have heard that former Speaker of the House, Nancy Pelosi, has argued that since most Catholics who were surveyed said they have used contraceptives, the Church's position on contraception lacked legitimacy as a religious teaching. (26) Others have urged the Church to change its teachings about contraception to incorporate the views of, in the words of these critics, "enlightened" Catholics. (27) This is really an absurd argument, is it not?

Popular opinion or dissident theologians, of course, do not determine Church doctrine. For example, even if most Catholics who were surveyed said that it was permissible to miss Mass on Sunday, and some dissident theologians agreed with this, their shared opinion would not justify repealing the Third Commandment. (28) Church doctrine is certainly not determined by government edicts based on opinion polls. This discussion highlights a fundamental difference between religious authority and civil authority: religious authority comes from God and is thus coherent with the natural law, meaning it is immutable. (29) Civil authority, on the other hand, comes from the consent of the governed and, to be legitimate, must comport with the natural law. (30) An example of the latter--that is, civil authority that comports with the natural law--is the First Amendment's protection of religious liberty. In any event, and with respect to the power of purely civil authority, I am sure that even Representative Pelosi would agree that if most people thought it was reasonable to drive fifty miles per hour in a twenty-five mile per hour speed zone, this fact does not change the legal speed limit.

I should pause for a moment here to emphasize that the religious and philosophical objections to the mandate are broad-based and involve much more than a parochial Catholic cause. As...

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