With exquisite timing—two days before the 39th anniversary of Roe v. Wade , and three days before the March for Life descends on Washington—the Obama administration’s secretary of Health and Human Services, Kathleen Sebelius, has released a long-awaited statement confirming her department’s rule, first proposed several months ago, that under Obamacare almost all health insurers in the nation will have to cover sterilization and contraception, including those “contraceptives” so classed by the FDA but known to be abortifacients. (The policy’s effect is suspended for a year, until after the 2012 election. But surely there was no political calculation in this . . . ) To this policy, unjust in itself as applied to anyone with moral scruples (which is to say, nearly anyone who would not choose to provide or purchase such coverage voluntarily), HHS offers only a ridiculously narrow “religious exemption,” described as follows by my colleagues on the Witherspoon Institute’s Task Force on Conscience Protection:
Houses of worship are almost certainly protected, but all other religious ministries and institutions are almost certainly not. The exemption covers only: a “religious employer” that has the “inculcation of religious values” as its purpose; “primarily employs persons who share its religious tenets”; and primarily “serves persons who share its religious tenets.” Further, the employer must qualify as a church organization under two narrow provisions of the tax code. Religious institutions such as colleges and universities, as well as hospitals and charitable institutions that employ and serve the public (versus only co-believers) will be ineligible. Individuals, and religiously affiliated health insurers are also outside of the scope of the exemption.
You think the putative commerce clause violation of the ”individual mandate,” currently being litigated before the Supreme Court, is bad enough? Try this on for size: the Obama-Sebelius HHS rule forces countless Americans to purchase health insurance that violates their religious beliefs. And it forces religious organizations that seek to do good in the world—universities and schools, hospitals and clinics, adoption and social-service agencies, soup kitchens and clothing banks—to violate the consciences of their religious communities if they want to continue to do all these good things. Cover abortifacients and sterilizations in your employee health plan, the little Christian school down the road from you will be told. The choices will be a) violate your conscience, b) drop your health coverage and propel your employees into the government-run “exchanges” awaiting them with all the tender mercy of federal bureaucrats, or c) close up shop. Some choices.
Last week I wrote here at First Things that the Hosanna-Tabor precedent might bode well for the struggle against this injustice, because the unanimous Supreme Court in that case endorsed the proposition that in the internal governance of religious organizations, the First Amendment permitted no government interference. Is there anything more important to the internal affairs of a church, or a church-run organization than the moral choice to honor the sanctity of life in all the organization’s dealings with its own members—its employees, students, and clients?
The Obama Justice Department went for broke in Hosanna-Tabor , attacking the “ministerial exception” to federal anti-discrimination laws, as though the religion clauses of the First Amendment didn’t even exist. For its troubles, it had a unanimous Court call its view “remarkable,” “untenable,” and “extreme.” Now that HHS has similarly gone for broke on the “contraception” mandate, we can pray its extremism will meet a similar fate, either from Congress or from the courts.
