Does the mandate forcing Catholic hospitals to offer abortifacients and contraception violate the First Amendment? The surprising answer is:ย Probably not.
True, there are serious moral and political issues inherent in requiring religious institutions to offer โtreatmentsโ they find theologically offensive. But, despite the claims of many Catholic and conservative commentators, the U.S. Department of Health and Human Services (HHS) rule probably doesnโt violate the freedom of religion clauses of the First Amendment, at least as currently interpreted.
[By the way, when claiming a First Amendment violation, some commentators also have said the First Amendment is โfirstโ because of its primary importance. Actually it is first by historical accident: It was originally theย thirdย amendment, but became the first when the states failed to ratify the original first and second; the original second later became the 27th.]
The HHS rule applies to employers as a class (except churches per se). It does not single out institutions affiliated with religion. In the words of the Supreme Court, it is a โneutral and generally applicableโ rule.
In the 1990 case ofย Employment Division v. Smith, the Supreme Court upheld โneutral and generally applicableโ rules, even when they substantially burden religious practice. As the Court said in that case, โthe right of free exercise does not relieve an individual of the obligation to comply with a โvalid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).โโ Note that both prohibitions and mandates are included in the courtโs language.
This year, the Court issuedย Hosannah-Tabor v. Equal Employment Oppโy Commโn, which blocked the Obama administration from interfering with how a church staffed its own ministry. Some might citeย Hosannah-Taborย as evidencing a more friendly judicial attitude toward religion. Unlikeย Smithย (and unlike the latest HHS rule), however,ย Hosannah-Taborย dealt with ministers in churches, not lay personnel in non-church institutions such as hospitals.
Hosannah-Taborย did include some language that might give hope to those claiming the HHS regulation violates the First Amendment:
โIt is true that the ADAโs prohibition on retaliation, like Oregonโs prohibition on peyote use, is a valid and neutral law of general applicability. But a churchโs selection of its ministers is unlike an individualโs ingestion of peyote.ย Smithย involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.โ
You can argue that forcing a Catholic hospital to offer abortifacients is โgovernment interference with an internal church decision that affects the faith and mission of the church itself.โ But since hospitals are not churches and insurance policies are not ministers, chances are theย Hosannah-Taborย holding would not void the HHS rule.
Another possible source of hope for religious groups is the federal Religious Freedom Restoration Act, passed in the wake of theย Smithย decision. It provides that even neutral and generally-applicable rules substantially burdening religion are valid only if โthe least restrictive means of furthering [a] compelling governmental interest.โ But that statute is useful only if not contradicted by Obamacare. And last year, inย Mead v. Holder, a federal district judge held that Obamacare does serve the โcompelling governmental interestโ of โreforming the health care market by increasing coverage.โ
So the real legal problem here is Obamacare and the mindset behind it.ย Obamacareโs profound interference into American life has already triggered many thorny constitutional and moral problems, and will trigger more.
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As for the mindset, consider:
* A recent Fox News poll shows thatย โBy a 61-34 percent margin, those surveyed this week approve of the Obama administration requiring all employee health plans to provide birth control coverage as part of health care for women.โ
* The D.C. federal judgeโs conclusion that increasing third party payments is a โcompelling governmental interestโโwhen that system is actually the primary culprit in the health care crisis.
* Those in the Catholic hierarchy who actively supported Obamacare, thereby throwing the beliefs of other religious sects (such as Christian Scientists) under the bus.
Too late, liberal Catholics are learning that when you lie down with snakes, you get bitten.
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