June 30 2014

Representative Government - Another Check and Balance

Hadley Heath

Today at the Supreme Court we saw one of the Founders’ intentions at work: We have three branches in our federal government, and each has the power to check the other two in a significant way. The Supreme Court ruled that an executive regulation, the Health and Human Services mandate that employers provide coverage for all FDA-approved contraceptives, conflicts with a federal statue: the Religious Freedom Restoration Act of 1993.

But importantly, there is another check on government that is outside of the three branches. It is we the people. The Supreme Court essentially ruled against the HHS mandate because it found that there are other, less restrictive means the government could have taken to expand health insurance coverage to birth control. Specifically, Congress could budget more tax dollars for programs that fund emergency contraception.

Aghast, some misguided liberals equate a mandated direct payment (from Hobby Lobby to the insurer who covers abortifacient drugs) with an indirect tax payment to fund the same drugs. But these two things are not the same, at least from the legal perspective. The latter, budget policy, must be decided upon the light of day, by our representatives voting for or against, as we, their constituents look on. 

This is what some call “political feasibility.”  Can Congress get away with funding public programs for emergency contraception?  We know they can, because they already do: Title X family planning programs, with a budget of $2.37 billion in 2010, can include emergency contraception (subject to state and local laws).

If Congress wants to increase funding for these programs, or expand eligibility to women who currently do not qualify (because they are not low-income), then our national legislative body can bring it to a vote.  If voters disagree with their elected representatives, they can express their disapproval at the ballot box.  

While the public generally favors “birth control” or “family planning,” another step to the Left is a landmine: Public funding for abortion is favored by only 39 percent of Americans.  No doubt, opposition includes pro-life people alongside libertarian types who might be pro-choice but see no role for government in these matters.

In any case, Congressional votes are a better way for the government to make policy decisions than regulatory mandates – such as the HHS mandate to include all FDA-approved contraceptives in the “preventative services.”  It takes the Supreme Court to hold bureaucrats in the executive branch accountable, but it only takes an election to keep our legislators accountable. 

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