It appears that the Constitution just won one. Maybe. Not sure…
President Obama just finished announcing that the administration is making an accommodation to the Department of Health and Human Services mandate requiring faith-based institutions, regardless of their beliefs, to provide health care coverage for contraception, abortifacients, and sterilization.
It appears that the accommodation is that insurance companies—not the faith-based employers—will have to “reach out” to women working for such institutions and offer them coverage for these procedures that in no way involves their employer.But I am not sure. The Becket Fund appears to believe that the compromise more likely to be respectful of the president's political viability than of the First Amendment.
But the president kept saying that employers would not be “directly” involved in the process, so before I declare a victory for the First Amendment, which guarantees freedom of speech and religion, I want to find out exactly what the president means by employing this word. "Directly" could be a weasel word.
A law professor at Notre Dame University, which would be affected by the mandate,emails Kathryn Lopez of National Review that the “compromise” doesn’t really amount to protection of religious freedom:
Today’s rule still requires religious institutions (on pain of ruinous treasury fines) to purchase insurance that covers these same objectionable services.
It is irrelevant that the rule requires the insurance company (rather than the religious institution) to explain to employees that the policy purchased for them by their employer includes the 5-day after pill. For institutions that self-insure, the situation is even worse; they will be forced to contact their employees and pay for such services themselves.
It is no answer to suggest that the religious liberty of such employers is being accommodated because they are not “paying” for the objectionable services. First, it is naïve to imagine that the services are truly cost-free and that these costs will not be passed along to the employers who purchase these plans.
More importantly, the simple fact is that under this policy the government is coercing religious institutions to purchase a product that includes services that they regard as gravely immoral.
We should ask ourselves why President Obama has sustained the narrow exemption for churches, religious orders, and auxiliaries? This is tantamount to the admission that this policy, just like the previous one, runs afoul of religious liberty.
We will have to wait until lawyers and ethicists pick over this compromise to know if Leviathan has been defeated and liberty upheld.
But I can’t help noticing something very unattractive in the way the president presented the compromise.
He ungraciously claimed that among opponents of the mandate were some who “frankly [had] a more cynical desire to make this into a political football.”
He never trusts the motives of others, even if that motive is the preservation of individual and religious liberty. None of this would be happening, by the way, if the government hadn't just taken over the health care system.