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Obamacare’s Latest Strike Against the First Amendment and Federalism

Two weeks ago the United States Supreme Court, in a surprising but welcome 9-0 ruling, ruled that a minister fired by a Lutheran congregation could not claim protection of federal discrimination laws.  Chief Justice John Roberts succinctly summed up the First Amendment’s protection of religious freedom:

By imposing an unwanted minister, the state infringes the free exercise clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the establishment clause, which prohibits government involvement in such ecclesiastical decisions.

Although this was a strong ruling, the fact that President Obama’s Justice Department had the gall to even try to inject federal discrimination law into the decisions of a church was disturbing.  But the Obama Administration is not done yet. 

Last Friday, the Department of Health and Human Services (HHS) issued a statement from Secretary Kathleen Sebelius announcing an extension of time for certain groups to comply with an HHS rule (issued last August) to implement Obamacare.  The rule “will require most health insurance plans to cover preventive services for women including recommended contraceptive services without charging a co-pay, co-insurance or a deductible.”  Now, “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.”

This extension came in response to protests from religious groups, notably the Catholic Church, who run many nonprofit hospitals and health organizations that do not—and cannot, according to their faith—offer contraceptive services.  However, to HHS these organizations are just not religious enough to qualify for First Amendment protection.  As Professor Michael Greve states, with due sarcasm, in a must-read post at the Liberty Law Blog: “The Catholic Church and the many other religious institutions that protested a rule that would compel payment for practices in violation of their teaching and convictions were faking it; they just wanted a year to change their minds.” 

This rule is not only another strike against religious freedom; it’s also another swipe against federalism.  Unlike most states, Wyoming law does not require contraceptive coverage of any kind in health insurance policies.  (See page 3 of this pdf to compare state laws.)  Until Obamacare, we were one of the most protective states for conscience and religious freedom in the health insurance market, which is the very purpose of having 50 different states maintain control of their own destinies. 

For the moment, it’s acceptable to fume against this latest tyrannical move from Washington, but then it’s time to get strategic.  Although I believe the very fate of Obamacare rests on the constitutionality of the individual mandate and Medicaid expansion, if those challenges fail to sway the Supreme Court it is up to state Attorneys General and other interested groups to continue fighting as more and more unconstitutional or arbitrary regulations are implemented.  In short, persevere.

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Tuesday, 26 September 2017
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