HHS Creating a Right To Contraception, Sterilization and Abortifacients

The Department of Health and Human Services (HHS) is implementing regulations which are attempting to provide health care for everyone.  To quote my daughter, "That's nice, isn't it?"  As with everything in life, the Devil is in the Details.

On January 20th, HHS Secretary, Kathleen Sebelius announced that as part of the "Preventive Services" rule, all health insurance plans would be required to cover sterilizations and FDA-approved contraceptives without co-pay.  FDA-approved contraceptives includes abortifacients.  The rule goes into effect on August 1st for individuals, employers and insurers.  Catholic institutions were given an extra year to adapt to this regulation.  It will take effect for Catholic institutions on August 1, 2013.

"That's nice, isn't it?"  Catholic institutions get extra time to adapt. Uhh, not so much.

For those not familiar with Catholic teaching on the subject matter, here is a brief synopsis.  In 1968, Pope Paul VI issued an encyclical letter called Humanae Vitae (which translated from Latin means "Human Life").  This was not a new "take" on the Church's position, but rather a reemphasis of the Church's teaching that it is always intrinsically wrong to use contraception to prevent the creation of new life.  This is a position that was historically shared by all Christian religions until the 1930s (investigate the Anglican Church's Lambeth Conference to learn about the shift to permit contraception).  The Catholic Church has never swayed in its opposition to contraception, sterilization and abortion based on Scripture, Apostolic Teachings and the Magisterium.

So to say that the Catholic Church is a bit irked would be a serious understatement.

Atlanta Archbishop Wilton D. Gregory called HHS's decision a "direct attack on our religious freedom and our 1st Amendment rights."

In so ruling, the Administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty.  Andas a result, unless the rule is overturned, we Catholics will be compelled either to violate our consciences, or to drop health coverage for our employees (and suffer the penalties for doing so).  The Administration’s sole concession was to give our institutions one year to comply.

Since this is a controversy, you know there are catchy YouTube videos.  So I have included an interesting one for you to watch.

Oh, so then this is just a "Catholic thing."  Uhh, not so much.

What about the United States Constitution? Specifically, that pesky 1st Amendment?

"Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof;"

Free exercise of religion is kind of a central tenet upon which our country was found. Seems to me that everyone should be getting pretty upset about this, not just Catholics.

The National Association of Evangelicals stated:

“Freedom of conscience is a sacred gift from God, not a grant from the state,” said Galen Carey, NAE Vice President for Government Relations. “No government has the right to compel its citizens to violate their conscience.  The HHS rules trample on our most cherished freedoms and set a dangerous precedent.” 

Orthodox Christians are also opposed:

"We, the Assembly of Canonical Orthodox Bishops, call upon HHS Secretary Sebelius and the Obama Administration to rescind this unjust ruling and to respect the religious freedom guaranteed all Americans by the First Amendment."

Jewish Orthodox groups are also opposed:

"Most troubling, is the Administration’s underlying rationale for its decision, which appears to be a view that if a religious entity is not insular, but engaged with broader society, it loses its “religious” character and liberties.  Many faiths firmly believe in being open to and engaged with broader society and fellow citizens of other faiths.  The Administration’s ruling makes the price of such an outward approach the violation of an organization’s religious principles.  This is deeply disappointing.  The Orthodox Union will support legislation in Congress to reverse this policy."

I do believe that the Obama administration has really stirred up a hornets nest.  Since this is an election year, I predict a whole lot of back-peddling and doublespeak.  Things should get really interesting.

When I first heard of this decision, a quote kept coming to my mind (which is often attributed to Edmund Burke, even though he may not have actually said it)...

"All that is necessary for the triumph of evil is that good men to do nothing."

Hence I am writing this blog.  I have included link after link so that you might read up yourself and reach your own conclusions about what you feel is right.  I have avoided drafting a constitutional free exercise argument because the case law gets quite complicated.  As a lawyer, even I find it a bit tedious and dull.  If your eyes glaze over, you won't be able to even read any longer.  However, I do want to give you a list of key Supreme Court free exercise cases, in case you want to plow through them yourself.

They are:

Reynolds v. Unitted States, 98 U.S. 145 (1879)

United States v. Ballard, 322 U.S. 78 (1944)

Sherbert v. Verner, 374 U.S. 398 (1963)

Yoder v. Wisconsin, 406 U.S. 205 (1972)

Goldman v. Weinberger, 475 U.S. 503 (1986)

Lyng v. Northwest Cemetery Prot. Ass’n, 485 U.S. 439 (1988)

Employment Div. of Oregon v. Smith, 494 U.S. 872 (1990)

Church of the Lukumbi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)

City of Boerne v. Flores, 521 U.S. 507 (1997)

Of particular note, the City of Boerne v. Flores, 521 U.S. 507 (1997) declared the Religious Freedom Restoration Act of 1993 (RFRA) was unconstitutional as it applied to state and local governments.  The RFRA was passed by Congress in direct response to the court's ruling in the Employment Div. of Oregon v. Smith, 494 U.S. 872 (1990) case.

Please take the time to get informed on these issues, especially in light of a looming election.  In 1784 Edmund Burke said, "The people never give up their liberties but under some delusion."

Let us all have no delusions!  Investigate for yourselves.