Mandates in the health care law promulgated and supported by President Barack Obama’s administration already have produced some related push back from the United States Supreme Court.
If the matter of health care mandates reaches the high court, it will be heard by justices who have already overwhelmingly affirmed that the First Amendment provides exceptions to religious employers.
In a recent case involving the right of a Lutheran school to fire an employee, Chief Justice John Roberts, writing for the majority, declared that the U.S. Constitution does not permit “government interference with an internal church decision that affects the faith and mission of the church itself,” a ruling that legal scholars regard as the court’s most significant declaration on religious freedom in two decades.
The unanimous 9-0 decision represented a dramatic defeat for the Obama administration, which argued in the case that in firing a teacher the school was not exempt from civil rights claims. In its decision, the Supreme Court said that the First Amendment extends “special solicitude to the rights of religious organizations” when making decisions about their employees.
The decision reifies the spirit of the First Amendment.
President Obama’s health care mandate requires all health plans, private and public, to provide “preventive services” for “free,” a category that includes vaccines, and routine screenings for cholesterol checkups and mammograms. Starting this year, however, the mandate also includes coverage of all FDA-approved contraceptive methods, including contraception, sterilization procedures, and “emergency contraception,” as the FDA calls the Plan B, Plan B One-Step, Next Choice, and Ella “morning-after” pills, considered by some as an abortifacient.
The Obamacare mandate would force religious institutions to violate inescapable religious precepts. The First Amendment accommodates religious establishments and prevents the state from trammeling rights of conscience. No state governed by the Constitution should demand that religious minded individuals do what CANNOT be done without violating their conscience as informed by the teachings of their churches. The mandate also asserts inaccurately that preventive services the state demands from private and in some cases religious enterprises are “free.” Where a payment for a service is collected from others, it is an abuse of language to characterize the service as “free.” There is no such thing as a “free” lunch, and there is no such thing as “free” medical services.
In forbidding the U.S. Congress – and by extension organs of government at the state level and agencies of every kind – from making laws respecting the establishment of religion or PROHIBITING THE FREE EXERCISE THEREOF, the same Constitution the president has sworn to uphold acknowledges the importance of accommodations. And it is not unimportant to notice that within the First Amendment it is the state that is called upon to accommodate religion, not the other way around.
In a letter to Isaac Tiffany written in 1819, Thomas Jefferson described such accommodation and labeled its absence as a form of tyranny: "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual."
The mandates supported by Mr. Obama in his health care assault on the First Amendment already have produced a number of suits. Hannah Smith, a former law clerk to Justices Samuel A. Alito Jr. and Clarence Thomas, has filed two college suits on behalf of the Becket Fund for Religious Liberty.
The Lutheran school case, Ms. Smith said, was “a stinging rebuke to the Obama administration’s extremely narrow view of religious liberty. I was shocked they went ahead with this quest to force religious groups to pay for abortion drugs in violation of their religious convictions.”
Her suits claim the Obama mandate violates both the 1st Amendment and the federal Religious Freedom Restoration Act, which prohibits the government from putting a “substantial burden” on religious liberty.
To say the mandate imposes a substantial burden on religious liberty is a considerable understatement. Hospitals affiliated with religious institutions would under the mandate be faced with a false choice destructive of liberty: A religiously affiliated hospital may either choose to violate its religious precepts and implement the rule; or it may choose to bar its doors to patients not formally members of the supporting religious institution, a Hobson’s choice that even a Deist such as Jefferson -- and perhaps a few morally astute legislators in Connecticut’s Democratic Congressional delegation -- would have regarded as being hostile to religion, unconstitutional and for these reasons alone -- foreign to the American consensus.