Kathleen Sebelius vs. Religious Freedom

Last August, under authority granted by Obamacare, Secretary of Health and Human Services Kathleen Sebelius published an “interim final rule” for comment that would require private health-insurance plans to cover, as “preventive services,” all FDA-approved “sterilization procedures” and “contraceptive methods” — and without deductibles or co-pays. We and other critics raised numerous objections, none of which were addressed last Friday, when Secretary Sebelius announced the final promulgation of the rule, which will go into effect August 1.

Since the FDA approves, as “contraceptives,” drugs such as Plan B and Ella that may cause early-stage abortions, the federal government could force nearly every employer in America to pay for abortions and sterilizations. Colleges and universities providing insurance to their students will face the same requirement.

The one exemption HHS offers is for those plans offered by “religious employers,” which is defined so narrowly that practically no one but actual houses of worship can qualify. Religious schools, colleges and universities, hospitals, social-service organizations, and charitable institutions — in short, all those who try to do good in the world by serving all who come to their table — will not qualify for the exemption, and will be forced to provide contraception, abortion, and sterilization. The alternatives are to drop health insurance for one’s employees (forcing them into the government “exchanges” and paying a hefty fine as well), or to close one’s doors.

To their credit, the Catholic bishops objected strenuously to the proposed mandate last year, as did other leaders of religious institutions. Belmont Abbey College in North Carolina filed suit, represented by the Becket Fund for Religious Liberty. But none of this swayed Sebelius: The rule announced Friday contains no revision or expansion of Sebelius’s absurdly narrow “religious exemption.” Cynically playing to a compliant media eager to praise her for being “accommodating,” the secretary gave many (but not all) of the organizations outside the terms of the exemption an additional year (until August 2013) “to adapt to this new rule.” For “adapt” read “fall into line, or else.” The administration’s true purpose in the deferral is to get past the November election without this becoming a real issue.

There is also language in the secretary’s announcement suggesting that those religious institutions that do enjoy an exemption will have to refer those they insure to “contraceptive services” available elsewhere. The administration’s attack on conscience, it seems, will spare no one.

Just a week before Sebelius’s announcement last Friday, the administration suffered an embarrassing Supreme Court defeat in the most significant religious-liberty case in many years. In Hosanna-Tabor v. EEOC, the administration had argued that there was no constitutional basis for a “ministerial exception” to federal employment-discrimination laws — a First Amendment principle recognized in lower courts for four decades — and lost 9–0. The Roberts Court endorsed the commonsense principle that the Constitution protects the right of religious organizations to govern their own internal affairs without the government’s interference, and to determine for themselves what their religious tenets and doctrines require of them. It would be a strange limitation on this principle if the government could force religious schools, hospitals, and charities to pay for “preventive services” that their scriptures and traditions regard as profoundly evil.

It should be no surprise that the government’s takeover of health care is a threat to every kind of freedom. But the HHS insurance mandate — bad enough in itself for its hostility to a culture that affirms life — is a direct assault on the religious freedom of individuals and institutions that cannot, in good conscience, be complicit in such hostility. Congress, the courts, the voting public — all must come to the defense of conscience and the Constitution, and turn back the tyranny of this administration.

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