Skip to comments.Birth-Control Mandate: Unconstitutional and Illegal (Analysis by 2 Former Justice Dept Off)
Posted on 02/15/2012 2:01:56 PM PST by NYer
>Last Friday, the White House announced that it would revise the controversial ObamaCare birth-control mandate to address religious-liberty concerns. Its proposed modifications are a farce.
The Department of Health and Human Services would still require employers with religious objections to select an insurance company to provide contraceptives and drugs that induce abortions to its employees. The employers would pay for the drugs through higher premiums. For those employers that self-insure, like the Archdiocese of Washington, the farce is even more blatant.
The birth-control coverage mandate violates the First Amendment's bar against the "free exercise" of religion. But it also violates the Religious Freedom Restoration Act. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.
That case limited the protections available under the First Amendment's guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test.
The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may "substantially burden" a person's "exercise of religion" only if it demonstrates that application of the burden to the person "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest.
The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act.
(Excerpt) Read more at online.wsj.com ...
Please freepmail me if you want on/off this list
Making “recess appointments” when the Senate is not in recess is unconstitutional and illegal, too, but The Won does it and gets away with it.
At this point, he can do pretty-much anything he wants and nobody who can do anything about will say squat.
What's the big deal?
FYI, "compelling governmental interest" means the government wins, the individual loses.
To my ear, "least restrictive" is a distant cousin to that old Constitutional standard, "necessary and proper," but that applied to enumerated powers.
For starters, the mandate is not necessary nor proper to discharge an enumerated power, and violates the 1st & 9th Amendments.
It is a pure power grab. The Senate supports tyranny and the House is too frightened of their plush salaries and benefits to risk them over something as esoteric as our liberties.
True but too narrow.
Endowing the Executive with the power to make mandates that the legislature should only have the power to make is unconstitutional and illegal.
If Mr. Rivkin is not representing the 26 states in their challenge to Obamacare before the Supreme Court, then who is?
Rochester NYT high schools are passing out free condoms. If you're dumb enough to be sleeping around at this age, you're not smart enough to use a rubber....and that's why they offer abortion!!!! BECAUSE YOU'RE STUPID!!
Obama is unconstitional and illegal also.
If anything emanates from the penumbras of the Constitution, it is freedom from socialist tyranny, not abortion.
Of course is is illegal, but who cares, McConnel? Boehner? The Court? Maybe a few on this forum, but so what? My time has passed, so it is not my problem anymore, but someone had better wake up, or those velvet chains we are wearing are going to turn to Iron soon enough.
HOW many “unconstitutional” acts has this administration already committed? Inquiring minds want to know.
They want FREE CONTRACEPTION??? Abstinence...it’s FREE and it works every time it is utilized!