Skip to comments.Contraception mandate violates federal law, say legal experts
Posted on 03/24/2012 7:39:49 PM PDT by 2ndDivisionVet
Legal experts believe that the Obama administrations contraception mandate fails to meet requirements needed to limit freedom of religion under federal law.
George Mason University law professor Helen Alvaré argued that in many Catholic institutions, such as hospitals and universities, the refusal to insure for contraception is the single clearest statement the Church makes.
The contraception mandate will prohibit these institutions' ability to witness to their faith through their actions, she said.
Alvaré participated in a March 22 panel on Religious Freedom and Healthcare Reform, sponsored by the Religious Freedom Project at Georgetown University's Berkley Center for Religion, Peace and World Affairs.
Panel participants discussed a controversial federal mandate that will soon require employers to offer health insurance plans that include coverage of contraception, sterilization and abortion-inducing drugs, even if doing so violates their religious beliefs.
The mandate sparked a storm of protest that led the Obama administration on Feb. 10 to promise an accommodation for religious freedom. Instead of directly purchasing the coverage that they find objectionable, the accommodation would require employers to contract with insurers that would provide the coverage for free.
Supporters of the mandate suggested that the accommodation offers an acceptable level of protection for religious freedom and stressed the benefits of contraception.
However, Alvaré pointed to data indicating that contraception does not necessarily benefit society.
She noted that rates of unintended pregnancy, abortion and non-marital childbearing have all increased since the Supreme Court recognized a right to contraception several decades ago.
In addition to the fact that birth control regularly fails, it gives people a false sense of security, making them more likely to engage in risky sexual behavior than they otherwise would, she explained.
Michael McConnell, a former federal judge and current law professor at Stanford University Law School, explained that at its core, the debate over the mandate is a question of religious freedom.
I do not share the Churchs theology with respect to contraception, said McConnell, who is not Catholic.
Yet he explained that the real issue in this case is not contraception, but the governments unprecedented decision to require American individuals and institutions to act in a way that violates their religious beliefs.
In addition to Constitutional protections under the First Amendment, there is also support for religious freedom in statutory law, McConnell said.
He explained that the Religious Freedom Restoration Act of 1993 makes it clear that the federal government may not substantially burden the exercise of religion unless it is furthering a compelling government interest and employing the least restrictive means of doing so.
In this case, he said, it is rather obvious that the mandate imposes a substantial burden on the free exercise of religion by requiring religious individuals and organizations to participate in something that they consider gravely immoral.
Furthermore, in granting an exemption at all, however narrow, the administration was acknowledging that this would be a burden on the free exercise of religious groups that find it objectionable, he said.
He added that the mandate would impose a substantial burden even with the administrations promised accommodation, which he said is no difference in substance whatsoever than the original regulation.
Turning to the standard for a compelling government interest, McConnell explained that the federal government issued the mandate because it believes that contraception coverage is important and wants to place the cost of covering it on employers.
This is not a compelling interest at all, he said.
He noted that multiple states have contraception mandates in place, but none of them implement them in the same sweeping way with such a narrow exemption as the federal mandate does.
If it were a compelling government interest, the regulations would not have included any exemption at all, he explained.
Finally, McConnell said, the mandate is not the least restrictive means of carrying out the governments goal.
The administration could achieve its objective in another way, such as expanding Title X funding of contraception, without forcing religious employers to violate their consciences, he observed.
Because it fails to meet the standards set out for religious freedom cases, the mandate violates the Religious Freedom Restoration Act and should not be allowed to stand, he said.
and when contraception and sterilization become mandatory as part of the Democrats population control plan
That may be true but what makes this difficult for Republicans to win now is that these mandates don’t go into effect for a another year or two. Obama and CO came out with this stuff now to detract from the economy and gas prices.
If these mandates were in effect now Obama and Co would have to deal with church lawsuits.
There are already several lawsuits in the pipelines. Ave Maria University, EWTN, Christendom College, several other Catholic institutions as well as a few Baptist institutions.
Which conservative legal groups are fighting this?
Suing against future mandates is very hard to get into court because of lack of standing. Worse yet, they haven't officially written the rules, just this PR stuff to bait Republicans to divert voters from economy and gas prices.
I believe the PR of cases in court between the Church and Obama (Obama-care) would be very embarrassing to them. But that wont happen until after the election.
When used by married women (and their husbands) contraception can be very effective , even though not perfect, at avoiding pregnancy. The libs want it so unmarried women can engage in recreational sex without fear of “being saddled” with a beautiful new creation of one of God’s kids. Trouble is, the recreational sex group is less likely to be religious about practicing “safe” sex and is much more likely to conceive; hence the “free” abortion mandates to destroy what God has created.
When they outlaw religion, they won’t have to worry about religious freedom. Religion will be forced underground...won’t last long, though.
This is false. The proposed rule is in the Federal Register. That's not "just PR stuff".
Suing against future mandates is very hard to get into court because of lack of standing.
I don't think the organizations mentioned will have any trouble proving standing. The Administration has already essentially admitted they will not be exempt.
You make my point. You used the word ‘proposed’. They are only throwing this 'proposed rule' out there now because they believe this is a better election year argument for them then the economy, gas prices, deficits,...they never would have otherwise.
I care that the "proposed rule" will become an actual rule in June, unless they give it up, which they won't. Publishing stuff in the FR is the standard preliminary to the executive branch promulgating a new regulation.
BTW, their "better argument" isn't really working except with the kind of moonbats that would have supported them anyway.