OBAMACARE'S SACRIFICE OF RELIGIOUS FREEDOM
On July 27, United States District Judge John L. Kane granted a motion for preliminary injunction prohibiting the United States government from requiring Colorado corporation Hercules Industries, Inc. to provide through its self-insurance program full coverage for FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.
Effective August 1, 2012, every insurer, including faith-based institutions and faith-affiliated employers, is required to include full coverage in insurance plans for contraceptive services. Following receipt of a severe rebuke from religious leaders, the Obama Administration agreed to withhold for one year (but not eliminate) the compliance requirement for objecting universities, hospitals, and social service groups. In recent congressional testimony concerning the contraceptive coverage mandate, Health and Human Services Secretary Kathleen Sebelius stated: “All new insurance plans will be required to cover additional services and tests for women, with no out-of-pocket costs, including domestic violence screenings, FDA-approved contraception, breast feeding counseling and supplies, and a well woman visit, where she can sit down and talk with her health care provider.”
Catholics and many other Christian denominations oppose contraception and abortion. For them, the Obamacare mandate forces payment for services that violate fundamental tenets of their religions. That, of course, is obvious to any familiar with the bill, which mandates contraception and abortifacent drug coverage in 42 USC 300gg-13(a)(4) and imposes penalties for non-compliance in 26 USC 4980D; 4980H and in 29 USC 1132. Consequently, the President’s refusal to grant a blanket exemption if grounded on religious reasons reveals that he values compliance with a one-size fits all government insurance mandate more than he does respect for religious liberty protected by the First Amendment to the Constitution.
The fact that President Obama values social engineering through law more than adherence to constitutional barriers against abridgement of religious liberty comes as no surprise to astute observers, because his entire philosophy of government, which favors regulatory compulsion to dictate the direction of all matters of actual or potential import in society, subverts the very purpose of the Constitution in addition to its specific provisions to the contrary. In short, to Obama the Constitution is an occasionally inconvenient piece of parchment. In his view, the Constitution is not a Supreme Law that binds; it is a quaint relic of a bygone era that from time to time must be rationalized away. Obama’s supreme law is Obama’s will. In other words, Obama views himself as the law. He views himself as the nation. He views his will as the will of the American people. He is in those respects indistinguishable from the fascist dictators of the 1930’s who likewise viewed themselves as the embodiment of all law, of the entire nation, and of all people in the nation. To concisely and accurately summarize: Obama views himself as a dictator and his dictates are the law of the land, the Constitution notwithstanding.
But in steps Judge Kane in Newland v. Sebelius before the United States District Court for the District of Colorado. In Newland, Obamacare’s mandate that group health plans cover contraceptive services provoked Hercules Industries, Inc. to sue the government. Hercules Industries makes and sells HVAC products and equipment. Hercules’ board of directors consists of four Catholics: William, Paul, and James Newland and Christine Ketterhagen. The board conducts Hercules’ business affairs consistent with the board members’ religious beliefs, one tenet of which is to reject contraception. Hercules has a self-insurance group plan for its employees and that plan expressly excludes abortifacent drugs, contraception, and sterilization, the very things Obamacare requires be covered.
To comply with the law, Hercules’ board members had to violate their religious beliefs or pay a penalty to the federal government (Justice Roberts would call that a tax) to exercise those beliefs. Not willing to violate Catholic doctrine or become a law violator for practicing that doctrine, Hercules’ board sued arguing that the mandate violated Hercules’ board members’ free exercise of religion under the First Amendment. Although Judge Kane recognized that the case presented novel questions, not least of which was whether a corporation is protected by the free exercise clause (consistent with precedent, it should be as the Supreme Court has often held corporations to have First Amendment rights), he found a substantial likelihood of success on the merits, supporting issuance of an injunction. He thereby protected Hercules from having to provide coverage for contraceptive services against the religious tenets of its board of directors and against the stated religious premise for excluding such coverage in the Hercules’ self-insurance group plan.
This suit, like the suit pending by U.S. Citizens Association against Sebelius in the Sixth Circuit, reveals that the massive command that all uninsured Americans (regardless of their predilections to the contrary) buy federally qualified health insurance entails not only an extension of power beyond the regulatory limits of Congress in Article I but also a violation of rights to religious freedom, liberty, freedom of association, and privacy protected by the Bill of Rights.
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The painful Supreme Court decision upholding Obamacare on the basis of the tax clause has rendered the Constitution internally inconsistent and a threat to individual liberty. In short, even if Congress lacks regulatory power under Article I to enact a law that compels Americans to expend their after tax dollars to purchase a private good, the Supreme Court has held the tax clause to be a never ending regulatory power expander. So long as a law includes a financial penalty collectible by the IRS, then it may intrude into our lives beyond the limits of all other enumerated powers in Article I, because the penalty is a tax and the tax power is all-consuming. The only question remaining is whether this power to tax which trumps Article I also trumps the Bill of Rights. The federal courts’ response to Newland and to U.S. Citizens Association suits will provide that answer. On that answer hinges the last best hope for retaining some constitutional limit on the expansion of federal power.
© 2012 Jonathan W. Emord - All Rights Reserved