WASHINGTON – Is the Obama administration’s abortion/contraception mandate constitutional?
It depends on which religious liberty/public policy expert was speaking at a recent panel discussion in the country’s capital.
Southern Baptist ethics and religious freedom specialist Richard Land joined three others in an Oct. 3 forum sponsored by the Heritage Foundation, a conservative think tank. The panelists responded to the question: Are religious institutions and individuals being treated like second-class citizens?
The controversial abortion/contraception mandate issued by the Department of Health and Human Services (HHS) was a focus of the discussion. The rule, which has been challenged on religious liberty grounds in more than 35 lawsuits, requires employers to provide workers with health insurance that covers contraceptives and abortion-causing drugs. Critics of the mandate’s religious exemption have decried it as insufficient to protect religious hospitals, schools and social service ministries, as well as some churches.
The mandate is unconstitutional, said Land, president of the Ethics & Religious Liberty Commission (ERLC), and religious freedom litigator Jay Sekulow.
Law professor Marci Hamilton, however, described it as “clearly constitutional.”
Public policy specialist William Galston, meanwhile, said he is uncertain about its constitutionality, although he believes it was a mistake politically and policy-wise.
The abortion/contraception mandate – with its lack of an adequate religious exemption – is perhaps the most recent example of the attack in this country on the First Amendment’s protection for religious free exercise, Land told a standing-room-only audience.
“It’s hard for me to imagine that we’ve come to the place in America where unless the HHS [mandate is] rescinded or unless [it loses] in court – and I do predict [it] will lose in court if it comes to that because the federal judiciary is still more familiar with the Constitution evidently than some of our congressmen and some of the people who work in the executive branch are – that people will be forced to subsidize that which they find unconscionable or pay a fine for not having health insurance for their employees or for themselves,” Land said.
Sekulow, chief counsel for the American Center for Law and Justice, described the mandate as “one of the greatest attacks on religious freedom that our country has ever seen.”
The mandate “was a mistake politically, was incorrect constitutionally and is bad public policy,” Sekulow said. “It’s bad public policy because it wasn’t necessary. It wasn’t advancing a position that is constitutionally required.”
“[I]t’s hard for me to believe that the government of the United States can condition a position to the Catholic Church that is so contrary to their teaching and doctrine that they’d have to pay penalties or forego funding – funding that is primarily given to neighborhoods in desperate need,” Sekulow told the audience.
Evangelical Christian institutions, as well as Roman Catholic ones, have brought suit against the mandate.
Sekulow expressed grave concern if the mandate survives its legal challenges, noting, “[I]f the government can do this, I shudder to think where it could end up.”
Acknowledging she disagreed “with everything that’s just been said” by her fellow panelists, Hamilton said the legal challenge to the abortion/contraception mandate is “the most extreme request ever made under free exercise [of religion].”
“This is not a request that involves someone saying that I can’t practice my religion,” said Hamilton, professor at the Benjamin Cardozo School of Law in New York City. “It’s not a request that says that I can’t believe what I want to believe. This is a request that says, ‘I should not have to put into a fungible pile of money money that individuals who don’t believe what I believe will use in ways that I don’t approve of.”
She said, “They want to favor their own fellow religious believers or deter non-believers from working for them so the whole world will reflect their religious values. That is balkanization.”
Galston, a former policy adviser to President Clinton and now a senior fellow at the Brookings Institution, said about the mandate, “If I had been in the Obama White House, I would have argued vehemently for an interpretation of the Affordable Care Act very different than the one the administration eventually chose. But having said that, the issue is not one of second-class citizenship for religious believers and faith-based institutions. It is rather how best to interpret and apply our shared vision of constitutional citizenship….”
Forecasting how the U.S. Supreme Court will rule when it weighs in on the mandate will not be easy, Sekulow said. It will “present a very different dynamic” than the normal free-speech cases regarding religion, he said.
To those who think it is constitutional, they will present the mandate as a funding case, Sekulow said. “[T]o those of us who think it’s unconstitutional, it is going to be a free-exercise case. That is where these are much more difficult to predict where [the court is] going to go.”
(EDITOR’S NOTE – Tom Strode is Baptist Press’ Washington bureau chief.)