Which part of the U.S. Constitution guarantees women the right to have other people pay for their birth control pills and abortifacients? Which part says that the federal government has the power to force religious employers to violate their beliefs or face fines?
Well, there it is, right in the First Amendment. At least, it’s there in the ACLU’s copy of the Constitution. The problem is that this part is written in invisible ink, so all we see are the words “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The part about the federal government having the right to put a hammerlock on Catholic hospitals is hidden in the emanation of the penumbra of the word “establishment.” If you put on 3-D glasses from any movie theater, you just might be able to make it out.
When Health and Human Services Secretary Kathleen Sebelius announced two weeks ago that church-related facilities such as Catholic hospitals and charities would be forced to provide insurance that includes contraceptives and abortifacients, it caused an uproar.
After toughing it out with a tin ear, President Obama held a press conference Friday to declare that employees of such religious facilities would still get “free” contraceptives, but that insurance companies would foot the bill. The upshot is that as of August 1, female employees of religious institutions won’t have to pay a deductible or co-payment for contraceptives. Instead, other customers, regardless of their beliefs, will pay for those contraceptives. Isn’t that special?
“Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford,” Sarah Lipton-Lubet, policy counsel with the ACLU, told Kaiser Health News. “But as a legal matter, a constitutional matter, it’s completely unremarkable.”
The administration’s ham-handed quashing of religious liberty is so remarkable that it has caused liberal Catholics who supported the passage of Obamacare to suddenly realize what kind of terrible power they have handed this administration. The wake-up call ultimately sparked a nationwide revolt and a hasty, semi-retreat by President Obama.
Here’s what he said at the press conference, with my comments interspersed:
“Now, after the many genuine concerns that have been raised over the last few weeks [which we tried to ignore], as well as, frankly, the more cynical desire on the part of some to make this into a political football [no politics here], it became clear that spending months hammering out a solution [it was an order, not a negotiation period] was not going to be an option, that we needed to move this faster [because if I lose the Catholic vote, I’m sunk]. So last week, I directed the Department of Health and Human Services to speed up the process that had already been envisioned. We weren’t going to spend a year doing this; we’re going to spend a week or two doing this [did I mention the Catholic vote?].”
Mr. Obama also employed this logic to justify the new policy:
“Nearly 99 percent of all women have relied on contraception at some point in their lives — 99 percent. And yet, more than half of all women between the ages of 18 and 34 have struggled to afford it.”
You could say the same thing about any widely used product or service. For example, I’d like the government, that is, my fellow taxpayers, to pay for my gasoline, since I’m among the 99 percent of Americans who have ridden in or driven a car. And it would only be “fair,” since Obama’s policies have doubled the price of gas in only three years.
Getting back to some tin ears, the ACLU’s Lipton-Lubet noted that some courts have ruled against Catholic charities on similar policies at the state level, in California and New York, so the federal government wasn’t out of line with its threats.
“In both the California and New York cases, Catholic charities made arguments very similar to the ones being made now with respect to the HHS rule,” Lipton-Lubet said. “Those arguments failed in that litigation, and they’re no more persuasive here.”
To the ACLU and Mr. Obama, First Amendment freedoms now include the “right” to free contraceptives, but not protection from government encroachment against the right of conscience.
To most people, that would be a curious reading of the Constitution. At the ACLU and the White House, it’s just another day.
Robert Knight is senior fellow for the American Civil Rights Union.