Why the ObamaCare Ruling is Unconstitutional

The following is Part 1 in a two-part article.

The American public is witnessing a fascinating, even historic, event: the Obama Administration’s attempt to suppress basic expressions of religious faith.

The Department of Health and Human Services (HHS)’s recent rulemaking mandating that church-sponsored and affiliated enterprises that provide health insurance must also provide contraception coverage audaciously defies the religious liberty predicate that this nation is founded upon. It furthermore threatens our long-held belief that all Americans may worship and serve God free from governmental interference.

It also is a direct violation of the First Amendment.

Last month, HHS finalized a rule under the Patient Protection and Affordable Care Act – more commonly known as ObamaCare – that will require most health insurance plans to cover all FDA-approved contraceptive and sterilization services without charging a co-pay, co-insurance or a deductible.1 Because the FDA has approved “contraceptive” or “morning-after” drugs like Plan B, Next Choice, and Ella, federal regulations will soon require virtually all employer-provided health insurance plans to pay for contraception, sterilization procedures, and early abortifacients. Religious and pro-life organizations are understandably alarmed by this ill-conceived measure.2

In announcing the mandate, HHS paid lip service to religious liberty and the freedom of conscience as it tried to “strike the appropriate balance between respecting religious freedom and increasing access to important preventative services,” and even suggested that the “rule will have no impact on the protections that existing conscience laws and regulations give to health care providers.”3 But such assurances are cold comfort when the rule and its smattering of exemptions are examined more closely.

To be sure, the new mandate includes an exception for insurance plans offered by “religious employers,” but as Notre Dame law professor Richard Garnett observed, this exemption is “so stingy as to be nearly meaningless. It does nothing for individuals or insurers, and it applies only to employers whose purpose is ‘the inculcation of religious values’ and that hire and serve primarily those of the same religious faith.”4 Thus, because most large religious organizations and outreach programs hire and serve more than merely their own congregants, it is unlikely that religious hospitals, schools, colleges, universities, soup kitchens, and charities will qualify for ObamaCare’s so-called “religious exemption.”

Never mind that Protestants, Catholics, Jews, and Muslims might find various forms of contraception and abortion-inducing drugs immoral or contrary to deeply-held religious beliefs, the federal government announced that it will provide exemptions from this mandate in perhaps the narrowest way possible. It will only give “religious institutions” an exemption if their primary purpose is to “inculcate religious values” and not act merely as a social service or community outreach program.

That’s right. Washington agencies will soon begin telling churches, synagogues and other houses of worship which of their ministries to the poor, the sick, the young and the imprisoned are “religious” enough to get an ObamaCare waiver. This despite the fact that the government was never intended to be in the business of “validating” the Gospel or the actions of the faithful.

This assault on religious liberty is shockingly out of touch with the value that Americans place on their religious freedom, the Founding principles of the First Amendment, and a litany of legal precedent that was reaffirmed by a unanimous Supreme Court only a few weeks ago.

The idea that government officials refuse to acknowledge that providing social services is part and parcel of sharing faith and a service unto God is truly frightening. But worse, having missed this fundamental truth, HHS will now decide whether a religious organization, its hierarchy, its laity and its employees are really part of the religious institution itself or just a group of religiously-motivated do-gooders. The fact that the Administration believes it has the legal right to do this reveals a remarkable disdain for constitutional liberty and the law.

The widespread alarm about the new mandate is not limited to religious leaders. Speaker of the House John Boehner joined the rising chorus speaking out against the new HHS mandate, saying it “violates our Constitution” and the protected rights of religious organizations.5

The Speaker is on solid ground. As the Supreme Court made clear in 1943, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matter of opinion or force citizens to confess by word or act their faith therein.”6

How removed from the faith-based community must one be to believe that religious organizations only “serve primarily those of the same religious faith?”

Indeed, even the earthly ministry of Jesus would run afoul of the Administration’s ham-fisted exemption requirements. After all, upon embarking on his ministry, Jesus said: “The Spirit of the Lord hath anointed me to preach the Gospel to the poor; he hath sent me to heal the brokenhearted, to preach deliverance to the captives, and recovering of sight to the blind, to set at liberty them that are bruised.”7 Soup kitchens, schools, homeless shelters, hospitals, and prison assistance programs may appear to HHS to be “mere” social programs, but as the Gospel and the prophet Isaiah reveal, they were a primary and inextricable part of Jesus’ mission. Not only that, His ministry was directed to every human soul, not just to a select few.

Unfortunately, under the narrow straits of the mandate’s exceptions, religious schools, charities, and health care providers will be forced to choose between the moral dictates of their conscience and creed, or following the President’s health care mandate-of-the-month. Such a choice is antithetical to the freedom of religion rooted in our constitutional tradition, and the fundamental protections of the First Amendment. And the Speaker of the House is quite right to question the constitutionality of the rule.

Used by permission of The National Center for Public Policy Research.

For Part 2 of this two-part article go here.


1 Statement of U.S. Department of Health and Human Services Secretary Kathleen Sebelius, January 20, 2012.

2 See, e.g., “HHS Birth Control Mandate Is ‘Attack On Our Religious Freedom’,” February 1, 2012, available atwww.todayscatholicnews.org (Bishop Kevin Rhoades criticizing what he called the Administration’s “unconscionable decision” to follow-through with the birth control mandate, calling it “an attack on our religious freedom, attempting to force us to violate our conscience.”). See also, Associated Press, “Obama Admin. Defends Birth Control Order As Boehner Calls for Broader Conscience Exception,” February 2, 2012, available atwww.washingtonpost.com/politics (“Forcing religious institutions to provide insurance coverage for services that are directly in opposition to their moral beliefs is very clearly wrong,” said Kristen Day, executive director of Democrats for Life of America.).

3 Statement of U.S. Department of Health and Human Services Secretary Kathleen Sebelius, January 20, 2012.

4 Richard W. Garnett, USA Today, “Why Scrap the Contraception Mandate,” November 27, 2011.

5 Associated Press, “Obama Admin. Defends Birth Control Order As Boehner Calls for Broader Conscience Exception,” February 2, 2012, available at www.washingtonpost.com/politics.

6 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

7 Luke 4:18 (KJV) (quoting Isaiah 61:1-2).

Subscribe to CE
(It's free)

Go to Catholic Exchange homepage