Obamacare HHS mandate gets judicial correction

It was always wrong. But because it was issued by executive fiat, its violation of law had to go through the process of being tried, and there are many lawsuits standing against it.

This one scored a victory.

Today, a federal appeals court in Washington, D.C. handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate.  Last summer, two lower courts had dismissed the Colleges’ cases as premature.  Today, the appellate court reinstated those cases, and ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects the Colleges’ religious freedom.

This is major.

Health and Human Services Secretary Kathleen Sebelius cannot enforce the Obamacare contraception mandate as it is written, but must follow through on a promise to rewrite the rule to accommodate religious liberty, a federal appeals court ordered.

The Obama administration “represented to the court that it would never enforce [the mandate] in its current form against the appellants or those similarly situated as regards contraceptive services,” the three judges hearing the case wrote in their order.  The Obama team made that promise during oral arguments against Wheaton College and The Becket Fund for Religious Liberty, which sued over the contraception mandate but lost at the lower court level.

“There will, the government said, be a different rule for entities like the appellants .  .  . We take the government at its word and will hold it to it,” the judges wrote.

They ruled that the Obama administration must rewrite the regulation by August 2013 and provide updates to the court every 60 days. If the government fails to do so, the lawsuits may proceed.

The court also noted that the Obama administration had not made such an expansive pledge outside the courtroom.

“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” The Becket Fund’s Kyle Duncan, who argued the case, said in a statement.  “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

Yesterday’s ruling marks the second time in two weeks that a judge has decided that Obama’s promise to change the rule eventually is an insufficient remedy to the religious liberty issues raised by opponents of the mandate.

“There is no, ‘Trust us, changes are coming’ clause in the Constitution,” Judge Brian Cogan wrote in his ruling in favor of the Archdiocese of New York two weeks ago. “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”

It’s about time it gets applied.

Obama mandate’s resistance coalition

The president may have been surprised by the unusual and overwhelming unity among Catholic Americans after he issued an unprecedented threat to religious liberty most directly aimed at Catholic institutions. But he probably didn’t expect a whole movement across America to rise in solidarity with the common cause of resisting his unchecked tyranny.

Call it what it is: The Audacity of Power.

In one of the boldest, most audacious moves ever made by a President of the United States, President Barack Obama is on the brink of successfully rendering moot the very first clause of the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (emphasis added). If he forces the Catholic Church to comply with the Health and Human Services ruling to provide its employees with insurance that covers activities the Church has long held sinful — abortion via the morning after pill, sterilization and contraceptives — then the precedent is clear: when religious beliefs conflict with government decrees, religion must yield.

The story line that President Obama miscalculated in picking this fight with the Catholic Church vastly underestimates the man’s political skill and ambition. His initial approval of the ruling requiring the Church pay for abortion drugs and sterilization was but the first step in a calculated strategy to further his goal of transforming America.

President Obama chose to pick this fight with the Catholic Church by choosing to release the regulations first, and then, as he explained in last Friday’s statement to the press, spend “the next year (before the new regulations take effect) to find an equitable solution that would protect religious liberty and insure that every woman has access to the care that she needs.” The alternative would have been to find the “equitable solution” before announcing the regulations. In other words, this entire political fire storm is a set-up by the Administration.

This is an excellent article. Consider what he posed as ‘choices.’

Option A: The Church complies with the law and violates its own teachings and principles of faith. Such a choice would strip the Church of its legitimacy and make it a de facto vassal of the state. In this case, the ability of the Church to challenge the government’s political power is vastly reduced, if not completely destroyed. Faith, charity and civil society are marginalized. Government wins.

Option B: The Church as a matter of conscience refuses to obey the law, and stops offering health insurance to its employees. In this case, the Church gets crushed by hundreds of millions of dollars in fines. As a consequence, its ability to fulfill its religious mission by funding hospitals, schools and charities is sharply reduced if not destroyed. As the Church is forced to withdraw from its active role in civil society, those who believe in government will rush to fill the void. Faith, charity and civil society are marginalized. Government wins.

The risk to President Obama was the Church would create “Option C” and engage in a broad political battle to force the full repeal of the ruling or, if that fails, the defeat of President Obama in the November election followed by the repeal of ObamaCare. Under Option C, government’s power is reduced. Faith, charity and civil society win.

However…

President Obama’s political skill is demonstrated by his anticipation and preparation for just this outcome. First, he has used the issue to energize his political base by positioning his Administration as the defender of “women’s health” and attacking his opponents for taking him up on his implicit dare to make it an issue in the Presidential campaign.

Okay, stop right there. Ultimately, read the entire article, it’s so well done and incisive.

But let’s look at that claim, heard from HHS Secretary Kathleen Sebelius and President Obama, to be the defender of “women’s health”. That’s Orwellian.

Let’s be honest.

Advocates of President Obama’s contraception mandate should admit that its main purpose is sexual liberation and not “women’s health,” according to a feminist author who supports the mandate.

“The phrase ‘women’s health’ in the birth control dispute is the latest nimble euphemism,” author and blogger Pamela Haag wrote in a Feb. 17 essay published on the “Marriage 3.0” blog.

Access to contraception, she said, “isn’t really about my ‘health.’ It’s not principally about the management of ovarian cysts or the regulation of periods.”

“Birth control isn’t about my health unless by ‘health’ you mean, my capacity to get it on, to have a happy, joyous sex life that involves an actual male partner,” wrote Haag, criticizing White House supporters for discussing contraceptives mainly as “preventive services” for women’s health.

“The point of birth control is to have sex that’s recreational and non-procreative,” wrote Haag approvingly. “It’s to permit women to exercise their desires without the ‘sword of Damocles’ of unwanted pregnancy hanging gloomily over their heads.”

Just to be brutally clear.

Women are speaking up alright, and many of them against the mandate.

Despite claims that only male clergy and politicians oppose the Obama administration’s contraception mandate, Catholic women across the nation are objecting strongly to the federal rule.

In recent posts on CNA’s Catholic Womanhood page, columnists attacked the mandate from various angles – some addressed the issue of religious freedom while others questioned the validity of abortifacients, sterilization and contraception being labeled as “basic medical care” for women.

But the main remains religious liberty.

Religious freedom is a fundamental right of all. This right does not depend on any government’s decision to grant it: it is God-given, and just societies recognize and respect its free exercise. The free exercise of religion extends well beyond the freedom of worship. It also forbids government from forcing people or groups to violate their most deeply held religious convictions, and from interfering in the internal affairs of religious organizations.

Recent actions by the Administration have attempted to reduce this free exercise to a “privilege” arbitrarily granted by the government as a mere exemption from an allencompassing, extreme form of secularism…

In the United States, religious liberty does not depend on the benevolence of who is regulating us. It is our “first freedom” and respect for it must be broad and inclusive–not narrow and exclusive. Catholics and other people of faith and good will are not second class citizens. And it is not for the government to decide which of our ministries is “religious enough” to warrant religious freedom protection.

This is not just about contraception, abortion-causing drugs, and sterilization–although all should recognize the injustices involved in making them part of a universal mandated health care program. It is not about Republicans or Democrats, conservatives or liberals. It is about people of faith. This is first and foremost a matter of religious liberty for all. If the government can, for example, tell Catholics that they cannot be in the insurance business today without violating their religious convictions, where does it end?

And that’s precisely the central question drawing religious leaders and organizations into this maelstrom. It has become a coalition of the concerned, and it is growing.

The Evangelicals.

We evangelicals must stand unequivocally with our Roman Catholic brothers and sisters. Because when the government violates the religious liberty of one group, it threatens the religious liberty of all.

Many bishops have already declared that they will not obey this unjust law. The penalty for such a move would be severe. Catholic hospitals, universities, and other organizations would be forced to pay punitive fines ($2,000 per employee) for refusing to purchase insurance that violates the teaching of their church….

But Catholic institutions aren’t the only ones affected by this mandate. Prison Fellowship, for example, which employs 180 people, could not purchase insurance for its employees that covers abortifacients. Nor could the world’s largest Christian outreach to prisoners and their families afford the fines we would incur.

 Three years ago, when we co-authored the Manhattan Declaration, we predicted that the time would come when Christians would have to face the very real prospect of civil disobedience—that we would have to choose sides: God or Caesar.

Certainly for the Catholics and for many of us evangelicals, that time is already upon us.

Lutherans have sounded the alert.

Lutherans generally have some differences with Catholics. That was the point of the Reformation. Lutherans believe that the Bible alone has the ability to determine doctrine, for instance, while the Catholic Church invests doctrinal authority in its bishops and tradition.

But on Thursday afternoon in Washington, the Rev. Matthew Harrison, president of the Lutheran Church-Missouri Synod, told a panel of lawmakers in the U.S. House of Representatives that the St. Louis-based denomination “stand(s) with our friends in the Catholic Church” in opposition to a recent government ruling on contraception.

The Missouri Synod has not traditionally embraced the notion of pluralism, at least when it comes to what the church calls “altar and pulpit fellowship.” But in an interview Friday, Harrison, who lives in Ballwin with his family, made it clear that the Missouri Synod has “large consensus with the Roman Catholic Church on moral issues.”

“The Christian church is a billion times beyond the Missouri Synod,” Harrison said. “Without the Roman Catholic Church in this country, our way would be infinitely more difficult.”

So earlier this week, when Harrison received an invitation to testify before the House Oversight and Government Reform Committee, he reluctantly agreed. He sat on a panel with other religious leaders and scholars, including Roman Catholic Bishop William Lori of Bridgeport, Conn., and Rabbi Meir Soloveichik of Yeshiva University in New York.

“I was minding my business three days ago,” he said, “and then I got pulled into the monkey cage.”

By the time Harrison left the cage, he would deliver a fiery indictment before lawmakers, venturing past the issue of contraception and deep into broad issues of intolerance and righteousness.

Evangelical leaders Chuck colson and Dr. Timothy George struck a nerve with their call to action.

We do not exaggerate when we say that this is the greatest threat to religious freedom in our lifetime. We cannot help but think of the words attributed to German pastor Martin Niemoeller, reflecting on the Nazi terror:

First they came for the Socialists, and I
did not speak out —
Because I was not a Socialist.

Then they came for the Trade Unionists,
and I did not speak out —
Because I was not a Trade Unionist.

Then they came for the Jews, and I did
not speak out — Because I was not a Jew.

Then they came for me — and there was
no one left to speak for me.

HHS mandate uncompromised

Back in 2008 when Barack Obama was running for president, his media and message-savvy team smugly dubbed him ‘no drama Obama,’ so controlled was his image. They’re going to have to come up with something new for 2012.

His “war on the church” dominated news cycles last week, and isn’t going away yet. Though “the church” in the headlines is Catholic, other religious leaders have started saying “We’re all Catholic now.”

I’m reminded of Dr. Martin Luther King’s profound remarks in his Letter from Birmingham Jail.

I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

And constitutional rights that apply to everyone anywhere in its bounds are at stake here. Which is why the “firestorm” of controversy that dominated headline news last week produced Friday’s ‘breaking news’ press conference pegged as a “compromise” by Obama in concession to religious leaders.

It wasn’t. Watching it live, I said to those around me ‘He hasn’t changed a thing. This is a smokescreen. A shell game. It’s restating the same imperative using different words.’

Here, in a nutshell, is how a lot of media are portraying it.

U.S. Catholic Church leaders said they will fight President Barack Obama’s controversial birth-control insurance coverage policy despite his compromise that religious employers would not have to offer free contraceptives for workers, shifting the responsibility to insurers.

In an abrupt policy shift aimed at trying to end a growing election-year firestorm, Obama on Friday announced the compromise.

And here, in a nutshell, is that “compromise”:

Here’s how the HHS mandate and the new “accommodation” work.

Then: All employers that don’t meet the narrow “religious exemption,” including Catholic hospitals and universities, are required by law to provide insurance coverage that includes contraception and sterilization procedures with no out of pocket costs to the insured.

Now: All employers that don’t meet the narrow “religious exemption,” including Catholic hospitals and universities, are required by law to provide insurance coverage. All such coverage must include contraception and sterilization procedures with no out of pocket costs to the insured.

There is no difference, except in word arrangement and rhetoric.

“The so-called new policy is the discredited old policy, dressed up to look like something else,” said [Congressman Chris] Smith. “It remains a serious violation of religious freedom. Only the most naïve or gullible would accept this as a change in policy.”

“The newest iteration of Obama’s coercion rule utterly fails because it still forces religious employers and employees who have moral objections to paying for abortion inducing drugs, sterilization and contraception to pay for these things, because it is still the employers who buy the coverage for their employees,” he said. “Today’s announcement is a political manipulation designed to get Obama past his own self-made controversy and past the next election.

He has helped himself in at least that, as this insightful piece by Phil Lawler points out.

Unfortunately, before the bishops released their second statement, leaders of two of the largest Catholic employers in the country—the Catholic Health Association and Catholic Charities USA–had released their own statements indicating that they were satisfied with the Obama administration’s “compromise” proposal. So while the political battle continues, the Catholic forces are already split.

In a perceptive analysis of the political debate, reporter Laurie Goodstein of the New York Times said that in its decision to amend the original HHS mandate, the Obama administration was “never really driven by a desire to mollify Roman Catholic bishops, who were strongly opposed to the plan.” She explained:

“Rather, the fight was for Sister Carol Keehan–head of an influential Catholic hospital group, who had supported President Obama’s health care law–and Catholic allies of the White House seen as the religious left. Sister Keehan had told the White House that the new rule, part of the health care law, went too far.”

Now that Sister Keehan has endorsed the Obama “compromise” (along with Father Larry Snyder of Catholic Charities USA), the Obama administration can claim that many Catholics, including some who had originally opposed the plan, now see the wisdom of his ways. President Obama does not intend to persuade the American bishops to support his proposal; he intends to siphon off support for the bishops among American Catholic voters, driving a political wedge further into the country’s Catholic community.

Especially now that they’ve come together in the force of unity.

So the USCCB leaders recognize the thrust of the Obama administration’s political offensive. They realize that the White House has set out to divide and conquer, to separate the Catholic laity from their bishops. Now surely they see that when groups like the Catholic Health Association and Catholic Charities USA side with the Obama administration, they are contributing to the erosion of the bishops’ authority and the splintering of the Church. So this is not merely an important political battle; it is a critical test of the bishops’ overall authority.

They’re not retreating anytime soon.

In a nation dedicated to religious liberty as its first and founding principle, we should not be limited to negotiating within these parameters. The only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.

We will therefore continue—with no less vigor, no less sense of urgency—our efforts to correct this problem through the other two branches of government.

Mr. Obama should be concerned about the larger Catholic Vote.