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Posts Tagged ‘contraceptive mandate’

Michael Gerson has another powerful commentary on the illiberalism of the Obama Administration’s “final decision that Catholic universities, hospitals and charities will be compelled to pay for health insurance that covers sterilization, contraceptives and abortifacients.” Gerson writes:

 Obama is claiming the executive authority to determine which missions of believers are religious and which are not — and then to aggressively regulate institutions the government declares to be secular. It is a view of religious liberty so narrow and privatized that it barely covers the space between a believer’s ears.

Obama’s decision also reflects a certain view of liberalism. Classical liberalism was concerned with the freedom to hold and practice beliefs at odds with a public consensus. Modern liberalism uses the power of the state to impose liberal values on institutions it regards as backward. It is the difference between pluralism and anti-­clericalism.

(HT: Mirror of Justice)

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America Magazine has a post by law professor Doug Kmiec setting forth how President Obama can “confess error” in requiring Catholic organizations, and others morally opposed to contraception, to provide insurance coverage for that to which they are morally opposed. The statement that Kmiec would advise President Obama to deliver includes the following:

Recently we made a mistake. While the constitution doesn’t mandate religious exemptions from general laws, I believe we should accommodate as many beliefs as possible and to the greatest extent possible without jeopardizing the purpose of the law.

The focus on the Constitution alone is curious. The Religious Freedom Restoration Act, or RFRA, requires that federal laws and regulations adhere to something akin to the “belief” about accommodation that Kmiec would have President Obama articulate. The need to accommodate need not rest on anything as ephemeral as President Obama’s faltering beliefs about religious liberty. There’s a federal statute for that.

The RFRA claim should come as no surprise. It is the lead claim in the Belmont Abbey case brought by the Becket Fund. And as far as I can see, it’s not even a close question whether the HHS mandate runs afoul of the RFRA. Perhaps I haven’t been paying enough attention, but I’m surprised at how little press the RFRA violation has received. For example, the recent Los Angeles Times article by David Savage that explains why the contraceptive mandate could face difficulties if it ever reached the Supreme Court discussed First Amendment jurisprudence but not the RFRA.

(In writing up this blog post, I came across several posts (here, here, here, here, here, and here) by Ed Whelan at National Review Online’s Bench Memos explaining why the mandate violates the RFRA. I’d be grateful for pointers to any responses, for as mentioned, I do not see how this is a close question.)

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