The problems inherent in the HHS contraception mandate and the balancing of power and liberty stem from its core: Obamacare. The law, officially known as the Patient Protection and Affordable Care Act, sets up the first peacetime federal command economy in American history. It forces Americans to buy health insurance not as a consequence of a voluntary use of public resources (such as an auto insurance requirement for using public roads), but simply for living in the US. HHS and the IRS determine what satisfies that mandate, and force businesses with 50 or more employees to provide insurance coverage or pay stiff fines. HHS also gets to determine, based on an unconscionably wide grant of authority from Congress, what health insurance plans must cover.It’s this forced participation in Obamacare that creates the imbalance between the religious liberties of individuals, business owners, and religious organizations on one hand and the power of the government on the other. Critics of this decision have mainly focused on the legal consideration of corporations as persons for the sake of considering their inherent rights, but there is nothing at all novel about that legal doctrine.
Got that, shriekers? Even in this era of Freedom-Hater-care, an employer is still perfectly free to not offer any insurance at all. Granted, that now comes with a stiff penalty for doing so, but, in tattered form, the notion that a business is free to decide to compensate those it employees still stands. Hobby Lobby would be within its rights to say, "Nuts to this. Our people will have to go to the exchanges or figure out health coverage on their own."
Regarding the false notion that this somehow opens the door wide to employers claiming anything, no matter how far-fetched, as a religious exemption from its FHer-care obligations:
Of course, one cannot expect to get off the hook by simply claiming that a federal regulation impedes on one’s religious belief. Congress specifically addressed this balancing act between religious liberty and the need for regulatory authority in 1993 with the Restoration of Religious Freedom Act (RFRA), on which the Hobby Lobby case largely hinged.
Congress passed it unanimously in the House and 97-3 in the Senate after the Supreme Court’s Employment Division v Smith decision refused unemployment benefits to two Native Americans fired for having used peyote in their rituals. Religious expression should only be “substantially burdened,” Congress responded in nearly one voice, “in furtherance of a compelling governmental interest,” and then only by “the least restrictive means of furthering that compelling governmental interest.”
That applies to health decisions as well. As Justice Samuel Alito noted in his Hobby Lobby decision , other mandates for coverage meet this test, explicitly noting items such as vaccinations and blood transfusions. Blood transfusions are necessary for survival in some cases, while vaccinations are not just critical for individual health but also communal health, as thousands of studies confirm.
As noted above, the CDC’s 26-year study of unplanned pregnancies (1982-2008) shows that 99 percent of all sexually active women seeking to avoid pregnancy accessed contraception. Access to contraception is such a non-issue that the word “access” only appears once in the entire report, and that in a footnote about access to health insurance. So despite all of the shouts of doom, nothing in this decision impacts the already-universal access to contraception Americans have had for the last four decades.
The whole piece is worth your time.
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