No Law — Only Regulation

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
                             United States Constitution, Amendment I

“I read ‘no law’… to mean no law…”. Smith v. California, 361 U.S. 147 (1959), Justice Hugo Black, concurring.

Last year, I attended a public discussion of the oh so Frank Luntz-ish named Patient Protection and Affordable Healthcare Act, more commonly known as Obamacare, sponsored by the National Center for Policy Analysis. Dr. Ron Anderson, then CEO of Dallas’ Parkland Hospital said that the scariest words in the Act were the numerous clauses that began with “the Secretary [of Health and Human Services] shall… .” What this means is the 2000+ page monstrosity of a statute is not the final word. It amounts to an enabling act giving the Washington bureaucracy wide discretion to enact a host of regulations and requirements as to how medical services are delivered and financed in this country. Well, some sowers might be reaping the unexpected – the Secretary has… .
Many of the Roman Catholic Church’s leaders in the United States supported the concept of Obamcare, and probably a majority of Catholics voted for him in 2008, taking to heart his message that he intended to see a national medical care scheme enacted, as well as the many other beneficent measures he espoused. Two of the public issues the Church has been vocal on are the use of medical contraceptive devices and pharmaceuticals and abortion. The Church believes that human life begins at conception and it regards abortion as equivalent to homicide. It also believes and teaches – somewhat incongruously, as its use would and does prevent the perceived necessity of many abortions – that “artificial” contraception is wrong. Now Secretary Kathleen Sebelius, herself a Catholic, has mandated that Catholic institutions must provide contraceptive services, including some pharmaceuticals that act as very early term abortifacients, in medical insurance policies they provide to their employees. There appears to be narrow exemption for the clergy (which theoretically would not have any use for such services anyway). This leaves open Catholic schools, universities, hospitals, and all kinds of eleemosynary institutions that must either to provide medical insurance for their employees that includes paying for activities the Church deems immoral, or decline to do so and pay a monetary penalty. The monetary penalty may be the least of the burdens as many of those whose skills are sought will find employment elsewhere with organizations that would provide medical benefits.
Whatever one believes concerning the Church’s stance on contraception, it is a long standing religious tenet that deserves to be, and is protected by the Constitution. Over the past four or five decades, the Establishment Clause of the First Amendment has received a lot of attention in the courts and the press. There is a concern, bordering on paranoid in some circles, that any activity, no matter how attenuated the connection, that can be construed as government sponsorship of religion, must be squelched forthwith. Given the past history of the Inquisitions, and the present day Taliban and other Islamist regimes, that concern has a point. There is another part of the First Amendment, though, known as the Free Exercise Clause. This has received a lesser amount of attention, but it is just as important as the Establishment Clause. The government must not burden religious belief and conduct in accordance with that belief unless it serves a compelling state interest. The bar is and should be drawn very high. Certainly the Constitution will not protect conduct such as the handling of poisonous snakes in the presence of children, forced female genital mutilation, honor killings, and the like, no matter what a particular creed holds. But to force a religious sponsored institution to finance what that religion considers immoral conduct must be Constitutionally prohibited. There is no clash of rights here. Even assuming that the availability of medical services regardless of ability to pay is a right, which I do not so believe, a potential beneficiary of a medical insurance policy is not forced to work at a Catholic college, hospital, or other institution.
There are a number of downstream possibilities. I see no way the regulations can withstand judicial scrutiny, and there is a chance that the Obamacare fiasco will be consigned to the landfill of history, either by the courts or a subsequent Congress and President. Even if it survives, these regulations will not. Secondly, personal appeals by a number of bishops and other Catholic leaders to the President have apparently been rebuffed. As a result, perhaps the Church leaders and their flocks will exhibit less enthusiasm for Obama in 2012 than they did in 2008. That may be fitting. A lot of Catholics believed he was the Messiah; for many of them, on this issue anyway, he looks more like the Antichrist.

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