Insurance mandate: Anti-religion or privacy protecting?

Insurance mandate: Anti-religion or privacy protecting?
A liberal view
from Paqui Toscano

It was inevitable that a storm would follow the U.S. Department of Health and Human Services’ new requirement mandating that employers who provide health coverage to employees must also offer access to insurance plans that cover artificial contraception, including the morning-after pill, and other sterilization services.

The woman’s right to take care of herself in whatever way she wants by taking medication is one clearly protected by the implicit right to privacy or explicit guarantee of liberty in the U.S. Constitution. It is imperative for the women of an industrialized country to be able to make informed medical choices – an interest the government is protecting through this mandate.

The Catholic Church, however, has taken a militant stance in opposition to this new federal regulation. Archbishops all across the country are encouraging the priests within their diocese to speak out against what they consider an unfair federal infringement on their First Amendment religious liberty rights.

As the Dayton Daily News reports, Cincinnati Archbishop Dennis M. Schnurr, whose diocese includes the Dayton region, claims this regulation has “cast aside the First Amendment … denying to Catholics our nation’s first and most fundamental freedom, that of religious liberty.” He continues, warning that “unless the rule is overturned, we Catholics will be compelled to violate our consciences, or to drop health coverage for our employees (and suffer the penalties for doing so).”

As much as I respect the Christian denomination of Catholicism, I fail to understand the archbishop’s Constitutional foundation for his egregious claim. This federal mandate exempted churches, reflecting the government’s respect for the religious liberty of these crucial and important institutions in American society. This was a common courtesy – due respect. The institution of the church itself has long held a special place in our society; the government, for instance, has exempted churches from having to pay taxes and from having to comply with certain federal laws and mandates, such as this one.

That being said, with respect to the rest of the institutions which are not exempt from this mandate, such as faith-based universities, charities, and businesses in this country, this federal rule does not in any way shape or form constitute a Free Exercise Clause violation. The Free Exercise Clause is the right of an individual within his own personal life to practice his own religion as he wishes. Where the archbishop and I differ is that I don’t feel the new insurance mandate crosses that line.

By passing this mandate, the government is in absolutely no way keeping any individual from practicing his or her religion. The mere forcing of an employer to provide for his employees the choice to make use of what he may consider sinful medical services does in fact not impair him from practicing his own religion in his personal life.

One of my best friends compared this mandate to forcing a Jewish employer to bring only ham sandwiches to a picnic for his Jewish guests. First of all, this would be an incredibly stupid mandate and would not, in any way, serve any federal government purpose; but more importantly, what my friend fails to note is that this governmental action actively forces Jews to eat ham sandwiches, which directly impairs their rights to practice their religion.

In contrast, this mandate works to provide for the choice of making use of the Constitutional right to privacy, passively and indirectly compromising a Catholic’s religious scruples. The mandate, however, does not actively prevent the Catholic from practicing the religious rules of the denomination in that it does not actively force the employer himself to take birth control.

It has long been a Constitutional principle that the government may, from time to time, pass certain laws that advance a government objective, which may affect the free exercise of a religious organization as long as those effects are peripheral – merely side effects of the law’s purpose without the purpose of the law being to limit the free exercise of that religion.

For instance, the Supreme Court in Reynolds v. United States (1879) found against a Mormon who challenged a federal law banning bigamy, claiming that the law violated his ability to practice his Mormon faith as he chose. Chief Justice Morrison Waite, writing for the unanimous Court, ruled that to let the people be excused from otherwise valid laws or regulations would be “to permit … the professed doctrines of religious belief [be] superior to the law of the land, and in effect … permit every citizen to become a law unto himself.”

Likewise, in Employment Division v. Smith, the Court ruled by a vote of 6-3 that Oregon did not violate the Free Exercise Clause when it refused to pay two Native Americans unemployment benefits after they were fired for using illegal drugs as part of a religious ceremony. Justice Antonin Scalia in his majority opinion noted that the Free Exercise Clause has never been construed to mean that a citizen’s religious beliefs excuse him from complying with a perfectly legitimate law. Scalia commented that the notion that the Free Exercise Clause does protect this “contradicts both constitutional tradition and common sense.”

After all, if we were to let Catholics be exempt from this mandate on religious grounds, it would undermine the legitimacy of a plethora of other laws as well. Those who have sought to get out of compulsory military service have not been successful (Gillette v. United States); Amish residents have been ordered to continue paying taxes despite their religious beliefs to the contrary (United States v. Lee); parents cannot be allowed to neglect their child because it contradicts their religion to provide them with proper medicines (Funkhouser v. State); and it would be an absolute health disaster for the community if we didn’t have certain compulsory vaccinations (Cude v. State) or laws against certain illegal substances (Olsen v. Drug Enforcement Administration).

Furthermore, in these instances all these laws that were upheld arguably had a greater impact on religious freedom than this birth-control mandate in that they directly impaired the ability of the citizens challenging the law to practice their religion; greatly differing, this mandate only indirectly compromises religious values, but does not impair the Catholic himself from practicing his religion as he wishes for himself.

In other instances, the Court has struck down laws that directly impaired religious practices (Church of Lukumi Babalu Aye v. Hialeah) but only because these laws singled out the Church of Lukumi Babulu Aye and its practice of animal sacrificing, repressed more religious action than needed to accomplish the government’s aim, and targeted specifically religious behavior.

This mandate clearly does not. It is generally applicable to all businesses that provide health insurance to their employees; it does not single out the Catholic denomination’s faith; and it does not repress more religious conduct than necessary and does not directly interfere with the practicing of a Catholic’s own faith with respect to his personal life.

In other situations, the Court has struck down laws interfering with religious practices (such as forced flag salute rules – Barnette v. West Virginia Board of Education) but has done so because these laws violated the Free Exercise Clause in “conjunction with other constitutional protections, such as freedom of speech, and of the press” (Cantwell v. Connecticut), as Justice Scalia explains.

I want to make it very clear that I am not a foe of the Free Exercise Clause, nor am I merely a puppet of the Supreme Court’s jurisprudence; in fact, I vehemently disagree with the Court’s rulings in Lyng v. Northwest Indian Cemetery Protective Assn. (in which the Court upheld the government’s construction activities on sacred Indian ground that would have catastrophic effects on traditional religious practices); Goldman v. Weinberger (in which the Court upheld military dress code that barred the wearing of yarmulkes); and O’Lone v. Estate of Shabazz (in which the Court upheld a decision not to excuse prisoners from work to attend religious services). And this is only the tip of the iceberg!

I would argue that for these types of laws that directly affect religion, strict scrutiny should be applied; for laws that indirectly, if at all, affect religion, the rational basis test should be applied.

It’s just an option – it’s just the federal government protecting the woman’s right to choose to make her own personal choices in her life. Some women don’t have the luxury to choose where they work. And just because a woman takes a certain job does not mean that she should have to relinquish a key, if not perhaps completely fundamental, right.

A conservative view
from Zach Jarrell

This new federal requirement on employers goes against everything this country is built upon. Many people in this nation don’t believe in contraceptives, but they are now being forced to cover them in health-care plans. There are many things wrong with this picture that go far beyond the simple religious issue.

First, this is the government interfering with business … again. Businesses are privately owned. I see a person’s business very similar to his own home; in fact, they used to be one in the same. If I’m a business owner, I should be able to run it how I want to. The government has no place telling a person how he should run his company. Granted, businesses can’t be completely set loose, but the government is choking them as it is. This just adds one more regulation, destroying our capitalistic society.

Next, it’s not the employers’ job to give their employees health care. If a woman wants birth control, she can pay for it herself. If she cares about it so much, then she will have to learn to sacrifice something in her own budget to pay for it. Birth control is not a necessity; it is a want, not a need. If a woman doesn’t want to risk having a kid, but can’t afford birth control, then she’ll just have to avoid having sex. Women can live a very good life without ever having to use birth control.  Countless numbers of women have done it before. The business should not have to pay for their employees’ leisure.

We also have to look into the word “right,” as I did before in the death penalty column. A right is something that you are allowed to do. That does not mean that the government has to provide you the means to do it. In this example, you have the right to use birth control, but the government is not responsible for paying for it for you. As former President Grover Cleveland once said, “Though the people support the government; the government should not support the people.” This also applies to things like welfare. People currently can live a decent life on welfare while doing very little to actually get themselves a job. In fact, I know people who switched from a full-time job to part-time because they could make more money in welfare because they are single moms.

This new coverage also includes the morning-after pill. Now I personally am on the fence as far as contraceptives go, but the morning-after pill is no different from an outright abortion. It’s just a lot shorter process. Contraceptives just prevent conception, but the morning-after pill kills a life that has already begun to grow. Abortion itself should be illegal and definitely not government-funded. Again, this goes back what a “right” is. Currently in this country, women are allowed to have an abortion, but that doesn’t mean the government has to pay for it. That’s not what the government is for. So for a business owner to be forced to cover for women to use the morning-after pill is just not right.

This new rule could also result in business owners stopping their health-care plans. If I owned a business, I would end my health-care plan for employees due to this new rule. The morning-after pill is something I would not pay for my employees to have access to. It is against my own morality, so my employees would have to have their own health care. This new rule is just another attempt at the socialization of health care. The health-care plan that a business owner gives his employees should be of his own choosing, not the government’s.

Now for the religious aspect of this debate. There is no place in the Constitution that explicitly says there is a right to privacy. The right­­ to privacy has been surmised by past Supreme Court judges from different parts of the Constituion. The right to religious freedom, however, is one of the first five rights guaranteed to everybody in the Bill of Rights. To put a “phantom” right over one of the most fundamental rights our country has is pure blaspheme. Most Catholics view contraceptives as a sin, so telling a Catholic that he is required to pay for them through his business’ health-care plan would be forcing him to sin.

Though churches are exempt, this rule does apply to places such as the University of Dayton, where the majority of the staff sees it as wrong. As long as one person on staff somewhere wants to use birth control, the business must have this coverage. Again, a business should be able to make its own decisions about health care. It’s not the government’s place to go telling businesses what they can and cannot do.

This rule just simply does not make sense. It is the government overstepping its boundaries yet again.