What's Wrong with the HHS Mandate?

by Justin Soutar

(Originally published on Intellectual Conservative 4/17/13 at http://intellectualconservative.com/index.php/what-s-wrong-with-the )


On January 20, 2012, under the direction of President Barack Obama, the U.S. Department of Health and Human Services announced an unprecedented new law: As of August 1, 2012, all forms of health insurance coverage provided by businesses to their employees and by not-for-profit organizations to their clients would have to include artificial contraceptives, sterilizations and abortion-inducing drugs. This official announcement aroused an immediate and fierce storm of protest throughout the United States. Catholic bishops, Protestant ministers, Jewish rabbis, hospital owners, charity CEOs, heads of colleges and universities, big and small business owners, state and federal government leaders, and ordinary American citizens all declared in no uncertain terms that they could not possibly comply with such a directive. The reason? It would force them to act in violation of their religious beliefs and moral convictions—and they were not about to blithely discard those sacrosanct tenets.

In response to this massive wave of protest, a few weeks later on February 10, 2012 the HHS announced a “compromise” to its sweeping mandate, in which two “exemptions” were handed to religious believers. First, “houses of worship” (i.e. churches, synagogues, mosques, etc.) would be exempted from the new law. Second, religious institutions that only hire and serve members of their own faith would not be compelled to furnish certain health care items if furnishing such items violated the principles of their religion. However, this “compromise” did little to abate the storm of protest against the new federal contraceptive, sterilization and abortifacient law. The Catholic bishops objected that it failed to adequately address the serious religious liberty issues raised by the HHS mandate. How so? Well, the second exemption to that mandate is extremely narrow and very few religious organizations qualify for it. Whether schools or hospitals or charities, most religious institutions in America are not exclusivist, hiring and serving only members of their own faith. Rather, most are—as they should be—part of the broader society, and as such they hire staff on the basis of merit and serve people on the basis of need, without discriminating on the basis of religious affiliation. So this HHS “compromise” still left an overwhelming majority of religious institutions legally compelled to act against their beliefs.

A few months later, the U.S. Supreme Court completed its review of the encyclopedic Patient Protection and Affordable Care Act of 2010, which authorized the Obama administration to issue the healthcare mandate in the first place. On June 28, 2012, the Court ruled that the entire Act is constitutional and that the HHS mandate is simply a legitimate exercise of Congressional power to lay and collect taxes. In his written majority opinion, Chief Justice John Roberts argued that the mandate is not really coercive in violation of the First Amendment because religious entities and business leaders that object to it can choose between obeying the law or paying the tax fines imposed for noncompliance with it. According to Chief Justice Roberts, these fines are not so crippling that they force compliance with the mandate; therefore, the healthcare law leaves religious institutions and business owners still free to act in accord with their beliefs.

This landmark decision was quickly followed by another national wave of public outcry. What was wrong with the ObamaCare ruling? Critics pointed out that, contrary to Roberts’s claim, the tax penalties for noncompliance with the HHS mandate are indeed severely crippling; a religious organization or business that refuses to obey the law will be subjected to fines as high as 15 percent of its annual income or $100 per employee per day. Thus, for a typical institution—be it religious or secular, for-profit or not-for-profit—with dozens or hundreds of employees that refuses to offer contraception, sterilization and abortifacient drugs in its healthcare plan, the tax fines will amount to hundreds of thousands or millions of dollars per year. Fines of these magnitudes will force many religious institutions and businesses across America to shut down. This is precisely why the National Federation of Independent Business took the Obama administration to the U.S. Supreme Court over the PPACA and the mandate—because they are coercive: Businesses are either forced to obey the law or forced to pay unsustainable fines. Furthermore, fines by their very nature are meant to ensure compliance with a law and to deter and punish noncompliance with it. The notion that the healthcare mandate is not coercive is total nonsense. By allowing ObamaCare to stand unchallenged, the Supreme Court left the First Amendment rights of religious institutions and business owners still exposed to the full onslaught of the HHS mandate.

Facing a barrage of more than forty lawsuits in federal courts across the nation—eleven of which had already been decided in favor of the plaintiffs at this writing—the Department of Health and Human Services held out its most recent olive branch to the American public on February 1, 2013, proposing certain “accommodations” to make its controversial healthcare mandate more palatable to the stubbornly religious masses. Although initially the public wasn’t sure what to make of these complex new “accomodations,” Catholic bishops and lawyers were soon sounding the alarm that the newly proposed HHS regulations do little if anything to allay their deep concerns about the mandate’s violation of religious freedom. In an op-ed entitled “Making Sense of Another Ambiguous ‘Compromise,’” Archbishop Charles Chaput of Philadelphia warned that the healthcare mandate “remains unnecessary, coercive and gravely flawed.” On EWTN’s news program The World Over Live with Raymond Arroyo, attorney Kyle Duncan of the Becket Fund for Religious Liberty flatly dismissed the new “accommodations” as “window-dressing.” And Cardinal Timothy Dolan, president of the U.S. bishops’ conference, in an official statement on behalf of all the bishops, declared, “Throughout the past year, we have been assured by the Administration that we will not have to refer, pay for, or negotiate for the mandated coverage. We remain eager for the Administration to fulfill that pledge.”

So what is lacking in this latest “compromise” from HHS? According to Cardinal Dolan, three issues remain unresolved: 1) The federal definition of a religious ministry remains extremely narrow. 2) Nearly all religious institutions are still compelled to fund and facilitate "services" such as contraceptives, sterilization, and abortifacients. 3) No protection is afforded to the conscience rights of for-profit business owners.

We’ve already discussed how the mandate affects religious institutions. But what about religious owners of secular for-profit businesses as well as of nonreligious charitable organizations who object that the HHS mandate violates their personal religious beliefs? No legal exemption from the mandate is afforded them. Lawyers for the Obama administration maintain that secular businesses must comply with it regardless of their owners’ personal religious objections to handing out artificial contraceptives, sterilizations and abortifacients in their healthcare plans. In other words, under the Obama regime it is a crime for a religious person who runs a secular business or not-for-profit organization to do so in line with his or her religious convictions if such convictions prohibit the distribution of abortion pills, contraceptive drugs and/or sterilization procedures. Forcing individual believers to violate their faith is as much an attack on the First Amendment as forcing entire religious institutions to do so.

And what about the conscience rights of that small but significant group of non-religious owners of secular businesses and charitable organizations who object to providing abortifacients on moral rather than religious grounds? Why should they be exempted from the HHS mandate? After all, according to the Obama administration, this healthcare law is driven by “a compelling public interest”: for their own good, the American people must have unrestricted access to abortifacient drugs, birth control pills and sterilization procedures. The answer is that the moral right to refuse to provide abortion-inducing drugs is found in the moral law, also known as the natural law—a set of universal principles of right and wrong which come from God and which are inscribed in the human conscience. This moral law guided the thinking and actions of our nation’s great founders and, together with faith in God according to the Judeo-Christian tradition, served as the framework for our country’s two principal founding documents: the Declaration of Independence and the Constitution of the United States.

The Declaration of Independence states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to ensure these Rights, Governments are instituted among men, deriving their just powers from the consent of the governed.” This solemn statement is becoming all the more remarkable as our nation becomes more secularized, rejecting the firm foundations of religion and morality on which it was built. In this text, our nation’s founders acknowledged as self-evident truths that God created all human beings equal in dignity and endowed them with certain “unalienable” rights, i.e., rights that cannot be taken away, and that the role of government is to protect these rights. The founders knew that the moral law requires respect for the right to life of every innocent human being and forbids murder. They also knew that the Fifth Commandment, “Thou shalt not kill,” is merely a direct external confirmation by God of a law that he had already written in the human heart. Moreover, in acknowledging “Liberty” as an unalienable human right, the founders understood liberty as 1) the freedom to act in accordance with the moral law, and 2) the freedom to practice one’s own religion without government interference. The former aspect—what we refer to today as “freedom of conscience”—was taken for granted by the founders; we refer to the latter aspect as “freedom of religion.”

In our Constitution’s Bill of Rights, the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Having come to this land from Europe, where some theocratic monarchs forced the state religion on their subjects and outlawed the public practice of other religions, our nation’s founders clearly understood that freedom of religion is a fundamental human right that requires legal protection from the opposing threats of single-religion dictatorship and religious persecution. Thus they wisely crafted a law that on the one hand forbids religious compulsion by the government, and on the other hand guarantees the freedom to practice one’s own religion without interference from the government.

The Fifth Amendment to our Constitution protects our unalienable rights to both life and liberty from arbitrary revocation by the government. It states: “No person shall be…deprived of life, liberty, or property, without due process of law.” This passage, along with most of the Fifth Amendment, was written to protect the rights of criminal suspects. When our nation’s Founders authored this text, they meant that no one could be executed or deprived of his liberty or land without first being publicly tried and convicted of a crime. Unfortunately, some two hundred years later in the infamous Roe v. Wade decision, the U.S. Supreme Court led by Chief Justice Warren Burger deliberately ignored the intent of the Constitution’s authors and, through some incomprehensible twist of logic, arbitrarily reinterpreted the Fifth Amendment due process clause regarding the confinement and execution of criminals to justify legalizing the murder of innocent unborn persons. As a result of this infamous decision, over the last forty years nearly 56 million innocent unborn Americans have been deprived of their unalienable right to life, and with it all their other rights as well. A woman’s supposed “right” to an abortion on demand has no authentic legal basis in the Constitution.

The most fundamental of all human rights—the right to life—as well as the rights to moral and religious liberty are explicitly acknowledged in our nation’s founding documents. By compelling individuals and institutions to help women kill their innocent unborn children regardless of moral objection to an intrinsically evil practice, the HHS mandate violates our sacred rights to life and liberty enshrined in the Declaration and the Constitution. Abortion violates the unalienable rights to life and liberty of the innocent unborn human being in its mother’s womb; therefore, it is both murder and tyranny and constitutes a violation of the Declaration and the Fifth Amendment. The HHS mandate violates not only the unalienable rights to life and liberty of the innocent preborn, but also the unalienable right to liberty of the American people, i.e., their freedom to act in accord with the moral law and with their religious beliefs; therefore, it is both murder and tyranny and constitutes a violation of the Declaration, the First Amendment and the Fifth Amendment.

Abortion is clearly gravely immoral, so the case for refusing to cooperate in it is pretty clear-cut. But would a secular nonprofit or business owner have the right to object to providing artificial contraceptives on strictly moral grounds? The answer is yes, and here’s one good reason: Studies prove that many birth control pills act as de facto abortifacients—instead of preventing the conception of a child altogether, they merely prevent a newly conceived child from implanting in its mother’s uterus, resulting in its abortion. Thus a secular nonprofit or business owner may rightly refuse to provide artificial contraceptives to employees on the ground that this would make him or her complicit in the grave moral evil of abortion.

But even if artificial contraceptives did not behave like abortion-inducing drugs, there would still be another argument for a secular nonprofit or business owner to justify withholding them from his or her employees: The use of artificial contraception by married couples is gravely immoral. Non-Catholics may object that this is exclusively a doctrine of the Catholic Church, not a tenet of the universal moral law. However, it is worth remembering that prior to 1920, every single Christian denomination in the United States taught that the use of artificial contraception by married couples was a gravely immoral practice. In doing so, they rightly stood alongside the Catholic Church in upholding a key truth of the unchanging law of God. The fact that most Christian churches in America no longer teach this, and the fact that most Americans who object to the use of artificial contraception within marriage are now Catholic, does not change the truth of the moral law. It merely demonstrates that only the Catholic Church has continued to faithfully proclaim the truth of the immorality of artificial birth control for use by married couples. If something is immoral it is immoral for everyone of all times, regardless of their religious faith (or lack thereof) and regardless of whether certain churches teach the truth of it or not.

The mission of civil government is to protect the God-given rights of its citizens and to promote the common good of society. Religion and morality are powerful allies in achieving both of these objectives. They are what George Washington referred to as “indispensable supports” of our nation’s liberty, the essential foundations of human society. Atop this foundation of religion and morality, the traditional family is the essential basic unit of human society, the place where new human life is welcomed and nourished and where religious and moral values as well as civic duties are inculcated in the next generation of American citizens. Government has a solemn duty to respect religion, morality and the family and to avoid making any policies that would threaten their wellbeing. A government that dares to attack religion, morality, or the family is attacking the very foundations of human society. The Obama administration has dared to attack all three of these foundations of our republic by issuing a law that violates religious freedom, promotes immorality, and discourages families from welcoming new human life into their midst.

Our nation’s founders prophetically warned that the United States would not long endure without the twin pillars of religion and morality, that is, faith in God and adherence to his moral law. If the people of a nation don’t believe that human rights—especially the rights to life and liberty—come from God, then those rights will be perceived as coming from the state and the state will claim the authority to define their limits and to give or take away those rights as it sees fit. And if people don’t believe that it is morally wrong to deprive an innocent person of his or her right to life or liberty, then human life and liberty will not be respected.

Unfortunately, religion and morality mean nothing to the Obama administration. Its healthcare mandate and other radical policies are grounded in the dangerous philosophy of radical secularism, which is the antithesis of everything our nation’s founders believed and did. The central idea of this philosophy is that human society and politics are better off without God and without the constraints of an unchanging moral law. Unlike today’s radical secularists, those few of our nation’s founders who were nonreligious men were not at all hostile to religion. Benjamin Franklin did not refuse to sign the Declaration of Independence because it mentioned or referred to God in several places. On the contrary, the nonreligious founders warmly supported and encouraged the public exercise of religion, recognizing its key importance to the welfare of the nation. With its outright rejection of religion and moral absolutes, radical secularism is a recipe for national disaster, grimly exemplified in totalitarian regimes such as Nazi Germany, the Soviet Union, and Maoist China.

Despite the claims of the Obama administration, the HHS mandate has nothing to do with looking after the health of the American public, and it makes no sense whatsoever when viewed from that standpoint. For one thing, with this law the federal government is unnecessarily forcing health insurers to include coverage of an over-the-counter drug that is already inexpensive and widely available. Those who do not object to the use of artificial contraceptives within marriage as immoral can easily purchase them at the nearest drugstore for the price of a small bag of dog food. For another thing, giving women drugs to kill their unborn children is not caring for the health of either mothers or preborn infants, and giving people artificial contraceptives (many of which are de facto abortifacients) and surgical sterilization procedures so that they can’t have children is not health care either. None of these so-called “preventive services for women” are necessary or even beneficial to the health and well-being of American women; on the contrary, they are unnecessary and harmful to both. The negative effects of abortion on the physical, mental and emotional health and well-being of women are now well documented: cancer, pregnancy complications, post-traumatic stress disorder (PTSD), anxiety, depression, guilt feelings, and suicide. Furthermore, artificial contraceptives have been shown to be harmful to the natural environment; their chemical waste byproducts pollute our nation’s water and soil and end up contaminating our food supply, which also degrades our health. Seen objectively, the HHS order is an irrational and self-destructive national policy of population control: By helping American women to not bear children, it places the future of our entire nation at risk. Leaving aside for the moment all considerations of morality, religious liberty, and constitutionality, these facts alone would render the “healthcare” mandate a grossly irresponsible, foolhardy and unethical decree of the federal government.

So if the HHS mandate is not about health care, what it is about? The answer is: money. The mandate is driven by powerful corporate interests—specifically the abortion, pharmaceutical, and insurance industries—which stand to profit immensely from legally mandated consumption of their products. Unfortunately, these wealthy and influential corporate giants are better represented in Washington, D.C. than the American people themselves are. They have bribed the Obama administration to give them exactly what they want—and they will do whatever it takes to ensure that the “healthcare” law remains firmly in place, no matter how destructive it is to our country.

To summarize: what is wrong with the HHS mandate?

1. It is unpopular. The HHS mandate is being imposed on our nation by Washington bureaucrats in the face of massive and sustained opposition from the American people. The Patient Protection and Affordable Care Act of 2010, which gives the Obama administration the authority to issue the HHS mandate, was rammed through Congress and signed into law by President Obama despite the vociferous and well-founded objections of a large majority of his constituents that it failed to adequately protect their moral conscience rights and religious freedoms. Polls taken from 2009 up to today have consistently registered two-thirds of Americans as strongly opposed to ObamaCare, which makes it the most controversial and unpopular reform legislation in American history.

2. It is unjust. Never before in U.S. history has the federal government enacted a law that forces people to violate their moral consciences and religious precepts. Such compulsion is unjust because it infringes on the basic human rights to act in accord with the moral law and with one’s religious faith.

3. It is unconstitutional. The HHS mandate violates our First Amendment right to the free exercise of religion as well as the Fifth Amendment rights of unborn and born Americans not to be deprived of life or liberty, respectively, without due process of law.

4. It is immoral. It is one thing and bad enough for a government to legalize a gravely immoral act such as abortion. However, it is another thing and far worse for a government to legally compel its subjects to violate the moral law. No government has the right to order certain people to help other people do gravely immoral things such as murder their preborn children or render themselves infertile. Yet this is exactly what the federal government under the Obama administration is doing with the HHS mandate: forcing American citizens to participate in the gravely immoral acts of abortion, contraception, and sterilization.

5. It is an attack on religion, morality, and the family—the three basic pillars of human society and national life.

6. It is grounded in the dangerous philosophy of radical secularism, the idea that God and the moral law must be expelled from public life.

7. It is unnecessary. Abortion is not health care, and artificial contraceptives are already inexpensive and widely available for those who do not object to their use.

8. It is destructive to the public health. Abortion is harmful to the health of women, and artificial contraceptives generate toxic waste.

9. It is irresponsible. Preventing women en masse from having children is a recipe for national suicide.

10. It is driven by corporate greed. At bottom, the HHS mandate is nothing other than pork barrel for the abortion, pharmaceutical, and insurance industries.

Since announcing this high-handed and unprecedented “healthcare” directive over a year ago, the Obama administration has utterly failed to grant American religious institutions and business owners the basic freedom to act in accordance with their moral convictions and religious beliefs. The two HHS “compromises” presented thus far, with their narrow “exemptions” and dubious “accommodations,” are mere facades, totally devoid of genuine protections for the religious liberties and conscience rights of the American people. They’re carefully calculated political gestures designed to give the appearance of compromise and intended to weaken public resistance to a law that is immoral, unjust, and unconstitutional—a law that President Obama and his tyrannical accomplices have foisted on our nation without our consent, a law that they have no intention of rescinding or of substantially altering to comply with the First and Fifth Amendments.

The HHS mandate has been and continues to be loudly decried as an attack on religious liberty and the First Amendment, which it certainly is. But even more fundamentally, it is an attack on the moral law and on our right to act in accordance with that law. Perhaps, in our response as Catholic American citizens to the Obama administration’s radical anti-life policy, too much emphasis is being placed on the religious liberty and legal aspects of the issue and not enough on the moral and human rights aspects. The core of the issue is that the mandate forces American employers to purchase and distribute to their employees things that are gravely immoral for use either by pregnant women or by married couples. As Catholics, we need to articulate a more coherent defense of the moral law and of our right to act in accordance with it—defending principles that we hold in common with other religious believers as well as with many atheists and agnostics—in order to combat the insidious propaganda of the Obama administration more effectively.

The HHS mandate is an immoral and unjust law; therefore, we the people of the United States have not only the right but the moral duty to refuse to obey it—and to work for its full reversal. It’s not enough to merely demand further exemptions from the mandate; this approach is inherently flawed because it implies tacit acceptance of an unacceptable law. For the reasons given in this article, the so-called “healthcare” mandate in principle is intrinsically, profoundly and irredeemably flawed, and because of that it must be completely overturned. We must not allow ourselves to become discouraged by the obstacles we face in achieving this necessary goal. We must not give in to a subtle defeatist mentality and cowardly surrender to the mandate as though it were somehow irreversible. Such a dangerous and evil law cannot stand for long without wreaking tremendous havoc on our nation. We the people of the United States must keep up the pressure on the Obama administration to revoke this terrible law—and if it refuses to do so, we must use our heads when we next go to vote and select responsible leaders who will protect and defend our God-given unalienable rights to life and liberty, so that we will once again be “one nation under God, indivisible, with liberty and justice for all.”


Copyright © 2013 Justin D. Soutar. All rights reserved.