Monday, June 18, 2012

My Letter To My Local Newspaper Opposing the HHS Contraception Mandate

Letter to the Editor

Please Oppose the HHS Contraception Mandate

Starting June 21 and ending July 4th Americans across the United States will be engaging in Fortnight For Religious Freedom.

These fourteen days , a great hymn of prayer for our country, is marked at the beginning by the Feast of St. John Fisher and St. Thomas More who fought political persecution , and ends on our great day of Independence.

The Forthnight of Freedom is too be a special period of prayer, study, catechesis , and public action too emphasize our Christian and indeed American history of religious liberty.

This event is in part a direct response to the unprecedented attacks on religious liberty from the Department of Health and Human Resources , mandating that all group health plans provide contraceptive services and sterilizations regardless of religious beliefs.

It is not the only reason for this event. Attacks on religious liberty by many state and local governments have been sadly on the increase for the last few years. However the HHS Mandate mandate is being viewed as the Katrina or BP oil spill that could overwhelm an already weakened system that defends our religious liberty.

Two matters should be made clear from the outset.

First, this is not just a Catholic issue. This can be seen by the fact that the Baptist operated Louisiana College in Pineville Louisiana has filed suit in federal court as to this matter. In fact according to Dr. Richard Land , president of the The Ethics & Religious Liberty Commission of the Southern Baptist Church , it is highly likely that the Southern Baptist Convention meeting in New Orleans this week will issue a strong statement of alarm , and opposition to the HHS birth control mandate.

Second, this is not really about contraception. Contraception is often inexpensive even when it is not provided with the assistance of the Church and with Church funds. . It is also not about "banning " contraception which of course the Supreme Court settled decades ago.

There are three areas of prime concern.

First , the Government for the first time has proposed a a very narrow and unprecedented on the federal level of what is "religious".

Outside the four walls of the Church itself, the mandate includes a very narrow definition of what HHS deems a "religious employer" deserving exemption - employers who, among other things, must hire and serve primarily those of their own faith.

That is a startling development. When a hurricane hits Louisiana neither Catholic Charities nor the many Protestant groups funded in no small part by local residents here in Claiborne Parish , ask for membership papers when giving aid.

It is not the role of Government to define religion and religious ministry in such a limited fashion. The HHS creates and dictates by force of law a new distinction- alien to our historical American religious liberty experience , - between our houses of worship and our great ministries of service to our neighbors which include the poor, the homeless, the sick, the students in our schools and universities and others in need of any faith community or none.
This cannot stand.

Second, The HHS mandate creates still a third class of citizens that have no protections whatsoever. That is individuals , who in their daily lives, act in accordance with their faith and moral values. They too face a government mandate to in providing "services" contrary to those values. This again goes against the tradition of our civic American experience that has been generous in the protecting the right of individuals not to act against their religious beliefs or moral convictions.

Third , and of major concern is the HHS contraception mandate itself violates the Religious Freedom Restoration Act of 1993 which was signed by President Clinton and which passed Congress in a huge bipartisan vote.

The RFRA says the federal government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person- (1) is in furtherance of a compelling governmental interest; and ( 2) is the least restrictive means of furthering that compelling governmental interest.

The Obama administration , as to this new HHS rule, fails to these burdens.

First it is clear that the current mandate is a" substantial burden ". Legally it has been found by the courts that there is a low threshold for substantial burden. It also takes in its scope not only direct burdens but also indirect burdens.

Employers who violate the HHS mandate, and who thereby fail to provide the coverage HHS deems necessary under the affordable care act will get an annual penalty of roughly $2000. per employee. The HHS mandate forces Catholic employers and others, to choose between following the beliefs of the religion and incurring huge fines , or denying their faith in order to stay in business.

Second, it is not clear that this is a compelling government interest. The Guttmacher Institute 's June 10th 2010 fact sheet on contraception use in the United States indicates "Nine in 10" employer based insurance plans cover a full range of contraception prescriptions.

Further various programs and groups also provide contraception at little to no cost. It is per the RFRA almost impossible to see how that the government has a "compelling interest " in marginally increasing access to contraception by requiring OBJECTING employers to provide coverage in their health insurance plans.

Recently in the 2011 Supreme Court case Brown v. Entertainment Merchant Association , a case involving the regulation of the sale of violent video games to minors, the Court stated:

"Even if the sale of violent games to minors could deterred further by increasing regulation, the government does not have a compelling interest in each marginal percentage point by which its goals are advanced" ( emphasis mine)

Most damning though for the Obama administration is the second prong of the test. That is of the least restrictive means . Even if one would concede that providing already relatively inexpensive contraception is of a compelling government interest it is hard to argue it is being done via the means that is least restrictive of the religious liberty of the objecting employer.

Other means the government could use to increase access to contraceptives that are less restrictive of religious liberty include: direct government provisions of contraceptives; tax credits or deductions or other financial support for the contraceptive purchaser; or the expansion of the already in existence Title X program. There can be the normal political objections to all these proposals as a policy issue. However that is not the point. These are just a few of the other least restrictive means the government can use and not burden religious belief.

Last , but not least , the RFRA strengthens the already strong presumption against implied repeal by stating that any repeal or override of it must be EXPLICIT. This was not done by Congress. Nothing in the Affordable Care Act legislation either explicitly or even implicitly overrides the RFRA with respect to the HHS contraception mandate.

This is a matter of concern for people Faith and indeed of no Faith. In order to accomplish a particular government objective distressing First Amendment precedents are being set , and current statutory laws are basically being ignored as to religious freedom. If allowed it is hard to see how this shall be contained. I urge all people to inform themselves on this issue and contact your elected officials

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