Law professor Helen Alvare, a former pro-life advocate for the U.S. Catholic bishops, recently asserted the new Obamacare contraceptive/abortifacients mandate originated with “a stacked panel of abortion advocates” who rehashed 17-year-old counsel from the liberal Guttmacher Institute.
Alvare’s comments were at a presentation on “Religious Freedom and Healthcare Reform” sponsored by the Religious Freedom Project in the Hariri Center at Georgetown University on Thursday, Mar. 22. Currently a professor of law at George Mason University, she discussed how religious freedom is burdened from the perspective of the interests of the Catholic Church.
Among Alvare’s arguments against the Obamacare mandate, she cited the: 1) lack of a rational, as well as compelling, government interest to the healthcare mandate, 2) interference in the governance of the Catholic Church’s internal affairs, 3) possible evidence of animus against the Catholic position on contraception, and 4) the value of preserving the church’s social witness through a granted exemption from the Obamcare rule.
On the first point, Alvare traced a timeline of social policy, law, and church teaching with respect to contraception and sexuality. Since the introduction of the contraceptive pill, unintended and non-marital pregnancies and abortions have increased radically. Catholic institutions are burdened by the new Obamcare mandate as they must cooperate in providing through sponsored insurance what they teach is immoral and destructive. They cannot refuse to serve non-Catholics, as the mandate essentially requires for a religious exemption, since not serving non-Catholics contravenes Catholic teaching in Pope Benedict XVI’s first encyclical Deus Caritas Est. She stressed the necessity of fighting the mandate, since if Catholic institutions buckle under to state requirements, a general assault on liberty of conscience can be expected.
Alvare said that the proposed compromise from the Obama administration, under which a rider could be attached for individuals wanting contraceptive coverage at objecting institutions, interferes in the employer/employee relationship. This is because a federal agency charged with the task must contact requesting employees within the objecting institution to arrange what the church actively opposes.
On the claim of animus against Catholic teaching, Alvare pointed out that the persons from the Institute of Medicine who originated the Obamcare rule were in fact “a stacked panel of abortion advocates for the largest part, including the Guttmacher Institute, whose 1995 report on what the federal government should do about contraception used language hauntingly identical to the language coming out of HHS today.”
Alvare’s final point regarding the value of preserving the church’s witness was made by the accumulated evidence of social practice over the time contraceptives have been readily and legally available, the fact that the denial of contraceptives is the single most salient feature of many Catholic institutions, and the fact that the church’s free exercise requires social outreach, including outreach to non-Catholics.
Michael McConnell, a law professor at Stanford University, called the decision to require religious institutions and other persons to pay for services they consider immoral “unprecedented.” McConnell said the Religious Freedom Restoration Act of 1993 is violated by the Obamcare mandate. He summarized the Religious Freedom Restoration Act of 1993 (RFRA) requirement as saying that federal law cannot place a substantial burden on the free exercise of religion unless a compelling state interest is served. He also referred to the establishment and free exercise clauses of the Constitution as having been violated.
“Requiring a religious institution to pay for services that it regards as immoral or evil is a burden on the exercise of religion,” McConnell said. Regarding the Administration’s proposed compromise in which persons desiring contraceptive coverage at objecting institutions can add a rider to their policy to provide for such coverage, McConnell declared that “this proposal actually gives fig leaves a bad name.” Additionally, the Obamcare mandate has many non-religious exemptions applying to millions of Americans, further proof that no compelling government interest exists.
More favorable views of the HHS mandate were expressed by Melissa Rogers and Martin Lederman. Rogers, who directs the Center for Religion and Public Affairs at Wake Forest University, focused on what the courts have said concerning religious organizations in their employment context. They have used two principles 1) the objections of religious organizations must be honored, and 2) the Supreme Court has told the government that when accommodation to religious organizations is made, it must be attentive to the impact of these accommodations on non-beneficiaries. Rogers did say that she believed that no accommodation to religious organizations with respect to the Obamacare rule would violate RFRA.
Martin Lederman, a law professor at Georgetown University, doubted that the Obamacare mandate places a substantial burden on religious organizations. He claimed that courts generally have denied claims of substantial burden to religious freedom, either because there was none or because of the possibility of an endless succession of claims. In general, he tended to indicate that the mandate is legally acceptable.
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