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The Contraception Mandate and the Constitution

By Charles C. W. CookeNational Review Online
Posted on: Tuesday, January 7th, 2014
Original publication date: January 2, 2014

Of all the cases that can be wielded against the casual use of propaganda, perhaps the strongest is that, eventually, it will make us all stupid.

For a beautiful example of this principle in action, one need look no further than to the paucity of the arguments that progressives are deploying in favor of the so-called “contraception mandate.” It has now been nearly two years since the hapless HHS secretary, Kathleen Sebelius, announced the measure, and since that time the lawsuits and the rulings have piled up, the Supreme Court has taken up the case, and the issue has been discussed interminably on cable news and beyond. And yet, despite the issue’s having been front and center for nearly two years, the Left’s performances have arguably become worse, not better. Time, it seems, is running backwards.

This is unsurprising. From the outset, both the Obama administration and its enablers have steadfastly and deliberately cast their preferences in inappropriate and misleading language — and they have stuck to this language through thick and thin. First, we were told that nothing should “get between a woman and her doctor” — a frankly hilarious line coming from the people who brought us Obamacare. Then, it was contended that by opposing regulations that force businesses to provide their employees with contraception, conservatives were somehow banning the pill. Then they shouted: “War on Women!”

That all of these contentions are deeply dishonest and quickly refutable has made no difference to the enthusiasm with which they have been repeated. Are we truly expected to believe that by not buying me an AR-15, National Review is violating my right to bear arms or restricting my constitutionally guaranteed “access” to guns? Of course not. And yet if you make the argument that to refuse to provide insurance that covers contraception is to “take it away from women,” then you must presumably believe that I am being treated terribly, too. Likewise, by refusing to contribute to my car payments, is my employer coming between me and the salesman? Nah.

Ugly and fallacious as these contentions are, the administration’s approach was well suited to the campaign and fundraising trails, and it was reasonably effective in supporting the electorally profitable narrative that the Republican party is regressive and misogynistic. This is to say that when the question at hand was, “In theory, should the state require corporations to provide health insurance, and if so what should be in it?” then demagogy of this sort made sense. But now that Obamacare is active law and we are no longer on the campaign trail, the question has changed to, “Is the government’s action legal?” And to this discussion, the administration’s doctrines are poorly suited indeed.

Proponents have persisted in them nevertheless. Last month, The Daily Beast’s Sally Kohn wrote a grotesquely illiterate column in which she not only revealed herself to be wholly ignorant of how the American system of government works, but also helpfully laid out in one place almost every poor argument against the mandate’s discontents. Hobby Lobby’s lawsuit against the measure, Kohn wrote, “is, plain and simple, a corporation trying to contort government to impose the religious views of some onto many.” Conservatives who oppose the mandate, she continued, are attempting to “use government to push a conservative religious agenda.”

However you look at this line of reasoning, it is utterly preposterous — the product of too much agitprop and not enough reading. For a start, Hobby Lobby doesn’t want to “use government” or “impose” anything at all. On the contrary, Hobby Lobby is suing to stop the government using it. The United States having stood for 223 years without a contraception directive, the important variable here is recent government overreach — not private entities continuing to enjoy their basic rights. If I sued to oppose a federal mandate requiring me to alternate my opinions in each column that I wrote, would I be using the government to “push a conservative agenda” or would I simply be demanding that I be left alone? Clearly, it is the latter.

Legally speaking, there are two reasonable claims that the pro-mandate contingent can make: (1) that the state isn’t violating the 1993 Religious Freedom Restoration Act or the First Amendment by requiring private companies to provide contraception coverage, and (2) that corporations aren’t protected by the Bill of Rights anyway. It is possible that the Supreme Court will agree with the former immediately, and the latter in good time; and possible, too, that the federal government will eventually enjoy widespread public support for its requirement. What is not possible is that the Supreme Court will decide that Hobby Lobby is violating the First Amendment or the religious liberty of its employees. Such a decision would invert the entire logical premise of the American government. Nevertheless, this remains the primary argument of the administration’s acolytes.

A reminder: The U.S. Constitution exists to describe and to codify the structure of the United States federal government, to enumerate its powers, and to establish the means by which its rules and staff might be changed. Since the Bill of Rights was tacked on, two years after ratification, the Constitution has also contained certain explicit protections that individuals may assert against the government. Until the Civil War yielded the 14th Amendment, the Constitution applied only to the federal government (Article 1, Section 10 notwithstanding), which meant that if a state wanted, say, an established church, it could have one, and if citizens wanted to block this from happening, they needed a constitutional provision at the state level. Now, in various ways, the rights enumerated in the Constitution apply to the states, too.

The federal Constitution, however, has never applied to private entities. It is wholly nonsensical to suggest that a private institution can be behaving “unconstitutionally,” or that a business can violate the constitutional rights of the citizenry. Businesses can do terrible things, of course. But the Constitution being a charter of government, the remedy for business overreach is law, not the Bill of Rights. That progressives have managed to convince themselves otherwise shows both the power of the Obama machine and, to paraphrase the president, the perils of believing your own bull***t.

As SCOTUSblog’s Lyle Denniston noted earlier in the year:

It is already clear, of course, that individuals — whether they own businesses or not — do have religious beliefs that the government may not try to regulate. But it is not yet clear, and these cases will test the issue, whether they have a right — constitutional or based on a 1993 federal law — to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith.

This is a reasonable question, and one that the federal government’s insistence upon playing an active role in the health care of all Americans has made of immediate concern. The scope of the First Amendment, the nature of the 1993 Religious Freedom Restoration Act, and the ongoing conflict between religious liberty and the secular order are all vital issues worthy of serious discussion. And yet we cannot have an earnest debate unless both participants are discussing the issue literately. Over the past few months, one side has elected to take its cues from the marketing arm of the executive branch and has refused to employ anything more than hyperbole, lies, and ignorance, and this is not the side that is suing the state. Propaganda can be a useful thing — at least until people start taking it seriously.

— Charles C. W. Cooke is a staff writer at National Review.

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About Preserve Religious Freedom

This lawsuit is about religious freedom and our ability to serve the public, not about contraception. The Church maintains that the First Amendment protects the Catholic Church's ability to serve the public in accordance with its faith and to operate its religious institutions without government interference. The argument challenges the way the U.S. Department of Health and Human Services (HHS) defines what is, and is not, a religious institution. By including an exemption at all, the government apparently agrees that, in keeping with decades of practice and precedent, religious institutions should not be compelled to purchase drugs or procedures that violate deeply held religious or moral beliefs.

But, the Administration's HHS mandate defines religious ministry so narrowly that religious schools, hospitals, and social services don't qualify as religious, and must therefore provide these drugs and procedures. This violates the First Amendment's guarantee of religious freedom. It forces religious organizations to sacrifice their beliefs in order to be able to continue their mission of serving the public. Read more about the plaintiffs filing this lawsuit here.

Preserve Religious Freedom
c/o Archdiocese of Washington
P.O. Box 29260
Washington, DC 20017-0260

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