CQ WEEKLY – IN FOCUS
Feb. 11, 2012 – 12:34 p.m.
Contraception and Constitutionality
By Fred Barbash, CQ Staff
Despite months of planning, the White House appeared to have been unprepared for the angry bipartisan reaction that greeted its Jan. 20 proposed rule requiring church-related organizations — along with everyone else — to offer insurance coverage for contraception.
Basically, after adopting a position that — regardless of whether one liked it — must be called bold, the president then seemed to lose interest in defending it. Instead of directly rebutting the critics, he left the job to Health and Human Services Secretary
“Well, let’s be clear about what the decision does,” he said on Feb. 2. “Oh, and the — first of all, on the constitutionality issue, no, we do not believe — we obviously believe this is constitutional.”
A passion gap quickly developed.
Republicans, relishing the chance to change the subject from the declining unemployment rate, rushed back to Washington to express their profound shock. President Obama had violated a “First Amendment right that has stood for more than two centuries,” House Speaker
No American can “be compelled by their government to choose between violating their religious beliefs or be penalized for refusing,” Minority Leader
Roman Catholic bishops made their case against the rule, passionately and at length. They were on every TV channel and in every pulpit on Sunday. To the media, they offered lengthy legal and constitutional arguments and spread them far and wide.
Yet legal experts say that Obama, who taught constitutional law, had a good case to make, had he chosen to do so.
For example, there’s no basis in modern Supreme Court precedent to the claims of unconstitutionality made by Boehner and McConnell. The law is, according to most scholars, the opposite of what the GOP leaders say.
The most definitive Supreme Court ruling on the subject, Employment Division v. Smith, stemmed from an exemption from drug- control laws sought by members of the Native American Church in Oregon, on the grounds that denying them the use of illegal peyote for sacramental purposes violated their rights.
Writing for a 6-3 court on April 17, 1990, Justice
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate,” he wrote. “On the contrary, the record of more than a century of our free-exercise jurisprudence contradicts that proposition.”
Contraception and Constitutionality
It would be hard to make the case that the regulation is unconstitutional, says Eugene Volokh, a UCLA School of Law School authority on church-state law. “When it comes to generally applicable laws, you don’t get an exemption just because your religion wants an exemption,” Volokh says.
The term “generally applicable” means simply that the rule applies across the board, rather than targeting a religious organization.
The Health and Human Services Department’s rule was indeed generally applicable, the only exception being for a “religious employer,” such as a church itself, which “has the inculcation of religious values as its purpose,” employs people who share its religious tenets and serves people who share its religious tenets.
Church-related organizations — schools, clinics, hospitals and community centers — that don’t meet these requirements were not exempted by HHS because they serve the general public.
By Friday, Obama had modified the rule in order to calm the storm. Rather than requiring the church-related organization or the church itself to deal directly with the provision of contraceptive services, the administration said it would have the group’s insurer reach out to the individual patient, bypassing the church, which could keep its conscience clean. That approach is used in Hawaii.
None of Obama’s critics appeared ready for a truce as a result of the change. Republicans dismissed it as a “fig leaf.” The United States Conference of Catholic Bishops called it a “step in the right direction.”
Court challenges remained a definite possibility, with some new avenues of appeal available that might prove more useful to plaintiffs than broad constitutional attacks.
The 1990 Smith ruling, for example, sparked bipartisan outrage in Congress, which responded with the Religious Freedom Restoration Act of 1993. Although that does not bar the government from imposing its will on the church, it makes doing so harder, requiring the government to show that it is furthering “a compelling government interest” by “the least restrictive” means.
Volokh, and others, say that Catholics would have a better chance of challenging the policy using that statute rather than citing the Constitution.
FOR FURTHER READING: Contraceptive rule, 2010 CQ Weekly, p. 1784; health care law (PL 111-148, PL 111-152), 2010 Almanac, p. 9-3.