Senior Judge John L. Kane of the District Court for
the District of Colorado did his Solomon-like duty July 27. The Carter
appointee issued an injunction against the government’s Affordable Care Act
mandate that forces employers to pay for contraceptives, including
abortion-causing drugs, and female sterilization for employees.
The mandate he’s forestalled in Newland v. Sebelius comes from Health
and Human Services’ preventive services mandate under the Affordable Care Act.
It went into effect August 1.
The employer, Denver-based Hercules Industries,
makes heating, ventilation, and air-conditioning parts. It is owned by four
Catholic siblings, the Newlands, who run their business according to Catholic
principles, even if it might affect the bottom line. The company is
self-insured and offers a generous health plan but doesn’t fund contraceptives,
sterilization and abortion. The Newlands sued HHS for violating their First Amendment
rights, which guarantee free expression of religion, and the Religious Freedom
Restoration Act (known as RFRA).
The judge weighed two rights: the individuals’
claim that the HHS mandate would violate their religious beliefs and the
government’s claim that it had to do so in order to meet the public good. He
then looked at the Religious Freedom Restoration Act. It states that the
government may not “substantially burden a person’s exercise of religion, even
if the burden results from a rule of general applicability.” RFRA adds that the
government may only justify a substantial burden of the free exercise of
religion if the challenged law “(1) is in furtherance of government interest;
and (2) is the least restrictive means of furthering that compelling government
interest.”
Judge Kane’s ruling found that the government’s
case for compelling government interest was undermined by the fact that it already
has offered exemptions to 190 million health plan participants already.
He also noted the government has a greater interest
in upholding the individuals’ free exercise rights than in the government’s
claims that it was acting to improve health care for women and children.
Could there be another way to make the government
happy? The plaintiffs offered a solution that would not violate their religious
freedom and suggested “government provision of free birth control,” even though
they would not recommend this as a matter of public policy. They further pointed out that the government
already provides free contraception to some women, so their suggestion should
not be seen as infeasible by the government.
In some ways this is a small
victory, for the injunction stands only until the court case is decided. It
affects but one company. It is huge, however, because it is the first HHS
mandate case to consider religious freedom issues, and religious freedom won.
Caesar may figure out a way to rain down contraceptives from the clouds, but in
no way should the government order religious groups and individuals to violate
their consciences and underwrite the mandate that opposes the clear teaching of
their church.
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