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June 19, 2012

Democrats for Life Comment on the Contraception Mandate

I'm off to enjoy Marc's and Mark Movsesian's conference and some teaching in Rome, but one thing beforehand....

The Democrats for Life have filed a comment in the latest round of the contraception-mandate dispute, arguing that the administration's proposed compromise is inadequate and conscience protection must be expanded.  (I sit on DFL's board, as many know, and contributed to the analysis in the comment.)  The comment focus attention on two points: (1) the especially serious conscience problems posed by medications that may reasonably be thought to cause abortions of new embryos in some cases, and (2) the bad precedent set by inserting HHS's narrow definition of "religious employer" into federal law.  Here's a taste of the argument on point 2:

The definition, unprecedented in federal law in its narrowness, fails to give equal respect to the activities of service, mercy, and justice that lie at the core of religious practice for many faiths.  President Obama has spoken eloquently of the “millions of Americans who share [this] view of their faith, who feel they have an obligation to help others. . . .  [W]hile these groups are often made up of folks who’ve come together around a common faith, they’re usually working to help people of all faiths or of no faith at all.”  But remarkably, under the HHS “religious employer” definition, these very acts of service to non-adherents that the President commended are the basis for denying an organization exemption as a “religious employer.”

In its March 2012 advance notice (the ANPRM), HHS proposed to retain this deeply objectionable definition while extending a more limited accommodation to a broader category of “religious organizations.”  But even assuming that a limited accommodation could be developed that protected organizations’ claims of conscience, it would still be wrong and dangerous to insert the narrow definition into federal law.  The adoption of this language in the Code of Federal Regulations, even as part of a two-tiered set of accommodations, would legitimate it in future situations.  The March ANPRM also stated that “whatever definition of religious organization is adopted will not be applied with respect to any other provision of the PHS Act, ERISA, or the Code, nor is it intended to set a precedent for any other purpose.”  This assurance is inadequate, as the history of this debate teaches.  [Some case analysis here...]  Just as the mandate with minimal exemption was bootstrapped from narrower state laws to a far broader federal mandate, it likely will be bootstrapped later to other federal statutes.  HHS, having legitimized the minimal exemption by introducing it into federal law, will have no way of stopping others from using it as a precedent.

Posted by Thomas Berg on June 19, 2012 at 05:20 PM in Berg, Thomas | Permalink

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Nicely done, Tom. Thank you. Vaya con Dios.

Posted by: John Thuente | Jun 20, 2012 8:51:02 AM

With all due respect to Democrats for Life, they need to rewrite this statement least it appear that they believe the government should endow us with an unrestricted Right to birth control while restricting our inherent Right to Religious Liberty that has been endowed to us from The True God, simultaneously.

Posted by: N.D. | Jun 20, 2012 9:15:32 AM

Does RFRA protect only "non-profit religious educational or charitable organizations"?

Posted by: Matt Bowman | Jun 20, 2012 2:33:31 PM

Mr. Bowman may have I point. I do not recall any language in RFRA that limits it in that respect.

Posted by: Catholic Law Student | Jun 20, 2012 9:42:24 PM

RFRA indeed covers commercial businesses. But from the case law, I think courts are likely to find a sufficient government interest with respect to a large commercial business (plus-50 employees) that is doing ordinary commercial work (vs. EWTN for example)--outside of the abortion context, where the tradition of conscience exemptions has extended the furthest. My sense is that success for a RFRA claim by such a business is just a bridge too far. And pushing those claims hard, treating them as one piece with all the others, risks rebounding back on the nonprofit/charitable-org claims.

Posted by: Tom Berg | Jun 21, 2012 7:48:57 AM

To clarify about the abortion point for those who haven't read the filing itself ... With respect to medications that may reasonably be thought to have a risk of causing abortions of new embryos, DFLA calls for removing them from the mandate or at least giving conscience exemptions across the board (including commercial businesses).

Posted by: Tom Berg | Jun 21, 2012 7:58:30 AM

Mandating that every Insurance company must provide contraception coverage does not pass the "least restrictive" test.

Posted by: N.D. | Jun 21, 2012 9:53:50 AM

Well, here are Peter Singer's thoughts on the HHS mandate. Liberalism broaches no dissent: http://host.madison.com/news/opinion/column/article_b95c35b6-b72c-11e1-86be-0019bb2963f4.html#ixzz1yQg03ben

Posted by: Catholic Law Student | Jun 21, 2012 2:10:24 PM

The implications of the Pontifical Council for Justice and Peace's recent document on business ethics are important to consider in this respect. I have mentioned those previously. Hard to claim any Catholic has a moral duty to her workers, her community or her environment in the way she runs her business if we are drawing lines like this one.

Posted by: Matt Bowman | Jun 21, 2012 2:19:21 PM

"Only when their faith permeates every aspect of their lives do Christians become truly open to the transforming power of the Gospel." Pope Benedict at the National Basilica in Washington DC. Permeates every, means permeates every.

Posted by: Matt Bowman | Jun 21, 2012 2:22:04 PM

CLS-Indeed, about Peter Singer's op-ed. A remarkable collection of errors, "because I said so"s, and "everyone must be like me."

Posted by: Tom Berg | Jun 21, 2012 5:37:02 PM

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