Tuesday, October 30, 2012
Michael Perry links here to my friend Fred Gedicks's "Policy Brief", done for the American Constitution Society, on the HHS mandate. I think the world of Fred and his work, but his policy brief misses the mark in a number of important respects. (I wonder if Michael agrees with Fred's arguments?)
Obviously, the paper is intended to be a "policy brief", and so there's no reason to expect it to deal comprehensively with the matters covered. But, Fred is too quick to conclude -- indeed, he is wrong to conclude -- that the mandate does not impose a substantial burden on the religious exercise of at least some religious employers who are currently subject to the mandate. And, he is wrong in asserting that requiring these employers to provide the coverage in question is, within the meaning of RFRA, the least restrictive means of achieving the government's interest. And, he is wrong (though this is obviously a "deeper" question) in his assertion / assumption that "access to contraception" -- when "access" means "provision at someone else's expense", as opposed to "legal access" -- is a "fundamental" right or liberty.
What's more, it is a mistake to contend, as Fred does, that a religious employer seeking to exercise its religious-freedom right not to provide the coverage in question is burdening the religious liberty of employees who (i) desire the coverage and (ii) have no moral or religious objection to contraception or sterilization.
I have elaborated on these points in various places, and won't impose them on readers again. But, I do regret being on the other side -- the correct side, in this case, but still the other side -- from Fred on this one.