The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
– James Madison, Federalist 45, January 1788
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …
– US Constitution, First Amendment
… generally the Constitution is a charter of negative liberties. It says what the states can’t do to you. It says what the Federal government can’t do to you, but it doesn’t say what the Federal government or State government must do on your behalf …
– State Senator Barack Obama, Chicago Public Radio, 2001
Last month the US Supreme Court ruled unanimously – if you can believe that – in defense of religious freedom. It was a significant rebuke to Barack Obama’s growing disregard for the US Constitution – which assumes, of course, that at some point he held the Constitution with some regard.
The plaintiff in the case titled, Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission, was a former music and math teacher, who also taught religion classes, prayed with her students, and attended chapel with them. She had completed religious training and was considered a minister. After taking medical leave, the church-based school chose not to retire her due to her health. It later terminated her for violating church doctrine by litigating instead of resolving her dispute within the church (perhaps in accord with 1 Corinthians 6:5-7). She sued under the protection of the Americans with Disabilities Act.
The case is discussed online for any who wish to learn more of its details. It is not the issue in this blog. The larger issue to me is the cavalier attitude Obama holds toward the Constitution he swore to uphold, which has now embroiled him, his administration, and ObamaCare in yet another religious freedom confrontation hard on the heels of Hosanna-Tabor, except this time it’s with the Catholic Church.
The First Amendment never sought to protect society from religion, but rather to protect religion and its unfettered practice from an ever-expanding intrusive government, which Madison’s Federalist 45 assured would not happen. The Free Exercise clause in the First Amendment means two things: (i) government cannot prevent a religious organization from doing what its faith compels, and (ii) government cannot require a religious organization to do what its faith abhors. It matters not one whit whether government or greater society agrees with commission or omission of religious practices. Both are protected under the Constitution.
Based on their religious faith, churches engage in many activities which, on the surface, appear to be secular. Examples are the operation of schools, food kitchens, hospitals and nursing homes, and other outreaches to disadvantaged groups in society. These activities make the church’s mission in the world operative – i.e. they are not pursued independently of the church’s mission.
The Obama administration, obviously with his approval, sees these extra-worship activities as unprotected by the First Amendment. As to religion, the First Amendment contains two parts. The Establishment clause forbids government from abetting a state-sponsored religion; the Free Exercise clause forbids government from interfering with various expressions of faith. More particularly, that clause says “… or prohibiting the free exercise thereof …” It can’t get more clear than that.
Yet in past years, secularist organizations like the Planned Parenthood, ACLU, and other groups acting in collaboration with liberal courts and the government have attacked the meaning of the Free Exercise clause with Pharisaical hubris. They have attempted to narrow its protection to the actual worship services of a church while removing the protection when those worshipful activities extend to programs that fulfill the Biblical mandate for Christians to minister to the poor, the widows and orphans, the infirm, and the outcast.
Remarkably, the wrath of the Supreme Court was brought down hard on the representatives of Eric Holder’s laughably designated Department of “Justice” when it argued in the Hosanna-Tabor case that the Lutheran school and its activities were little different from a social club.
Now comes Kathleen Sebelius, an unelected official of the Obama administration who, under the authority granted to the HHS Secretary in the ObamaCare Act, has the untrammeled power of a modern-day Caesar. She is empowered to interpret and implement this legislative monstrosity because its elected lawmakers deferred to her Solomonic wisdom by repeated use of the default phrase: “The Secretary may determine …” when crafting the ObamaCare. In other words, they gave her a blank check – the ObamaCare Act is little more than a guideline which, as we are now seeing, can be used and abused. And since Sebelius is Obama’s deputy, it gives him the means to twist the application of ObamaCare however he wishes in order to impose his secularist-socialist agenda on one-sixth of the American economy.
Apparently unchastened by the spanking received in the Hosanna-Tabor case, Sebelius blundered ahead last week when she refused to exempt Catholic charities and hospitals from compliance with ObamaCare mandates requiring all employer-furnished insurance to cover contraception and abortion services. This is a direct affront to the teachings of the Catholic faith. Even celibates, regardless of their religious affiliation, who buy their own insurance rather than receive it through an employer, must purchase policies that provide contraception, sterilization, and abortion services! This is government gone mad!
And yet why would anyone have expected otherwise? ObamaCare was a hijacking from the outset under the gloss of “access” – Obama’s euphemism for control. The present system – so the lie went – denied “access” to healthcare to some Americans because they lacked insurance to pay for it. I call it a lie because healthcare has always been accessible. By law the uninsured cannot be denied care at an ER. Every state has a State Children’s Health Insurance Program (SCHIP). Indigent care is provided under Medicaid, and children get free immunizations from their county health departments – all of which is paid by state and local taxes, which is the equivalent of taxpayer-paid insurance for the truly needy. While there are people who are uninsured, they aren’t denied healthcare. Insurance is a method. Healthcare access is an outcome. There is a big difference.
About 15% of the population has been uninsured at any time in recent years. Upon hearing that, our brains begin to fill in the blanks. Wow! That’s still a large part of society … probably poor, chronically unemployed, always in need … solvable only with a political solution. Even if those “filled in blanks” were factually true, is it justification for overturning the 85% of society that is insured and satisfied with their healthcare arrangement? Certainly not. What happened to the assurance that if you liked your current health plan, you would keep it?
But as it turns out, the 15% aren’t the same people month after month, year after year. About a fourth of them are people who choose to be uninsured – mostly young, who spend their money on other things. As they get older, marry, have kids, they become insured and are replaced by another group who choose not to be insured and to spend their money otherwise. And so it goes.
About half of the 15% are moving between jobs and will become insured again when they are reemployed, only to be replaced by another group which is between jobs and therefore uninsured. And so it goes.
Thus when the truth is known, less than 4% of the population is without insurance because they cannot afford it, some of whom are employed. So for 4% of the people in America, Obama seized control of healthcare even though all who wanted access to healthcare got it in some form or program.
When Obama uses the word “access” as in “not having access to healthcare or contraception, sterilization, or abortion” he doesn’t mean it isn’t available to those wanting these services. He means the services aren’t free to them. So the refusal of the Catholic leadership to offer insurance to its (presumptively female) employees for services that defy the conscience of their church didn’t mean those women couldn’t access them if they wanted them. It means they would have to pay for them out of their own pocket. In Obama’s mind, that is a denial of access.
In 1976 the Democrat-controlled House of Representatives passed by a sizable margin a provision called the Hyde Amendment after the name of its sponsor, Henry Hyde (R-IL), which barred the use of federal funds for abortions. While it was not permanent law, it was a rider attached to every annual HHS appropriations bills since 1976. Federal employees, the military, and certain others who want abortions paid for them out of pocket.
When the ObamaCare bill was debated in the House in March 2010, Bart Stupak (D-MI) represented a “gang” of Representatives who were concerned that ObamaCare would provide federal funding in some form to pay for abortions. Stupak is Catholic. He agreed informally to be the “point man” for the Catholic Church in defense of its positions regarding contraception and abortion as they might be impacted by ObamaCare. The Stupak-Pitts Amendment to ObamaCare prohibited the use of federal funds "to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion" except in cases of rape, incest or danger to the life of the mother.
The House version of ObamaCare passed with the Stupak Amendment. The Senate version failed to include Hyde or Stupak limitations. Without Stupak and his “gang” of 15 to 20 fellow members also opposed to abortion, ObamaCare would never have passed the House because there wouldn’t have been the required 218 votes. The Catholic Church believed it had Stupak’s commitment to stand fast. But Stupak was put under tremendous pressure to moderate his stand. [Since I’ve blogged on this before (Bart Breaks, March 29, 2010) I won’t repeat the details.] Suffice it to say here that Obama gave Stupak the cover he needed to allow his politics to prevail over his principles and he and the “gang” voted for passage of ObamaCare. Stupak – like so many other Democrats – didn’t run for reelection in 2010 because after this vote he couldn’t win.
It should come as little surprise that, since about a fourth of voters are Catholic, Obama’s advisors warned him that he was dealing with a firestorm in an election year and suggested that he come up with some kind of compromise. (As you read the following, keep in mind that Obama is the smartest man who has ever been president.) His “compromise” was this. Catholic employers, some of which “self-insure,” would not have to pay for contraception and other services to prevent and terminate pregnancies and employers would not have to inform employees that the services are available. However, their insurance provider will have to tell employees that they have access to these services – for free. I’m not making this stuff up!
Now, I’m undoubtedly not as smart as Obama. Yet I know there is no such thing as free. The government isn’t going to pay for these services because it doesn’t have any money. Its money comes from taxpayers. The insurance companies aren’t going to pay for these services because they are for-profit businesses, not charities. They will do what they have always done – shift the costs to someone else. They will increase the premium cost to non-exempt (non-Catholic) organizations or they will increase the premiums of Catholic organizations – or both. Whatever the method, Obama’s “free” will drive up insurance premiums.
So far the Catholic leadership is not falling for Obama’s “compromise” allowing them to provide these services in a roundabout way rather than directly. Conniving rather than solving is textbook Obama, and the Catholic compromise he has offered is no different from the cosmetic cover he provided Stupak. It makes no difference, which some have argued, that many Catholic women disregard church doctrine on the use of contraceptives and some also ignore church teachings on the sanctity of life concerning drug-induced or surgical abortion. The beliefs and behavior of a church’s adherents is irrelevant to the meaning of the First Amendment. Government can’t set aside church doctrine simply because there is internal disagreement about it.
But the larger issue in this confrontation is the utter failure of Obama and ObamaCare to comprehend that the First Amendment is not about religious organizations – the Catholic or the Baptist or the Presbyterian churches. It is about freedom … individual freedom … not institutional freedom. The freedom to believe and the freedom to exercise those beliefs, to speak, to write, and to meet about them, and anything else … and the freedom to demand that the government enforce the right to these freedoms – not wage war against them. Listen to what the First Amendments says.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It should not escape our notice that, just as ObamaCare violated the Constitution by compelling people to buy a product – the insurance mandate – Obama is once again violating the Constitution by telling insurance companies to sell a product … for free … to an exempt organization. The government has now usurped unto itself the power to control both buying and selling. Team Obama further violates the Constitution by requiring something of one type of organization (those that are non-exempt) that isn’t required of others (those that are exempt.) A Catholic ought not to be exempt from something that does not also exempt a Baptist or a Presbyterian or a Methodist. Nor should a church-based organization be exempt from something that does not exempt a religiously-minded business owner’s organization – it is unconstitutional to exempt the pew and not the work bench. Yet this is the diktat of ObamaCare in its full glory, the ObamaCare which Nancy Pelosi exhorted the House to pass “so we could see what is in it.” Now we’re seeing.
If Obama succeeds in forcing people to buy a product (insurance) … if he succeeds in forcing businesses to sell a product (free coverage) … where does it stop? What can’t government do? Could it force people to live in high-rise housing to prevent urban sprawl and thereby force the use of public transportation as Al Gore proposed? Could it force the use of government-specified “green” vehicles (electric, natural gas) by requiring low premium or free auto insurance to be issued to their owners? Can it outlaw incandescent lighting, dietary salt and fat, what can be taught in private and home schools? Can it prevent the parents of a child attending a failing public school from putting that child in a better school in a different school district without moving into that district? Government is doing these things – or nearly so.
As I recall, we fought a war and created a nation 236 years ago because of this kind of tyranny.
At its core, none of these machinations is really about insurance or healthcare. They are about an ideology in which government controls the very fabric of society. The ideology does that by making more of our everyday lives dependent on government. It does that by eroding the Constitutional protection afforded us against expansive government power, shifting more power to unelected officials and appointing more people through recess or to czar posts in order to by-pass the scrutiny of the Senate’s advise and consent role. It does that by having symbiotic relations with unions which fill campaign coffers in return for collective bargaining agreements with power to negate the decisions made by elected officials. It does that by relying on an ill-informed electorate which gets its news and comment – if any – from a media sympathetic to a liberal-left ideology.
This president is no servant of the people. He is an imperious Caesarian ruler with no respect of the Constitution he has sworn to “preserve, protect and defend …” He must not be reelected.
The ObamaCare law is unjust. It should not be reformed or revised. It should be fought against until it is undone.
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