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Reviewing the revised contraceptive mandate

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All hell broke loose when the Obama administration required employers, including religious hospitals, Catholic universities and faith-based social service agencies, to provide free contraceptive and morning-after and sterilization insurance for employees as part of Obamacare. And so President Obama announced on Feb. 10 that the religious employers wouldn't have to provide the free coverage; their insurance companies would, however.

Obama, in addition to being president, is also a lawyer (as am I). So we shouldn't be surprised to find him "thinking like a lawyer." As Columbia law professor Karl Llewellyn famously told a first-year class at the law school in 1930 how to think like a lawyer, "The hardest part of the first year is to lop off your common sense, to knock your ethics into temporary anesthesia."

I say this because there are several problems with the revised mandate, whose promised revision at this date is just talk, albeit presidential talk. After all, the previous regulation has since been promulgated in the Federal Register, and is thus the applicable legal rule until properly withdrawn or amended; neither of which has been done.

Common sense, for example, would say that if there's free contraceptive coverage, someone's gotta pay for it. There's no such thing as a free lunch. Obama now says that the religious employers don't have to provide free coverage, but the insurance companies do. Here's the rub:

1) Insurance companies set their rates based on their costs. If their costs increase because of government mandate, their premiums will go up. If the employee isn't going to pay the increase (after all, this is free, no-co-pay, no-deductible coverage), then the employer will. The U.S. Constitution prohibits government from taking private property for public use without the payment of just compensation, so it can't just order companies to pay for something without compensating them somehow. This is essentially a shell game in which people get stuck paying for other people's condoms, if not worse.

2) Many Catholic dioceses are self-insured, like Boston, when it comes to health coverage for employees. Presumably, they will have to directly pay for things that the Church teaches are intrinsically evil, like the morning-after pill which can cause abortions. Sounds like "knocking one's ethics into temporary (or not so temporary) anesthesia."

3) There's also the serious matter of religious freedom protected by the U.S. Constitution and by the federal Religious Freedom Restoration Act. The government mandate to cover contraception is not a rule of general applicability since it exempts a very narrow category of religious organizations like parish churches. It also substantially burdens religious practice (anyone acting in accordance with Church teaching on contraception, abortion, and sterilization). Thus the government must show a compelling government interest to justify the regulation, and must demonstrate that the regulation is no more restrictive of religious freedom than necessary to achieve its goal.

I doubt very seriously that the government can establish that there is a compelling interest in free contraceptives. Why is it so important to disassociate sex from procreation anyway? Further, what interest is that of government? If anything, government, if sincerely concerned about the common good, should be concerned about the birth dearth of future citizens and taxpayers that a contraceptive culture entails. Who is going to pay for these record deficits, after all? Put differently, why is pregnancy being viewed as a disease which it is the business of government to prevent? And, if it's cheaper to not have children than to have them, then the same logic would justify free abortion coverage, plus assisted suicide coverage. (It's cheaper to poison patients than to care for them, too.)

But even if the federal government could establish that there's some kind of compelling interest in free contraceptives, surely forcing religious and other conscientiously opposed individuals and organizations to provide them is not necessary to achieve that end. Just have government provide them, out of general tax revenue. That is, government could provide free contraceptives directly. (Don't get me wrong. I'm against that too. It's just that the legal argument won't justify forcing private parties to do the dirty work.)

The government is most likely going to lose the lawsuit brought by Belmont Abbey College against the Obama administration over this mandate. According to the Becket Fund, which is representing Belmont Abbey, the administration, in a court filing on Thursday, Feb. 16, said, "Not that the mandate is legal; not that the mandate is constitutional. Instead, it asked the court to duck the key issues because the administration has 'indicated that they will propose and finalize changes to the regulations' at some unspecified date in the future.

"'Apparently, the administration has decided that the mandate, as written and finalized, is constitutionally indefensible,' said Hannah Smith, senior counsel at The Becket Fund for Religious Liberty. 'Its only hope is to ask the court to look the other way based on an empty promise to possibly change the rules in the future.'"

A recent web posting gave "Four Strategies to Think like a Lawyer": "1) Accept ambiguity. 2) Don't be emotionally tied to a position. 3) Argue both sides. 4) Question everything." (www.lawnerds.com/guide/mind.html). When it comes to this Administration's contraceptive mandate, I'd recommend skipping its first three strategies and just questioning everything. Judge for yourself.

Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.

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