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Mandating Contraceptives, Violating Conscience

The trouble with legislation today is that the devil is in the details, and those details are usually created by the federal bureaucracy. The Patient Protection and Affordable Care Act, popularly known as ObamaCare, was signed into law on March 23rd, 2010. So, why is it a surprise that some religious institutions, particularly Catholic hospitals and universities, will be required by law to provide contraceptives in their employee health care plans? Surely the outcry over this mandate would have come out nearly two years ago when the bill became a law, right?

Well, no. Modern legislators specialize in writing vague, pleasant-sounding laws that in effect delegate their lawmaking power to the federal bureaucracy. In other words, Congress writes a law demanding an “end” and tells the bureaucracy to decide what “means” will be necessary in order to achieve that end. In itself, this process is entirely unconstitutional due to its breach of the separation of powers doctrine. The federal bureaucracy is at least nominally a part of the executive branch, so when Congress allows an agency such as Health and Human Services to decide exactly how crucial components of bills such as ObamaCare will function, the power to make law shifts from the legislative to the executive branch. 

This is a win-win for Congressmen. They get to claim the credit for passing a health care reform bill while passing off the blame for unpopular details like this contraception decision to the bureaucracy. Better yet, once the provisions of the bill are finally enacted, a new bureaucracy will be created or an existing one will expand dramatically. Citizens will undoubtedly get caught in the web of regulations spun by this bureaucracy, and they will then go to their Congressman for help cutting through the red tape. As a result, the Congressman not only receives credit for passing a pleasant-sounding law, but also gets to look like a hero to his constituents after confronting the bureaucracy on their behalf.  He garners votes both ways.

Let’s examine the contraception controversy a little more carefully. It began soon after the January 20th decision from Health and Human Services that only churches and other houses of worship would be exempted from the new ObamaCare requirement that employee health care plans include contraceptives. The Secretary of HHS, Kathleen Sebelius, has defended the mandate by arguing that because Catholic hospitals and universities usually aren’t primarily staffed by Catholics, that they ought to be treated like any other employer. Frankly, this argument completely misses the point.

At its heart, this is a debate over principles and the First Amendment to the Constitution. The relevant portion of the amendment is, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In other words, people have the right to follow their conscience when it comes to religious matters. For the Catholic Church, contraceptives and other forms of birth control such as sterilization are very much so a moral matter and Catholic doctrine opposes their use. The “free exercise” of religion is not limited to worshipping in a church. Following a doctrine or set of beliefs is integral to every faith and clearly falls under the “free exercise” of religion.

Forcing Catholic employers to offer contraceptives as part of their employee health care plans fundamentally violates their First Amendment right to follow their conscience with regard to contraception. The popular liberal refrain to this argument is that many American Catholic women have used or at least condone the use of contraceptives, but is that really the point? First, the issue at hand is a mandate on employers to provide contraceptives, not a mandate on women to use them. Second, regardless of disagreements within the Church over contraception, Church doctrine still prohibits its use.  Those who stray from doctrine on this issue can just go out and purchase contraceptives without a government mandate forcing their employers to violate their beliefs on the matter. This mandate is just another case of our intrusive federal government completely disregarding Constitutional restrictions on its power.

The blowback from this decision is powerful and coming from all over the country. Senator Marco Rubio from Florida wrote that, “As Americans, we should all be appalled by an activist government so overbearing and so obsessed with forcing mandates on the American people that it forces such a choice on religious institutions.”  Monsignor Robert McClory, the vicar-general of the Archdiocese of Detroit, is quoted in the Detroit Free Press as saying, “It’s dangerous and threatening… We're being told to violate our conscience or be in violation of the law.”

Catholics understand that a dangerous precedent will be set if this decision goes by unchallenged. Even Sister Carol Keehan, head of the Catholic Health Association and an important supporter of ObamaCare, called the decision a “jolt”. Catholic doctrine teaches that life begins at conception, so for Catholics this ruling is no different than one that would require Catholic employers to provide for abortions in their employee health care plans. If those of us who believe in the free exercise of religion from federal government interference don’t protest this decision, regardless of whether or not we’re Catholic, then where do we draw the line?

White House Press Secretary Jay Carney argues, "We need to make sure that those employees of all different faiths have access to contraception… That's why we sought what we believe is an appropriate balance." Given the choice between how to balance our right to the free exercise of religion against our “right” to contraceptives, the Obama administration came down in favor of contraception. Contraceptives can be bought almost anywhere in the country at an affordable price. Our religious freedom is priceless and must be safeguarded. 

The Obama administration and much of the Democratic party fundamentally do not understand this line of thinking. One senior aide to a Senate Democrat was quoted by Politico as commenting, “Who are we going to really lose over this? Ron Paul voters? …Catholics who don’t believe in condoms aren’t going to vote for Barack Obama anyway. Let’s get real.” In other words, it’s all about votes, not principle.

The controversy over this Obama administration mandate is a perfect example of why this system of legislative delegation works for politicians and not for the American people. Despotism lurks beneath the surface of a system that places the legislative power in the hands of unelected bureaucrats instead of our elected representatives. Over the coming years, there is little doubt that more decisions like this will come down from the Obama administration. The only true and lasting solution is to repeal ObamaCare and to replace it with clear, honest health care reform that places power in the hands of patients and their doctors instead of federal bureaucrats.

Lucas Stewart

repeal and replace!
Thanks for this article!

828patriot's picture
Doug Kasai

This goes beyond the contraception issue. It is based on the freedom of religion and freedom of ANY church to be able to state their doctrine of their faith. I am not a Catholic but, as with Standing with Courage in Israel last summer, Christians need to stand with the Catholics to support their right to express their religious doctrine. Go to and stand solidly with them or else, the next time no one will stand with us.