Health and Human Services still doesn't understand contraceptive rulings and religious liberties

When it comes to religious liberty, the Obama administration refuses to understand a key point. For a religiously held corporation to freely exercise its religious beliefs, as protected by the First Amendment, it cannot be forced by government to be complicit in any act it deems morally objectionable.

And so the Department of Health and Human Services missed the point once again late last week when it issued new rules it said would allow women to receive birth control at no cost, even if they work for companies that object to such coverage on religious grounds. The new rules require companies to notify the government they object to paying for such coverage, which would trigger the government notifying the insurance carrier that the government would begin paying for such coverage.

In a recent case involving Wheaton College and an order of nuns called the Little Sisters of the Poor, the Supreme Court ruled the government could not require such an organization to sign any form authorizing someone else to provide something it deems morally objectionable. The court also rejected notions that objections on these grounds were “attenuated,” saying it isn’t up to government to decide what constitutes a valid religiously held belief.

Despite this, the administration now is trying once again to require religious employers to consent to contraceptive coverage from a third party.

We agree with Adele Auxier Keim, legal counsel at the Becket Fund for Religious Liberty, who said, “The government just keeps digging the hole deeper.” Keim said the new rule flies in the face of Supreme Court decisions, while another recent court decision concerning the Affordable Care Act, or Obamacare, makes it clear that government can provide separate health insurance alternatives employees may choose to use. This means “… there is no reason at all the government needs religious employers to help it distribute these products,” she said.

Obamacare’s contraception mandate requires every employer to provide contraceptive drugs, including the so-called morning-after pills, through their health plans. The Supreme Court already has ruled that the law cannot infringe on religious liberty, which this new rule clearly does.

The First Amendment not only protects the free exercise of religion, but it protects against an officially sanctioned religion. It is virtually impossible to infringe on the free exercise of religion without also establishing what is a proper religious belief.

Churches are not unanimous in their positions on contraception. For some, however, opposition to it is a deeply held moral conviction. The government cannot require a religiously held company with such a conviction to inform the government it needs to pay for contraception through the company’s health plan without violating the First Amendment.