ObamaCare and the First Amendment

During the debates surrounding the adoption of the Constitution, it became clear that the people of the United States desired further protection from tyranny by the government. As a result, Congress drafted amendments to the Constitution that ensured certain rights could not be trampled by the government. The ten amendments that were passed came to be known as the Bill of Rights. The little-known preamble to the Bill of Rights reads:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

With such a desire to prevent misconstruction or abuse, the states adopted these amendments. Among them was an amendment granting religious liberty to the people. This first protection granted to the people states in part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .

This guarantee of religious liberty has prevented the government from establishing a state-sponsored religion or church and has protected the free exercise of religion in this country. With this protection has come the application of freedom of conscience on religious grounds. This has allowed Mennonites and other pacifists to object to service in the military during times of compulsory service through the draft. It has allowed doctors and pharmacists to object to issuing drugs or services that violated their religious beliefs.

Now freedom of religion and freedom of conscience face a new challenge—the Affordable Care Act (aka, ObamaCare). Under guidelines presented by Health and Human Services Secretary Kathleen Sebelius, organizations providing health insurance coverage for their employees will have to include coverage for all FDA-approved contraception at no charge to the participants. Such contraceptives include Plan B (the morning after pill), intra-uterine devices, and sterilization.

Religious organizations of all types have historically voiced opposition to some or all of these forms of contraception. In fact, Plan B and IUD’s are more properly labeled birth control rather than contraception because they prevent birth after conception rather than preventing conception in the first place.

Catholics have presented the most consistent stance against birth control throughout these debates. Their reaction to this ruling has been firm and unyielding. On the last Sunday of January, Catholic priests around the country read letters from bishops condemning the new regulations and calling on President Obama to reverse course. In the days that followed, the Obama administration attempted to strengthen its stance with no sign of wavering.

The Obama administration has offered some veiled exceptions to this guideline, but they are less than satisfactory to many people of faith. The specific exceptions read:

Group health plans sponsored by certain religious employers, and group health insurance coverage in connection with such plans, are exempt from the requirement to cover contraceptive services. A religious employer is one that:  (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under Internal Revenue Code section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii).  45 C.F.R. §147.130(a)(1)(iv)(B).

While these exceptions may benefit churches that provide healthcare plans to their employees, large religious organizations, such as schools, charities, etc, will be forced to provide contraception. Can you imagine Baptist liberal arts colleges being forced to provide Plan B to faculty and employees at no charge through their insurance programs? Can you imagine Catholic Charities offering insurance that allows their employees unlimited access to free contraception?

Secretary Sebelius responded to criticism in a USA Today opinion piece and noted three reasons for the requirement and the minimal exceptions. Her rationale is 1) almost all women use birth control at some point in their lives, but birth control is expensive; 2) churches get an exemption; and 3) 28 states require contraception coverage, and 8 of those states offer no exemptions.

In response to the first argument, it makes little logical sense. We could use the same argumentation to say that most Americans are overweight and would like to lose weight. Therefore, all FDA-approved methods of losing weight should be made available at no charge—fitness centers, lap band, gastric bypass, etc. In fact, the government ought to ban all unhealthy food using this argumentation.

The second argument demonstrates some concern for religious liberty on behalf of the administration. Unfortunately, they drew the lines too narrowly. In a Supreme Court case earlier this year, the high court unanimously upheld religious liberty protection for religious schools even if they taught subjects other than religion. The exemptions should apply to all religious organizations—churches, schools, charities, etc.

The third argument is misleading. Just over half the states require contraception coverage. This leaves 22 states that have no requirement. Of those 28 states, 20 offer broad exemptions. Of the 8 that offer no exemptions, 5 still provide a workaround for religious organizations. That leaves only 3 of 50 states that require contraception coverage with no exemptions. Those states are Oregon, New York, and California. Thus, the new federal regulation offers fewer exemptions that 47 of the 50 states.

This is more than just a contraception issue—it is a religious liberty issue. Schools and charities have been granted an extra year to reach compliance (conveniently after the presidential election). This federal regulation needs to be changed. Broader exemptions must be granted. No constitutional scholar could, in good faith, support this regulation. In fact, most high school students in an American Government class should be able to see through the veil of these federal guideline. This administration needs to go back and read the Bill of Rights “in order to prevent misconstruction or abuse of its powers.”


Health Resources and Services Administration, “Women’s Preventative Services: Required Health Plan Coverage Guidelines,” U.S. Department of Health and Human Services.

Kathleen Sebelius, “Kathleen Sebelius: Contraception rule respects religion,” USA Today, February 5, 2012.

U.S. Department of Health and Human Services, “A statement by U. S. Department of Health and Human Services Secretary Kathleen Sebelius,” January 20, 2012.