Can an Unjust Law Be a Law at All?: The Contraceptive Mandate

March 1, 2012 ~ Evan Lenow ~ 1 Comment

I have previously written about the Health and Human Services guideline to the Affordable Care Act (aka, ObamaCare) that will require religious institutions to provide all FDA-approved contraceptives to their employees at no charge through their group health insurance plans. I believe that such a mandate violates religious liberty and freedom of conscience that is guaranteed protection under the First Amendment of the Constitution.

Today the United States Senate voted to table the Blunt Amendment which would have protected those who object to this new insurance mandate. The vote was predictably along party lines with all but one Republican favoring the amendment and all but three Democrats opposing the amendment.

As this new mandate proceeds to take the form of law, we need to ask the questions:

Is this law unjust?

Can an unjust law be a law at all?

In relation to the justice of this law, I have previously argued that it violates the freedom of religion granted by the First Amendment. In addition, I believe this law is unjust because it violates God’s eternal law of protection of innocent life. We see in Genesis 1:27 that human beings are created in the image of God. Thus, the inherent value of humans begins at conception. Any attempt to end life after conception (e.g., Plan B, Ella, abortion, etc.) is a violation of the eternal law of God.

Thomas Aquinas gives us a good historical perspective from which to evaluate the justice of human law. Aquinas writes:

Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived. . . . On the other hand laws may be unjust in two ways: first, by being contrary to human good . . . either in respect of the end . . . ; or in respect to the author, as when a man makes a law that goes beyond the power committed to him;—or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. . . . Secondly, laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing idolatry, or to anything contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, we ought to obey God rather than men.

If we look at this mandate through a Thomistic lens, the contraception requirement is unjust on both levels. It is contrary to the human good because it goes beyond the power granted to the federal government and imposes an unequal burden on society. The Constitution does not grant the federal government the power to require purchase of health insurance nor to tell health insurance plans what must be offered and for how much money. Those with religious convictions against such birth control are burdened with violating their consciences. If no such mandate existed, those with no religious conviction against contraception could buy it on the open market. Those with convictions against it would not be unduly burdened.

Second, this mandate is opposed to the divine good because it violates the law of God to protect innocent human life. In Psalm 139:13–16, we read that God forms children in the womb, and He has planned our days before we are ever born. God is intimately involved in the creation of life from the very moment of conception. God values human life and calls upon us to protect it (Exodus 20:13).

That leads to the second question: Can an unjust law be a law at all? Turning to Aquinas again, he answers with a resounding “No!” Speaking of unjust laws, Aquinas writes, “The like are acts of violence rather than laws; because, as Augustine says, a law that is not just, seems to be no law at all.”

Believing this new mandate to be unjust and opposed to both the common good and divine good, I applaud Sen. Roy Blunt (R-MO) and his colleagues for attempting to protect religious liberty. Those 51 senators who voted to table the amendment, effectively killing it, should recognize they have violated the sacred trust of their office to govern justly for the American people. We should strive for just laws enacted by our government and condemn unjust laws that are in fact no law at all.

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Tom Cohen and Dan Merica, “Senate kills controversial ‘conscience’ amendment,” CNN, March 1, 2012.

Thomas Aquinas, Summa Theologica, I–II.96.4.

My previous articles on this issue include: ObamaCare and the First Amendment and To Mr. Obama, From a Conscientious Objector.

Face-Washing or Whitewashed Tombs?

February 28, 2012 ~ Evan Lenow

The Chinese government appears to be getting a little more politically correct in the enforcement of one of its most notorious policies—the one-child policy. According to the Shanghai Daily, the National Population and Family Planning Commission has initiated a new program called the “Face-Washing Project.” In an attempt to enforce this policy, apparently some local officials have threatened violators with forced sterilization, arrest, and even death.

The newspaper reports:

Some local officials in rural areas have come up with nasty slogans to intimidate couples planning to have more than one child. Simply reading some of them can send chills down one’s spine.

Some examples: “If you don’t receive the tubal ligation surgery by the deadline, your house will be demolished!” “We would rather scrape your womb than allow you to have a second child!” “Kill all your family members if you don’t follow the rule!”

“Once you get captured, an immediate tubal ligation will be done; Should you escape, we’ll hunt you down; If you attempt a suicide, we’ll offer you either the rope or a bottle of poison.”

Instead of using such intimidating slogans, the face-washing project wants to substitute “milder expressions in an effort to ‘avoid offending the public and stoking social tensions.’”

Population control has been a concern in China for quite some time. With the world’s largest population in excess of 1.3 billion people, the Chinese government has employed a number of measures in their attempt to curb population growth. The one-child policy was implemented in the 1970’s and restricts families in urban areas to one child. Violators face steep fines and even forced sterilization.

Rather than using threats of violence, the new government mandate wants to focus on China’s population problems. Forty years of the one-child policy has created gender imbalance in the nation. Li Bin, director of the National Population and Family Planning Commission, stated that there were 118 boys born in 2010 for every 100 girls. As a result of gender imbalance, it is estimated that 30–40 million men will have difficulty finding a wife by 2020.

In addition, the population of China is aging. “Currently, 13.26 percent of China’s population is aged 60 or above. The percentage is expected to hit one-third, or 440 million people, by 2050, according to Li.” With only one child for every two adults, care for the elderly will become a major burden for the Chinese government.

In light of these problems, China is not backing down from its policy. Population control is still a major issue. The Chinese government is simply trying to put a new face on its policy.

This face-washing project reminds me of a condemnation Jesus made against the Pharisees. In Matthew 23:27–28, Jesus proclaimed:

Woe to you, scribes and Pharisees, hypocrites! For you are like whitewashed tombs which on the outside appear beautiful, but inside they are full of dead men’s bones and all uncleanness. So you, too, outwardly appear righteous to men, but inwardly you are full of hypocrisy and lawlessness.

The problem is that the government is putting a coat of whitewash on a tomb. The unspoken problem with China’s policy is the proliferation of abortion, especially of little girls. If the people are only allowed one child, they want a son who will take care of them and carry their family name. The new slogans may present a nicer face, but the policy is still full of dead men’s bones, literally.

Before we condemn China for a policy that leads to sex-selective abortions, we need to recognize that only now is there legislation in the House Judiciary Committee to prevent sex-selective abortions in the US. The Prenatal Nondiscrimination Act is working its way through the House of Representatives, but not without opposition. While there may not be a policy in the United States that limits families to one child, there is a sense among many Americans that having more than one or two children leads to imminent financial disaster. Therefore, we are beginning to see such sex-selective abortions in our own country as well.

May we heed the words of Jesus and recognize the underlying sin in our own lives and in our nation rather than simply applying a coat of whitewash.

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Li Qian, “Gentler reminders to replace ugliness,” Shanghai Daily, February 25, 2012.

Mark Norton, “House panel OKs ban on sex-based abortions,” Baptist Press, February 27, 2012.

To Mr. Obama, From a Conscientious Objector

February 13, 2012 ~ Evan Lenow ~ 6 Comments

Dear Mr. President:

In recent weeks, a decision by your Administration has stirred great controversy among people of faith regarding the requirement that insurance policies offer free access to all FDA-approved contraceptives and sterilization. On the basis of the freedom of religion guaranteed to me as a citizen of the United States of America in the First Amendment of the Constitution, I want to state my conscientious objection to this policy.

First, the requirement of insurance policies to offer contraceptives to all people at no charge violates my religiously-held belief that life begins at conception. Among these contraceptives are drugs known to cause the elimination of a fetus after conception by preventing implantation of a fertilized egg in the uterine wall. Such drugs (e.g., Plan B, Ella) are more properly called birth control because contraceptives, strictly defined, prevent conception. These drugs act to prevent birth after conception. On the grounds of teaching in the Bible, I believe that all life begins at conception. In Psalm 139:13–16, we read that God forms children in the womb, and He has planned our days before we are ever born. God is intimately involved in the creation of life from the very moment of conception. In addition, Genesis 1:27 tells us that all humans are created in the image of God. The inherent value of God’s image begins at the moment human life begins—at conception.

Second, the requirement of insurance policies to offer contraceptives to all people at no charge makes me complicit in funding these abortifacient drugs. While you have offered exemptions to churches, I work at a religious school. It is debatable whether my school will meet the exemption standard. However, it is clear that the insurance program my school uses will be forced to comply. In the insurance business, it is an elementary principle that costs are passed along to the consumer through higher premiums. Even if the insurance companies have to “pay out of pocket” for those contraceptives (according to last week’s “compromise”), the burden will merely shift to the individual consumer—making us all complicit. This too violates my conscience and freedom of religion.

Third, the requirement of insurance policies to offer contraceptives to all people at no charge extends beyond the constitutional authority of the federal government. Insurance companies are businesses that are not owned by the federal government. Government has no constitutional authority to require business to offer a service at their own expense. In addition, the mandate of the Affordable Care Act that requires all individuals to have insurance extends beyond the constitutional authority of the federal government. In order to live and breathe in America, the government is attempting to force citizens to buy insurance. This is a gross abuse of power on the part of the federal government.

I humbly request that you rescind the current contraception regulation proposed by Secretary Sebelius and rescind the insurance mandate of the Affordable Care Act. These actions are a violation of your constitutional authority, and the contraceptive mandate is a violation of my guaranteed right to freedom of religion. I would like to remind you that the Bill of Rights was written “in order to prevent misconstruction or abuse of [the federal government’s] powers” (Preamble to the Bill of Rights). The current mandates are both a misconstruction and abuse of powers. The First Amendment trumps these mandates.

Please know that even today I have prayed for you and your Administration as instructed in 1 Timothy 2:1–2, which reads, “First of all, then, I urge that entreaties and prayers, petitions and thanksgivings, be made on behalf of all men, for kings and all who are in authority, so that we may lead a tranquil and quiet life in all godliness and dignity.” I pray for wisdom on your behalf to protect the consciences of the citizens over whom you have authority and to respect the teachings of Scripture which you claim to believe.

Sincerely,

Evan Lenow
Conscientious Objector

ObamaCare and the First Amendment

February 8, 2012 ~ Evan Lenow

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.”

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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.

When Heroes Fail

February 3, 2012February 3, 2012 ~ Evan Lenow ~ 2 Comments

News broke this week that Josh Hamilton, the all-star outfielder for the Texas Rangers, had a “weak moment” on Monday night and consumed alcohol. In the world of professional sports, alcohol consumption is a foregone conclusion among both fans and athletes. However, Josh Hamilton’s story is different. After spending three years out of Major League Baseball for drug and alcohol abuse, Hamilton has publicly committed to avoiding alcohol. He readily acknowledges that he does things he regrets when under the influence of alcohol.

I am a huge Rangers fan. Hamilton is among my favorite players. My heart beats a little faster when Josh steps to the plate because I know he can change the face of the game with one swing of the bat. I’ll never forget watching his stellar performance in the 2008 Home Run Derby. His performance will most likely never be matched. He is one of the most talented players in baseball—and he plays for my team.

So what should we do when our heroes fail? What do we tell our kids who see their favorite player on the news? How do we respond when life throws this curveball?

First, we need to recognize that none of us are perfect. Scripture declares that we are all sinners (Rom 3:23). Despite our best efforts, we have no righteousness of our own (Rom 3:10–12). The difference between Hamilton and us is that our failures probably won’t make headlines. No one is watching our every move in order to report our faults on the local news. However, our sins—no matter how great or small—carry the same eternal consequences from God. We deserve death and hell for our sins whether or not we are anyone’s hero.

Second, we can rejoice that we can seek the forgiveness of God and those we have hurt just like Josh did. For over ten minutes in his press conference, Hamilton told what happened. He admitted his sin. He admitted his deception to his teammate. He admitted that he had hurt others. He admitted that he had let his fans down. He confessed that he needed forgiveness. He called upon God to help him. Josh took the biblical route on this one. He confessed his sin (James 5:16) and has set out again to change his behavior with God’s help (i.e., repentance). When we fail, we need to take the same path to repentance.

Finally, we need to remember that men will always fail us. We must place our trust in God rather than men. Josh Hamilton has all the attributes we want to see in a sports hero when life is going well. Many people point to his faith in Christ as an example of how someone in the public eye can live a life of faith. However, that makes his failures hurt that much more for fellow believers. The world is watching for believers to trip up, and Josh’s faults become fodder for those who desire to deride Christianity. No matter how strong that hero appears to be, we can never put our trust in him to carry the banner of our faith. Psalm 118:8–9 admonishes us, “It is better to take refuge in the Lord than to trust in man. It is better to take refuge in the Lord than to trust in princes.”

On opening day in April, I hope to be at Rangers Ballpark in Arlington cheering my favorite baseball team to victory. When Josh Hamilton steps to the plate, I will cheer for him to succeed. He is one of my heroes—I wish I could run, throw, and hit like him. However, he is not the object of my faith. He is a flawed human being just like me. I put my faith in Christ. I walk beside a fellow believer like Josh knowing that I have faults too, just not as public.

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MLB.com, “Hamilton confirms reports,” February 3, 2012.