Oba­macare’s other prob­lem

The Washington Times Weekly - - Editorials -

The line of those wait­ing at the court­house itching for a chance to de­rail Oba­macare just got longer. So far, the Catholic Church and 30 of the na­tion’s gov­er­nors have taken the lead to bat­tle against the health care law’s re­quire­ment that states es­tab­lish health in­surance ex­changes and that abor­tion cov­er­age be sub­si­dized. Now pri­vate com­pa­nies are en­list­ing in the fight.

Take the craft re­tail chain Hobby Lobby, whose op­er­a­tions re­flect the Chris­tian views of the Green fam­ily, its founder and owner. The com­pany self-in­sures, so un­der Oba­macare, it faces daily fines in ex­cess of $1.3 mil­lion un­less the Green fam­ily vi­o­lates its re­li­gious be­liefs and of­fers its 13,000 em­ploy­ees full cov­er­age for items, in­clud­ing “morn­ing af­ter” abor­tion pills be­gin­ning Jan. 1. The only other op­tion for the com­pany is to drop cov­er­age of em­ploy­ees al­to­gether and pay a $2,000 per em­ployee an­nual tax. That’s still very ex­pen­sive for the em­ployer, and it’s prob­a­bly worse for their em­ploy­ees.

Hobby Lobby found it­self in this sit­u­a­tion af­ter the De­part­ment of Health and Hu­man Ser­vices is­sued a reg­u­la­tion re­quir­ing em­ploy­ers pro­vide cov­er­age of con­tra­cep­tion and re­lated ser­vices, re­gard­less of re­li­gious be­lief. The reg­u­la­tion had a nar­row, one-year safe har­bor for re­li­gious in­sti­tu­tions, but it of­fered no re­lief for pri­vate em­ploy­ers run­ning a for-profit busi­ness. Some 40 cases with about 100 plain­tiffs are chal­leng­ing the reg­u­la­tion. At heart of this lit­i­ga­tion is the scope of the First Amend­ment’s free ex­er­cise of re­li­gion clause, and the role of re­li­gious be­lief in the daily life of Amer­i­can civil so­ci­ety.

A judge has yet to rule on Hobby Lobby’s com­plaint, but at least two other busi­nesses have been suc­cess­ful in se­cur­ing pre­lim­i­nary in­junc­tions thwart­ing en­force­ment of the reg­u­la­tion. In late Oc­to­ber, the Wein­gartz Sup­ply Com­pany and its owner, Daniel Wein­gartz, won tem­po­rary re­lief from Michi­gan Fed­eral District Court Judge Robert H. Cle­land. A fed­eral court in Colorado did the same for Her­cules In­dus­tries.

In each of th­ese cases, the Obama ad­min­is­tra­tion has pre­sented a nar­row read­ing of the First Amend­ment’s pro­tec­tion of free ex­er­cise of re­li­gion, ar­gu­ing that there is no re­li­gious com­po­nent in daily com­mer­cial ac­tiv­i­ties. Un­der this in­ter­pre­ta­tion, the free ex­er­cise of re­li­gion be­comes noth­ing more than a free­dom to wor­ship. Act­ing on this mis­guided prin­ci­ple would pre­vent peo­ple of faith from liv­ing their daily lives in ac­cor­dance with their most deeply held re­li­gious be­liefs. None of th­ese em­ploy­ers is lob­by­ing to make the morn­ing af­ter pills il­le­gal. They sim­ply want to re­tain their lib­erty to live their faith with­out be­ing forced to un­der­write pro­ce­dures and med­i­cal de­vices they find morally ab­hor­rent.

In the case of Mr. Wein­gartz, Judge Cle­land cited “the risk pre­sented here of sub­stan­tially in­fring­ing the sin­cere ex­er­cise of re­li­gious be­liefs” as be­ing of greater im­por­tance than the government’s in­ter­est in im­ple­ment­ing the Oba­macare law. That’s the proper way to frame the First Amend­ment’s ex­pan­sive pro­tec­tion against the threat of gov­ern­men­tal power. Oba­macare’s at­tack on this most fun­da­men­tal of con­sti­tu­tional rights, the free ex­er­cise of re­li­gion, must be re­jected.

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