Does Obama’s HHS Mandate Make “Religious Freedom Day” an Empty Proclamation?

Every year, the President declares January 16 “Religious Freedom Day.” On that day in 1786, Thomas Jefferson’s Virginia Statute for Religious Freedom was enacted into law, protecting freedom of religion in Virginia and serving as a precursor to the First Amendment to the U.S. Constitution.


“Our Nation was founded by people seeking haven from religious persecution,” said President George W. Bush in his administration’s final proclamation (2009), “and the religious liberty they found here remains one of this land’s greatest blessings. As Americans, we believe that all people have inherent dignity and worth. Though we may profess different creeds and worship in different manners and places, we respect each other’s humanity and expression of faith….No human freedom is more fundamental than the right to worship in accordance with one’s conscience.”


President Obama’s 2012 proclamation reaffirmed the importance of the free exercise of religious beliefs: “Drafted by Thomas Jefferson, the Virginia Statute formed the basis for the First Amendment, which has preserved religious freedom for both believers and non-believers for over 220 years….My Administration continues to stand with all who are denied the ability to choose, express, or live their faith freely, and we remain dedicated to protecting this universal human right and the vital role it plays in ensuring peace and stability for all nations.”


However, as of this month, the Patient Protection and Affordable Care Act restricts Americans’ ability to “live their faith freely” in specific―and to many, vitally important―ways. The Department of Health and Human Services directive popularly referred to as “the HHS mandate” requires almost all employers to include coverage of contraceptives, sterilization procedures, and abortion-inducing pharmaceuticals (such as “morning-after” and “week-after” pills) without copayment in their employee insurance policies. If employers don’t, they face fines of $100 per day, per employee.


The HHS mandate has a narrow conscience exemption that does not include the vast majority of religiously affiliated employers and institutions which object to providing these services on moral grounds. The mandate also does not exempt regular businesses whose owners object. So, despite President Obama’s routine homages to the American tradition of religious freedom and conscience rights, federal law under his Administration requires Americans to pay for as policyholders, and to provide as employers and insurers, things their faith may teach are morally wrong.


Forty-three religiously affiliated organizations sued the federal government last year over this infringement on their right to operate in accordance with their moral beliefs, but they were not alone. For-profit businesses including the craft store chain Hobby Lobby also filed suit. The Becket Fund for Religious Liberty, a nonprofit public interest legal institute representing Hobby Lobby’s owner-founders, explains its clients’ situation:


“The Green family has no moral objection to the use of preventive contraceptives and will continue its longstanding practice of covering these preventive contraceptives for its employees. However, the Green family cannot provide or pay for two specific abortion-inducing drugs. These drugs are Plan B and Ella, the so-called morning-after pill and the week-after pill. Covering these drugs, as the government is forcing them to do under the threat of $1.3 million penalty per day, would violate their most deeply held religious belief that life begins at conception, when an egg is fertilized….”


“The Green family respects the religious convictions of all Americans, including those who do not agree with them. All they are asking is for the government to give them the same respect by not forcing them to violate their religious beliefs.”


Members of the Obama Administration routinely refer to the First Amendment right to “free exercise” of religion as “freedom of worship.” This is dangerously incomplete. “Free exercise” of religion is more than the ability to choose whether or not to affiliate with a religion or to worship on weekends. “[T]he ability to…live [one’s] faith freely,” which the President supported in his 2012 proclamation, requires the ability not to violate one’s faith and moral beliefs in everyday life, including in one’s business practices.


The courts should not allow the Obama Administration to compel Americans like the Green family to provide abortifacient drugs against their conscience or else to pay fines so substantial that they jeopardize the existence of their business. As long as the Executive Branch remains inflexible on the HHS mandate, President Obama’s proclamation about “bear[ing] witness to those who live in fear of violence and discrimination because of their beliefs” is just empty words.

Kathryn Hickok is Publications Director at Cascade Policy Institute, Oregon’s free market public policy research organization, and a graduate of the University of Portland.

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