To listen to the conservative wind machine, you’d think that the Great Obamacare Contraception Mandate (GOCM) is a grave new assault on religious liberty in America. Here’s the beginning of a USA Today commentary by Family Research Council president Tony Perkins and Rep. James Lankford (R-OK):
Like many startups, Hobby Lobby began in founder David Green’s garage. Now, more than 40 years later, the Green family business has 16,000 full-time employees in stores across the country with 70 new stores opening this year. They are a quiet family that loves God, honors their employees and enjoys serving people in their stores around the nation.
But two years ago, the rules changed for every business. As of 2013, the Green family had to decide if they would follow their faith or follow the Obama administration’s new regulations.
Then last week Obamacare’s Perpetrator-in-Chief had the chutzpah to give a big speech on religious liberty at the National Prayer Breakfast. Harumphed Washington Post columnist Kathleen Parker, “Missing was any mention of Hobby Lobby or the Little Sisters of the Poor — whose cases have recently reached the U.S. Supreme Court and that reveal the Obama administration’s willingness to challenge, rather than protect, religious liberty in this country.”
OMG! Who would have guessed that a contraception mandate was in place in no fewer than 28 states before the GOCM came into being? Or that these include such religious liberty-loving jurisdictions as Georgia and Texas, whose mandates do not provide even limited exemptions for churches or religious associations, much less for for-profit corporations like Hobby Lobby.
Which means that that quiet family that loves God, honors their employees, and enjoys serving people in their stores is already required to cover its female employees for contraceptive services in 119 locations from Albany and Abilene to Warner Robins and Wichita Falls. Not to mention in hundreds of other places as well.
And that it’ll have to continue to cover such employees even if the Supreme Court decides that for-profit companies enjoy a constitutional right to religious free exercise and that the 1993 Religious Freedom Restoration Act (RFRA) protects that right against the GOCM. That’s because the Court decided back in 1997 that RFRA doesn’t apply to the states — that a constitutional claim under the Free Exercise Clause cannot prevail against a neutral state law of general applicability. Which these mandates happen to be.
Why the Greens and their ilk found it possible to observe a contraception mandate without a peep when it was just the states doing the mandating is a question best answered by them. (Update: In the Greens’ case, it may be because, according to their brief, their insurance policy excludes the morning-after pill and two kinds of IUD — a partial exemption to which they are entitled by right in none of the mandating states except Illinois.)
For their part, New York’s Catholic bishops did go to court to contest that state’s mandate. When they lost, they decided it was more important to continue providing their employees with health coverage than to, well, follow their faith.
Far be it from me to accuse anyone of bad faith in seeing the GOCM as limiting their own or somebody else’s free exercise of religion. Let’s just not pretend that this is something new under the sun, that it expresses an unprecedented hostility to religious liberty on the part of the Obama administration, or that working out a proper balance between religious free exercise and the rules of society is other than a normal, customary, and never-ending practice of American government.