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EDITORIAL: Obamacare’s other constitutional problem

Private companies challenge health care law’s abortion mandate

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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.

The Washington Times

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