Is the birth control mandate a violation of the 1st Amendment?

I have heard a lot of Catholics say the birth control/sterilization mandate is a violation of the 1st Amendment. If you take that position, I would like to know why you take this position. Could you please specifically address how you square that position with Justice Scalia’s majority opinion where he writes that a generally applicable law that requires a person to violate his conscience is not a violation of the freedom of religion. Why is that opinion not controlling to the mandate? After all, this is not a ministerial exception case?

(I would like to leave aside whether mandate violates any other constitutional provision or any statutue.)

law.cornell.edu/supct/html/historics/USSC_CR_0494_0872_ZO.html

Simple. The interpretation of the said justice, majority or otherwise, will be repealed. Just like Slavery. Indeed certain rights are inalienable. Period.

So do you think there should be a religious exemption from any generally applicable law?

Well that is indeed a gross generalization - yes?

Dan, this isn’t any generally applicable law.

This is requiring a religious institution to pay for something, to include in their insurance plans, a product that they preach against.

That is government restricting the free exercise of religion.

Nationalized, government-enforced healthcare, forcibly paid for by citizens without choice (“Obamacare”) is by definition unconstitutional, therefore any clause, segment or “mandate” included in it is null and void (and an unjust law by the way). Even Medicare is not mandatory. The repeal of Obamacare in its entirety, not only the mandate, should be our goal.

I don’t think “by definition” means what you think it means, but even if Obamacare is a violation of the commerce clause, that does not mean it is a violation of the 1st Amendment.

You have two rights coming head to head here. The supposed reproductive rights and the right to free practice of religion. The points many are making is that:

  1. Reproductive rights is a made up notion. There is no right for everyone to have access to contraceptives, abortion causing drugs, and sterilization for free on the spot. All of this operates under the underlying idea that pregnancy is a disease which it is not. Contraceptives are not healthcare.

  2. Even if reproductive rights exist in some form or another, they sure as heck do not trump the right to free practice of religion which is one the most sacred rights a person has below the fundamental right to life. If two rights come head to head, the more important right trumps out.

  3. Does your auto insurance policy cover gas expenses and oil changes? Gas is more expensive than the pill is it not? Insurance is supposed to cover people from the outrageous expenses, not everyday items that almost everyone can afford. Have you ever heard anyone claim they have a right to free gas for their car? Gas is probably a greater expense than the pill is for most people so why aren’t people scrambling to make sure that is free for everyone through their insurance? Having gas to fill up a car is just as necessary as birth control is for most people.

“Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘]valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’]”

“Our most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual’s religion was United States v. Lee, 455 U.S. at 258-261. There, an Amish employer, on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited participation in governmental support programs. We rejected the claim that an exemption was constitutionally required. There would be no way, we observed, to distinguish the Amish believer’s objection to Social Security taxes from the religious objections that others might have to the collection or use of other taxes.”

Just because a law violates a religious person’s conscience, the person still has to comply with the law. There can be no violation of 1st Amendment if the law is generally applicable unless it is specifically directed toward religion, such as, as noted in Scalia’s opinion, “to prohibit bowing down before a golden calf.”

But how can a generally applicable mandate that is not specifically directed at religion be a violation of the 1st Amendment? Read Justice Scalia’s controlling opinion and tell me how in light of that opinion the mandate can be a violation of the 1st Amendment.

law.cornell.edu/supct/html/historics/USSC_CR_0494_0872_ZO.html

This is what I wrote in another thread regarding this claim you make here (to me, false) that this law does not refer to a religious practice:

*"But NOT using any artificial contraception or participating in any form of sterilization or abortion (even by abortifacent pills) is very much a law of catholic faith! A consistent 2,000 year old law that was punished very severely with the most severe penances and ecclesiastical sentences from the very beginning! So much so that helping in the latter (abortion) results in the automatic application to the soul, of the Church’s MOST severe punishment- Ex-communication, which is exclusion from the means of grace in the church, and from the Catholic pov, is a very bad state of affairs to be in. More so, in Catholic morality (See CCC on morality), giving occasion to others to commit objectively grave immoral acts (like all those three things here), by enabling, helping, advising or even by bad conduct (read here: bad example), is scandal- Itself a serious sin.

So, really, why would people conclude that this does NOT concern a specifically religious practice? For Catholics, it is definitely a religious practice!"*

Welsh v. United States (1970).

Quakers and Johovah’s Witnesses are avowed pacifists, and are exempted from military service. These rulings applied to conscription, which was not directed specifically toward a religious organization, but was a GENERALLY APPLICABLE FEDERAL law that did not specifically target religious organizations but had unconstitutional implication frustrating the free exercise of religion. For the same reason, the general applicability of the Obamacare mandate does not make it constitutionally enforceable over religious organizations.

I would invite you to read the response by the General Counsel of the USCCB to the proposed rule written during the public comment period. In this they go into the very particulars that you are questioning and site the case law involved and why this is a particular violation of the free exercise and establishment clauses. The link is below.

usccb.org/about/general-counsel/rulemaking/upload/comments-to-hhs-on-preventive-services-2011-08.pdf

There is a difference between objecting to how a general tax is used and objecting to a mandate by the government that tells you what to buy.

We already know this is a 1st amendment issue because Obama gave a waiver to churches themselves. By doing so he shows that he recognizes it as a first amendment issue himself. Why would he give churches a waiver if it wasn’t? Its incredibly contradictory for him to deny the same waiver to church held hospitals and schools that he gave to the actual church building. How can anyone keep a straight face and say this is not a religious rights issue?

The basis of Quakers and Johovah’s Witnesses being exempted is the conscientious objector status under 6 (j) of the Universal Military Training and Service Act, meaning is statutory, not constitutional. Read Welsh:

caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=398&invol=333

He could give a waiver because of RFRA or political reasons.

Separation of church and State. Since when other than Obamanomics can govt tell a religion how to operate?? This is why socialized medicine is soooooo dangerous.

That was clearly written before the new exemptions. No religiously affiliated organization has to purchase an insurance plan that covers birth contro, etc.

Possibly but I doubt it. If we apply RFRA I think the entire mandate is bunk by way of:

The second condition is that the rule must be the least restrictive way in which to further the government interest.

Why would RFRA not apply to Catholic charities, hospitals, and schools?

In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion

RFRA was the constitutional norm for a time after Sherbert v. Verner in 1963 until 1990. Congress only passed RFRA in 1993 because the judiciary countered the judicial standard in 1990. Thus I would argue that RFRA upholds the original intent of the 1st Amendment and a law was only passed because the court failed to do its job.

Years ago I, a Catholic, took hormone therapy to correct a severe anemia and bleeding problem. It stopped me from having to have surgery. The pills I took were commonly called birth control pills. I thought of them as the pills that kept me home with my children, from having to have shots for anemia and surgery. I took those pills for years until I was old enough for menopause when the situation cured itself. I did not feel guilty because as I saw it they were a cure for my problem - note I still had children I think all women should have access in their insurance plans for similar situations. Obama said they don’t have to pay for the coverage so that should certainly take care of the moral problem. I think it is turning into a political issue that will backfire.

DISCLAIMER: The views and opinions expressed in these forums do not necessarily reflect those of Catholic Answers. For official apologetics resources please visit www.catholic.com.