Has a compelling government interest trumped the First Amendment?

HHS declares in its “Final Rule,” 77 FR 8725, p. 8729:

The contraceptive coverage requirement is generally applicable and designed to serve the compelling public health and gender equity goals … and is in no way specially targeted at religion or religious practices. Likewise, this approach complies with the Religious Freedom Restoration Act, which generally requires a federal law … to be the least restrictive means to further a compelling government interest.

This declaration appears as a bald assertion without substantial supporting argument or evidence. HHS simply declares its goals more important than these specific, explicit Constitutional guarantees. Courts have found some circumstances in which a truly compelling government interest can limit religious liberties, but the HHS claims are quite bold. The articles listed here present some views and insights on this question.

  • Edward Whelan, president of the Ethics and Public Policy Center, addresses whether the mandate complies with the Religious Freedom Restoration Act in a series of seven short memos.
  • The US Conference of Catholic Bishops is, to put it mildly, unpersuaded that the HHS mandate does not target Catholic religion and religious practices.
  • Contesting the HHS claim to have chosen the “least restrictive means,” Charles Krauthammer explores the contradiction between President Obama’s recent prayer breakfast speech on giving to others and the HHS definition of “religious” organizations in the mandate ruling.
  • At a Heritage Foundation forum a diverse group of women addressed the ways in which religious practices are targeted by the HHS mandate. Speakers included Maggie Karner, director of Lutheran Church Missouri-Synod’s Life and Health Ministries, who noted:

    For religious people, mercy is not confined to our houses of worship. It is not about caring for ourselves. It is about caring for others, those outside the walls of the sanctuary and in the most needful areas of our society.… But we can only do so if we are given the freedom to work within the framework of our beliefs.

  • The Center for Public Justice discusses the extremely narrow religious exemption permitted from the HHS mandate – hardly the “least restrictive means.”
  • An order of Catholic nuns, the Sisters of Life, laments in this note that even they would be subject to the HHS mandate, deeply violating their beliefs and forcing them to break their own religious vows.
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