Thursday, February 09, 2012

Henry VIII Obama

In the mid-sixteenth century the King of England established an act which declared that he was the head of the church in England.   Last week's proposed regulations to implement the Health Care "reform" for religious related employers is a modern edition of this idea.

HHS proposed to mandate that if employers, including religious employers, offered a health plan they would be required to offer, as a part of the plans, services like abortion, morning after and contraceptive services as a part of the package.

In essence the HHS bureaucrats said they could interpret religious doctrine because a statutory enactment trumped a constitutional requirement for the free exercise of religion.   The determination turned the recent Hosanna Tabor decision on its head and ignored that such a pronouncement would introduce the government into making "establishment clause" judgments.

There is some talk that the Administration is trying to figure out how to step out of this mess by making the same kind of dodge they tried with former congressman Bart Stupak.   Hopefully, this bizarre ignorance of a basic constitutional principle will be yet another inducement to overturn the entire statute.


Garry Ladouceur said...

No Sir, not correct. The religious organization is not required to take government money. As such, the requirement is simply voluntary. There is no constitutional bar to voluntary actions relating to sex.

Technically, this requirement de facto would not appy anyway since we all know that abortions, morning after and contraceptive services would not be required by religious organizations anyway since folks there are pure of heart and know when to cross their ankles.

Dr. Tax in Sacramento said...

This is not actually about whether a religious organization takes government money. The Health Care Act requires employers, including religious employers to offer a health plan or to pay a fine for not offering health plans. The proposal would require ALL employers to offer, within those health plans a series of services including things like abortion. Thus, a Catholic charity would be required to offer a plan which includes services that are in direct contradiction of Catholic doctrine. In addition to things like prescription coverage or certain types of medical procedures approved health plans would require enumerated services for birth control. Obviously an individual could choose not to avail themselves of the services. But that is not the point. This is the most direct intrusion into religious institutions proposed by the Feds in my memory. It ignores issues like Title VII of the Civil Rights Act and other provisions which establish a right of conscience for certain issues. Were that interpretation not correct several of the leading Catholics in the administration would not have argued against the policy. This is absurd by someone who claims to have been a professor on Constitutional law and evidences ideology over constitutional principles.

Garry Ladouceur said...

I have problems with your argument. Without getting into the obvious reality that the catholic church does get millions of dollars in government money, the law is clearly constitutional.

In no way does it force the church to provide abortons. Whether the church is complicit in an immoral act by requiring it to include these procedures in a health plan to pay for abortions is not a question for the constitution but for the church.

mainly however, the law does not target the churches and is merely a collateral incident of a law made for the social good. I know that you probably agree with Hayek on the issue of the social justice argument, but social justice is often raised by churches themselves to their constitutional acts or efforts that go against canon law or the rules laid out by the bishops. I think this minor requirement is hardly a handicap to all of those hospitals who treat all sorts of religions in their hospitals who may want abortions. Women would suffer the most here so I could infer that you dislike women or suggest that women are not entitled because of constitutional principles to have equality in law. Ingenius.

Dr. Tax in Sacramento said...

With all due respect, the proposed regulations violate the First Amendment and thus are unconstitutional. Whether the Catholic Church receives money or not from federal sources is irrelevant. The question is whether the proposed regulations intrude government into things which are protected under First Amendment guarantees. Take a look at Hosanna Tabor (which is a recent 9-0 Supreme Court Decision) which has a superb discussion of the dual roles of the First Amendment.

Garry Ladouceur said...


This decision does not relate to the issue at hand. Tabor dealt with the ministerial exemption in the context of antidiscrimination laws. That is all. Courts still maintain a discretion to review these issues by needing to discover if the person affected is or is not a minister. It is of stictly narrow application to the field of employment in the context of anti discrimination legislation. It is a mighty long haul to say that this case imposes a new law stating that churches are above the law of the land.

I have included here below a view that makes sense to me

If the Religion Clauses broadly preclude the government from imposing a minister on a church, presumably they likewise preclude the government from preventing a church from hiring particular clergy. Does this mean that the federal government may not deport an alien who is in the United States illegally when that individual has been chosen to be the minister of a church? Does the principle preclude the state from arresting a minister who is charged with criminal activity because doing so would deprive a church of its chosen religious leader? Where the Constitution was most concerned about autonomy-- Congress' autonomy from interference by the Executive Branch-- the Constitution did create at least limited immunity from arrest.

I believe that if your view took hold, mayhem would result and a floodgate of evil would be unleashed in america if persons could shield their otherwise illegal activities, like promoting hatred from the pulpits for example, with impunity.

Dr. Tax in Sacramento said...

The reason I mentioned Tabor is that it sets out a broader principle than just the ministerial exemption in the discussion of the Establishment Clause. The Catholic position does not preclude the government from acting in many ways but it does not allow the government to impose doctrine. The Administration, based on the responses of prominent Catholics in the Administration and in Congress, overstepped a reasonable standard.

Garry Ladouceur said...

Well, sorry for belabouring an obvious point. I think that the hiring of nurses, doctors, and other medical personal by a catholic or jewish or any other institution, that deliver services to the community at large would be severely limited if they were allowed to discriminate against their non catholic staffs or others who simply chose to exercise planning. Faith is a remarkably personal and fragile right that deserves a lot of protection. There might be many catholics who would chose not to work for a hospital that also provided abortions for matters of faith. that is their choice. Faith is suffering and martyrdom a virtue.

This set of laws does not prevent catholics from exercising their first amendments rights. Perhaps the church is wrong on this one.

I note to close that Obama is reviewing his decision here. The right who dislike catholics as a rule, are not interested in the rights of catholics, but in attacking your president. no matter what he does and see this an opportunity to advance quasi fascist causes.

Dr. Tax in Sacramento said...

My impression is that the Administration has begun to realize the depth of their mistake. Unfortunately, the proposed change has seemed to anger the insurance providers and not satisfied the fundamental issue raised by the religionists.

Had the Administration understood the provisions of TItle VII of the Civil Rights Act and worked within those guidelines I think this would not have been as much of an issue.

From my perspective, the Administration made this decision based on an attempt to attract suburban women voters in November. They seem to have written off blue collar voters. But there is very little to suggest that the decision was made on a sound policy basis.

Jon McGraw said...

From an employee benefits perspective, this is all, as you have said many times Jon, Kabuki Theater. In California carriers have built into their contracts coverage for reproductive services, and have for many years. Only the largest diocesan groups have been able to carve it out through:
a. using older Kaiser (HMO) contracts on a grandfathered basis from when it was allowed; and
b. self-funding their plans (or a separate trust).

BUT, many many of the smaller catholic entities, who buy standard commercial policies, are providing these benefits for their lay employees without controversy and because the State of CA requires it. From an HR perspective failure to do so would seriously impact their ability to hire and retain employees... regardless of personal religious views. Most church based employers that I have worked with have resisted mandating their scriptural tenants onto (most) employees except where it may be a function of the position (Tabor).

Another historical perspective, 30+ years ago coverage for maternity benefits was mandated to be covered same as any other condition. Previously it was allowable to exclude maternity benefits for un-married individuals. Do the Bishops wish to ignore this well established benefit too? Or can common sense prevail.

I cannot comment on state insurance requirements outside of CA but I expect this may be a much larger issue there than it is here. Most of the changes that Obamacare has imposed to date were already part of the CA marketplace.

One other comment if I may... as flawed as Obama may be, it's a little hyperbolic to compare him to Henry the 8th because the HHS has interpreted PPACA to apply to church plans; especially when many of those plans already provide the benefits in question. When Obama declares himself the Archbishop and Grand Vicar of all religions in these United States we can talk. Until then, pass the popcorn, I can hardly wait for Act II.

Dr. Tax in Sacramento said...

I understand the argument in favor of the provision as it was originally proposed. Many of the news reports suggested that the President's advisors made a political decision assuming that some liberal Catholics would like the stance and that he had already written off the blue collar vote. While I also understand that argument I am more concerned about the First Amendment issue.

The reason I mentioned Henry VIII is that he too interceded into what is properly a church domain. I believe in the end that the courts will rule that the individual mandate is unconstitutional (we'll see later this Spring) so the issue of the regs may be moot. Kagan's concurrence in Hosanna Tabor would have been good guidance about the limits of state intervention here.