Obama & His HHS Mandate: A Play in Three Acts

I have a story to tell you in the form of a play.

But before we begin a play, you must meet its main character. It is the tale of an unlikely leader: a scrawny African-American boy raised by his single mother and grandparents in worlds as disparate as Hawaii and Indonesia. This boy would find himself on a voyage of self-discovery where he would find himself at Occidental College, Columbia University and Harvard Law School. After serving as community organizer, teaching at the University of Chicago Law School and becoming an associate with a civil rights law firm, he would enter Illinois Senatorial politics. In 2004, when running for the U.S. Senate, he would become a national sensation bursting on the scene with a riveting keynote speech at the Democratic National Convention.

“That is the true genius of America, a faith…a faith in simple dreams, an insistence on small miracles; that we can tuck in our children at night and know that they are fed and clothed and safe from harm; that we can say what we think, write what we think, without hearing a sudden knock on the door; that we can have an idea and start our own business without paying a bribe; that we can participate in the political process without fear of retribution; and that our votes will be counted — or at least, most of the time.”

‘To say what we think, write what we think, without hearing a sudden knock on the door; that we can have an idea and start our own business without paying a bribe’. The words still ring and echo as the years have passed. This scrawny African-American young man would defy the odds and become a two-term President of the United States.

And so we enter our drama.

Act One – The Speech

The Scene: The University of Notre Dame

Controversy swirled almost immediately after the announcement: President Barack Obama would receive an honorary law degree and be giving the 2009 Commencement Address to the Graduates of the University of Notre Dame. The concern? The president’s record on abortion and embryonic stem cell research was most clear. From serial opposition to the “Born Alive” bill (as state Senator), repealing a ban on funding for international agencies providing abortion, exuberant promotion of federal funding of the nation’s foremost provider of abortion (Planned Parenthood) and an ardent advocacy of embryonic stem cell research, the President left little wonder regarding his priorities. Yet the University of Notre Dame, arguably the nation’s premiere Catholic institution of higher learning, enthusiastically pursued him in spite of the United States Council of Catholic Bishops admonition that,

“The Catholic community and Catholic institutions should not honor those who act in defiance of our fundamental moral principles. They should not be given awards, honors or platforms which would suggest support for their actions.”

The Rev. John Jenkins, Notre Dame’s president, would introduce President Obama,

“We welcome President Obama to Notre Dame, and we honor him for the qualities and accomplishments the American people admired in him when they elected him…He is a leader who has great respect for the role of faith and religious institutions in public life. He has said: ‘Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square.'”

Shortly after the President began, a lone voice yelling ‘Abortion is murder! Stop killing children!’ was drowned out by the amiable smile of the President and the defiant chant of the Notre Dame faithful “Boo! We are ND! We are ND! Yes we can! Yes we can!”. President Obama would proceed to applause and laughter,

“When we open up our hearts and our minds to those who may not think precisely like we do or believe precisely what we believe — that’s when we discover at least the possibility of common ground. That’s when we begin to say, ‘Maybe we won’t agree on abortion, but we can still agree that this heart-wrenching decision for any woman is not made casually, it has both moral and spiritual dimensions.’ So let us work together to reduce the number of women seeking abortions, let’s reduce unintended pregnancies. (Applause.) Let’s make adoption more available. (Applause.) Let’s provide care and support for women who do carry their children to term. (Applause.) Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science, but also in clear ethics, as well as respect for the equality of women. Those are things we can do. (Applause.)”

“Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science, but also in clear ethics… It would be three years later (almost to the day) that Notre Dame’s same President, the Rev. John Jenkins, would issue a statement in response to President Obama’s Health and Human Services (HHS) chosen implementation of the Affordable Care Act (aka Obamacare). The “HHS Mandate” required all (but a narrow set of exemptions) schools, universities, hospitals, charitable organizations and for-profit businesses to fund contraception, sterilization and abortifacients in the name of “preventive medicine” regardless of religious or conscience-based objections. Jenkins would write,

“Today the University of Notre Dame filed a lawsuit in U.S. District Court for the Northern District of Indiana regarding a recent mandate from the U.S. Department of Health and Human Services (HHS). That mandate requires Notre Dame and similar religious organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching…

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.”

On January 2, 2014, having been denied a stay on the rule and facing a $100 per day per employee penalty for not complying, the University of Notre Dame submitted.

Act Two – The Executive Order

The Scene: The Capitol & The White House

In mid-March, 2010 a lesser-known Democratic Representative from Michigan captivated the nation. Rep. Bart Stupak, a pro-life Democrat, had formed an alliance with a small cadre of like-minded Democrats insisting that they would vote against the Patient Protection and Affordable Care Act unless firm assurances protecting life were enshrined in the law. Without their votes, the bill’s passage was in jeopardy. As a result, President Obama promised to issue and uphold an Executive Order reaffirming the Hyde Amendment which bans federal funding of abortion. The bill would pass 219-212. Rep. Stupak would comment,

“We’ve always said … that we were for health care reform, but there was a principle that meant more to us than anything, and that was the sanctity of life.”

“We have the assurances from the president that he won’t rip this up tomorrow.” 

President Obama’s White House would assure,

“[The Affordable Care Act would] reaffirm its consistency with long-standing restrictions on the use of federal funds for abortion.” 

 “While the legislation as written maintains current law, the executive order provides additional safeguards to ensure that the status quo is upheld and enforced and that the health care legislation’s restrictions against the public funding of abortions cannot be circumvented.”

In time, however, the truth would become apparent. Through the HHS Mandate, with narrow exceptions, abortifacients would be universally required coverage regardless of religious or conscience objections. Furthermore, only one insurance option per state is required to exclude abortion coverage by 2017. Most other  insurance options will cover abortion, are required to disclose this in subtle forms ( for instance, in a solitary sentence embedded in reams of paperwork) and may disclose this to the consumer late in the process (i.e. upon enrollment). Furthermore, a mandatory $1 surcharge per month per person would be charged (without the ability to opt-out) and placed in a “separate pool” for the coverage of elective abortions. This pool of mandated private dollars from citizens is segregated from government tax credits giving the pretense that the federal government is free of funding abortion while it simultaneously taxes citizens $1 per month to pay for it.

In September, 2012, Stupak would lament,

“To tell you the truth, I am perplexed and disappointed having negotiated  the executive order with the president…Not only does that HHS mandate violate the executive order, it also violates statutory law. If you go back to the Omnibus Budget Act of 2009, passed by Democratic House, Democratic Senate and signed by President Obama, that is probably the most specific particular language that no funds can be used to promote abortion. I think it’s illegal.”

Act Three – The Court Case

The Scene: The Supreme Court

On March 25, 2014 arguments were heard in The Supreme Court regarding Sebelius vs. Hobby Lobby Stores & Conestoga Wood Specialites. At issue was whether the owners of these for-profit entities could refuse to fund what they perceived as objectionable forms of birth-control/abortifacients on the basis of conscience and religious freedom under the First Amendment and the 1993 Religious Freedom & Restoration Act (RFRA). For Hobby Lobby and Conestoga, attorney Paul Clement argued that the RFRA protects the owners as individuals and as a corporation. Further, he outlined how the government fails to meet the standards required by Congress’ RFRA law. In RFRA it is required that the government has a) a compelling interest that must justify the violation of an individual or corporation’s conscience/religious freedom, that the government has b) pursued the least restrictive means in choosing to violate the conscience/religious freedom of an individual or corporation as it tries to attain its ends, and that c) this violation is not a substantial burden on the individual or corporation to justify their objections.

Specifically, Clement reasoned that the exemptions provided to some and the grandfathering of other non-compliant programs show compelling interest is lacking since the consequences of these exemptions/grandfathered programs are not considered catastrophic to the third parties they affect. The fact that exemptions and cheaper alternatives are provided in certain circumstances demonstrate that there are less restrictive means than those which violate religious liberty. He further argues that the substantial burden to the individual/corporation is significant with draconian fines, pressure to avoid offering insurance and to raise wages. As is revealed by all the exemptions, grandfathering, and shifting time frames for compliance, the ability to arrive at an affordable way to provide access to birth control/abortifacients which simultaneously preserves religious/conscience freedoms is conceivable. The questions is whether the government wants to conceive of it. 

For the Government, Solicitor General Donald Verrilli, the argument hinged on the importance of these medications for women’s health, the impact of a corporation’s religious objections on third parties (insured employees) and the inability of a corporation to “freely exercise religion” thus invalidating its protection under RFRA. It was argued (and rebuffed by Chief Justice Roberts) that the corporation must check its morality at the threshold of the public square. And, ultimately, the Government advocated that the substantial burdens imposed on the companies are overshadowed by the overwhelming compelling interest dictated by the Government’s priorities – universal access to free birth control, sterilizations and abortifacients.

Plaintiffs and defendant would rest. The Court would adjourn. The verdict will come to us in June.

Who is this young, promising man – this main character in our play? Perhaps we can know by considering him in each act: The Speech, The Executive Order, The Court Case. Perhaps.

This play, in three acts, is far from finished. There is more to be said and done. Will it end as a comedy? Or a tragedy? How will it end? How, indeed? We shall see. We shall see.