Religious Freedom Restoration Act and the contraception mandate

[Quantum Windbag]

I wonder if Nancy and Reid remember the law that they helped pass back in 1993. The Supreme Court was essentially erasing the 1st Amendment by establishing a rule that the government could do anything, even build a road through Indian tribes sacred land, as long as the law generally applied to everyone, unless the petitioner could prove the government was actually coercing or punishing them for their beliefs. As I have argued repeatedly, even under that standard, the mandate does not pass muster. Unfortunately for Obama, the RFRA actually imposes a duty on the government that was not met in this case.

That means that, not only is the mandate unconstitutional, it is actually illegal under federal law.

Isn't Obama supposed to be a law professor? Doesn't he have lawyers working for him? Does he honestly think no one would notice this?

That case limited the protections available under the First Amendment’s guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test. The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may “substantially burden” a person’s “exercise of religion” only if it demonstrates that application of the burden to the person “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.
The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal.

Rivkin and Whelan: Birth-Control Mandate—Unconstitutional and Illegal - WSJ.com

 

[GuyPinestra]

An excellent article, and spot on in it's clarity. I'm guessing this will shoot a great big hole in this mandate, and at the same time pull back the curtain on a Constitution-violating, power-hungry, soon-to-be EX-President!

 

[Avatar4321]

Only one problem. Excluding Constitutional law, all Federal law is equal. Which means the latest rules take precedence over the previous rules. It may have been illegal under the 1993 law, but when they passed new legislation the new legislation takes precedence over earlier contradictions.

 

[Quantum Windbag]

Only one problem. Excluding Constitutional law, all Federal law is equal. Which means the latest rules take precedence over the previous rules. It may have been illegal under the 1993 law, but when they passed new legislation the new legislation takes precedence over earlier contradictions.

Was there something in the PPACA I missed that talked about religion?

 

[oreo]

I wonder if Nancy and Reid remember the law that they helped pass back in 1993. The Supreme Court was essentially erasing the 1st Amendment by establishing a rule that the government could do anything, even build a road through Indian tribes sacred land, as long as the law generally applied to everyone, unless the petitioner could prove the government was actually coercing or punishing them for their beliefs. As I have argued repeatedly, even under that standard, the mandate does not pass muster. Unfortunately for Obama, the RFRA actually imposes a duty on the government that was not met in this case.

That means that, not only is the mandate unconstitutional, it is actually illegal under federal law.

Isn't Obama supposed to be a law professor? Doesn't he have lawyers working for him? Does he honestly think no one would notice this?

That case limited the protections available under the First Amendment’s guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test. The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may “substantially burden” a person’s “exercise of religion” only if it demonstrates that application of the burden to the person “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.
The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal.

Rivkin and Whelan: Birth-Control Mandate—Unconstitutional and Illegal - WSJ.com

Well we have a GOP candidate right now in Rick Santorum--stating that States have the right to ban birth control devices--when it was also slapped down in a U.S. Supreme court decision in 1965.

Griswold V. Connecticut: Birth Control and the Constitutional Right of Privacy.

 

[The T]

I wonder if Nancy and Reid remember the law that they helped pass back in 1993. The Supreme Court was essentially erasing the 1st Amendment by establishing a rule that the government could do anything, even build a road through Indian tribes sacred land, as long as the law generally applied to everyone, unless the petitioner could prove the government was actually coercing or punishing them for their beliefs. As I have argued repeatedly, even under that standard, the mandate does not pass muster. Unfortunately for Obama, the RFRA actually imposes a duty on the government that was not met in this case.

That means that, not only is the mandate unconstitutional, it is actually illegal under federal law.

Isn't Obama supposed to be a law professor? Doesn't he have lawyers working for him? Does he honestly think no one would notice this?

That case limited the protections available under the First Amendment’s guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test. The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may “substantially burden” a person’s “exercise of religion” only if it demonstrates that application of the burden to the person “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.
The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal.

Rivkin and Whelan: Birth-Control Mandate—Unconstitutional and Illegal - WSJ.com

Well we have a GOP candidate right now in Rick Santorum--stating that States have the right to ban birth control devices--when it was also slapped down in a U.S. Supreme court decision in 1965.

Griswold V. Connecticut: Birth Control and the Constitutional Right of Privacy.

There you go with SANTORUM again...


Son? Get over it.

DON'T vote for him...Jesus Christ.

 

[ladyliberal]

Only one problem. Excluding Constitutional law, all Federal law is equal. Which means the latest rules take precedence over the previous rules. It may have been illegal under the 1993 law, but when they passed new legislation the new legislation takes precedence over earlier contradictions.

Was there something in the PPACA I missed that talked about religion?

It's not necessary for a new law to specifically note all the ways it supersedes old laws. Assuming that federal agencies are implementing PPACA provisions, I don't believe they need to worry about prior laws that would have limited them pre-PPACA.

The WSJ article amounts to a spectacularly poor legal argument, and one that the authors don't even claim would prevail in court. However, it is interesting for another reason. The authors argue that the federal government could provide contraceptives free to every American rather than require insurers to pay for them. In other words, the authors-- one of whom challenged PPACA in court-- are arguing not for a public option, not for single-payer, but for an actual government-run healthcare program, and one in a politically contentious area.

 

[Quantum Windbag]

I wonder if Nancy and Reid remember the law that they helped pass back in 1993. The Supreme Court was essentially erasing the 1st Amendment by establishing a rule that the government could do anything, even build a road through Indian tribes sacred land, as long as the law generally applied to everyone, unless the petitioner could prove the government was actually coercing or punishing them for their beliefs. As I have argued repeatedly, even under that standard, the mandate does not pass muster. Unfortunately for Obama, the RFRA actually imposes a duty on the government that was not met in this case.

That means that, not only is the mandate unconstitutional, it is actually illegal under federal law.

Isn't Obama supposed to be a law professor? Doesn't he have lawyers working for him? Does he honestly think no one would notice this?

That case limited the protections available under the First Amendment’s guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test. The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may “substantially burden” a person’s “exercise of religion” only if it demonstrates that application of the burden to the person “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.
The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal.

Rivkin and Whelan: Birth-Control Mandate—Unconstitutional and Illegal - WSJ.com

Well we have a GOP candidate right now in Rick Santorum--stating that States have the right to ban birth control devices--when it was also slapped down in a U.S. Supreme court decision in 1965.

Griswold V. Connecticut: Birth Control and the Constitutional Right of Privacy.

Want me to point out the Democrats on this board that support sterilization of people to avoid expensive pregnancies?

By the way, when did Santorum actually say states should be able to ban birth control?

 

[The T]

I wonder if Nancy and Reid remember the law that they helped pass back in 1993. The Supreme Court was essentially erasing the 1st Amendment by establishing a rule that the government could do anything, even build a road through Indian tribes sacred land, as long as the law generally applied to everyone, unless the petitioner could prove the government was actually coercing or punishing them for their beliefs. As I have argued repeatedly, even under that standard, the mandate does not pass muster. Unfortunately for Obama, the RFRA actually imposes a duty on the government that was not met in this case.

That means that, not only is the mandate unconstitutional, it is actually illegal under federal law.

Isn't Obama supposed to be a law professor? Doesn't he have lawyers working for him? Does he honestly think no one would notice this?


Rivkin and Whelan: Birth-Control Mandate—Unconstitutional and Illegal - WSJ.com

Well we have a GOP candidate right now in Rick Santorum--stating that States have the right to ban birth control devices--when it was also slapped down in a U.S. Supreme court decision in 1965.

Griswold V. Connecticut: Birth Control and the Constitutional Right of Privacy.

Want me to point out the Democrats on this board that support sterilization of people to avoid expensive pregnancies?

By the way, when did Santorum actually say states should be able to ban birth control?

He didn't. Oreo is under some dillusion that he did...

 

[Quantum Windbag]

Only one problem. Excluding Constitutional law, all Federal law is equal. Which means the latest rules take precedence over the previous rules. It may have been illegal under the 1993 law, but when they passed new legislation the new legislation takes precedence over earlier contradictions.

Was there something in the PPACA I missed that talked about religion?

It's not necessary for a new law to specifically note all the ways it supersedes old laws. Assuming that federal agencies are implementing PPACA provisions, I don't believe they need to worry about prior laws that would have limited them pre-PPACA.

The WSJ article amounts to a spectacularly poor legal argument, and one that the authors don't even claim would prevail in court. However, it is interesting for another reason. The authors argue that the federal government could provide contraceptives free to every American rather than require insurers to pay for them. In other words, the authors-- one of whom challenged PPACA in court-- are arguing not for a public option, not for single-payer, but for an actual government-run healthcare program, and one in a politically contentious area.

If we assume that the RFRA does not apply simply because it is old does that mean we can ignore the PPACA in 9 years? If not, how does your argument actually make sense?

By the way, the author is pointing out that the government could do something that, if it did, would be less restrictive of religious liberty. In other words, that is a less restrictive option that is available because the Supreme Court has repeatedly ruled that taxes are levied to fund the government, and no one can dispute how taxes are spent once they are collected. That alternative would be constitutional, legal, and, while controversial to a few extremists, would take people like me out of the argument because we understand the difference between government sector spending and private sector spending.

 

[ladyliberal]

Was there something in the PPACA I missed that talked about religion?

It's not necessary for a new law to specifically note all the ways it supersedes old laws. Assuming that federal agencies are implementing PPACA provisions, I don't believe they need to worry about prior laws that would have limited them pre-PPACA.

The WSJ article amounts to a spectacularly poor legal argument, and one that the authors don't even claim would prevail in court. However, it is interesting for another reason. The authors argue that the federal government could provide contraceptives free to every American rather than require insurers to pay for them. In other words, the authors-- one of whom challenged PPACA in court-- are arguing not for a public option, not for single-payer, but for an actual government-run healthcare program, and one in a politically contentious area.

If we assume that the RFRA does not apply simply because it is old does that mean we can ignore the PPACA in 9 years? If not, how does your argument actually make sense?

By the way, the author is pointing out that the government could do something that, if it did, would be less restrictive of religious liberty. In other words, that is a less restrictive option that is available because the Supreme Court has repeatedly ruled that taxes are levied to fund the government, and no one can dispute how taxes are spent once they are collected. That alternative would be constitutional, legal, and, while controversial to a few extremists, would take people like me out of the argument because we understand the difference between government sector spending and private sector spending.

No one is saying that the RFRA act is inoperative simply because it is old. If a new law supersedes the PPACA then the PPACA will not be operational, either in whole or in part. If nine years pass without a new law in the relevant area then the PPACA will still be the law.

It's true that the authors don't advocate the contraception program as good policy, except insofar as they describe it as less burdensome. However, Rivkin's position here seems directly at odds with others he has taken. Writing again in the WSJ, he wrote (Is government health care constitutional?

This type of “burden” analysis will be especially problematic for a national health system because, in the health area, proper care often depends upon an individual’s unique physical and even genetic history and characteristics. One size clearly does not fit all, but that is the very essence of governmental regulation — to impose a regularity (if not uniformity) in the application of governmental power and the dispersal of its largess. Taking key decisions away from patient and physician, or otherwise limiting their available choices, will render any new system constitutionally vulnerable.

In other words, once the government begins to provide health care (which it did long ago, even though Rivkin seems loath to admit it) it necessarily creates undue burdens and violates the constitution. For example, if the government provides birth control pills but not condoms (or some more esoteric device), then it is placing an "undue burden" on people who want to use condoms. Rivkin's argument there was completely at odds with his position that the federal government could provide free contraceptives to everyone. [For the record, I don't buy Rivkin's argument at all, my point is merely that his arguments are inconsistent.]

Rivkin's theory rests on this: it is a violation of religious liberty to require religious institutions to pay for certain treatments indirectly by forcing insurers that those institutions may then do business with to cover those treatments. Instead, the government must spend tax money to cover those same services. However, this puts the conscientious objectors in exactly the same position: that of funding the health care indirectly, through their tax monies (religious individuals pay income taxes, and church-owned businesses are not uniformly tax-exempt).

Rivkin's theory also rests separately on this: that the insurance mandate cannot be in furtherance of a compelling government because it could be avoided in theory. In particular, an expensive new program of providing contraceptives for free through the government (current programs cannot meet the demand without private insurers) would achieve the same effect. To say that there is no compelling interest when an expensive new federal program could achieve the same effect is essentially to say that there is never a compelling interest. One could say for instance the federal government has no compelling interest in regulating state and local educational programs, since the federal government could just create a federal school system and run it as it sees fit.

I find your unsupported claim that a comprehensive government program to provide reproductive services would be less controversial than the current situation to be extremely unlikely. In order to meet the services that private insurers currently cover and to which religious organizations object, the federal government would have to provide millions of free abortions. Even if we restrict our discussion to contraceptives, I would still expect such a program to be quite unpopular.

As to where Santorum says that states have a right to ban contraceptives: Santorum: States Should Have The Right To Outlaw Birth Control | ThinkProgress.

 

[Quantum Windbag]

It's not necessary for a new law to specifically note all the ways it supersedes old laws. Assuming that federal agencies are implementing PPACA provisions, I don't believe they need to worry about prior laws that would have limited them pre-PPACA.

The WSJ article amounts to a spectacularly poor legal argument, and one that the authors don't even claim would prevail in court. However, it is interesting for another reason. The authors argue that the federal government could provide contraceptives free to every American rather than require insurers to pay for them. In other words, the authors-- one of whom challenged PPACA in court-- are arguing not for a public option, not for single-payer, but for an actual government-run healthcare program, and one in a politically contentious area.

If we assume that the RFRA does not apply simply because it is old does that mean we can ignore the PPACA in 9 years? If not, how does your argument actually make sense?

By the way, the author is pointing out that the government could do something that, if it did, would be less restrictive of religious liberty. In other words, that is a less restrictive option that is available because the Supreme Court has repeatedly ruled that taxes are levied to fund the government, and no one can dispute how taxes are spent once they are collected. That alternative would be constitutional, legal, and, while controversial to a few extremists, would take people like me out of the argument because we understand the difference between government sector spending and private sector spending.

No one is saying that the RFRA act is inoperative simply because it is old. If a new law supersedes the PPACA then the PPACA will not be operational, either in whole or in part. If nine years pass without a new law in the relevant area then the PPACA will still be the law.

It's true that the authors don't advocate the contraception program as good policy, except insofar as they describe it as less burdensome. However, Rivkin's position here seems directly at odds with others he has taken. Writing again in the WSJ, he wrote (Is government health care constitutional?

This type of “burden” analysis will be especially problematic for a national health system because, in the health area, proper care often depends upon an individual’s unique physical and even genetic history and characteristics. One size clearly does not fit all, but that is the very essence of governmental regulation — to impose a regularity (if not uniformity) in the application of governmental power and the dispersal of its largess. Taking key decisions away from patient and physician, or otherwise limiting their available choices, will render any new system constitutionally vulnerable.

In other words, once the government begins to provide health care (which it did long ago, even though Rivkin seems loath to admit it) it necessarily creates undue burdens and violates the constitution. For example, if the government provides birth control pills but not condoms (or some more esoteric device), then it is placing an "undue burden" on people who want to use condoms. Rivkin's argument there was completely at odds with his position that the federal government could provide free contraceptives to everyone. [For the record, I don't buy Rivkin's argument at all, my point is merely that his arguments are inconsistent.]

Rivkin's theory rests on this: it is a violation of religious liberty to require religious institutions to pay for certain treatments indirectly by forcing insurers that those institutions may then do business with to cover those treatments. Instead, the government must spend tax money to cover those same services. However, this puts the conscientious objectors in exactly the same position: that of funding the health care indirectly, through their tax monies (religious individuals pay income taxes, and church-owned businesses are not uniformly tax-exempt).

Rivkin's theory also rests separately on this: that the insurance mandate cannot be in furtherance of a compelling government because it could be avoided in theory. In particular, an expensive new program of providing contraceptives for free through the government (current programs cannot meet the demand without private insurers) would achieve the same effect. To say that there is no compelling interest when an expensive new federal program could achieve the same effect is essentially to say that there is never a compelling interest. One could say for instance the federal government has no compelling interest in regulating state and local educational programs, since the federal government could just create a federal school system and run it as it sees fit.

I find your unsupported claim that a comprehensive government program to provide reproductive services would be less controversial than the current situation to be extremely unlikely. In order to meet the services that private insurers currently cover and to which religious organizations object, the federal government would have to provide millions of free abortions. Even if we restrict our discussion to contraceptives, I would still expect such a program to be quite unpopular.

As to where Santorum says that states have a right to ban contraceptives: Santorum: States Should Have The Right To Outlaw Birth Control | ThinkProgress.

He's a lawyer, expecting consistency is like expecting rdean to turn Republican.

Sorry.

You seem to think that, when he argues that there is a less burdensome way for the government to do something it is trying to do, he has to stick with the same arguments he is using to argue that what the government is doing is burdensome. Not sure why you would think that, or why anyone should be stuck with that standard. I have repeatedly argued that the PPACA is an over reach, and that the mandate itself is unconstitutional. I would argue vehemently against the government setting up a Medicare for all program, and point out that it would be fiscally ruinous if we did. I would, however, argue that it is actually preferable to what actually came out of Congress, and, if forced to chose between the two, would argue in favor of the Medicare for all, as long as was limited to basic coverage, did not try to cover every possible ailment, and people could purchase additional coverage through insurance or paying for it directly. I don't see that as being inconsistent, I see it as being pragmatic and willing to compromise.

By the way, abortions are not a contraceptive service, despite what pro abortion advocates argue. The government would not need to provide abortions if it decided to provide birth control.