The End of the Dream?
By John D. Turner
9 Feb 2012

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” – Amendment I, Constitution of the United States.

On January 20, 2012, Health and Human Service Secretary Kathleen Sebelius announced a new regulation for health insurance companies under the Affordable Health Care Act, aka “Obamacare”. From now on, insurers must include in their policies birth control and other preventative health services (abortion) for women. Additionally, such services are to be made available without charging a co-pay, co-insurance or a deductible; i.e., free of charge.

According to the announcement, "the rule allows certain non-profit religious employers that offer insurance to their employees the choice of whether or not to cover contraceptive services.” On the surface the new regulations sound innocuous enough, other than requiring insurance companies to provide services, some of which are quite expensive, free of charge and on demand. But as various religious organizations began digging through the regulations, “all hell broke loose.”

Further reading revealed that the exemption applies only so long as those groups hire and serve primarily those within their denomination. This means for example, that in order to qualify for the exemption, hospitals run by religious denominations could only serve members of their denomination. Baptists would have to go to Baptist hospitals; Catholics would have to go to Catholic hospitals, etc. If they continue to accept just anyone, then they have to abide by the regulation.

The Catholic Church is protesting vehemently. This regulation would affect not only hospitals, but schools whose enrollment is open to those of all faiths, food banks unless they only let Catholics in, soup kitchens, ditto, and other outreach efforts run by the Catholic Church.

On the floor of the Virginia House of Delegates, Patrick Lane (R-Kanawha), a Catholic, noted that the exemption is so narrow that even the 12 apostles would not qualify for it.

Even if they wanted to, a Catholic hospital could not comply with the exemption. The Emergency Medical Treatment and Active Labor Act mandates that hospitals must provide care to anyone needing emergency healthcare treatment. Title VII of the civil rights act of 1964 mandates that employers cannot discriminate on the basis of race, creed, color, sex, national origin, or religion. This makes it impossible for a Catholic hospital to accept only Catholics for medical services, and also impossible to only hire Catholics as staff.

Many are saying that this violates their Constitutional right to free exercise of religion as established under the First Amendment. The Catholic Church is leading the fight right now, but I expect others to weigh in as well, seeing this as an attack on a fundamental right. Indeed, the president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, the renowned Dr. Richard Land stated today that Christians should be willing to go to jail to fight this ruling.

"We want the law changed, or else we’re going to write our letters from the Nashville jail, just like Dr. King wrote his from the Birmingham jail," Dr. Land said.

The government, for their part, says they are willing to “work with” Catholic universities, hospitals and other church affiliated employers. They are giving them a year’s exemption from the regulation so they can “work something out.” They never intended to “abridge anyone’s religious freedom.”

But they aren’t going to change the regulation either. The churches have a year to submit, transition their institutions to private ownership, or close them down all together. Because if they keep them open, after that one year graciously granted by the Obama administration, like it or not they will come under the regulation.

The current administration, predictably, disagrees with those who say that their constitutional rights to the free exercise of religion are being abridged. (It wasn’t their intent, remember?) They see no constitutional conflict over their actions at all and appear unimpressed with calls for the SCOTUS (Supreme Court of the United States) to rule on the decision.

How can this be? What about the First Amendment?

In all the sound and fury we are all missing something which I believe to be of supreme importance. This is in fact a turning point in the history of our country; if this government action is successful it will mark the transition of the United States from a representative republic with three distinct and separate branches to a totally different form of government. Fundamental change is happening right under our noses. There is more at stake here than just religious liberty. Liberty itself is under the gun.

The First Amendment to the Constitution says “Congress shall make no law…”. And Congress did not. No law was “made” or passed putting this into effect. Congress said nothing. It was HHS Secretary Sebelius, at the direction of the President, Barack Hussain Obama, who spoke. No law was passed; a regulation was made in conjunction with powers granted to the HHS Secretary by the Congress. The enabling legislation was the Affordable Health Care Act, passed by Congress without ever reading the bill. “Too important” to read, remember? “Gotta pass it now.”

So, it appears that the government is technically correct. This regulation has not violated the letter of the Constitution. It may have violated the intent, but that is a different issue. What’s more, the regulation does not prohibit the free exercise of religion. Catholics and others are still free to worship in their houses of worship, or wherever they choose to worship. They are still entitled to have their view on abortion, contraception, gay marriage, and other issues. They are still entitled to choose to not have an abortion or use contraceptive measures.

The regulation does not even say that Catholics hospitals must provide reproductive services; just that they must provide the ability to obtain such services to their employees in their healthcare packages. Catholics can still hold their “peculiar religious viewpoint;” they are just not allowed to have that viewpoint interfere with “right” of every American to contraceptive services. At least this is what the administration will argue.

Where did that “right” come from, you may ask? I don’t see it in my copy of the Constitution. But then again, I am not an “enlightened” Supreme Court Justice with a vision, and totally unqualified, it seems, to gaze into the “penumbras” and “emanations” of other constitutional protections to draw forth from them other “rights” as may be found expedient. The only “penumbras” I have ever seen have to do with an eclipse, and “emanations” to me usually deal with particles or waves. Or smell. Might as well pull “rights” full formed from the entrails of small animals as from the “penumbras” and “emanations” of other constitutional protections.

Be that as it may, you can rest assured that the left hasn’t been calling them “reproductive rights” for decades now for nothing. Words mean things. The term is now engrained in the American mindset. If you say there is no such thing as “reproductive rights”, most people will look at you like you are crazy. It’s like saying there is no such thing in the Constitution as “separation of church and state.” There isn’t, but most people believe there is, and while perception may not be truth, there is truth in the statement that perception is reality.

Rights trump everything by definition. If you have a “right” to something, then that something is inviolate; it is your “right”, your “entitlement”. It is hard work sometimes to establish a “right” to something that doesn’t exist, but once you have, there will be a segment of society that will fight to the death to avoid “losing” it.

Taking “reproductive rights” as an example, your personal “religious opinions” do not trump someone’s “right” to contraceptive devices or abortions.

What we are seeing now is the first step of “working our way around Congress.” It is my contention that with the plethora of laws we have put into place, on top of all the regulatory agencies, czars, other unelected officials, and powers Congress has already granted them, Congress has laid the groundwork for subversion of the Constitution they swore to uphold, and, incidentally, ultimately made Congress itself increasingly superfluous to the running of the country.

Last week, it seems, we picked up a “Video Game Czar!” Who knew we even needed one? And we the tax payers are going to shell out between $150 and $180 thousand per year for the privilege of receiving government guidance and direction on the subject of video games. Congratulations Mr. President! Another job created! Plus her staff of course, and all the regulations and PSAs and what have you. Who knows how much that is going to cost in total.

And what is the “Video Game Czar” going to do for us at the cost of what ultimately will be millions if not billions of dollars? Well, Ms. Steinkuehler, says the job represents “an incredible opportunity to make good on the claim that games have real promise.” Oh jolly. We needed a government bureaucrat for this? Look out videogame industry, here it comes! But I digress.

The HHS Secretary decrees, at the behest of the President, that all health care plans must provide certain services. She gets that power to regulate from a law previously passed by Congress. But now that she has it, Congress has no further role in the process, and can move on to more “pressing” matters. Health care providers must comply; it’s a government regulation. People grumble, lawsuits are filed, but in the end, all is found to be constitutional. (Or at least, found to be not unconstitutional.)

Fast forward. Obamacare is fully implemented. Employers increasingly opt for the government sponsored plan vs. private health care providers, because it is cheaper to do so. As more and more companies opt for the government plan, private plans become even more expensive. Finally, private health care vanishes as predicted. The government option becomes the only option. Time passes: a study comes out.

The study notes that firearms are contributing significantly to the cost of healthcare (which is now provided by the government). Many Americans die or are injured every year in circumstances related to firearms. This is a national health care issue! The HHS Secretary steps into the breach and decrees a new regulation. “While the right to keep and bear arms is a constitutionally protected right pursued by some, all Americans have a “right” to affordable health care. (The needs of the many outweigh the wants of the few.) Since firearm ownership is driving up that cost, from now on, healthcare providers will no longer insure firearm owners. This regulation does not ban firearm ownership; your right to keep and bear arms is not being abridged. However if you do, you and your family will no longer be covered by a government sponsored plan.” And since there are no alternatives, this means you are on your own when it comes to healthcare.

This example is, currently, fictitious, but the parallels are clear. Like with “reproductive rights”, congress has passed no law. The first amendment remains inviolate. You are perfectly free to own a gun, as long as you don’t expect Uncle to pick up the tab for your health care.

Under the current regulation, you are perfectly free to practice your religion as you please; the first amendment remains inviolate. You can worship at church, at home, even at work as long as you keep it in the closet (i.e., in your mind) and don’t bother or inconvenience others with it.

The government doesn’t require churches to run hospitals, schools, or soup kitchens. These are functions they do voluntarily, and which the government or private sector can do as well. Just like when a church runs a for-profit business, they must pay taxes on that business because it is operating outside their tax exempt status, so too, if they are running a “public enterprise” like a hospital or a school that employs people, they are subject to government regulation regarding employees, health care, etc.

Remember, it’s a regulation, not a law. You do have a choice. You can adhere to the regulation, violate the regulation and be subject to financial penalties and perhaps jail, or you can opt to not provide the service. The choice is yours.

And the thing is, the healthcare example which is happening right now, and the fictional example regarding firearms above are just the tip of the spear; because if they can force compliance with these they can do so with ANYTHING. Once they have that lock on healthcare there is no behavior they can’t force by withholding healthcare. And where will the average Joe go then, once they or a member of their family is sick?

One of the hallmarks of President Clinton’s effort at government healthcare (Hillarycare) was that, by law, you could not pay cash for health services. Everything had to go through a government healthcare provider. Doctors were not allowed to accept fee-for-service arrangements. This is typical for socialized healthcare systems worldwide. Competition in any form is not allowed, because the system cannot abide it. Expect once Obamacare is firmly entrenched, for this to be true also.

So where to go? Canada? Canadians have national health care too – and regularly come here to get things treated in a timely fashion. Not likely that Canada will be a healthcare Mecca. Mexico? Really? Imagine thousands of “rich gringos” every year illegally sneaking across the Mexican border seeking better healthcare, and dodging the narco-terrorists on the way. How about Cuba? Michael Moore says they have the best healthcare in the world. Guess what? It’s socialized too.

Is it possible to fix this, to nip it in the bud, at least this time around? Yes, it is possible to reverse the regulation. If church leaders from the top down stand strong and are willing to take the heat; up to and including going to jail (and all indications show, as of now, that they are). If sufficient backing is received from other churches standing strong and unwavering in the face of criticism, both from the administration and other churches. (The Unitarians have already gone on record as seeing nothing wrong with this regulation, but the Baptists seem to be holding strong.) If public opinion is firmly on their side (jury still out on this one), and if sufficient political support can be mustered; if all these things can come together then maybe it will be tabled for now. It is an election year after all.

But if this administration is re-elected for another four years, expect to revisit this issue again, and sooner rather than later. The only way to make it go away is to repeal the enabling legislation; The Affordable Healthcare Act or “Obamacare.” Failure to do so may delay things a bit, but that is all. The Obama administration will not repeal the legislation that bears its name. It will be necessary to elect a Republican administration to do that.

And a Republican House, and a Republican Senate. And pray. A lot. And hard. Because it won’t go away without a fight.