Today’s the day that ObamaCare mandates provision of certain medical services.
Or, as U.S. Rep. James Sensenbrenner, R-Wisc., put it in a Fox News column…
“The Affordable Care Act empowers the government to bully, tax and threaten every American, regardless of their religious or moral convictions, to fall in line with the Health and Human Services mandate.”
The HHS mandate that health insurance plans cover contraceptives, sterilization and so-called “morning-after pills” has gotten a lot of attention because, opponents say, it violates the free exercise of religion. But it’s also a textbook example of how such an attack on religious freedom is enforced through an attack on property rights.
I recently interviewed Michael Norton, attorney for the Alliance Defending Freedom (formerly the Alliance Defense Fund), which is representing Denver-based Hercules Industries and its owners, the Newland family.
In filing suit in federal court against the HHS mandate, the plaintiffs argued that it didn’t meet the strict scrutiny standard required by the 1993 Religious Freedom Restoration Act.
On Friday, District Court Judge John Kane issued a temporary injunction against the mandate where Hercules is concerned, pending a full hearing within 90 days.
“Although Hercules is a for-profit, secular employer, the Newlands adhere to the Catholic denomination of the Christian faith. According to the Newlands, ‘they seek to run Hercules in a manner that reflects their sincerely held religious beliefs,’ read part of the court order.
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“Significantly, because the Catholic church condemns the use of contraception, Hercules self-insured plan does not cover abortifacent drugs, contraception, or sterilization.”
One of the aspects of strict scrutiny is that the government must use the “least restrictive means” to achieve its ends. But with federal and private programs providing free access to the services in question, the penalties were clearly punitive, designed not to cover the cost of those services, but to punish the company for refusing to cover them. Here’s what Norton [see video above] said about that…
“The fact is, that the fines and penalties that the HHS mandate would impose on Hercules, were it to elect not to comply with the mandate – were obliged to comply, and elect not to comply – are crippling. It’s been calculated by a couple of different sources that the fines in the case of Hercules Industries would be $9.6 million per year, a huge taking of the value, the worth and the equity of the company; probably putting it out of business, quite frankly, if it were to have to comply with, if it were have to pay those kinds of penalties in lieu of providing – against their conscience – insurance coverage that HHS mandate requires.”
The fines are estimated for a company of roughly 265 employees, penalized $100 per employee per day.
Fines and penalties typically serve the purpose of covering the cost of non-compliance, perhaps with some punitive component thrown in for good measure. But rarely, if ever, do we think of the government as threatening to kill businesses in order to achieve ends not related to the business itself. This rule by the government potentially creates a far more menacing relationship between the federal bureaucracy and its citizens.
