WASHINGTON — Sen. Marco Rubio, R-Fla., has offered a remedy to the ongoing controversy over a government insurance mandate that encroaches religious liberty.
Rubio on Jan. 31 introduced the Religious Freedom Restoration Act of 2012, marking the GOP’s first legislative response to the Obama administration’s regulation requiring coverage of contraception and sterilization for all private employer health plans.
The bill is designed to repeal the narrow religious exemption included in the federal rule. Approved on Jan. 20, the mandate, from the U.S. Department of Health and Human Services, has since been denounced by Cardinal-designate Timothy Dolan of New York, president of the U.S. Conference of Catholic Bishops, and more than 100 bishops throughout the nation.
In a statement released Jan. 31 marking his sponsorship of the legislation, Rubio described the contraception mandate as a violation of “the conscience rights and religious liberties of our people.”
“Under this president, we have a government that has grown too big, too costly and now even more overbearing by forcing religious entities to abandon their beliefs. This is a commonsense bill that simply says the government can’t force religious organizations to abandon the fundamental tenets of their faith because the government says so,” the freshman senator said.
Initial response to the bill from the bishops’ conference was favorable. Bishop William Lori, chairman of the USCCB Ad Hoc Committee on Religious Liberty, said he “welcomed” Rubio’s bill.
“It would address the immediate threat caused by the HHS ruling,” Bishop Lori said in a telephone interview Jan. 31. “I do hope it will find broad bipartisan support and make its way to President Obama’s desk.”
Bishop Lori added that he also supported the Respect for Rights of Conscience Act, introduced by Rep. Jeff Fortenberry, R-Neb. He noted that in January he and Cardinal-designate Dolan sent a sample letter to bishops that could be read by pastors in their dioceses. “We gave them an opportunity to contact their representatives for remedies,” Bishop Lori said. “The Fortenberry bill and the Rubio bill are the kinds of legislation that should be broadly supported by many Americans.”
Reflecting on the scope of the challenge posed by the HHS contraception mandate, Bishop Lori reported that “two types of remedies — litigation and legislation — are being studied intensely at this time” by the bishops’ conference.
Speaking to the Register Jan. 31, Richard Doerflinger, the associate director of the Secretariat of Pro-Life Activities for the USCCB, said that the conference was still “studying” the new bill.
“We first saw the bill introduced by Senator Rubio today,” said Doerflinger, the USCCB’s chief lobbyist on life issues. “Our present focus regarding the HHS ‘preventive services’ mandate is the Respect for Rights of Conscience Act (H.R. 1179, S. 1467), which has over 135 co-sponsors in Congress [including Rubio] and would ensure that no coverage mandate in the new health-care reform act is used to violate conscience.”
“The Rubio bill relates only to religious objections to contraception and sterilization, and so would not address other problematic mandates issued under this act or any objection based solely on moral grounds. At present, our efforts to advance the Respect for Rights of Conscience Act are continuing and growing,” said Doerflinger.
Also welcoming the Rubio bill was the National Catholic Bioethics Center. “Requiring others to provide and pay for insurance for these contraceptive and abortifacient medications and procedures, while charging no co-pay for them, is an unprecedented violation of religious liberty and conscience and must be vigorously opposed. The National Catholic Bioethics Center joins with all persons committed to the principle of liberty, upon which this country was founded, in welcoming the introduction of the Religious Freedom Restoration Act of 2012,” said Marie Hilliard, director of bioethics and public policy for the National Catholic Bioethics Center.
The Becket Fund for Religious Liberty, which is representing Belmont Abbey College in its legal challenge to the HHS rule, also applauded the bill, noting that it “establishes a firm religious exemption in the insurance requirements imposed by the Affordable Care Act, rather than leaving it to the discretion of government bureaucrats.”
‘Fickle’ Courts a Problem
Ed Whelan, a legal scholar who blogs for Bench Memos at National Review Online, contended that the HHS rule already “violates the existing Religious Freedom Restoration Act, so I don’t see any need for a new law. But perhaps Senator Rubio’s bill will help focus attention on how remarkably hostile the Obama administration is to basic principles of religious liberty.”
Thomas Farr, the director of the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace and World Affairs, acknowledged that a number of legal scholars share Whelan’s judgment that the contraception mandate is already in violation of the “existing Religious Freedom Restoration Act. If these views are correct, the Obama administration’s assault on Catholicism and the religious consciences of millions of Americans will ultimately fail in the courts.”
That said, Farr added, “The courts have been notoriously fickle on religious-liberty issues. While there have been some encouraging decisions recently, such as Hosanna Tabor, those decisions tend to support internal church autonomy, not matters of public policy.”
“It is the fickleness of the courts, as well as the anti-Catholic hostility of the Obama administration, that makes Senator Rubio’s Religious Freedom Restoration Act of 2012 so important. It deserves the support of Catholics and other religious groups who share their concerns,” stated Farr.
Rubio has been on the short list of possible GOP vice-presidential candidates for the 2012 election. Thus, his leadership role in introducing this legislation signals that it will likely emerge as a critical issue, drawing more swing voters to the Republican ticket.
Asked whether his bill signals that the HHS rule will become an issue for voters, Rubio told the Register, “I think it will emerge as an issue for those who believe in religious freedom.”
He linked the issue to the larger theme of government overreach that has surfaced in recent GOP debates.
“It tells us a lot about the administration’s overreach in all parts of our lives,” he said during a telephone interview, noting his concerns about the new health bill, among other issues.
“I am in favor of repealing the entire health bill,” he added. But he suggested that his “pragmatic” approach was “narrowly tailored” to address the religious-exemption issue and thus might “have a better chance” of passage by the Democrat-controlled Senate.
The senator expressed the hope that his bill would draw additional co-sponsors and bipartisan support.
In his statement Jan. 31, Rubio attacked the “Obama administration’s obsession with forcing mandates on the American people.” The 2010 health-care law mandates a host of services in private health plans.
‘Edict With a Sneer’
The USCCB has yet to publicly confirm its legal response to the federal rule. Experts have raised the possibility that various dioceses may turn to the courts for redress, and litigation options were noted in letters from U.S. bishops released on Jan. 29. But scholars who share the bishops’ outrage suggest that the outcome of a legal challenge is far from certain.
“Given the power of the abortion license in our jurisprudence, and among so many judges, I am not confident that enough Supreme Court justices would in the end allow religious liberty to trump their own policy preferences — i.e., not only to protect and expand the asserted rights of contraception and abortion, but to force dissenters into line,” said Georgetown’s Farr.
The unprecedented nature of the HHS regulation has left some insiders and commentators puzzled by the administration’s motives — given that it already faces an uphill battle to secure another four years in the White House.
“The astounding ambition of this federal precedent will soon be apparent to every religious institution. Obama is claiming the executive authority to determine which missions of believers are religious and which are not — and then to aggressively regulate institutions the government declares to be secular,” said Michael Gerson in a Jan. 31 column for The Washington Post, which has already attacked the federal rule in an editorial.
“The administration’s ultimate motivation is uncertain. Has it adopted a radical secularism out of conviction, or is it cynically appealing to radical secularists? In either case, the war on religion is now formally declared,” Gerson observed, noting that the administration could have accommodated the church request and still have imposed a contraception mandate with little controversy.
“Both radicalism and maliciousness are at work in Obama’s decision — an edict delivered with a sneer. It is the most transparently anti-Catholic maneuver by the federal government since the Blaine Amendment was proposed in 1875 — a measure designed to diminish public tolerance of Romanism, then regarded as foreign, authoritarian and illiberal. Modern liberalism has progressed to the point of adopting the attitudes and methods of 19th-century Republican nativists.”
Joan Frawley Desmond writes from Chevy Chase, Maryland.