Obamacare: HHS Mandate Redefines Religion, Say Christian Legal Experts

While much of the objection to the Supreme Court's ruling to uphold Obamacare on Thursday included talk about the loss of individual liberty, Christian and conservative legal groups point out that religious freedom is still in jeopardy as well.

Sign held by protester in front of the Supreme Court after the court upheld the individual mandate of the Affordable Care Act, June 28, 2012.
Sign held by protester in front of the Supreme Court after the court upheld the individual mandate of the Affordable Care Act, June 28, 2012. | (Photo: Reuters: Joshua Roberts)

The court's ruling did not address the religious liberty issue regarding the constitutionality of the "HHS mandate," that requires religious employers to pay for contraception, abortifacients and sterilization despite holding religious objections.

"The HHS mandate is the first exception to our national commitment to protect religious conscience in the abortion context – a tradition that has been bipartisan for forty years," explained Kim Colby, senior counsel for the Christian Legal Society's Center for Law and Religious Freedom.

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By adopting, in the HHS mandate, an extremely narrow definition of "religious employer," the Obama administration has unilaterally and unacceptably redefined religion, the Christian Legal Society argued Thursday.

"In the administration's view, religious institutions are only protected if they are entirely inwardly focused. Religious institutions that provide assistance to all persons, regardless of religion or creed, are penalized," the legal group continued. "Churches and charities that ease government's burden by providing food, shelter, education, and health care for society's most vulnerable lose their conscience rights because they are too inclusive."

Colby insisted, "It is wrong for the government to penalize religious groups because they help persons regardless of their religious traditions."

Jennifer Marshall, who is the director of Domestic Policy Studies at The Heritage Foundation, along with Sarah Torre, wrote in The Foundry on Thursday: "This morning, the Supreme Court didn't just miss the opportunity to protect individual liberty. It also failed to defend religious freedom."

Marshall and Torre say that nothing short of a full repeal of the statute will adequately protect individual freedoms from this "federal overreach."

"The HHS anti-conscience mandate is a completely separate rule from the individual mandate, and its constitutionality was not considered by the Supreme Court in the cases decided today," they state in The Foundry article.

"Never in history has there been a mandate forcing individuals to violate their deeply held religious beliefs or pay a severe fine, a fine which could force many homeless shelters, charities, and religious institutions to shut their doors," stated the Becket Fund for Religious Liberty's Senior Legal Counsel Hannah Smith, as quoted in the column.

Many Christian leaders across the nation are responding to the Supreme Court's ruling by suggesting that the decision to uphold the law's insurance mandate could pose grave consequences for American families.

Family Research Council President Tony Perkins warned, "Today's Supreme Court decision will do serious harm to American families. Not only is the individual mandate a profound attack on our liberties, but it is only one section among hundreds of provisions in the law that will force taxpayers to fund abortions, violate their conscience rights, and impose a massive tax and debt burden on American families."

For many employers, the HHS mandate begins to take effect in five weeks on Aug. 1. "An increased sense of urgency now fuels religious liberty groups' challenge to the constitutionality of the HHS mandate," said lawyers for the Christian Legal Society, a nationwide association of Christian attorneys, law students, and law professors.

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