Conservatives have watched the left’s reaction to its opposition to Obamacare’s anti-conscience mandate with nervous amusement. In the words of one commentator, “the GOP is boldly marching backwards into the 1960s.”
The amusement stems from the fact that, far from a 50-year retrogression, the elimination of that mandate, which forces employers to provide free access to contraception and abortion-inducing drugs even if it violates their own religious beliefs, would bring the country all the way back to … 2011.
Before the Department of Health and Human Services drafted its rule, this anti-conscience requirement didn’t exist. Eliminating it would bring the country back by a matter of weeks, not decades.
Until last month, the notion that organizations and employers shouldn’t be forced to pay for things that directly contradict their religious teachings was not a controversial one. Indeed, some of the same people deriding Republicans for their supposed antipathy to “women’s rights” have supported measures that are strikingly similar to today’s GOP position.
Take Sen. Chuck Schumer. The New York Democrat took to the Senate floor to accuse “some on the hard right” of “cutting off women’s access to certain forms of contraception” – or trying to, at least.
The legislative formulation of that “hard right” position is an amendment from Sen. Roy Blunt (R-Mo.) that would prohibit the federal government from forcing religious institutions to pay for services to which they have moral and religious objections. The amendment states:
Nothing in this title (or any amendment made by this title) shall be construed to require an individual or institutional health care provider, or authorize a health plan to require a provider, to provide, participate in, or refer for a specific item or service contrary to the provider’s religious beliefs or moral convictions.
This was the position that Schumer equated to “cutting off women’s access to certain forms of contraception.”
Leave aside for a moment the fallacious nature of the claim that not forcing others to pay for something is the same as denying access to that thing. Never mind the unprecedented availability of contraception in contemporary America.
Look instead at the language of a conscience protection measure that Schumer himself has offered. In his Religious Freedom Restoration Act, introduced in 1993 and passed by a voice vote.
1. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, [unless it demonstrates that such burden]
(1) is in furtherance of a compelling governmental interest; and
(2) Is the least restrictive means of furthering that governmental interest?
Now, it may be Schumer’s opinion that the government does have a compelling interest in providing free contraception. But is the cudgel of a federal mandate really the least restrictive means to do so? That’s for a court to decide.
The point is that Schumer felt it was appropriate to protect religious freedom from federal encroachment. He now deems similar efforts a campaign to undermine the sorts of “rule[s] of general applicability” mentioned in his RFRA.
Plenty of Schumer’s Democratic colleagues also deemed religious freedom worthy of protection from an overweening federal government. The health care proposal crafted by President Bill Clinton contained language nearly identical to the Blunt amendment:
Nothing in this title shall be construed to … prevent any employer from contributing to the purchase of a standard benefits package which excludes coverage of abortion or other services, if the employer objects to such services on the basis of a religious belief or moral conviction.
Replace abortion with contraception, and the effect of that language is virtually the same as that of Blunt’s amendment. The key point, though, is not the mandated practice from which religious groups are exempted, but the fact that both Republicans and Democrats have agreed that religious organizations should be exempted from mandates on practices to which they have a moral objection.
That point was not controversial until recently. With much of Congress apparently shifting to the left on the issue, efforts to restrain an overreaching executive from violating the First Amendment’s conscience protections requires the president’s defenders to vehemently criticize positions they themselves have held.
