On Friday, President Obama proposed a "compromise" to last year's Contraception Mandate that would expand that mandate's religious exemption to include religious-affiliated organizations.
Previously, only those employers who met a four-pronged test (including a requirement that the organization primarily serve persons who share its religious beliefs) were exempted from the mandate, meaning that Catholic hospitals, Baptist colleges, and church-affiliated soup kitchens would be required to pay for, albeit indirectly, contraception and sterilization services.
I applaud President Obama for recognizing the burden last year's mandate placed on the free exercise of religion and for amending his religious exemption accordingly. However, he did not go far enough.
The history and judicial interpretation of the First Amendment's Free Exercise Clause demonstrate that government must allow a citizen's conscience to guide his or her actions (both proscriptively and prescriptively) until a compelling government interest demands the infringement of that right of religious free exercise, and even then the burden on free exercise must be as least restrictive as possible. (See the Supreme Court's decisions in Wisconsin v. Yoder and Sherbert v. Verner as well as Justice O'Conner's dissent in Boerne v. Flores.)
Through the Religious Freedom Restoration Act of 1993, Congress required the federal government to uphold this level of protection, and thus it binds actions by the U.S. Department of Health and Human Services and President Obama
Requiring citizens (via their business) to either purchase contraception in violation of their religious beliefs or pay a penalty burdens the free exercise of religion. This burden is not exclusive to certain occupations since the issue is not vocation, but religion. Thus, a religious exemption that does not include private employers (such as Hobby Lobby) does not eliminate the mandate's burden on free exercise.
Since a burden on religion clearly exists, the question remains as to whether a compelling government interest overbalances the burden. It does not. A larger insurance pool hardly seems to be a government "interest of the highest order," and the mandate is not the least restrictive means since access to contraception and sterilization could be provided through alternate channels. Thus, the mandate still violates the Free Exercise Clause.
President Obama must recognize that religion holds a claim to the obedience of individuals regardless of their occupation. While the wisdom of the mandate in question is debatable, its effect on religion is not.
Obama already recognizes this fact (as evidenced by his religious exemption), but he does not protect religious beliefs equally. Just as the Continental Congress granted religious exemptions from conscription, the White House must expand his religious exemption to include all persons with religious objections to contraception and sterilization. The burden on religion is too great, and the government interest is too small, to allow anything less.
Some will claim that women will have reduced access to healthcare if the exemption is expanded. However, this will not affect access to contraceptive and sterilization services, and the mandate would remain in place for all those without religious objection.
Eighty-nine percent of insurance plans already cover contraception and sterilization, and Health and Human Service's Title X Program would provide access to those unable to pay the estimated $15-$50 per month. Thus, the straw-man argument that predicts reduced health care access must be rejected along with the burden on free exercise of religion.
President Obama must ignore fallacious arguments that seek to sensationalize the effect of widening the religious exemption. Instead, he must maintain constitutional fidelity by allowing individuals to follow their consciences without government repercussions.
The Free Exercise Clause protects the right of people to act upon their religious beliefs, and an analysis of the contraception mandate (even with the recently expanded exemption) finds it in direct opposition to the First Amendment.
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