Former Bush Aides: Obama Mandate Illegal

Wednesday, 15 Feb 2012 12:17 PM

By Richard Wagner

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The Obama administration's revision of its birth-control mandate is unconstitutional and illegal on several fronts, former Justice Department officials David B. Rivkin Jr. and Edward Whelan say in an op-ed column published today in The Wall Street Journal.

Chief among these are violations of the First Amendment's guarantee of "free exercise" of religion and the Religious Freedom Restoration Act,  signed into law by President Bill Clinton in 1993. The act targeted any government interpretation of the First Amendment that might "substantially burden" a person's exercise of religion without demonstrating that the government's action furthers a "compelling interest."

"The law also provides that any later statutory override of its protections must be explicit," Rivkin and Whelan write in the Journal. "But there is nothing in the Obamacare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal."

The administration, in announcing its revision Friday, said that insurance companies, rather than employers as initially mandated by the Department of Health and Human Services, must provide workers with contraceptives and drugs that induce abortions. Revkin and Whelan write in the Journal that even under the revision, employers would wind up paying for the drugs through higher premiums.

Further, the administration's new mandate is a blatant farce for employers who provide insurance themselves, such as the Archdiocese of Washington, because faith-based insurance companies would pay for the mandate directly, Revkin and Whelan say.

Supreme Court cases support their opinion on the "exercise of religion," the writers say. Two of these are Sherbert v. Verner, 1963, in which a worker refused to work on the Sabbath; and Wisconsin v. Yoder, 1972, in which parents refused to send their teenage children to a public high school.

Instead of marginally increasing access to contraception, the administration's mandate seems driven to punishing religious-based opposition to contraception and abortion. "It is the combination of the political motive, together with the exclusion of so many employers from the mandate, that has profound constitutional implications," they say in the Journal article.

Rivkin served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush and represented 26 states in their court challenge to Obamacare. Whelan served in the Justice Department under President George W. Bush and is president of the Ethics and Public Policy Center.

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