In his ruling, Judge Bennett noted that the plaintiffs (i.e., the two universities) had asked that he enjoin enforcement of “‘the Mandate’ — the provision of the Patient Protection and Affordable Care Act of 2010 (ACA) requiring that group health plans and health insurance issuers provide coverage, without cost sharing, for certain female contraceptives.”
Bennett noted that the “plaintiffs are religiously oriented colleges that must offer their employees ACA-compliant health insurance, or face severe penalties. Plaintiffs claim that the Mandate violates the Religious Freedom Restoration Act…. For the reasons discussed below, Plaintiffs’ motion is granted.”
The case pitted the plaintiffs versus “Kathleen Sebelius, in her official capacity as Secretary, United States Department of Health and Human Services, et al.” (Bennett noted the fact that Sebelius announced her resignation as Secretary on April 10 in his ruling: “I recognize that defendant Kathleen Sebelius has resigned as Secretary of the Department of Health and Human Services. Her successor, however, has not yet been confirmed. When the next Secretary is confirmed, I will substitute the successor as a defendant.”)
Expanding on his interpretation of the Religious Freedom Restoration Act (RFRA), Bennett cited the case Harrell v. Donahue: “RFRA ... provides that the Government cannot impose a law that substantially burdens a person’s free exercise of religion unless the Government demonstrates that the law (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (Emphasis added.)
As much as religious conservatives may welcome this ruling, the qualifier noted above — “unless” — is troubling to the strict constructionist’s view of the First Amendment. The amendment in no way qualifies the restriction that Congress may not prohibit the free exercise of religion. It contains no ifs, ands, buts, or unlesses.
Unlike the U.S. Constitution, the constitution of the old communist Soviet Union did provide exceptions to freedom of speech. Article 52 of that constitution read: “Citizens of the USSR are guaranteed freedom of conscience, that is, the right to profess or not to profess any religion, and to conduct religious worship or atheistic propaganda.”
However, the Soviet Constitution took away with one hand what it granted with the other: Article 39: “Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interest of society or the state.”
Article 59: “Citizens’ exercise of their rights and freedoms is inseparable from the performance of their duties and obligations.”
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