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Revised Birth Control Mandate Still Unconstitutional


Published: Wednesday, February 15, 2012

Updated: Wednesday, February 15, 2012 01:02


Zbigniew Bzdak/MCT Campus

President Obama and Secretary Sebelius announced an exemption for religious institutions from providing birth control.

Recently, under pressure from the Roman Catholic bishops, Kathleen Sebelius and the Department of Health and Human Services (HHS) revised, in part, the mandate stating that women have the "right to preventive care" as part of their healthcare plan from their employer.  Religious organizations and the Catholic Church itself were made explicitly exempt from this requirement.  However, this exemption is still not consistent with the provisions of the Constitution.

The First Amendment states that Congress "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  HHS acknowledges that Catholics are guaranteed the establishment of their religion; however, the free exercise of all Catholics is not respected by this simple exemption.

The exemption does not include companies and organizations owned by practicing Catholics.  They will still be forced to provide birth control, which is against their religion. Catholicism includes moral and ethical components that teach against contraceptives and birth control.  These are not recommendations or requests; but critical tenets of the Church's teaching that "every action which, whether in anticipation of the conjugal act or in its accomplishment,… proposes to render procreation impossible…is intrinsically evil" (Catechism of the Catholic Church). Under the HHS mandate, Catholic business owners cannot practice their religion freely, as they are mandated by the government to break a teaching of their religion.

Women's health, of course, should not be disregarded in this analysis.  People can choose to practice different aspects of their religion; however, the government should not infringe upon this right to choose.  Perhaps the government could provide another outlet for women to receive birth control or other contraceptives.  A government provision like this would allow for a choice by Catholic business owners as whether or not to offer birth control or contraceptives.

The absolutist nature of the mandate also prevents religious business owners from providing birth control to employees when it is used for a legitimate medical concern.  Perhaps, if the mandate only required birth control coverage when such a medical condition was involved, more businesses would choose to provide it.

Nevertheless, the free exercise of religion cannot be steamrolled and disregarded by the government.  People, including business owners, must be guaranteed the choice of how to exercise their religion.  This choice might favor birth control if the government allowed businesses to choose to only provide birth control for medical reasons.  Ultimately, however, the government must respect the provisions of First Amendment.

Ricky Bordelon, FCRH ‘15, is a political science major from New Orleans, La. 

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