From Chris Woodward and Charlie Butts’ column on OneNewsNow:
An attorney is clearing up what he calls “misconceptions” about the Obama administration’s mandate on all employers, including those of religious schools and hospitals, to provide free birth-control coverage for workers.
For one thing, Hans Bader of the Competitive Enterprise Institute (CEI) says it is not true that states in general already require coverage for contraceptives and abortifacients. “Many states don’t purport to regulate in this area at all,” he explains. “And in other states, even though they have things dealing with contraceptives, you can just avoid those rules by self-insuring, or dropping coverage, or by opting for regulation under a federal law, ERISA (the Employee Retirement Income Security Act), that preempts state law in the area of employee benefits.”
He writes in his blog that the Department of Health and Human Services “chose the narrowest state-level religious exemption as the model for its own. That exemption was drafted by the ACLU and exists in only three states (New York, California, Oregon).”
And Bader adds that it is not true that the Obama administration’s rule must be legal because it is supposedly modeled after the insurance rules of states like California.
“The federal government is under tougher limits than the states,” he points out. “The federal government is subject to something called the Religious Freedom Restoration Act (RFRA). It restricts federal regulators, but it does not restrict states.”
And the CEI senior attorney says the mandate likely violates the First Amendment’s Free Exercise Clause, as many secular employers are exempt from offering contraceptives and abortifacients due to a grandfather clause in the new healthcare law. Since the law contains the exemption for secular entities, Bader submits that it should include the same for religious ones.