Obama to Face Lawsuit From Attorneys General Over Mandate

National   |   Steven Ertelt   |   Feb 14, 2012   |   5:33PM   |   Washington, DC

More than a dozen state attorneys general have signed onto a joint letter Nebraska Attorney General Jon Bruning started coordinating last week against the controversial Obama mandate requiring religious employers to cover birth control and drugs that can cause abortions.

Bruning has contacted each of his colleagues in 49 states and has already been joined by a dozen, including South Carolina Attorney General Alan Wilson and Texas Attorney General Greg Abbott. Together, the three lawmakers have co-signed a letter to Health and Human Services Secretary Kathleen Sebilius, Treasury Secretary Timothy Geithner, and Labor Secretary Hilda Solis over the Obama mandate.

In the letter (see text below), they promise action in court should “this unconstitutional mandate be promulgated” and say they are “troubled by the unprecedented coercion of organizations and individuals to act contrary to their beliefs.” The attorneys general say the religious exemption is much too narrow to protect churches and religious groups fully and only includes organizations who “primarily employ those who share their religious tenants” and whose primary operational purpose is an “inculcation of religious values.”

They say the mandate represents “an impermissible violation of the Constitution’s First Amendment virtually unparalleled in American history.”

About the letter, Abbott said, ““The more we learn about Obamacare, the more unconstitutional it becomes. This mandate is a stunning trampling of freedom of religion by forcing religious-based hospitals and clinics to act contrary to their religious doctrine. These mandates force religious organizations and hospitals to subsidize products and moral judgments that clearly violate their beliefs.”

“I have pledged to coordinate an AG-led lawsuit to stop this direct challenge to religious liberty,” Bruning said. “I have been in contact with the U.S. Conference of Catholic Bishops, who welcome and appreciate any assistance we can provide.”

He said it “unconstitutionally expands congressional authority and infringes upon individual liberty.”

Meanwhile, National Center for Public Policy Research Adjunct Fellow Horace Cooper is criticizing HHS Secretary Kathleen Sebelius for pushing the new health care mandate saying it is unconstitutional and would fail in court.

“The new HHS rule represents a radical departure from the traditional treatment of religious organizations in America,” the legal commentator who taught constitutional law at George Mason University says. “If the White House doesn’t overturn this regulation, the Courts will.”

Cooper notes that a unanimous decision of the U.S. Supreme Court reaffirmed relevant religious freedom protections only a few weeks ago in Hosanna-Tabor Evangelical Lutheran Church v. EEOC.

“This regulation is a cruel use of federal power that rejects over 200 years of understanding about religious freedom in America,” said Cooper. “It furthermore threatens our long-held belief that all Americans may worship and serve God free from governmental interference. This assault on religious liberty is shockingly out of touch with the value that Americans place on their religious freedom, the Founding principles of the First Amendment, and a litany of legal precedent that was reaffirmed by a unanimous Supreme Court only a few weeks ago.”

“No American, employer or worker, should be forced to choose between their religious precepts and obedience to the law,” added Cooper. “It’s beyond bizarre to argue that the only way to ensure that the ‘morning after’ pill or other abortifacients are available is to force religious organizations to pay for them.”

“And the so-called religious exemption is an insult masquerading as a joke,” Cooper said. “Indeed, many Christians may wonder whether even Jesus’ earthly ministry would satisfy the Administration’s ham-fisted exemption requirements.”

Cooper explains that religious schools, charities, and health care providers will be forced to choose between the moral dictates of their conscience and creed, or following the President’s health care mandate-of-the-month. Such a choice is antithetical to the freedom of religion rooted in our constitutional tradition, and the fundamental protections of the First Amendment, Cooper says.

Cooper is an adjunct fellow with the National Center for Public Policy Research, a member of the African-American leadership group Project 21 and a legal commentator. He taught constitutional law at George Mason University in Virginia and was general counsel to U.S. House Majority Leader Dick Armey.

Cooper’s new paper, “The Birth Control Mandate is Unconstitutional,” is available online at https://www.nationalcenter.org/NPA632.html

Below is the full text of the attorneys general letter:

February 10, 2012
The Honorable Kathleen Sebelius The Honorable Timothy Geithner
Secretary Secretary
U.S. Department of Health and Human Services U.S. Department of the Treasury
200 Independence Avenue, S.W. 1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20201 Washington, D.C. 20220

The Honorable Hilda Solis
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Secretaries Sebelius, Geithner, and Solis:

As Attorneys General of our respective states, we are writing to express our strong opposition to the U.S. Department of Health and Human Services’ mandate requiring religious employers that provide health insurance coverage to their employees to include coverage for contraceptives, sterilization, and related services. Should this unconstitutional mandate be promulgated, we are prepared to vigorously oppose it in court.

The proposed regulations would compel religious affiliated organizations, hospitals, universities, and social service entities to subsidize contraceptive products and services which clearly violate their religious beliefs. We are deeply troubled by the unprecedented coercion of organizations and individuals to act contrary to their religious beliefs. The only viable alternative for these employers is to penalize their employees by ceasing the provision of health insurance altogether. The choice for such organizations essentially becomes: provide and subsidize activity in contravention with core religious beliefs, eliminate employer-provided health coverage, or withdraw from public ministry.

The proposed mandate provides an insufficiently narrow exemption which would fail to include religious affiliated organizations who do not “primarily employ persons who share their religious tenets” and do not have “the inculcation of religious values” as their primary operational purpose. Such an exemption ignores the fact that many such organizations only exist and provide public ministry pursuant to a duty and sense of purpose derived from their religious beliefs. To obtain the exemption, a religious organization would have to subject itself to the equivalent of a government “religious audit” to determine whether the organization’s activities are sufficiently religious to be excluded from the regulation’s requirements. Even then, a great number of entities previously exempt from government regulations that run contrary to their religious beliefs would fail to qualify.

Not only is the proposed contraceptive coverage mandate for religious employers bad policy, it is unconstitutional. It conflicts with the most basic elements of the freedoms of religion, speech, and association, as provided under the First Amendment. It would compel religious organizations to act, subsidize products, and affirmatively promote a message in contravention with their religious principles, with the sole alternative being to cease activities of incalculable value to their employees, constituents, and, indeed, society as a whole.

We strongly oppose the unconstitutional approach taken by the proposed contraceptive coverage mandate. We believe it represents an impermissible violation of the Constitution’s First Amendment virtually unparalleled in American history.

Accordingly, we urge you in the strongest way possible to refrain from promulgating the proposed regulations.

Jon Bruning
Attorney General of Nebraska

Greg Abbott
Attorney General of Texas

Alan Wilson
Attorney General of South Carolina

Luther Strange
Attorney General of Alabama

Pam Bondi
Attorney General of Florida

James Caldwell
Attorney General of Louisiana

William Schneider
Attorney General of Maine

Wayne Stenehjem
Attorney General of North Dakota

Mike DeWine
Attorney General of Ohio

Scott Pruitt
Attorney General of Oklahoma