Department of Health and Human Services (HHS) Secretary Kathleen Sebelius made yet another embarrassing admission about the lack of constitutional analysis that went into the HHS anti-conscience mandate on Thursday.
At a full committee hearing of the House Education and Workforce Committee Secretary Sebelius was repeatedly questioned by Representative Trey Gowdy (R-SC) on whether she had consulted Supreme Court precedent or any official legal memo before publishing a rule that burdens religious liberty of employers. Under the mandate, almost all employers are forced to provide and pay for coverage of abortion-inducing drugs and contraception — regardless of any moral or religious objections to such services.
Referring to Secretary Sebelius’ statement earlier this year that promised an accommodation that “strikes an appropriate balance between respecting religious freedom and increasing access to important preventive services,” Rep. Gowdy sharply questioned the Secretary’s understanding of a constitutionally permissible “balance.”
“There are only three balancing tests that I am aware of when it comes to matters of constitutional significance. There is the rational basis balancing test for economic legislation, there is the intermediate or mid-level scrutiny for gender-related constitutional issues and then there is the heightened or strict scrutiny when fundamental rights are involved. And given the fact that I am sure you can see that religious liberty is a fundamental right, which of those three constitutional balancing tests were you making reference to when you said you balanced things?”
Secretary Sebelius, claiming ignorance of “nuances of the constitutional balancing tests,” was unable to provide answer.
Nor could the Secretary answer that she had relied on an official legal memo. As she previously admitted to Senator Orrin Hatch (R-UT) at an Senate hearing a few weeks ago, it seems the Secretary did not even enlist the legal advise of the Department of Justice on whether it is constitutional to force religious employers to subsidize abortion and contraception services against their moral or religious beliefs.
The inability to adequately defend legal reasoning behind the HHS mandate does not bode well for the Secretary. There are currently seven lawsuits filed against Secretary Sebelius and other applicable department heads by organizations and businesses that are placed in an untenable situation by the mandate. Forced to either discard their deeply held beliefs or cease providing health insurance to their employees – and face a fine after 2014 for doing so – these organizations and countless others are standing up for religious liberty.
The lack of forethought or constitutional analysis on the part of the Obama Administration is already beginning to rear its ugly head. In response to the legal complaints filed by the Becket Fund for Religious Liberty on behalf of Belmont Abbey College and Colorado Christian University, the Department of Justice has relied on a smoke and mirrors argument that the administration’s future plans to devise an “accommodation” for religious employers should justify dismissal of the legal complaints.
That so-called “compromise” has not been finalized. The only rule that has been finalized and holds the force of law is the original, offensive mandate that tramples on employers’ conscience rights.
Today’s hearing confirms what many already suspected. Little thought was given to the constitutionality of the HHS mandate by the Obama administration before it promulgated a rule that will profoundly and adversely affect many employers – religious or not – and the people they serve. The fact that Secretary Sebelius was unable to answer some of the questions today may haunt the future of the HHS mandate if Rep. Gowdy’s warning comes true that “this mandate will end up in the Supreme Court.”