Lessons from Obamacare (and the HHS Mandate)

Abortion Always Wins; Religion and Logic Always Lose

by Matt Bowman:

I was at Columbia Law School recently to debate Obamacare. My opponent was a very friendly attorney from the Center for Reproductive Rights (CRR), Aram Schvey. We had a lively exchange and Mr. Schvey was a consummate gentleman. But despite his cordial demeanor, the CRR’s position boiled down to one unshakable dogma: abortion trumps everything, even logic.

Abortion LegacyWe debated an Obamacare mandate that requires birth control and early abortion pills in health insurance. This rule has spawned many lawsuits by for-profit and non-profit companies who assert religious freedom under President Clinton’s Religious Freedom Restoration Act (RFRA). Several of those cases, including by one of my clients, have petitions pending before the U.S. Supreme Court.

The most common retort to these cases by Obamacare supporters is to allege that they represent corporate personhood on steroids. They fling non-sequitors like “corporations don’t go to heaven, so they can’t practice religion.” Mr. Schvey suggested that corporations can’t exercise religion because they can’t do things like ingest sacramental wine.

Opponents of religious freedom are missing the simple fact that the First Amendment and RFRA don’t speak of “heaven,” but protect the “exercise” of religion. Exercise is an activity, not a theology. Corporations, and the families and religious that run them, engage all kinds of activities—that’s what corporations do. Religious “exercise” also isn’t limited to sacraments or what happens in church: it involves practicing religion throughout one’s daily activity. Ironically, many of Obamacare’s defenders gleefully endorse the idea that for profit corporations like the New York Times have First Amendment rights, and that non-profit corporations like the ACLU are allowed to exercise their values.

CRR’s view is even more self-contradictory. CRR defends the abortion pill mandate on its website by claiming that corporations, including non-profit organizations like religious hospitals, cannot exercise religious freedom because they “don’t have feelings and don’t have consciences either.” 

This is wrong three times over. First, CRR is itself a non-profit corporation. So it believes it can exercise values, but insists a religious non-profit cannot. Second, CRR is in the business of filing briefs in court expressing its pro-abortion values. That’s a non-profit corporation exercising First Amendment rights, telling other non-profit corporations they cannot exercise First Amendment rights.

But CRR’s defense of Obamacare reaches new heights of absurdity. In many, many lawsuits, CRR represents abortionists themselves challenging pro-life laws, asserting the so-called constitutional right to abortion. CRR’s clients aren’t just individual doctors. Lots of them are for-profit abortion business corporations. In case after case, CRR insists that these for profit corporations exercise what the Supreme Court has called the most “personal” and “intimate” of “rights” of contraception and abortion.

In September, CRR filed its latest lawsuit of this kind in Texas federal court. CRR represents, among others, West Side Clinic, Inc. a Ft. Worth for profit corporation, and asserts that this for profit corporation exercises the constitutional substantive due process “right” of abortion. West Side Clinic, Inc. is only one of CRR’s many for profit abortion corporation clients that supposedly exercise intimate, personal constitutional rights. Others include Choice, Inc. in Texas, and Northland Family Planning Clinic, Inc.-East in Michigan.

So to recap: according to CRR, family businesses can’t exercise religious beliefs because religion is a constitutional right too “personal” for a corporation. Unless your corporation commits abortions for profit. Then it can exercise constitutional rights that are so “intimate” the constitution doesn’t even mention those rights. Likewise, corporations can’t exercise religion because they can’t ingest sacramental wine. But for-profit abortion corporations can exercise the “right” to contraception and abortion even though their articles of incorporation down at the secretary of state’s office don’t ingest the morning after pill or RU-486.

It gets even worse. According to CRR, religious hospitals founded by nuns don’t have “feelings,” so they can’t exercise religion either. But the constitution supposedly recognizes for-profit and non-profit abortion corporations when they express “feelings” and activities promoting abortion. CRR even argues that religious hospitals cannot exercise religion because hospitals offer “medical treatment, not theology,” patients are there not “for a sermon, but rather for medical care,” and health workers “are there for work, and not worship.”

But lots of patients go to religious hospitals and doctors to receive, and those health professionals work there to give, religiously based medicine: theology and health care intertwined. Yet, because CRR and its abortion corporations don’t treat medicine that way, no American can. Practicing and receiving medical care according to moral or religious values (as it has been done under the Hippocratic Oath for 2,500 years) is a contradiction in terms, simply because the abortion movement says so. Women have no right to a pro-life doctor: that’s the agenda of the “pro-choice” movement.

In denying religious freedom to families earning a living, to religious patients and health professionals, and even to religious charities, Obamacare’s defenders want the court to adopt one simple principle: abortion always wins, and religion (and anyone who disagrees) always loses.


Matt Bowman is senior legal counsel at Alliance Defending Freedom.

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