Obamacare and birth control: Women's health isn't the issue

My 16-year career in two legislatures (eight in the Maryland General Assembly and eight in Congress) included many debates on the most divisive issues of our time: Capital punishment, affirmative action, war and peace, impeachment, entitlement reform and abortion rights were guaranteed to generate partisan strife and emotional debate.

No issue generated more emotion than a woman's right to choose. Intense, emotional debates produced a unique lexicon, as legislators debated the merits and implications of "judicial bypass," "parental consent," "partial birth" and the many complexities attendant to Medicaid (taxpayer) funding under certain circumstances.

What was not an issue, even in hyper-progressive Maryland, was the guarantee of "conscience clause" protection. The notion that religious institutions would not be forced to provide abortion or other contraceptive services in contravention of their religious beliefs was the third rail of abortion politics. Similar recognition of a conscience exception was the norm in state legislatures around the country. Even the most ardent pro-choice legislators accepted conscience exemptions as part of any statutory regime. That is, until the secular progressives within the Obama administration reversed this bipartisan embrace by requiring all health insurance plans to cover reproductive services, including some that many consider tantamount to abortion.

From all accounts, it appears that major Catholics within the administration (particularly Vice President Joe Biden and former Chief of Staff William Daley) raised strong objections. Besides recognizing the shift as bad politics, these two gentlemen may have recalled the president's circa 2008 pledge to the National Conference of Catholic Bishops that the conscience clause would not be tinkered with in the interest of comprehensive health care reform.

Unfortunately, however, Messrs. Biden and Daley lost the internal debate: Valerie Jarrett and other like-minded liberals within the administration carried the day. Indeed, such a rare opportunity to overturn one of pro-life's foundational principles could not be ignored.

Fierce reaction from the Catholic Church and other religious leaders moved the administration to offer (almost) immediate, if unsatisfactory, compromise by limiting the exemption to religious groups that employ members of their own religion, i.e., churches.

Then, in a stroke of political good fortune, Rick Santorum's contraception comments took the conscience story off page one. Talk about fortuitous timing: Mr. Santorum's comments opened the door for the Democratic Party to dust off its "Republicans are anti-women" mantra. The four remaining Republican presidential candidates have been on the defensive ever since.

Still, the revised conscience regulation will be revisited during what promises to be an ugly, hyper-partisan general election season.

Accordingly, a few reminders are in order. To wit:

•Even in the absence of Obamacare, every private employer in America (including faith-based employers) is free to offer unlimited contraception services within their employer plans;

•the administration's regulation was always about mandating medical service(s) employers must include in their employee health care plans, despite situations where an employer's religious convictions are to the contrary; and

•the administration's compromise exemption is quite limited: All employers who serve people regardless of religious affiliation will be forced by the federal government to provide contraception, sterilization, and morning-after pill coverage to their employees. In other words, churches are exempt, but faith-based affiliated institutions such as hospitals, clinics, colleges, adoption agencies and food pantries are not. A second federal mandate: Such services will be offered free of charge by private insurance companies.

The crux of this matter: Religious freedom under the First Amendment will now be so narrowly drawn that many heretofore exempt employers will be subjected to Obamacare's contraception mandate.

The president's more partisan defenders contend this debate is about a woman's right to secure the contraception option of her choice. This, to guarantee younger female support for the president's re-election. They further understand the dire political consequences should the issue be viewed instead through the prism of religious freedom.

The bottom line: Individual freedom is the primary victim under the myriad mandates of Obamacare, and nowhere is this loss of freedom more pronounced than under this new and not so improved conscience clause exemption.

Hopefully, the Supreme Court will strike down Obamacare in its entirety. Any new health care reform package should leave the well-established conscience protection alone. Health care reform is difficult enough without (gratuitously) chipping away at this cornerstone of religious liberty.

Robert L. Ehrlich Jr.'s column appears Sundays. The former Maryland governor and member of Congress is a partner at the law firm King & Spalding and is the Maryland chairman of Mitt Romney's presidential campaign. His email is ehrlichcolumn@gmail.com.

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