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What About Religious Freedom?

The other consequences of Obamacare.

Oct 29, 2012, Vol. 18, No. 07 • By WESLEY J. SMITH
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But that analysis presupposes that O’Brien’s religious freedom extends to his actions as an employer. It doesn’t, sayeth the Obama administration: “By definition, a secular employer does not engage in any ‘exercise of religion,’ ” the Department of Justice argued in the Newland case. In other words, according to the Obama administration, the realm of commerce is a religion-free zone.

Some might dismiss these employers’ concerns because birth control is hardly controversial outside of orthodox religious circles. But these birth control cases are stalking horses for far more intrusive violations of religious liberty to come, e.g., requiring businesses to provide free abortions to their employees. Consider the Democratic party’s 2012 platform:

The Democratic party strongly and unequivocally supports Roe v. Wade and a woman’s right to make decisions regarding her pregnancy, including a safe and legal abortion, regardless of ability to pay. [Emphasis added.]

If Democrats regain the control of Congress and the presidency they enjoyed in 2009 and 2010, look for the Affordable Care Act to be amended consistent with their platform. After that, it won’t take long for HHS to promulgate a free abortion rule along lines similar to the free birth control mandate.

And what could be done about it? According to Judge Jackson’s thinking, ensuring free access to abortion would not prevent employers from “keeping the Sabbath.” They would not be prohibited from “providing a religious upbringing” for their children or “participating in a religious ritual such as communion.” Rather, they would be barred from “forcing their religious practices” on employees by leaving employees to pay for their own terminations. In time, why shouldn’t in-vitro fertilization, assisted suicide, and sex change operations be added to the list?

If higher courts accept this radically antireligious view, the only corrective will be to amend RFRA to spell out that its protections extend to the actions of employers. In fact, why not take that step now and short circuit what could be years of litigation defending religious liberty in the public square? 

Wesley J. Smith is a senior fellow in the Discovery Institute’s Center on Human Exceptionalism and consults for the Patients Rights Council and the Center for Bioethics and Culture.

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