There are two types of limits on government power in our Constitution: structural checks and guarantees of rights.
The current litigation over the president’s health care reform has addressed largely the first check of whether the limits on the authority of the legislature can be stretched to include the unprecedented claim of power to actually mandate that all Americans purchase a particular product.
But President Obama and Secretary of Health and Human Services Kathleen Sebelius have taken their challenge of constitutional limits to the next level.
Not only are they mandating the purchase of a product, they are doing so in a way that violates the first right enshrined in the Bill of Rights, the right to freedom of religion.
Remember that when you give the government power to establish certain benefits or entitlements, it will almost certainly be on its terms, not yours. That is why the Framers were so very cautious of vesting too much power in one national government, and favored the pro-liberty aspects of federalism.
The new HHS regulations illustrate this. Through these regulations — without a robust exception for the conscience rights of the employers — the government now claims it has the power to force individuals to violate their own consciences.
That is the very definition of tyranny.
The president’s sham compromise changed nothing. It labels the controversial contraceptives and abortifacient drugs “free,” but they are still paid for by the premiums of all insurance policy holders, including those individuals and religious groups who conscientiously object.
During the Vietnam era, pacifist conscientious objectors were allowed to opt out of combat duty or even the military altogether. They did not have to be members of an officially recognized pacifist religion or any religion at all. Anyone with a sincere belief was eligible for an exemption.
If we could tolerate conscientious objectors on issues touching the national defense, can we not tolerate conscientious objection on the content of health care plans for their own employees?
Is it really so important for each woman to have her employer pay for her own contraception or abortions that it justifies trampling on the religious beliefs of millions of Americans?
This is ominous. If the government can mandate that individuals purchase a product, it only stands to reason that they can require individuals to be instructed in its use.
That means parents and religious schools may lose control of many aspects of their children’s sex education.
And it is only one more step from requiring people to purchase and be informed about a product, to requiring its use. By the time the government determines we should take that step, what will be left of the religious freedom to prevent them?
Defenders of the regulations will decry us as parochial Henny Pennys. The government would never go so far, would they?
Our Founders did not rely on “they’ll never go so far.” They put structural protections in the Constitution specifically because they knew all governments face the constant temptation to tyranny.
And they supplemented these protections with the Bill of Rights, specifically delineating areas the government must not trespass. Our government is now engaged in an unprecedented assault on that constitutional structure, not only on the structural limits, but on the first of our cherished freedoms, the freedom of religion.
Just as the fight over health care at the Supreme Court is about more than just insurance, the fight over these regulations is about more than just contraception.
It will determine whether Americans still can take refuge in our Bill of Rights, or whether government power has finally overwhelmed the last limits of the Constitution.
Carrie Severino is policy director and chief counsel of the Judicial Crisis Network.
