Secretary Kathleen Sebelius (D) of the U.S. Department of Health and Human Services (HHS) has announced her resignation. President Barack Obama (D) praised Sebelius in a ceremony this morning, saying that she will “go down in history” for being the HHS secretary during the implementation of the Patient Protection and Affordable Care Act, the health care law colloquially known as ObamaCare.
Much of the media coverage about Sebelius’s resignation has focused on the disastrous ObamaCare roll-out, including the well-known failures of the HealthCare.gov enrollment web site. I attempted to use the web site several times to see what enrollment options were available. I am covered by employer insurance, at least until the ObamaCare cancellation notices begin going out some time after the mid-term elections, so I didn’t actually intend to buy new coverage. But the site never allowed me to proceed past an ‘unexpected error’ warning, which continued to appear for me right up until the end of the open enrollment period. I never got to see a list of available coverage options and prices.
Though the roll-out debacle does deserve some attention, Sebelius ought to be remembered for a much bigger, much more troubling debacle. Under her leadership, HHS implemented an insurance coverage mandate that required businesses, organizations, and individuals to pay for drugs and procedures that many find morally objectionable, including contraception, sterilizations, and chemical abortions. The religious exemptions to this mandate are so narrow that, as many other commentators have pointed out, even Jesus Christ himself would not have qualified (because he ministered primarily to non-Christians). By imposing this mandate, Sebelius violated her oath of office, violated the Bill of Rights, and violated some of the most fundamental tenets of her own professed Catholic faith.
The United States Supreme Court will likely rule that the HHS mandate cannot be imposed upon explicitly religious organizations like Catholic churches, charities, and hospitals. It is less clear how they will rule in the case of for-profit businesses like Hobby Lobby, which are run by religious individuals but are not explicitly religious organizations. Of course, we should all know that the First Amendment applies to all individuals in all areas of their lives, whether or not they have organized themselves into groups (including for-profit corporations). That’s part of what that whole ‘free assembly’ clause is about. But too many Americans today see ‘individuals’ as good and positive and protected by the First Amendment, while decrying ‘corporations’ and ‘interest groups’ (which are just groups of individuals) as bad and negative and not worthy of constitutional protection.
If I write down my political thoughts on this web site, that’s okay. If I send a hundred dollars to a candidate I like, that’s okay too. If I decide that I don’t want to buy contraceptives, and I don’t want to support businesses and charities that provide them, and I don’t want to have to buy yours for you either . . . well, nobody really cares. But if I get together with ten of my friends who have the same opinions, we pool our resources, and then we put our political thoughts into a television ad, make much bigger donations to the candidates we like, and decide that we won’t pay for each others’ contraceptives or for our employees’ contraceptives . . . well now we’re an interest group, or a corporation, or something, and because of that our free speech and free exercise rights don’t apply anymore.
This is facile nonsense, but somehow when the numbers get big enough a lot of people lose sight of the fact that these organizations, even the very biggest, are made up of individual people like you and me, and that those people have the same free speech and free exercise rights we have. Corporations are no different, except that the people who gathered together to create them did so with the intent of making money, but a profit motive does not justify rescinding constitutional rights.
Of course that doesn’t mean that a business or organization may impose its leaders’ beliefs on its employees, but that’s not what this is about. No employees are actually burdened in any significant way by an employer’s decision not to cover contraceptive or abortion drugs. Employees may choose to work somewhere else if it really bothers them so much. They may purchase their own primary or supplementary insurance to cover things their employer’s plan won’t. They can just pay for these particular items out-of-pocket. The question is whether the government may force men and women of conscience to do something they consider morally repugnant—like paying for employees’ contraceptives or sterilizations or abortions. A business may not prevent its employees from obtaining or using these things, but it cannot be obligated to provide them.
This Supreme Court has a surprisingly good record on religious liberty, including a rare unanimous decision in the Hosanna-Tabor case. The court has also reasserted free assembly and collective rights in the Citizens United case, but only by a depressingly narrow 5-4 margin. Despite these and other rulings, the court also has a history of making absurd logical contortions to uphold clearly-unconstitutional laws. In the Kelo case, the court ruled—in violation of the Fifth Amendment—that governments can seize private property and turn it over to private businesses for private use. And then the court ruled—in violation of the U.S. Constitution’s enumerated powers (Article I, Section 8) and the Tenth Amendment—that the federal government had the right to impose a health insurance mandate on all Americans and fine them for noncompliance . . . at least as long as we pretend that the fine is really just a tax (thanks for that little gem, Chief Justice John Roberts).
But whether or not the Supreme Court rules properly in the case of the contraceptive and abortifacient mandate, the fact that we are having to defend something as simple and fundamental as the First Amendment’s free exercise clause bodes ill for the future of the republic. Sebelius, in particular, deserves special derision for her flagrant and intentional imposition of an illegal and immoral mandate on millions of conscientious Americans—especially since her actions are harming, more than almost any other group, the agencies and services of her own Catholic Church.
For violating her oath of office and the bedrock law of the land, Sebelius should have been impeached and removed from public service. For her unprecedented legal assault on the First Amendment rights of men and women of faith, she should have been hounded out of office by an indignant press and an enraged public. She should have been slammed as a hypocrite for claiming to be a Catholic while directly attacking the Church and trying to limit its freedom to act in accordance with its own doctrines.
But instead, she is resigning on her own time. She is claiming that ObamaCare is a big success, and getting heaps of praise from the president. The pliant media is giving her a little bit of guff for the web site not working right, and leaving it at that. No mention of her assaults on the First Amendment. No mention of her hypocrisy. Sebelius deserves more criticism than any other member of the Obama cabinet—except perhaps Attorney General Eric Holder (D), a likely perjurer and the first sitting cabinet member to ever be found in contempt of Congress—but she’s getting little. Too many Americans, the press included, remain asleep at the switch while the dismantling of the Bill of Rights continues apace.
Many will remember Sebelius for HealthCare.gov’s comically awful launch. The big orange error bar (above) that stopped my progress every time I tried to see what plans I could get is a fitting illustration of government incompetence in action. But incompetence pales in comparison to malice.
It is Sebelius’s malicious attacks on our fundamental First Amendment liberties that should be remembered. She will “go down in history,” as the president said, but for a completely different reason. She will be remembered as one of the first high-ranking U.S. government officials to hold our First Amendment religious liberties in contempt. She will be remembered as one of the first to declare that free exercise rights must be trampled when a particular exercise doesn’t conform to prevailing opinion or a vaguely-defined ‘public good.’ She will be remembered for defining religion so narrowly that virtually nothing qualifies for constitutional protection anymore. She will be remembered, it must be said, as a Catholic who actively fought in the public sphere to suppress and undermine the most basic teachings of her own faith.
Oh, I know others will follow. This vein of thinking is increasingly accepted in circles where ‘living document’ constitutional revisionism is already the norm. The ‘progressive’ view, which once embraced a religiously-neutral secularism, now seems to be that religion—especially orthodox religion—is the enemy. As such, I have no expectations that the HHS will drop the contraception and abortifacient mandate unless ordered to do so by the Supreme Court, and even then I am not confident that they will fully comply with whatever the ruling says. I also have no expectations that our president—ostensibly a constitutional scholar—will drop by the National Archives and actually read the U.S. Constitution any time soon. I am increasingly aware of the fact that we are living in a post-constitutional republic, one where the rule of law is malleable and our leaders will just do whatever seems like a good idea at the time, enumerated powers and the Bill of Rights be damned.
I hate it, and I will keep fighting it, but it is what it is.
So farewell Secretary Sebelius. I hope your successor takes his or her oath of office more seriously than you did. I hope our next HHS secretary will be somebody who has read the U.S. Constitution, comprehends it, and acts according to its dictates . . . but I’m not holding my breath. And I do sincerely hope, for your own sake, that you will take some time once you are out of the public eye to examine your conscience, repent, and reconcile with those you have treated as enemies and tried to suppress—Jesus Christ, and the Church that he founded.