Written by Don Byrd
An exchange between Congressman Trey Gowdy (R-SC) and HHS Secretary Kathleen Sebelius during a recent hearing suggests that she was not aware of the constitutional analysis that went into the contraception coverage decision making. While it seems a stretch to suggest that because the Secretary was not aware of the details of the argument, that no church-state analysis was considered in the decision, it does sounds like an element that was not front and center in her approval of that process.
Referring to Secretary Sebelius’ statement earlier this year that promised an accommodation that “strikes an appropriate balance between respecting religious freedom and increasing access to important preventive services,” Rep. Gowdy sharply questioned the Secretary’s understanding of a constitutionally permissible “balance.”
“There are only three balancing tests that I am aware of when it comes to matters of constitutional significance. There is the rational basis balancing test for economic legislation, there is the intermediate or mid-level scrutiny for gender-related constitutional issues and then there is the heightened or strict scrutiny when fundamental rights are involved. And given the fact that I am sure you can see that religious liberty is a fundamental right, which of those three constitutional balancing tests were you making reference to when you said you balanced things?”
…
[I]t seems the Secretary did not … enlist the legal advise of the Department of Justice on whether it is constitutional to force religious employers to subsidize abortion and contraception services against their moral or religious beliefs.
While many continue to attack on this point, it seems worth noting that the rule is not finalized, and that the President has indicated support for a compromise that would exempt religious organizations from the coverage requirement. At the same time, I would like to see stronger indication that the Administration consulted with religion law experts and advocates on this question in formulating the policy. Maybe they did and we just aren’t hearing about it! But if not, it’s an important lesson learned.
