The NY Times describes Team Obama's latest climbdown on their "Free Contraception For All!" plan. The Times skips past the bit where the unicorns deliver the free pills (I was hoping for a video!), but does dryly note this:
The latest proposed change is the third in the last 15 months, all announced on Fridays, as President Obama has struggled to balance women’s rights, health care and religious liberty.
The Times editors laud the latest and retreat to their own reality. First, they demonize the opposition!
For the past year, the administration has been battered by lawsuits and denunciations from religious conservatives that its health care reforms violate religious liberties by requiring employers to provide free birth control coverage even if the employers have moral objections. Those attacks were designed to try to discredit the health care reform law and hurt President Obama politically by portraying him, falsely, as an opponent of religious freedom.
The attacks were designed to undermine Obama? Gee, and here I thought that institutions such as Georgetown University were trying to restore the status quo ante, so they could continue doing whatever they had been doing for the two centuries prior to Obama's Glorious Ascent. My bad.
The Times editors then retreat to their own legal hidey-hole:
Neither the Constitution nor Supreme Court precedents give religiously affiliated institutions the right to be exempted from a neutral law of general applicability. The First Amendment is not authorization for religious entities or individuals claiming a sincere religious objection to the law to impose their religious beliefs on society.
Well, actually that would be the Religious Freedom Restoration Act of 1993. Even Linda Greenhouse of the Times admitted its probable applicability here, although she misstated its scope. Her claim is that the law
...provided that a free exercise claim would prevail unless the government could show a “compelling” reason for holding a religious group to the same legal requirements that applied to everyone else.
Over in reality, there is a second element to the test, as described by Ed Whelan and David Rivkin in the WSJ:
The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may "substantially burden" a person's "exercise of religion" only if it demonstrates that application of the burden to the person "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest.
As to whether the current Administration rules are the least restrictive way forward in a world with, for example, Federally subsidized health clinics, let's say the jury is out.
Diligent readers will recall that we have kicked this around before. The Religious Freedom Restoration Act of 1993, passed in the glorious early days of the Clinton Administration before Newt et al crashed the party, remains a topic our friends on the left would prefer not to discuss. Per the WSJ it "passed unanimously by the House of Representatives and by a 97-3 vote in the Senate" and "was signed into law by President Bill Clinton in 1993", but I assume that, like the Patriot Act, Democrats will want to claim they were bullied into voting for it. Can we all agree to blame Bush?
NOTHING AS POWERFUL AS AN IDEA WHOSE TIME IS COMING...