The key to overturning the Obamacare contraception mandate may be a law called the Religious Freedom Restoration Act introduced in 1993 by then-Representative Chuck Schumer. Ironically, now-Senator Schumer attacked Republicans who used the religious freedom argument against Obama's plan to make churches pay for contraception they don't believe is ethical.
The Religious Freedom Restoration Act was introduced by Rep. Schumer after widespread public disapproval of a Supreme Court decision that restricted Native Americans from using hallucinogenic drugs as part of their religious rituals. The goal was to prevent laws that substantially burden Americans from the free exercise of their religion.
A coalition of both liberal and conservative groups came together, and the bill passed by wide margins--a unanimous vote in the House and a 97 to 3 vote in the Senate--before being signed by President Clinton.
Parts of the law were later ruled unconstitutional, as they put an undue burden on the states. However, the law still applies at a federal level and has obvious implications for the Obama care contraception mandate for religious organizations.
Apparently, Schumer had no problem protecting the right to take peyote, but he balks when it comes to institutions like the Catholic Church who elect not to fund the killing of fetuses.
This past March, when Republicans attempted to pass a bill to protect the religious freedom of churches not to have to fund means of contraception that they don't believe in, Schumer suddenly wasn't so keen on religious freedom any more.
As Roll Call reported about killing the conscience clause, "I don't envy the rank-and-file Republicans who walked the plank on this vote," said Schumer, who also heads the Senate Democrats policy and communications arm. "I think it's going to be awfully hard to defend it back home, especially in places like New England," he lamented.
Senator Schumer may not like religious freedom when it's applied to Obamacare, but unfortunately for him and the Obama administration, the Religious Freedom Restoration Act actually provides a solid argument against Obamacare's forced contraception proposals. As The Hill reports:
“I think the odds are pretty good for the plaintiffs here,” Marc DeGirolami, an assistant law professor at St. John’s University, told The Hill.
Because of the law, courts now have to apply certain standards to federal actions that might inadvertently infringe on religious liberty. In one sense, laws under scrutiny must aim to achieve a “compelling” government interest. In another sense, they must be designed in a way that burdens religion as little as possible.
The second claim might be hard for the administration to meet when regulators could have taken many other steps — like expanding Medicaid — to provide better access to birth control, DeGirolami said.
“Even if one concedes that the state has a ‘compelling interest’ in ensuring that all women have free access to contraception,” he said, “there are many, many less restrictive means of achieving that interest.”
How committed are Democrats to religious freedom? It seems that if it gets in the way of the their sacred cow of abortion rights, not very committed at all.