A republic means the people rule through their elected representatives. Laws are written in the deliberative bodies of Congress. Laws are enforced by the President and the necessary officers of the executive branch. Laws are interpreted by the judiciary.
A republic does not mean unelected bureaucrats get to tinker with laws to see how much liberty they can snatch away before the courts stop them.
And yet, that is exactly what is happening with the HHS mandate. The mandate was written under the authority of Obamacare, which Nancy Pelosi and Harry Reid passed with a shocking dearth of actual policy details for what all those new agencies and panels should do. That was by design—they had to keep the details vague lest the law be even more unpopular and even the ugly, underhanded trick they used to jam it through be unavailable. No worries: they left all those details to the HHS to write. Spectacular.
The original mandate, announced last fall and made law in February of this year, dictates that all health insurance plans must cover abortion-inducing drugs, sterilization procedures, and contraceptives. The mandate was met with such a backlash from anyone who cares about religious liberty that the Obama administration came as close as it ever has to admitting a mistake—they issued what they considered a rather good compromise.
Of course, the compromise and later “accommodation” essentially amounted to, in Cardinal Dolan’s excellent phrasing, “giving us a year to figure out how to violate our consciences.” In other words, they delayed the full flowering of the problem without uprooting it.
Lawsuits were filed, including by my employer, Franciscan University of Steubenville. The administration, naturally, does not want this thing to be litigated, so rather than argue the merits of the case they have filed motions to have the cases tossed out of court.
They claim two things primarily: Firstly that the lawsuits do not at present have merit because thus far the mandate has not gone into effect for the plaintiffs, so no actual injury has been incurred. I heard one person describe this argument as the administration basically saying, “hey, sure you’re walking through a minefield, but it isn’t like you’ve gone ‘BOOM!’ yet!” Further, the University of Notre Dame, who filed a lawsuit similar to that filed by Franciscan University and 41 other Catholic institutions on May 21, has claimed immediate harm from the HHS mandate, which, if the judge agrees, puts the lie to this argument by the administration. Secondarily the administration claims that the lawsuits are inappropriate because they have issued and will issue further accommodations.
Indeed, the administration has made a succession of small adjustments to the mandate—adjustments that have caused a couple of the lawsuits to be tossed, in particular those by Belmont Abbey College and Wheaton College.
And that, folks, is the crux of the matter.
A few officials in the White House and the HHS wrote rules in accordance with the hard-left ideology they cherish concerning “women’s reproductive health” (a horrid euphemism for the anti-human practices it encompasses). These officials did not debate the laws in Congress or any other open forum; they did not hold a vote on them available for public scrutiny; and these officials are not subject to voters and reelection. They simply wrote this law which ignores the conscience rights of millions of Americans because they wanted to. But then it gets worse.
Now that the rule is being credibly challenged in court by more than a dozen separate lawsuits filed by some of the most powerful law firms and dedicated defense funds on behalf of 50 or so of the nation’s most recognizable Catholic and other Christian institutions they are simply tweaking the rule on the fringes in various ways to try to appease the plaintiffs, or at least find the magic combination of words that will get the judges to toss the various lawsuits. But since there is more than one lawsuit in more than one court making slightly different arguments, the administration peeps have to continuously make changes to the law based on the different scenarios. A patchwork of tweaks and accommodations.
Folks, this is not the commissioner of your fantasy football league unilaterally changing the way trades are approved during the season—this is the federal government curtailing one of our foundational liberties, severely and brazenly, and then simply rewriting the law by executive fiat more than once to see how much it can get away with.
Executive fiat is not how a republic handles such a foundational liberty as the free exercise of religion. This is the behavior of a tyranny.