Pro Logica

February 28, 2012

The HHS Mandate and Religious Institutions

It is probably not an overstatement to say that the Obama administration has decided to enforce its peculiar interpretation of the religious freedom clause of the 1st Amendment of the U.S. Constitution and simultaneously wage war against religious institutions whose beliefs about conception and abortion differ with the current administration’s; I say ‘peculiar’ because it is at odds with an unwritten freedom of conscience and is unrelated to the attack orchestrated by atheists and secularists to remove any vestige of religious symbols from occurring on Federal and State land.  I dare say that these people would support the administration’s position but further discussion in this vein would be off-topic.

We need to start at the beginning which is the passage of the Affordable Health Care Act (AFCA) in 2009, a somewhat unconventional enactment of a law.  In order to get enough Congressional votes to pass the health resolution, the POTUS claimed that he would write a directive which seemingly banned the Federal Government from using this law as a loophole for an existing law which denies the Federal Government to spend taxpayer money for elective abortions.  I, myself, was somewhat unconvinced that this directive was written to properly enforce this aspect but it seemed to satisfy the recalcitrant Representatives.  Two years after the law’s passage HHS issues a mandate stating that employers must offer health insurance to its employees that provides free contraceptive procedures, some of which are abortions by chemical means.  Religious organizations  and employers with conscientious objections to contraception and abortion are forbidden to exercise their freedom of conscience in the health insurance they offer to their employees.  After a period of defiance, Mr. Obama announced a compromise, i.e., he called it a compromise, wherein the onus for covering elective contraceptive procedures, including abortifacients would apply to the health insurance provider but no details on how this separation would be handled; presumably the insurance company would have to calculate their costs for the extra coverage and charge the conscience objectors that much less than the non-objectors.  Currently, some organizations have filed lawsuits against this mandate with their emphasis being on freedom of conscience.

As of now, the situation has calmed in the major media, but quite alive within the pro-life community.  It seems that the noisiest of pro-Obama commentators have gone on to other topics and will be content to say very little more unless the rulings in these lawsuits turn out unfavorable. It looks like SCOTUS will have another aspect of the AFCA Act to mull over besides the individual mandate.

Above, I have said nothing more than anyone could have found by a short search for the relevant data, so why have I decided to write this post?  Because there are a couple of arguments that have not surfaced in the media which deserve to be considered.  First off is the matter of proper protocol for a presidential directive.  The Secretary of HHS is the person who has announced the mandate but the Secretary has no Constitutional authority to write a presidential directive unless the POTUS has written a presidential directive giving her the authority or Congress has given the Secretary the authority specifically through wording in the law itself.  Any person or organization impacted by the law has the right to see these authorizations.  I have been told that the AFCA has provisions wherein it is permissible for the HHS Secretary to make some decisions that will have the force of law, but I have not, myself, ever read the law so I cannot verify that.  I do assume that any religious organization planning on not obeying the mandate thoroughly investigates the law for this particular aspect.  Considering the hugeness of the law and its speed of passage it is quite possible that its actual wording may be less than satisfactory to establish the HHS mandate as law.  Certainly, it is clear that Mr. Obama has not written a directive, else he could not have come up with his so-called compromise; therefore, he must believe that the law, itself, authorizes the HHS to fill out the law with legal mandates.  However this compromise has not yet been written, since the POTUS believes the actual content of the mandate has yet to develop.  Who knows, he just might be a dictator and let the mandate stand as originally proposed; any sort of compromise might require an actual presidential directive to implement.

On the other hand, If the Democrat’s lawyers did allow for an HHS mandate to become law, a thorough investigation into the presidential directive which was promised at the time of the original passage should be performed.  That wording might be enough to void  or seriously impair the intent of this particular mandate.  At this time, I have to wonder if the POTUS has actually written a directive as he said he would at its impending passage; it would not surprise me in the least if no such directive exists.  In fact, if Mr. Obama did write a directive such as was promised, he would of, necessity, need to write a directive separating the use of abortifacients from mechanical abortions or insist that the mandate not cover abortifacients. This entire argument would be extraneous if the AFCA did not grant any tax money to those unable to afford the required health insurance; but it does and, hence, the argument applies.  Long before Mr. Obama became POTUS (I did not vote for the man) I wrote a letter to the editor of the Missoulian stating that he would, if elected, become the most hypocritical of any elected president of the U.S. and here I stand confirmed in that conviction.

Supposing that a health insurance company were to accept the government edict and not bother to give the conscientious objectors a lower rate.  We would have to go to the same argument as above–the conscientious objectors are paying for services they have a right not to.  What about the administration’s argument that the insurance company will save money since the cost of an abortion is less than that of the corresponding birth or possible births.  This is a very specious argument since the birth itself is a very natural process and should not be covered by insurance–then only complications leading to necessary medical procedures need to be covered.  This does not mean that check-ups for the prevention of adverse medical problems which may occur during and after birth should be denied, and they shouldn’t since the health of the mother is the prime consideration.  Consequently, a normal birth having no foreseeable complications should not be covered by any health insurance, but certainly, in the health interests of the mother, a qualified birth assistant should be on call at the time.  We might also add that under this view, elective contraception and abortions add nothing to the overall well-being of any nation.

Assuredly, there have been many studies showing that elective abortions and contraception are bad for women’s health but these studies are totally ignored by the pro-choice people primarily because their chief concern is sex without normal responsibility.  Why haven’t the health insurance companies claimed that covering elective contraceptive procedures and abortions do not enhance women’s health since it is linked to increasing cancer in those having these procedures. Also, why not avoid controversy and allow employers to opt out for conscience and let their employees get their own insurance through the State exchanges.  Of course, all the employers would eventually drop out, but what would be wrong with that?  Go, go ‘free market’.

Another thought: the administration or possibly, the AFCA  has mandated that at least one of the available insurance policies in each exchange must contain provisions for these procedures, but this cannot be enforced in any legal way.  Any private insurance company would have the option of not providing these services and if any single company were forced to provide the coverage, they could claim that that coverage places them at a disadvantage relative to the companies that do not provide that coverage, a very substantial equity argument.  However, this situation provides no obstacle to the mandate, for the government, itself, would be required to set up such a policy.


November 19, 2011

Constitutions, Laws and Equity

After ranting about the U.S. Government, its Constitution and the actions of its several parts, I imagine that it is past time to explain the underlying philosophy of governments with a constitution.

To start at the beginning I assume that people can assemble and while in their assembly, agree that among them there are enough persons of similar views that organizing themselves in a bloc might be advantageous.  When there are a small number of participants in a particular bloc, membership can be fluid since it would be of no consequence to skip any meetings of the bloc and oftentimes these blocs form and dissolve depending on common interest among the participants.  Some blocs will gather a goodly number of participants, continue to exist over a lengthy period of time and, in this process, develop  a sense of independent existence.  Over this extended existence some members (possibly natural leader types) become instrumental in keeping the rest of the members from abandoning the bloc (at this stage more rightly called a club or an organization), and the members develop a common understanding of their purpose and permitted actions; this common understanding is generally called a constitution or charter, and may be written or unwritten.  I point out that many organizations are very casual in these matters–unwritten constitutions are often fluid in their purpose and permitted actions while written constitutions often lend themselves to rather loose interpretations.  A common gambit among many organizations is to reference “Robert’s Rule of Orders” as their bible of operating as an organization.

Many large organizations use a written constitution for the justification of their individual governing policies.  The only thing that can be said about the make-up of any written constitution can probably be stated in these words, “If a statement pertains to the organization, its goals and objectives, its membership, its officers, its actions, its members actions or its property, tangible and intangible, that statement is fit to be included in the organizations written constitution.”  On the other hand, an organization’s written constitution must have a section defining how members may pass resolutions (laws, by-laws, edicts, etc.); these resolutions may name the organization, define its goals, define procedures for admitting new members and define members proper actions as representatives of the organization.  Clearly, though, a written constitution having only the one required section does not function any better than an organization having an unwritten constitution.  The primary purpose of using a written constitution for a large organization is stability, it verbalizes the organization’s governing principles so that actions by its members can be judged by both members and non-members as actions befitting the organization’s goals and objectives.  Constitutional principles are not meant to be changed since changing the constitution will usually result in an organization with changed membership.

Most nation-states are organizations with an extensive written constitution.  There is a long tradition of governing policies and these are usually found in the written constitutions of these states.  These governing policies, in most cases, are different for different nation-states but, more often, constitutional provisions are general statements which need clarification of details, such details being the proper subject of laws.  Many of these constitutions have provisions concerning the redress of grievances and fairness in application of laws, commonly called equity.  There is nothing in the make-up of organizations which require any provision of equity–if a member of an organization does not approve of one of its laws, that member may work within the organization to pass a resolution rescinding that law or the member may quit the organization.  Citizens of nation-states, often for reasons of family, traditions or patriotism, as well as laws proscribing the citizen’s movements, may not have the choice of quitting that nation-state to join a different one, hence the existence of equity sections in their written constitutions.  Equity is not synonymous with justice since justice has moral connotations while equity is strictly concerned with legality and fairness in application of laws; equity provisions in a written constitution can, in no way, guarantee justice.

Philosophically, for a nation-state, the above paragraph lays out the proper relations between a written constitution, the laws enacted by the government established by that written constitution and the rulings of that government’s section charged with deciding matters of equity.  These are: constitutional provisions always have precedent over laws and equity rulings are concerned with citizen’s complaints in the application of laws either in specific circumstances or in the relationship between a specific law and the constitutional provision underlying that law.  Unless specifically prescribed otherwise an equity ruling has no effect upon a written constitution or any laws duly enacted under the rules of the constitution.

So much for common sense.  Governments of nation-states are composed of people and these people can, and usually do,  have different interpretations of the constitutional provisions as well as of the duly enacted laws.  These interpretations can be incorporated in the government as de facto laws and invalid constitutional interpretations.  Two exceptionally egregious beliefs of the American people (this includes members of the Legislative and Executive Branches) are that SCOTUS has the authority to invalidate Congressional laws and that SCOTUS can invalidate sovereign State laws which violate ‘freedom of speech’ as defined by SCOTUS.  A very egregious de facto law observed by SCOTUS is that judicial precedence is above the Constitution.  These de facto laws cannot be deduced from any reasonable interpretation of the U.S. Constitution yet they are religiously obeyed.

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