In the unfolding storm over President Obama’s health care mandate we have heard that the rights of women to have their reproductive health needs protected have been trampled. Certainly those needs need to be addressed. But I have yet to hear whether or not those needs trump the need to keep the First Amendment to our Constitution untrammeled and intact.
“Hard cases make bad law” is a legal maxim that is widely known and quoted, the idea being that the law is not malleable putty but needs to be properly maintained within our legal system by due process through our appellate system. There are three branches to our American governmental system. The Legislative branch is supposed to enact laws, the Executive branch to enforce them, and the Judicial branch is to ensure that the other two branches act lawfully and in accordance with our Constitution. President Obama's HHS mandate and its "accommodation" is a constitutional issue not just a governmental policy question... and he knows that. After all he taught Constitutional Law at Harvard. It is the Judicial branch that will ultimately decide this issue.
It is within that context that we should evaluate what the Obama administration is mandating by requiring that religious institutions provide “free” contraceptive services to their employees even though those services run contrary the teachings and practices of the religious bodies to which they belong. In other words, how free is their freedom of religion? Does the claimed reproductive health of women trump all else, even the freedom of religion clause of the First Amendment?