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Constitutional? Legal? No, the 'compromise' is purely political

By Phil Lawler (bio - articles - email) | Feb 16, 2012

Under questioning before the Senate, HHS Secretary Kathleen Sebelius confirmed that her staff had not consulted with the US bishops before revealing the “compromise” that supposedly resolved problems with the contraceptive mandate. She also revealed that her staff had not consulted with the Justice Department, to ensure that the plan was constitutional. Nor had they checked with Justice to see whether the plan fulfilled the requirements of the Religious Freedom Restoration Act.

So it was a “compromise,” but Sebelius didn’t bother talking with the people she was supposedly comprising with. It involved federal legislation, but she didn’t double-check to ensure that the legislation was legal. You might be tempted to say that Sebelius hadn’t done her homework before announcing the new plan.

But don’t jump to conclusions. The assignment for HHS was not to preserve the Constitution, nor to satisfy the Catholic bishops. The assignment was not to propose new legislation. In fact no new plan was introduced; the Obama administration merely said that a new plan would be introduced, after the election—when the White House no longer has to worry about the political fallout. The assignment for Sebelius was to produce a semi-plausible statement that President Obama could make, and thereby create some cracks in united Catholic opposition. In other words, her assignment was to prepare for a press conference.

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