A Unique Perspective on the HHS “Cram-Down”

Posted by John Jansen (March 7, 2012 at 7:11 pm)

One of the more fascinating commentaries on the HHS Mandate that has appeared recently is that written by University of St. Thomas law professor Michael Stokes Paulsen, entitled “Obama’s Contraception Cram-down: The Pork Precedent.”

Paulsen’s use of the words “cram-down” was quite deliberate, calling it “a perfect term” to describe the HHS’s policy:

The whole point, it seems, is to override religious objections to such a policy to the maximum extent politically possible, out of an intense ideological commitment to contraception and abortion as ‘preventive health care.’ It is vital, the ideologues say, to prevail over religious objections precisely in order to advance, and permanently entrench, this particular ideology and, further, to vindicate the power of government to impose such policies on everyone. Religious objections must be overcome, in part for the sake of overcoming religious objections.

He goes on to say that the HHS Mandate calls to mind a story from the book of Fourth Maccabees, one of the books of the “Apocrypha.”

In the second century B.C., the Seleucid Emperor Antiochus IV Epiphanes decreed that all Jews would be forced to violate their consciences by eating pork and food sacrificed to idols.

The Chosen People didn’t take too kindly to this unjust order, and so they refused to obey it. As a result, many of them—including a family of seven brothers—suffered unspeakable tortures and ultimately martyrdom.

Paulsen notes, plainly, that this story “does not have an especially happy ending (at least from a human, secular standpoint).” Yet it remains a “remarkable two-thousand-year-old parable about tyranny and conscience, about cram-downs, accommodations, deception, and adherence to principle.”

He then makes this observation:

There are relatively few instances in recorded modern western history when government has insisted on vindicating its authority and overriding religious conscience for its own sake—purely for the symbolism of power prevailing over conscience. … William Penn and other Quakers were punished for failing to remove their hats in deference to civil authority. As recently as the 1930s and 1940s, Jehovah’s Witness schoolchildren were expelled from school for refusing, out of religious conscience, to salute the flag and recite the Pledge of Allegiance. (The Supreme Court upheld such expulsion in Minersville School District v. Gobitis [1940], but reversed itself in West Virginia State Board of Education v. Barnette [1943].)

The HHS mandate is of a piece with these infamous examples.

Indeed it is.

Read Paulsen’s article in its entirety here.

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