Sen. Lee: ‘Heavens, No!’ Constitution Doesn’t Give Gov’t Authority to Force Companies to Provide Products for Free

By Christopher Goins | February 16, 2012 | 4:25 PM EST

( – The U.S. Constitution does not give the government the authority to mandate that private companies give their products away for free, said Sen. Mike Lee (R-Utah), although President Barack Obama stated on Feb. 10 that through a regulation in Obamacare health insurers would have to provide contraceptive care “free of charge, without co-pays and without hassles.”

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At the conservative Heritage Foundation on Monday, asked Senator Lee, "Does the Constitution authorize the federal government to force private companies to give away products for free?

Lee said: “Heavens, no! Let me count the ways. In the first place, nothing in my copy of Article 1, Section 8, gives Congress the authority to be doing this in the first place. Congress, of course, has to have an affirmative grant of authority either in Article 1, Section 8 or elsewhere in the Constitution to do something. It can't just act because it thinks it’s in the public interest. And it manifestly lacks that power here.”

He continued: “Secondly, telling somebody they have to give something to someone for free without the government or anyone else paying for it, in my mind, qualifies as an uncompensated taking of property and you can't do that.”

“Thirdly, where there are profound religious implications, as there are here, you get into both the Establishment clause and the Free Exercise clause,” he said.

Lee added that the Free Exercise of Religion Clause in the Constitution comes into play “for more obvious reasons” because religious institutions, hospitals, charities, and religious universities do not want to provide this particular service in question and that “they shouldn’t have to.”

Sen. Mike Lee (R.-Utah) (AP Photo)

“[A]t least under that portion of the free exercise of religion that is still protected vis-à-vis the federal government with the Religious Freedom Restoration Act, they can't just tell a religious institution you have to do this when it goes against their sincere religious beliefs and practice to do so,” Lee said.

In regards to the Establishment Clause of the Constitution, Lee said that a problem of a “different dimension” arises.

“Given how intrusive this administration has been on this issue, it’s my understanding that the president ordered the Office of the Military Chaplains in the Pentagon not to distribute a letter issued by the U.S. Conference of Catholic Bishops to chaplains throughout the military,” Lee said. “That's a huge problem. That is excessive entanglement under the Lemon test and under any of the thousands of conceivable [inaudible] under a really messed up Establishment Clause jurisprudence. That is an establishment clause problem.”

Sen. Roy Blunt (R-Mo.), who was also at the Heritage Foundation on Monday, said that he was “sure” that congressional authorization from the Constitution to force private companies to give away products for free is “something the founders have never contemplated.”

In late January, the Department of Health and Human Services (HHS) finalized an Obamacare regulation that would require all health insurance policies – except those for a strictly religious group, such as a church – to cover sterilizations and FDA-approved contraceptives, including those that induce abortion.

That rule sparked opposition from numerous religious groups, including the U.S. Conference of Catholic Bishops, and at least 158 members of Congress. As a result. President Barack Obama, on Feb. 10, announced that all health insurers would have to provide contraceptives and abortion drugs free of charge, and that people who objected for religious reasons would not be paying for those services directly anyway; the burden would be on the insurance company.

In his remarks from the White House, Obama said: “Today, we've reached a decision on how to move forward.  Under the rule, women will still have access to free preventive care that includes contraceptive services -- no matter where they work.  So that core principle remains.  But if a woman’s employer is a charity or a hospital that has a religious objection to providing contraceptive services as part of their health plan, the insurance company -- not the hospital, not the charity -- will be required to reach out and offer the woman contraceptive care free of charge, without co-pays and without hassles.

“The result will be that religious organizations won’t have to pay for these services, and no religious institution will have to provide these services directly.  Let me repeat:  These employers will not have to pay for, or provide, contraceptive services.  But women who work at these institutions will have access to free contraceptive services, just like other women, and they'll no longer have to pay hundreds of dollars a year that could go towards paying the rent or buying groceries.”