Sensenbrenner: Don’t Know If Gov’t Birth Control Mandate Is Constitutional

By Elizabeth Harrington | February 20, 2012 | 5:58 PM EST

Rep. James Sensenbrenner (R-Wisc.) (AP Photo)

( – When asked whether the Constitution gives government the authority to mandate that private companies give certain products away for free – specifically in reference to President Barack Obama’s regulation that health insurers must offer abortifacient drugs free of charge – Rep. James Sensenbrenner (R-Wisc.) said he did not know, adding that the real issue was whether people had a religious objection to a certain form of health coverage.

In explaining the Obamacare regulation, issued by the Department of Health and Human Services (HHS), on Feb. 10, President 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.”

If the player does not load, please check that you are running the latest version of Adobe Flash Player.

The health insurers will have to offer sterilizations and FDA-approved contraceptives, including those that induce abortion, such as the drug “ella.” Individuals or employers who object to those services for religious reasons will not pay for them directly for other people, but they will indirectly subsidize them through their health insurance premiums.

At the U.S. Capitol on Feb. 15, asked Rep. Sensenbrenner, “Beyond the religious liberty issue, is it constitutional for the federal government to force private companies to provide products for free?  Like what the president said in his compromise, insurance companies have to offer free of charge?”

HHS Secretary Kathleen Sebelius and President Barack Obama at the White House on Feb. 10, 2012. (AP Photo/Susan Walsh)

Sensenbrenner said, “Well, I don’t know if that’s been litigated on the federal level. What I can say is many states have had mandatory inclusion of services in all health insurance policies that have to be sold within the state.  You know, for example, there was a big fight until about 25 years ago on whether chiropractic services would be covered and finally the chiropractors beat the doctors in the Wisconsin legislature and they have been covered.  But that really is not the issue that is presented here.”

“The issue presented here is when people have a well-founded religious or moral objection to certain type of coverage,” said Sensenbrenner.  “It’s not an economic objection where somebody might get paid more and somebody else might get paid less under health insurance policy.”

Rep. Sensenbrenner spoke with after he had attended a press conference in support of Rep. Jeff Fortenberry’s (R-Neb.) Respect for Rights of Conscience Act.  The proposal would virtually rescind the Obama administration mandate on religious institutions which object. But critics note that the legislation ignores the fact that under the HHS rule, individuals would still be required to purchase insurance from companies that are required to offer contraceptive and abortifacient coverage.

The Obamacare regulation, set to go into effect on Aug. 1, has been condemned by various religious groups and at least 158 members of Congress as a violation of religious liberty.