Category Archives: Presidential Authority

Who Should Pay? American Birth Control and The First Amendment

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

“I almost threw up,” was a remark by current presidential candidate Rick Santorum given in response to a speech by John Fitzgerald Kennedy, the 35th President of the United States. On September 12, 1960, Kennedy’s speech outlined his opinion on the distinct roles that the church and state should play in America. Kennedy’s speech came in response to skepticism and disdain projected at him because of his Catholic faith. Public counter arguments undermining previous President’s views by presidential hopefuls and political ideologists are not uncommon. It is common for these opposing statements to be made for political gain, political distancing, or simply because of honest disagreements. This is especially true when a political stand has been taken or when a new piece of legislation is proposed. A debate has been ignited and statements such as Santorum’s have been prevalent due to President Obama’s recent birth control policy.

The new policy, which was adopted earlier this month as part of Obama’s health reform law, the Patient Protection and Affordable Care Act of 2010, requires most employers to provide health insurance coverage for women’s contraceptives free of charge. This birth control aspect of the law caused an immediate and swift backlash, especially from a great deal of Catholics. A large percentage of Catholics do not believe in women’s contraception at all and feel the law unjustifiably and unconstitutionally forces their hand.  Many Catholics, especially company owners and others in positions of power, find a problem with the law in that it essentially forces them to insure employees with respect to something they do not personally believe in. Even Vice President Biden, a Catholic, was vocal about the controversy and said the presidential administration needed to reassess this component of the reform law “to make sure that we do not force the Catholic Church to do something that they fundamentally think is inconsistent with their religious beliefs (sic).”

Obama made a “compromise” after national pressure from the Catholic Church and a subsequent reassessment of the reform law. In specific situations the compromise requires the insurance companies to cover the cost of birth control coverage for employees, hence eliminating the employer’s obligation.  The compromise is applicable to religiously affiliated institutions, including “Catholic-run hospitals and universities that oppose artificial contraception.”  The compromise made it so the law does not apply to places of worship, including, churches, synagogues and mosques. The compromise did a service to Obama’s administration by appeasing a faction of the Catholic community and allowed the administration to make strides toward weathering the controversy.

However, the contrasting sides of the argument are stark and the debate with respect to the legality of this birth control policy continues. Naturally, litigation is expected to occur when religious beliefs, new legislation and the rights of a constituency are at stake. Subsequently seven states, two private citizens, two religious nonprofit organizations, and a Catholic school have all joined in on a lawsuit against Obama’s policy. The lawsuit asks a federal judge to rule the law unconstitutional and enjoin the government from enforcing the requirement.

Nevertheless, many Catholic leaders, evangelical groups, Republicans, social conservatives and even a minority of Democrats have rejected this compromise. They argue that this law still “violates religious freedom under the U.S. Constitution and would cause economic hardship for self-insured institutions.” Archbishop Thomas Wenski, who heads the Catholic archdiocese of Miami, says this was a unilateral decision made by Obama administration and the compromise was no more than a “smoke screen” to calm down the controversy. He argues that his problem with the birth control policy is that it forces employees of Catholic charities, hospitals and universities to receive birth control coverage, hence affecting one’s “religious freedom.” When pressed about the idea of shifting the burden to the insurance companies, Wenski acknowledges it, but does not feel it solves the religious liberty problems or is a compromise at all. He points out that self-insured dioceses and charities having to cover their employees would be violating their religious principles. Essentially, Wenski questions the policy considerations when an insurance company is not the insurer.

The question then becomes who is responsible. Wenski and other Catholic Church leaders with similar views believe the employers will eventually be held responsible to cover this gray area in the birth control policy. Additionally, some states and religious groups that are not covered under the religious compromise are suing because they say the policy violates their freedom of conscience and the Religious Freedom Restoration Act (RFRA) of 1993. John Witte, Jonas Robitscher Professor of Law at Emory University, says RFRA requires the federal government to show it has a compelling state interest if it violates the religious freedom of a person or group, and it must show that it used the least restrictive alternative for achieving that state interest. He also says “those two hurdles of the RFRA, I think, would be very hard for this new mandate to pass, when an individual or group brings claim.” Many members of Congress seem to agree.

Senate Republicans recently proposed legislation that would allow employers and insurance companies to opt out of portions of the reform law in which they found morally objectionable. Members of Congress argued the birth control requirement under the reform law violates the First Amendment’s guarantee of religious freedom by “forcing insurers and employers to pay for contraception for workers even if the employers’ faith forbids its use.” The measure was narrowly defeated by Senate Democrats.

Senator Barbara Boxer (D-California) was vocal in her opposition to this Republican-led legislation. Her rationale? The proposal gave insurance companies too much discretion in their dealings with employees and this insurance company opt-out clause could potentially be dangerous. She said Congress has “never had a conscience clause for insurance companies” because the majority of them do not “have any consciences.” She went on to say that this would give insurance companies yet another method to deny coverage for medical treatment, virtually undermining the objectives of the reform law.

It is not uncommon for a policy such as this one to cause disagreements about its constitutionality, however, other factors from a public relations standpoint has contributed to heightening the debate.

Aside from the substantive law, many in the public, church and in governmental capacities do not agree with how the decision to move forward with the policy was handled. Wenski pinpoints the lack of collaboration on the act as one of his biggest contentions. He states, “The White House didn’t consult the bishops.” The U.S. Conference of Catholic Bishops President, Timothy Dolan of New York, expressed his view on the necessity of an open dialogue between the Obama administration and his faction of the Catholic Church, calling the proposed birth control compromise unacceptable. Dolan feels that an acceptable solution can be made if everyone has a seat at the table.

However, the public feelings towards the law are telling a different story despite church leaders’ calls for increased collaboration and the unfavorable characterization it has received from a legal and ethical standpoint. Polling has indicated that the majority of the public favor requiring birth control coverage for employees of religiously affiliated employers. Joint polling by CBS News and The New York Times from February 8th-13th found that 61% support Obama’s birth control policy, while 31% oppose it. Additionally, Thomson-Reuters News has reported that polling of 1,500 adults found that 63% of Americans overall supported the policy, according to the data. It also has to be encouraging to the Obama administration that polling has found that Catholics support the requirement at a similar rate as all Americans. Even the initial compromise of allowing religious institutions to opt out of the birth control policy was met with praise from a faction of Catholics.

The compromise instantly garnered praise and excitement towards the Obama administration from the Catholic Health Association, a substantial association that oversees some 600 Catholic hospitals. The head of this association, Carol Keehan, said that the administration “listened to us and they heard the things that we were most concerned about, and we’re pleased.” She explains that women get the health care they want, the church does not have to pay for or endorse birth control, and everyone wins. This is a feeling attested to by Rev. Thomas Reese, a Jesuit priest at Georgetown University’s Woodstock Theological Center. Reese believes that the religious liberty issue went away when the birth control compromise ensured that religious groups do not have to pay for or recommend birth control coverage. He further rationalizes that “most Catholic women want, and use, birth control.”

The Obama administration hears the debate and is actively defending their decision. When responding questions about the possible legal ramifications of the policy, Secretary of Health and Human Services Kathleen Sebelius stated the administration had their legal department “look at a whole host of legal issues.” To minimize litigation and compromise further with the opposing side, the administration has said they are currently crafting a plan to present to self-insured employers that have religious objections to the policy. Having the majority of America’s support in addition to working towards compromising with self-insured employers has put Obama in a strong political position. If polling is accurate, he is on the winning side of the debate regarding contraception.  This is great news for his political standing, however, the birth control policy has to withstand a barrage of scrutiny to remain effective.

This topic is going to be heavily litigated and both sides have compelling arguments.  However, the Obama compromise is a substantial step in the right direction. It is hard to make an argument that your religious freedom is being violated when you (the employer) are taken out of the equation. What argument can be made if an employer does not have to or is not expected to even discuss birth control with their employees is not readily known. It is hard to see where a violation of rights of potential employers comes from if the burden of insuring is now placed in the hands of the insurance companies.

Furthermore, the argument that Wenski makes that the policy is unconstitutional because “it forces employees of Catholic charities, hospitals and universities to receive birth control coverage” is unlikely to stand up. Simply because the employees have access to this right does not mean they have to use this right. President Obama is not forcing anyone to use the birth control; he is just making it accessible to the individuals that choose to use it. It would most likely be hard to convince the public or a court that a piece of legislation is unconstitutional because it provides employees additional coverage and the decision whether to use is left to their discretion. Nevertheless, there is a valid objection that can be made about self-insured employers. The administration has not rectified the situation and this could be problematic. A religious freedom argument could be made if self-insured religious organizations are asked to pay for something they do not believe in. The President must know this and judging by the initial compromise, it is easy to believe he will come up with a fair solution to please all interested, objective parties.

Sources:

http://www.reuters.com/article/2012/03/01/us-healthcare-contraceptives-poll-idUSTRE8200C320120301

http://www.npr.org/2012/02/10/146710901/catholics-have-mixed-reaction-to-birth-control-reversal

http://www.chicagotribune.com/news/politics/sns-bc-apfn-us–birthcontrolpolitics,0,231697.story

http://www.lifenews.com/2012/02/15/sebelius-didnt-talk-to-bishops-about-obama-mandate/

http://www.christianpost.com/news/obamas-birth-control-mandate-unlikely-to-win-court-challenges-legal-scholar-says-70598/

http://www.foxnews.com/politics/2012/02/24/7-states-sue-to-block-contraception-mandate/

http://abcnews.go.com/blogs/politics/2012/02/rick-santorum-jfks-1960-speech-made-me-want-to-throw-up/

http://www.npr.org/templates/story/story.php?storyId=146663659

http://thehill.com/blogs/congress-blog/healthcare/210863-president-obama-and-bishops-should-keep-talking

http://www.mpnnow.com/opinions/x1676726073/EDITORIAL-Bishops-Obama-should-work-this-one-out

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Obama Administration Justified in Targeted-Killing

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Anwar al-Awlaki (Awlaki) is dead. Before September 29, 2011, this leader was relatively unknown to most citizens of the United States. However, Awlaki’s story has quickly developed and been publicized due to America’s demand for instantaneity and aggressiveness from its news sources. Why Awlaki was killed, who killed him, and the nature of his killing was exposed in two days. The covert operations penetrating his life, the intelligence leading to his demise and the subsequent blow to his constituency has been plastered across various print and electronic media. Everything from his religious beliefs, the way he lived his life, schools he attended, and the scope of his marriages are in steady conversation rotation across the country. As these facts continue to come to light, it is Awlaki’s citizenship which will most likely have the most significant impact in the foreseeable future.

Awlaki was an admitted member of al-Qaeda. He had every right to join al-Qaeda and promote the beliefs of his organization. Awlaki had free will to support al-Qaeda and encourage their direction. He routinely expressed his hatred for America and Western Civilization. Awlaki used his radical influence to cause harm and continue a jihadist “holy war” against America.  U.S. military officials have called him a master propagandist and said he had immense ability to harm our country.  Subsequently, his dedication led him to become a supremely powerful figure within their ranks. However, it was Awlaki’s actions, not beliefs, which led to his being targeted. Al-Qaeda’s destructive actions and operational tactics have been widely held as terroristic in America. Their attacks on American soil and around the world have led the U.S. government to classify them as a legitimate threat to our national security. Awlaki’s speeches indicate he knew of al-Qaeda’s extremist reputation and he used his position to perpetuate these actions himself. He publicly praised numerous attacks on the nation and was charged with plotting attacks. President Obama even described Awlaki as the “leader of external operations for Al-Qaeda.”  Awlaki was perceived as such a threat that he was approved for targeted killing by the Central Intelligence Agency (CIA). Naturally, he met the same fate as most do when they are placed on this list.

The death of Awlaki came early Friday morning while he was hopping into a pickup truck.  He was caught in the crosshairs of an armed CIA drone and there was nothing he could do.  His death was carried out in Yemen and has been widely praised by their government. It is broadly speculated that the Yemeni Government helped carry out this military operation. Nonetheless, the U.S. Government has not given the exactness of their intelligence. Yemeni officials have commented that Awlaki was a threat to all and that his death was the direct consequence of his actions.  This rationale aligns with the comments being made by United States officials.  However, there is an increasingly growing underlying conversation being had in America about this military action.  Anwar al-Awlaki was born in New Mexico, making him an American citizen.

The conversation being had is the legality of the U.S. government killing an American citizen without judicial process.  The critics of Awlaki’s killing point to the Fifth Amendment to the Constitution that states no one shall be “deprived of life, liberty, or property, without due process of law.” These critics argue that there was not a single legal process that led to Awlaki becoming the first U.S. citizen placed on the CIA’s targeted killing list. They argue that this is America and in America actions such as these have to be fulfilled through a legal process. Further, critics point to the potential precedent this targeted listing and killing imposes. It is believed this opens the door to expanded executive authority to the killing of Americans. The American Civil Liberties Union’s (ACLU) Deputy Legal Director Jameel Jaffer said, “It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.” Decriers say Awlaki’s murder goes against the framework of our country and has severely eroded the power of the judiciary.  The ACLU filed a lawsuit last year challenging the constitutionality of adding an American citizen to the targeted killings list. The lawsuit was dismissed and the federal judge noted that Awlaki had shown no interest in pursuing a claim in a U.S. justice system “he despised.” However, these conflicting views on the legality of the targeted killing of Americans has not been limited to the parties involved in litigating the preceding laws.

Presidential candidate Ron Paul has even expressed skepticism. He stated U.S. leaders must analyze “assassinating American citizens without charges” even if they do have strong terrorist ties and affiliations. Individuals with similar views of Ron Paul and the ACLU argue that there is no nexus between Awlaki’s actions and superseding the constitution. It is clear that he was implicated in various terrorist acts around the world, but Awlaki never was convicted in an American courtroom. It is this point that is fueling the debate. The critics of the killing argue that the Fifth Amendment requires a trial and conviction in court in order to kill any American citizen.

A quick resolution to this debate seems bleak since no real precedent exists.  Members of the legal community have tried to compare it to the detention of Americans who sided with our enemies in World War II. The precedent established by the actions taken in that point in history is unlikely to gain popularity because a lot of people do not accept America’s conflict with al-Qaeda as a real war. Robert Chesney, a law professor at the University of Texas who specializes in national security law, said that he does not believe “there has ever been a case quite like this.” With that said, most people opposed to Awlaki’s killing are not contentious about the circumstances surrounding his death. These people understand that he was a radical man and did not view America in the best light. However, they are worried about the slippery slope his placement on the targeted list has created.

Nevertheless, the Obama administration has heard the critics and has taken a position to rebut them. The Obama administration claims they were justified in placing Awlaki on the CIA’s targeted killing list because of his shifted focus and subsequent actions. They claim he went from a role of propagandist to operationally active during wartime. They point to Awlaki’s influence within the al-Qaeda sector in the Arabian Peninsula and his role in al-Qaeda in developing terrorist plots against America. The administration focused on three elements to support their argument when they rebutted ACLU’s lawsuit. First, they established that Awlaki was an imminent threat to American citizens. They produced evidence of his participation in plots to blow up specific American based airliners and cargo planes. Next, the administration relied upon the fact Awlaki was fighting with the enemy in armed conflicts against American forces. This was said to further his direct threat against America. Finally, and most importantly, the administration pinpointed the fact that they could not find a feasible way to arrest him. Awlaki’s dual citizenship, allegiance of followers, fleeing ability and pure determination to avoid capture made him “a hard target.” A hard target that was inevitably hit.

“If you’re a terrorist, you’re a terrorist,” exclaimed Secretary of Defense Leon Panetta when commenting on Awlaki’s killing. Anwar al-Awlaki was a terrorist.  He was a threat to anyone in this country and anyone whose religious and cultural views did not align with his. His preaching of violence and hate was heard around the world and became more threatening every day. He was just one man, but his influence inspired countless. My views support the officials around the globe acknowledging a safer world without him in it. A stereotype of the al-Qaeda network does not lead me to believe this way. My reasoning comes solely from the words out of his mouth. Awlaki’s destructive words and slant towards violence against America is unacceptable. And I fully agree with the Obama administration legal justification.

It is the federal government’s duty to protect the sovereignty of our nation and provide safety from threats.  Awlaki’s influence and his own hands were an immediate threat to American citizens. He preached for our deaths and took up arms against our troops. His actions were a direct threat against every citizen in the United States and considered treason in the U.S. Constitution (Article 3, §3). The Constitution further signifies that treacherous behavior is punishable by death.  Although Awlaki was not convicted of treason, his words and admittance to crimes made his traitorous stance clear. Furthermore, he was a wanted man and could have turned himself in to clear his name. Awlaki made the choice to elude law enforcement and forgo the judicial process.  America gives any citizen charged with a crime an opportunity to turn themselves in. Clearly, rectifying actions have to be taken when a charged party neglects this right, especially when federal organizations classify this party as a threat. It is true, Awlaki was not given a trial and this seems to cut against the Fifth Amendment. However, the Constitution has to be read and interpreted in the aggregate when the situation warrants. We know of at least three constitutional arguments that arise from Awlaki’s killing. His killing was executed without the exercise of the judicial process. Awlaki was thought to have committed treason. And it is the federal government’s duty to protect its citizens from foreign and domestic threats.

The Obama administration fulfilled their duty by adding Awlaki to the targeted killing list and executed their agenda. Taking away a President’s authority to order someone placed on the targeted killing list would not make America safer. I believe it would impede the national government’s duty to keep its citizens safe. Extreme measures are needed when time is of the essence and threats are imminent. The country elects our leaders to make the hard choices and sometimes they have to be made for our protection. It is a fallacy to demand constitutional protection from threats as an American citizen but chip away at the weapons used to protect us. I am sure the administration would have loved to minimize the Awlaki threat in a more judicially sound way, but CIA drones do not carry handcuffs.

Sources:

http://www.usatoday.com/news/washington/story/2011-09-30/awlaki-legal/50620240/1

http://www.bendbulletin.com/article/20111001/NEWS0107/110010372/

http://www.washingtonpost.com/world/national-security/yemeni-al-qaeda-took-a-blow-but-remains-a-threat-to-us/2011/10/01/gIQAw9OmDL_story.html

http://en.wikipedia.org/wiki/Anwar_al-Awlaki

http://globalpublicsquare.blogs.cnn.com/2011/10/01/killing-awlaki-was-illegal-immoral-and-dangerous/

http://www.denverpost.com/nationworld/ci_19022223

http://nationalinterest.org/blog/paul-pillar/the-killings-yemen-the-rule-law-5963

http://en.wikipedia.org/wiki/Treason

http://cnnpressroom.blogs.cnn.com/2011/09/30/panetta-if-youre-a-terrorist-youre-a-terrorist/

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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