Did Ginsburg hint at the court’s direction on the HHS mandate?

posted at 2:01 pm on July 8, 2012 by Ed Morrissey

The legal win last week for Barack Obama at the Supreme Court on ObamaCare came with some significant downside.  Among them, the affirmation of constitutionality for the ACA means that the HHS mandate on contraception remains in place, a diktat to religious organizations to fund and provide access to sterilization, abortifacients, and other means of birth control that violate the tenets of their faiths.  Dozens of Catholic organizations have already filed suit, and plan to go full speed ahead with them:

The Supreme Court may have ruled on Obamacare, but a pro-life law firm that is behind some of the many lawsuits that have been filed against the HHS mandate that requires religious groups to pay for birth control and abortion-causing drugs say those challenges continue.

Last Thursday, the Supreme Court issued a 5-4 decision essentially upholding the Obamacare law that pro-life groups regard as the biggest expansion of abortion and abortion funding since Roe v. Wade. The law also drew strong opposition from the pro-life community not only over abortion but because the legislation also promotes rationing of medical care that could lead to involuntarily denying lifesaving treatment. …

But the law was also problematic for pro-lifers because of the controversial HHS mandate — which The Becket Fund for Religious Liberty indicates are still a topic of legal challenges that will move forward. Although the Supreme Court rejected claims challenging the individual mandate, the pro-life legal group says it allowed religious-liberty lawsuits against the HHS Mandate to proceed.

“The court’s opinion did not decide the issues in our cases,” said Hannah Smith, Senior Counsel at the Becket Fund for Religious Liberty.  “We are challenging the Health and Human Services (HHS) mandate on religious liberty grounds which are not part of today’s decision.  We will move forward seeking vindication of our client’s First Amendment rights.”

In other words, the political problems with ObamaCare remain — and in this case, an inexplicably self-inflicted political problem.  The US Conference of Catholic Bishops took a lot of flak for conducting its Fortnight for Freedom in the middle of an election campaign, but as they pointed out, they didn’t choose the timing of the order that would force Catholic organizations to fund and facilitate access to birth control.  That decision came from the White House, which could have resolved the controversy — at least as far as the USCCB is concerned — by extending the religious exemption to all religious organizations, a change that would have impacted less than a million workers in an economy of over 142 million jobs.  Instead, Obama and HHS Secretary Kathleen Sebelius chose to deliberately antagonize a constituency Obama won in 2008 by nine points, and a leadership group that should have been a natural ally, as it has pushed for universal health care for almost a century.

Earlier this week, Politico reported that Obama’s obstinacy on this point could lead to another defeat, this one both legal and political.  In reading the dissent written by Justice Ruth Bader Ginsburg, she defended the individual mandate to carry health insurance, but noted that the Constitution still limited the federal government from imposing other mandates:

Several of the groups that have filed suit saw a glimmer of hope for their case in Justice Ruth Bader Ginsburg’s opinion in the Supreme Court’s individual mandate case.

“Other provisions of the Constitution also check congressional overreaching,” Ginsburg wrote. “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion or infringed on a liberty interest protected by the Due Process Clause.”

The phrasing caught the eye of many opponents of the law.

“You can never know the motivation of the justices, but the fact that she put that in there seems to me a suggestion to the administration that you need to find a way to figure this out,” said Grace-Marie Turner, president of the  Galen Institute. “It’s just such a direct affront to the First Amendment.”

“I think the justices are aware that there are these HHS mandate cases out there,” said Eric Rassbach, deputy general counsel at the Becket Fund, which is representing the plaintiffs in four of the cases. “They’re going to be dealing with the Affordable Care Act cases for several years.”

Don’t forget that this is the same court that delivered an embarrassing and unanimous slap at the Department of Justice for its attempt to apply EEOC laws to churches in their employment of ministers — and, importantly, others as well.  In that 9-0 decision in January, the court ruled that religious organizations had a First Amendment right to determine their own hiring policies as part of their religious expression.  Quite to the point of this controversy, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC did not involve an actual minister within the four walls of a church, but a teacher at a school of the kind that would be entirely subject to the HHS contraception mandate.  Walter Olson at Cato described the case prior to the decision:

A Michigan teacher who taught a mix of secular and religious topics at a (now-closed) religious grade school filed suit against the school over alleged retaliation under the Americans with Disabilities Act. The church had designated her particular teaching position (unlike some others) as reserved for persons with a “calling,” and it deemed her not to have such a calling, given her willingness to resort to court action rather than internal church dispute mechanisms. But perhaps the school had erred by reserving the position for persons with a calling. If so, who should decide where to draw the line? The federal Equal Employment Opportunity Commission? A federal court that might be unfamiliar with, or unsympathetic to, church doctrine?

Had the Obama administration sought to sidestep culture-war politics and buff up its pluralist credentials, it might have urged the high court to read the ministerial exception broadly to include jobs including religious instruction, or at least urge it to decide the case at hand narrowly. Instead, it astonished some onlookers by urging the Court to reconsider the ministerial exception entirely.

If Ginsburg was trying to send a message to the Obama administration, she must have been mystified as to why it was necessary to do so.  Hosanna-Tabor should have been message enough.  Clearly, the administration will lose in federal court, and lose big.  If they’re bothering to read the opinions in the ACA decision, the geniuses who thought up the incredibly narrow and repulsive religious exemption to the HHS contraception mandate had better start working on an exit strategy from it — when it still might do Obama some political good.


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If Dear Leader could just appoint a couple more of his Marxist/Commie buddies to the court…good times!

d1carter on July 8, 2012 at 2:07 PM

Speaking of HealthCare!

Weekly Republican Address 7/7/12: Rep. Ann Marie Buerkle (R-NY)
Published on Jul 6, 2012 by HouseConference
********************************************

In this week’s address, Rep. Ann Marie Buerkle (R-NY) discusses

the U.S. House of Representatives’ upcoming vote to repeal the president’s health care law in its entirety.

The law is driving up costs and making it harder for small businesses to hire new workers. As we’ve seen with the latest jobs report, national unemployment has been at or above 8% for 41 consecutive months. That is why House Republicans have a plan for America’s Job Creators. House Republicans have passed more than 30 bipartisan jobs bills that are stuck in the Democrat-controlled

U.S. Senate. Check them out here: http://majorityleader.gov/jobstracker
============

http://www.youtube.com/watch?v=J5ZlU1AHD1I

canopfor on July 8, 2012 at 2:07 PM

Wait till they mandate abortions, and “fine,” “tax,” or [insert any other euphemism for "force"] you, if you don’t COMPLY.

And, of course, all of this is about COMPLIANCE.

Utopia is Obedience.

OhEssYouCowboys on July 8, 2012 at 2:09 PM

I really wish you would stop urging them on to “fix it”. If it’s a sure fire loss for Obama in the courts, and a sure-fire loss for Obama politically, why so much interest in having him “correct” it?

I pray to God he drags this out as long as humanly possible. I want the knife that he put in the back of the RCC to go as deep as possible, for as long as possible — with the hope that the church will have a long memory.

Wishful thinking I’m sure.

preallocated on July 8, 2012 at 2:10 PM

The legal win last week for Barack Obama at the Supreme Court on ObamaCare ObamaTax came with some significant downside.

Roberts modified the law’s text to make it so.

Therefore it is so! Plus, there is no care in it.

Schadenfreude on July 8, 2012 at 2:12 PM

Looking back, Ginsberg’s showing up to say nothing now looks less mystifying and more like a pre-reveal victory lap.

thatsafactjack on July 8, 2012 at 2:16 PM

Hmmmmmmm…………………..

SCOTUS ACA Tea Leaves:

Justice Ruth Bader Ginsburg Keynote to ACS National Convention
27 Wednesday Jun 2012
********************

In her words, Justice Ginsburg offers ‘an impressionistic view of life’ in the 2011-12 Court. At 27:35 mark, she comments on ‘the Affordable Care Act cases’ remarking with some levity if not temperance:

Video(40:14)
=========================

http://acowatch.wordpress.com/2012/06/27/scotus-aca-tea-leaves-justice-ruth-bader-ginsburg-keynote-to-acs-national-convention/

canopfor on July 8, 2012 at 2:21 PM

Well if the SC does not rule in favor of the Catholic Church and others of faith against this mandate, how many hospitals will be closed if they walk/close their doors? Is this what bho/team wants? It sure seems so at this point?
L

letget on July 8, 2012 at 2:23 PM

If Dear Leader could just appoint a couple more of his Marxist/Commie buddies to the court…good times!

d1carter on July 8, 2012 at 2:07 PM

If he gets another term, he almost certainly will have that opportunity . . . which is one of the reasons why he must not get another term.

AZCoyote on July 8, 2012 at 2:27 PM

As long as it is a tax, they can do whatever they want to us under the Roberts majority.

Valiant on July 8, 2012 at 2:29 PM

Clearly, the administration will lose in federal court, and lose big.

At this point, the SCOTUS appears to be engaging in random acts of jurisprudence, so I wouldn’t bet anything either way.

talkingpoints on July 8, 2012 at 2:29 PM

The US Conference of Catholic Bishops took a lot of flak for conducting its Fortnight for Freedom in the middle of an election campaign, but as they pointed out, they didn’t choose the timing

Of course they didn’t . Obama knows the majority of “Catholics” will be back to vote for him again as that majority has lost its soul(oh and they have in fact ex-communicated themselves-not that they care or go to Church ).

CW on July 8, 2012 at 2:30 PM

The legal win last week for Barack Obama at the Supreme Court on ObamaCare came with some significant downside. Among them, the affirmation of constitutionality for the ACA means that the HHS mandate on contraception remains in place, a diktat to religious organizations to fund and provide access to sterilization, abortifacients, and other means of birth control that violate the tenets of their faiths.

Sloppy writing. Obamacare was not ‘found constitutional’, it was found ‘not-unconstitutional’ on the grounds challenged in this particular case. Perfectly analogous to innocent vs not-guilty in a criminal case.

Other challenges are working their way through the courts and if they prevail we hope Obamacare will be found un-constitutional on those grounds.

slickwillie2001 on July 8, 2012 at 2:30 PM

…ironic!

KOOLAID2 on July 8, 2012 at 2:31 PM

Governor Paul LePage of Maine is making news for allegedly referring to the IRS as the “new Gestapo” Saturday, after blasting the president’s overhaul of our health care system.

He reportedly said:

This tax will add to the $500 billion in tax increases that are already in Obamacare. Now that Congress can use the taxation power of the federal government to compel behavior or lack thereof, what’s next? More taxes if we don’t drive Toyota Priuses or if we eat too much junk food or maybe even pea soup?

This decision has made America less free. ‘We The People’ have been told there is no choice. You must buy health insurance or pay the new Gestapo – the I.R.S.

Schadenfreude on July 8, 2012 at 2:33 PM

Schadenfreude on July 8, 2012 at 2:33 PM

…eat your peas!

KOOLAID2 on July 8, 2012 at 2:42 PM

…eat your peas!

KOOLAID2 on July 8, 2012 at 2:42 PM

While they eat arugula…

Schadenfreude on July 8, 2012 at 2:47 PM

Sloppy writing. Obamacare was not ‘found constitutional’, it was found ‘not-unconstitutional’ on the grounds challenged in this particular case.

slickwillie2001 on July 8, 2012 at 2:30 PM

Spot on, then re-written adhoc by Supreme Ct Justice Legislator Roberts…

hillsoftx on July 8, 2012 at 2:47 PM

You’ll have to pardon the current administration. They are STONE DEAF when it comes to reading/understanding the messages of others.

Barry wants to ‘send a message to Congress’ – too bad he didn’t get the message voters sent him in 2010.

GarandFan on July 8, 2012 at 2:58 PM

What’s to stop Ginsburg, Kagan, Sotomayor, Roberts, et al from changing their mind next time? The travesty last week did away with any logical meaning and precedent to the words “penalty” and “tax.” These jackholes are just making it up as they go along. Why not complete the circle and dismiss their own precedent on First Amendment protections?

Gotta agree with Rush here. The government has defrauded us. I call shenanigans on the whole system.

Hawkins1701 on July 8, 2012 at 3:01 PM

Roberts will bail him out.

I have no trust or belief in the courts anymore. None.

Ca97 on July 8, 2012 at 3:01 PM

The IRS hired 13,000 new agents to enforce ObamaTax and ‘coindicentally’ bought 13,000 Mossbergs.

Schadenfreude on July 8, 2012 at 3:01 PM

Schadenfreude on July 8, 2012 at 2:33 PM

Loves me some Paul LePage up here in Portland, Maine. The Libs gnash their teeth at the mention of his name. They all have “61%” bumper stickers – the amount of people who dudn’t vote for him. ( there was more than one candidate). The really are little people.

Cleombrotus on July 8, 2012 at 3:02 PM

The feds just ruled against Indiana for witholding funds to PP because of abortion.Let’s see how the voters there act about it.

docflash on July 8, 2012 at 3:08 PM

Here’s my question. Given we have four Justices who want this whole law thrown out due to its lack of a severability clause, if this gets to the court again due to this HHS mandate against Religious liberty, oand IF Roberts votes the right way this time on these cases, could the whole law be thrown out on this alone?

jawkneemusic on July 8, 2012 at 3:09 PM

nice picture…(what are those egg shaped things in her cheeks?)…and why isn’t that BAT hanging upside down?

KOOLAID2 on July 8, 2012 at 3:15 PM

how about them 2000+ waivers, I see an increase in waivers coming in short order

cmsinaz on July 8, 2012 at 3:16 PM

The feds just ruled against Indiana for witholding funds to PP because of abortion. Let’s see how the voters there act about it.

docflash on July 8, 2012 at 3:08 PM

Tragic. Imagine the courts upholding government funding of the democratic party’s Ku Klux Klan in 1950.

Yet today the courts support funding of this generation’s democratic party KKK, -Planned Parenthood, which has been FAR more successful at killing blacks than the KKK could ever have dreamed of.

slickwillie2001 on July 8, 2012 at 3:16 PM

how about them 2000+ waivers, I see an increase in waivers coming in short order

cmsinaz on July 8, 2012 at 3:16 PM

Wave yourself.

Schadenfreude on July 8, 2012 at 3:23 PM

Schadenfreude on July 8, 2012 at 3:23 PM

good one

cmsinaz on July 8, 2012 at 3:30 PM

G. Obama P. Care.

That’s what we’ll have.

HondaV65 on July 8, 2012 at 3:41 PM

At this point, the SCOTUS appears to be engaging in random acts of jurisprudence, so I wouldn’t bet anything either way.

talkingpoints on July 8, 2012 at 2:29 PM

I was going to say that after last week, I wouldn’t be a bit surprised if SCOTUS tries to weasel their way around the conscience protections as well. I hope they don’t, but then again CJ Roberts did a great job of eroding my trust with one fell swoop. Thanks a lot, John! Maybe it doesn’t mean much to you, but I and many other average Americans don’t believe a word you say now.

I pray to God he drags this out as long as humanly possible. I want the knife that he put in the back of the RCC to go as deep as possible, for as long as possible — with the hope that the church will have a long memory.

Wishful thinking I’m sure.

preallocated on July 8, 2012 at 2:10 PM

The Roman Catholic Church will then have no choice but to close their hospitals and clinics, which has the perfectly predictable consequence of putting a lot of people out of work and will severely impact the poor especially, but also those people unfortunate enough to have the only hospital near to them close. Oh, but don’t they know — they’ll always have government!/

PatriotGal2257 on July 8, 2012 at 4:10 PM

how about them 2000+ waivers, I see an increase in waivers coming in short order

cmsinaz on July 8, 2012 at 3:16 PM

Can you waive a tax for selected groups?..you know, as Obama said, …”we’ll reward our friends and punish our enemies”?

Mimzey on July 8, 2012 at 4:22 PM

AAAAGGGG!!!!

Dangit Ed don’t throw that face at someone on a pleasant Sunday afternoon without a little warning!!

itsspideyman on July 8, 2012 at 4:23 PM

Why must we have to see a picture of Ginsberg to discuss this story?
Why oh why?

connertown on July 8, 2012 at 4:29 PM

You are assuming that the contraception mandate was enacted as a matter of serious policy by the Administration. I do not. This was purely and simply a political effort to win votes from younger women and to provide massive insurance reimbursements to Planned Parenthood for stuff they are now providing for free. Once the election is over, Obama won’t care if it gets thrown out next year.

rockmom on July 8, 2012 at 4:41 PM

Oh, and I cannot wait to hear Paul Clement quoting Mrs. Obama in his brief and his oral argument.

rockmom on July 8, 2012 at 4:42 PM

In this week’s address, Rep. Ann Marie Buerkle (R-NY) discusses

the U.S. House of Representatives’ upcoming vote to repeal the president’s health care law in its entirety.

canopfor on July 8, 2012 at 2:07 PM

Ann Marie Buerkle is a real Momma Grizzly who tells John Boehner to “F” off when he tells them to get their a$$es in line.

If you have any extra change, she is facing a tough battle for re-election.

bw222 on July 8, 2012 at 4:47 PM

Maybe I’m missing something but this constant complaint that says people must have access to health CARE – they do. It is against the law to fail to treat anyone.

This issue is who pays – a business entity aka insurance company that works to make a profit yet provide help for those who contribute or the government that will take any and all any of us will have left in a few years to turn around and provide less care to more people naive enough to believe that all of us can live in million dollar mansions without working?

Health CARE is available period.

Thanks for letting me post my vent!

MN J on July 8, 2012 at 6:59 PM

Scary thought of the day…..

Apparently now Justice Ginsburg is the soul of the new Liberal majority on the court, having swayed chief justice roberts.

God help us.

PappyD61 on July 8, 2012 at 7:32 PM

“a liberty interest protected by the Due Process Clause

In case you missed it, she’s referring to “fundamental rights,” those which are not specifically stated in the Constitution but are protected nonetheless. The most well-known is the right to privacy, most specifically the right to medical privacy, which was recognized in a series of cases the culminated with the infamous Roe v. Wade decision in 1973.

There is an Ohio case before the 6th Circuit that raises the right of privacy claim, but is more focused on the takings clause and freedom of association. Our case in Mississippi, Gov. Bryant v. Holder, is being litigated at this point solely on the right to privacy claim. Either case has the potential for turning this thing around.

So,if the mandate is found to infringe on the right to medical privacy (and it does in a big, big way), it’s adios Obamacare. So any singing you may have heard lately was NOT the fat lady.

kdlee on July 8, 2012 at 7:36 PM