Catholic groups win battle against HHS mandate in federal court

posted at 1:21 pm on December 17, 2013 by Ed Morrissey

This decision is worth noting despite the fact that it doesn’t (yet) have precedential power, and that the appellate courts have split in various ways on the question at the center of it.  In New York, US District Court Judge Brian Cogan ruled that the HHS mandate forces the Catholic Church and its associated organizations to curtail its religious expression, and enjoined HHS from enforcing it:

In a blow to President Obama’s signature legislative mandate, a Brooklyn federal judge on Monday sided with several Catholic organizations in New York, saying they do not have to comply with an Affordable Care Act requirement to provide employees with contraceptive coverage.

Let’s pause here to make an important decision.  This is not a “legislative mandate.” ObamaCare (or if you prefer, the Patient Protection and Affordable Care Act) was a legislative victory for Barack Obama, but the HHS contraception mandate has never passed Congress — and was not proposed as law.  This is a regulatory mandate, promulgated by HHS thanks to a grossly expansive grant of power in ObamaCare by a lazy Congress intent on making fundamental changes to the relationship between citizens and their government — without doing the hard work of defining those changes itself.

In this case, Cogan ruled, the fundamental changes run up against the even more fundamental right to live one’s faith in the public square:

Cogan ruled the plaintiffs “demonstrated that the mandate, despite accommodation, compels them to perform acts that are contrary to their religion. And there can be no doubt that the coercive pressure here is substantial.”

“They consider this to be an endorsement of such coverage; to them, the self-certification compels affirmation of a repugnant belief,” Cogan wrote. “It is not for this Court to say otherwise.”

It shouldn’t be for Congress or HHS to say otherwise, either. The Archdiocese of New York proclaimed this a victory for all who seek and support religious liberty:

The Archdiocese of New York applauded a judge’s decision Monday that so-called non-exempt religious groups are not bound by the Affordable Care Act’s requirement to provide, in their health care insurance plans, coverage for contraceptives and other birth control options.

In a statement, Archdiocese spokesman Joseph Zwilling called Brooklyn Federal Court Judge Brian Cogan’s ruling a “thoughtful decision” and that non-exempt Catholic health and educational organizations “have religious freedom rights.”

They’re right, but it’s only an incremental victory.  The cases to watch will be Hobby Lobby and other for-profit companies whose owners want to live their faith fully in the public square as well, as those cases go to the Supreme Court. If Hobby Lobby and the other plaintiffs win, then the mandate is dead entirely. If not, then the court will have to decide how exemptions would apply, but if they exist at all, they should cover the plaintiffs in this case.  I suspect that the Supreme Court will look with a large dose of skepticism at the claim from HHS that this serves a substantial government interest at all, and that there were no other ways to serve that interest than to force people to support birth-control practices and procedures that offend their religious beliefs. At least, that should be their approach, and the Hobby Lobby-type cases will be the acid test for jurisprudence on this point.

Update: Gabriel Malor writes an excellent argument for why this is a bigger deal than it might otherwise appear. The last two points are especially damning, and portend big trouble down the line for the White House:

5. The Obama administration’s belated argument that the religious organizations may not actually end up providing any contraception coverage fatally undermined the administration’s case. This comes under the category of bad litigation strategies. As I mentioned up in the second item on this list, the administration realized near the end of the litigation that the third parties designated by the Archdiocese to provide coverage may not actually be required to provide contraception. The district court rightly noticed that if that argument is true, the mandate obviously serves no purpose.

Here, the Government implicitly acknowledges that applying the Mandate to plaintiffs may in fact do nothing at all to expand contraceptive coverage, because plaintiffs’ [designated third party providers] aren’t actually required to do anything after receiving the self-certification. In other words, the Mandate forces plaintiffs to fill out a form which, though it violates their religious beliefs, may ultimately serve no purpose whatsoever.

I have italicized the last portion of that quote for emphasis simply because, when you put it like that, the administration’s argument is so obviously bad and hostile to religion.

6. The Obama administration thinks it has a general exception from complying with the Constitution. The administration, as it has frequently done with respect to disobeying laws it does not like, argued that it had to enforce the contraception mandate in such an infringing manner because it could not do it any other way. The district court pointed out the obvious flaw in this line of thinking:

The Government first argues that the alternatives above are infeasible because the defendants lack statutory authority to enact some of them. This argument makes no sense; in any challenge to the constitutionality of a federal law, the question is whether the federal government could adopt a less restrictive means, not any particular branch within it. It would set a dangerous precedent to hold that if the Executive Branch cannot act unilaterally, then there is no alternative solution. If defendants lack the required statutory authority, Congress may pass appropriate legislation.

Of course, we all know that President Obama cannot go back to Congress to fix this since Congress would most likely provide a wider exemption to the contraception mandate than Obama’s HHS has provided via regulation, assuming Congress doesn’t just start trimming out major portions of the law, altogether. This is a problem of the administration’s own making, and there it will stay — until the courts finish knocking it down, that is.

It’s that last point that the Supreme Court will have to address in the Hobby Lobby case — and I doubt they’ll find the government argument there any more compelling.

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I wonder if the administration’s blackmail on Roberts is still timely enough for a reversal?

DarthBrooks on December 17, 2013 at 1:29 PM

Unpopularity and Federal over-reach play out in unexpected ways in the Court. In particular, Justice Roberts and his fellow fascists look like poor custodians of the public trust and liberty.

pat on December 17, 2013 at 1:29 PM

Common-sense leadership.

Uh huh yeah sure

BobMbx on December 17, 2013 at 1:33 PM

But….but….but the “Constitutional Scholar” said it was all good to go!

Did The Chosen One make a mistake? Was The Obamassiah in error?

Time to start packing the courts!

GarandFan on December 17, 2013 at 1:37 PM

That will teach those hussies.

Pablo Honey on December 17, 2013 at 1:37 PM

Bit by bit the ACA is going to continue to crumble.

major dad on December 17, 2013 at 1:38 PM

Who are you more afraid of, Justice Roberts, your president or your creator?

xrayiiis on December 17, 2013 at 1:42 PM

In this case, Cogan ruled, the fundamental changes run up against the even more fundamental right to live one’s faith in the public square:

This is what I think drives the left the most crazy. The idea that one can live their faith in the public square and not merely pent up in a church far away from non-believers who may take offense. The idea that the state can’t arbitrarily dictate that one’s faith does not trump the right of sluts getting free birth control. The idea that the state doesn’t get to pick and choose among civil rights.

Happy Nomad on December 17, 2013 at 1:47 PM

That Malor piece is pretty good as is the judge’s efforts. One of the points he knocked down was the compelling reason to force these folks to comply was undercut by the tens of millions of waivers granted already and for all of the various reasons (favors).

DanMan on December 17, 2013 at 1:51 PM

If you want to know who the “easy lays” are, just go to facebook and see which women are complaining about this.

DethMetalCookieMonst on December 17, 2013 at 1:51 PM

But….but….but the “Constitutional Scholar” said it was all good to go!

Did The Chosen One make a mistake? Was The Obamassiah in error?

Time to start packing the courts!

GarandFan on December 17, 2013 at 1:37 PM

It’s time we de-bunk the myth that the lazy shiftless coward was a Constititional scholar or even lecturer. The only known picture of the bastard “teaching” has him explaining Saul Alinski to a class of law students.

If you’ll recall the HHS mandate came with the comment that Catholics, in particular, were secretly thrilled with the mandate. That they welcomed the state forcing Catholic institutions to provide birth control to slutty law students because Rome was so archaic on the subject. I kid you know. Sebelius, a “good Catholic girl” actually a lot of Catholics had thanked her for forcing this issue.

Happy Nomad on December 17, 2013 at 1:52 PM

This is not a “legislative mandate.” ObamaCare (or if you prefer, the Patient Protection and Affordable Care Act)

ALWAYS refer to it as both. That way people will know that they are one and the same.

DethMetalCookieMonst on December 17, 2013 at 1:52 PM

This is all very interesting commentary, but the main point for men is

(a) this litigation cost money for the Church, so pass the plate again. All those Sunday collections going to lawyers…terrible. The incrementalism is on the part of a State hostile to religion, and willing to destroy it by degrees and “a thousand cuts.”

b) the First Amendment does not really exist any more. By this “slip of the mask,” America’s leaders have indicated how disposable it is when it comes to suppressing Christians. It’s dead letter, a farce.

Herald of Woe on December 17, 2013 at 1:53 PM

Who are you more afraid of, Justice Roberts, your president or your creator?

xrayiiis on December 17, 2013 at 1:42 PM

If you had added “your wife” it would have been an easy choice for me.

HiJack on December 17, 2013 at 1:55 PM

At yet again the massive gaggle of “C” average journalist majors are either not reporting it, or playing down its importance. How does it feel to be controlled and manipulated by an inept, incompetent media?

rplat on December 17, 2013 at 1:56 PM

This is a battle conservatives should hope Catholics lose. If Catholic groups get their exemption, their political opposition to O-care disappears and they will join in support of it for all of its social justice elements. My prediction: They get exempted, like the unions and every other liberal constituency that Obama doesn’t want to piss off, and by extension, they are now brought on board.

keep the change on December 17, 2013 at 2:05 PM

This is a battle conservatives should hope Catholics lose. If Catholic groups get their exemption, their political opposition to O-care disappears and they will join in support of it for all of its social justice elements. My prediction: They get exempted, like the unions and every other liberal constituency that Obama doesn’t want to piss off, and by extension, they are now brought on board.

keep the change on December 17, 2013 at 2:05 PM

Oh, bullshiite. The next battle should be over why muslims are exempt from the law. THAT will be it’s undoing.

WryTrvllr on December 17, 2013 at 2:23 PM

Oh, bullshiite. The next battle should be over why muslims are exempt from the law. THAT will be it’s undoing.

WryTrvllr on December 17, 2013 at 2:23 PM

It should be, but it won’t; because Christians don’t tend to don explosive underwear when they don’t get their way.

CurtZHP on December 17, 2013 at 2:27 PM

a grossly expansive grant of power in ObamaCare by a lazy Congress intent on making fundamental changes to the relationship between citizens and their government — without doing the hard work of defining those changes itself.

It should be noted that this was put into law by Democrats when they controlled Congress, without a single Republican vote, and using parliamentary chicanery to avoid the traditional rights of the minority to block legislation in the Senate.

So the proper form would be “… lazy Democratic Congress intent …”

I only note this because so many here seem to have difficulty distinguishing between the parties.

Adjoran on December 17, 2013 at 2:29 PM

I wonder if the administration’s blackmail on Roberts [...]

DarthBrooks on December 17, 2013 at 1:29 PM

I wish people would stop trying to forward this idiotic excuse for Benedict Roberts. he’s a weaselly, dirtbag traitor with the intellectual capacity of a dead snail. There is no “blackmail” of the moron traitor. He was happy to make a mockery of the very concept of a “Rule of Law” and doubly happy to help put the final nail in the coffin of the American Constitutional Republic.

Enough of this blackmail stupidity, already. He’s Benedict Roberts and he’s proud of his anti-American, anti-Western, anti-logical decision in order to help bolster the tyranny of the Indonesian Imbecile.

ThePrimordialOrderedPair on December 17, 2013 at 2:30 PM

I wish people would stop trying to forward this idiotic excuse for Benedict Roberts. he’s a weaselly, dirtbag traitor with the intellectual capacity of a dead snail. There is no “blackmail” of the moron traitor. He was happy to make a mockery of the very concept of a “Rule of Law” and doubly happy to help put the final nail in the coffin of the American Constitutional Republic.

Enough of this blackmail stupidity, already. He’s Benedict Roberts and he’s proud of his anti-American, anti-Western, anti-logical decision in order to help bolster the tyranny of the Indonesian Imbecile.

ThePrimordialOrderedPair on December 17, 2013 at 2:30 PM

Sheer idiocy.

For over a year, every Republican in Congress, every conservative think tank, and every conservative columnist screamed that the individual mandate and employer mandate amounted to taxes. Obama and the Democrats swore on a stack of Q’urans that it wasn’t.

But then when it got to SCOTUS, Roberts and the majority ruled we were right all along.

For that, he is treated as above. Because he would not go against the law to deliver the result you wanted.

Adjoran on December 17, 2013 at 2:32 PM

If Catholic groups get their exemption, their political opposition to O-care disappears and they will join in support of it for all of its social justice elements.

Bingo.

Professional Catholics, blinded by their love of socialism, are in cahoots with this… they don’t care if we lay Catholics have to comply, they’re only looking to keep themselves ‘clean’ from this immoral plan.

Turn the heat up too quickly and the frog will jump the pot. Libs surely know that if all Catholics are hit at once we’ll revolt. Tweak the heat upwards a bit at a time… that’s the best chance for Catholic libs to impose Obama’s will on the people.

shinty on December 17, 2013 at 2:36 PM

May every government official that argued against this case fall into the largest and deepest lake nearby, glub, glubbing until they sink.

avagreen on December 17, 2013 at 2:41 PM

In a blow to President Obama’s signature legislative mandate

portend big trouble down the line for the White House:

I want to see more of these types of quotes in regard to anything Obama lays his hand to, especially Obamacare.

May this continue.

neyney on December 17, 2013 at 2:42 PM

But then when it got to SCOTUS, Roberts and the majority ruled we were right all along.

For that, he is treated as above. Because he would not go against the law to deliver the result you wanted.

Adjoran on December 17, 2013 at 2:32 PM

LOL. Who is this “we” you are referring to?

Every time the government takes money from people it is a sort of “tax” but that doesn’t mean that this legally qualifies as a tax, in order to be given carte blanche by some moron who should be sitting on a park bench, not a judicial one. Further, your idol, Benedict Roberts, already had ruled that it wasn’t a “tax” in order to hear the case. Lastly, there is no such thing in the American Constitutional Republic such as a tax for inaction or inactivity. But, you seem to think that’s great and all sorts of Constitutional. You make me laugh.

So, to you, the feral government can charge people whatever they want for anything … or nothing, without any consideration fo the limits placed on that feral government by the Constitution. (Of course, a feral government has broken free of the domesticating constraints of the Constitution, so this is a tautology, at this point).

Please refrain from using the term “we”. I don’t know who you think is on your team, but I certainly am not, nor is anyone with even half a brain and anything more than a passing familiarity with the Constitution and the concept of the Rule of Law.

Go back to bowing in front of your Benedict Roberts shrine and pledging allegiance to the American Socialist Superstate that he helped put the final touches on.

ThePrimordialOrderedPair on December 17, 2013 at 2:44 PM

But then when it got to SCOTUS, Roberts and the majority ruled we were right all along.

Adjoran on December 17, 2013 at 2:32 PM

BTW, Einstein, the majority didn’t decide that the mandate was a tax. Not even the brain-dead lefties would go there. They just thought that the feral government mandating pretty much anything it could think up was honky-dory. It was only Benedict Roberts who was really enamored of the whole “tax” insanity.

ThePrimordialOrderedPair on December 17, 2013 at 2:46 PM

The half-assed legal defense by this Administration in this case should tell you something.

This mandate with its narrow religious exemption was nothing but a political gesture designed to help Barack Obama get reelected. In fact, I will go so far as to say it was a deliberate attempt to bait Mitt Romney into bringing religion into the campaign. That didn’t work, but the “war on women” worked like a charm. Now that the election is over, the Justice Department is only giving lip service to this litigation. They know how it is going to end, and they don’t care. They already won what they wanted to win.

rockmom on December 17, 2013 at 2:50 PM

Adjoran

And the bend over specialist whips out his lube, lol. And btw lube king, the 4 democrat justices didn’t call Obamacare a tax, they upheld Obamacare on Commerce Claus grounds. Roberts is the only moron who changed the law and called it tax.

xblade on December 17, 2013 at 2:53 PM

Adjoran earlier post basically shows he supports Obamacare. Keep that in mind when you read his posts in the future.

xblade on December 17, 2013 at 2:59 PM