Six days and counting: The HHS Mandate gets its time in court

posted at 3:21 pm on March 19, 2014 by Dustin Siggins

Next week, probably the most egregious regulatory measure under this administration gets its time in the Supreme Court: The HHS abortifacient/contraception/sterilization mandate.

As most people know, the mandate was initiated on January 20, 2012, and sparked an immediate backlash. Many people were bothered morally because of the anti-life components of the mandate, while organizations across the country were disturbed at how it failed to offer an appropriately broad religious exemption from the mandate.

Despite several “compromises,”most of which were largely accounting gimmicks, there have been dozens of lawsuits by non-profit and for-profit organizations. According to the Alliance Defense Freedom (ADF), which represents clients in several of those lawsuits, 54 of 61 rulings have gone against the mandate. One injunction was granted by Supreme Court Justice Sonia Sotomayor, an Obama nominee, though the significance of that decision is debatable.

Even former Representative Bart Stupak (D-MI) is hopping on board the anti-mandate bandwagon, declaring he was bamboozled by President Obama’s Executive Order allegedly preventing elective abortions under the Affordable Care Act.

Supporters of the mandate like to claim, of course, that the mandate itself gives women freedom, and thus opposing it denies freedom. This ignores how the discussion is not about women negotiating over coverage with employers, but is instead about a government requirement for private organizations and individual citizens to insure what they morally oppose. Others like to claim there is no abortion drug coverage in the mandate, but American Thinker Deputy Editor and Live Action Communications Director Drew Belsky and I nailed that to the wall in a recent fact-check, pointing out that at least one form of “contraception” covered by the mandate — intrauterine devices — unquestionably causes an abortion.

At CPAC, Ed and I chatted about the mandate in an interview I conducted for LifeSiteNews.com (see the full interview at the link or below). He said the threat is more substantial than many realize:

With regards to the mandate, Morrissey says the implications are enormous. “You have to understand that there isn’t a contraception crisis in the United States. The CDC [Centers for Disease Control] has a study that shows 99 percent of women who are sexually active and wanted to avoid pregnancy accessed contraception,” in part because of federal funding.

“It is not up to schools and employers to supply [contraception] for free for their employees. And forcing government into those positions is exactly how we’re going to see religious sensibilities, religious expression, curtailed.”

“It’s about more than just the contraception,” according to Morrissey. “It’s about more than just the religious freedom, even though that’s a really big deal. It’s about the fact that government is forcing us to participate in economic transactions against our will. And that is, I think, a huge problem, in terms of personal liberty – whether it’s personal liberty in terms of speech, in terms of religious expression, freedom of assembly.”

“The HHS mandate is really just one big symptom of what the overall problem is.”

To most Hot Air readers, I’m sure this seems like an open-and-shut case of government overreach, and the Court should join the majority of lower courts in backing religious expression, religious freedom, and economic liberty. However, it was only two years ago the Court backed the individual mandate as a “tax,” which I noted at the time significantly curtailed individual freedom:

First, if the individual mandate is a tax, Americans can now be forced to buy anything….

To me, the Court’s decision essentially supports a complete violation of the free will contract history of America. If someone puts a gun to my head and forces me to sign over all of my assets to him or her, that contract used to be null and void. With the allowance of the federal government to put what I’ll call a “tax gun” to my head and force me to buy insurance from a private entity, free will contracts have essentially been declared null and void, at least for the federal government.

A former co-worker who graduated from Harvard Law last year pointed out this morning that government has coerced private, non-free will actions in the past, such as by implementing minimum wage laws. However, we both agreed that a free will contract of employment has to be entered into before the minimum wage aspect of employment is implemented.

We won’t find out for some time whether the Court stands with the statists or the American people and the Constitution. As long as Roberts doesn’t try to repeat the judicial activism he imposed during the individual mandate decision, though, I suspect the Court will go the right way.

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I refuse to allow myself any expectation from the SCOTUS. Not this time.

jake-the-goose on March 19, 2014 at 3:25 PM

Popcorn! Musr order MOAR popcorn!

PolAgnostic on March 19, 2014 at 3:26 PM

Alright Schad,

tell us again where Chief Justice Roberts has his head?

(I look forward to your dislike of Roberts!)

portlandon on March 19, 2014 at 3:29 PM

jake-the-goose on March 19, 2014 at 3:25 PM

I will.

cozmo on March 19, 2014 at 3:30 PM

God Help Us.

GOP and Obamacare opponents have not exploited Obama’s war against the Little Sisters of the Poor and the Catholic Church, more broadly.

matthew8787 on March 19, 2014 at 3:30 PM

What were the circumstances surrounding Roberts adopting an Irish child from a South American country?

Or, is that even true?

If it is, and laws were bent to complete the adoption, Roberts set himself up some major blackmail.

Ruckus_Tom on March 19, 2014 at 3:32 PM

As long as Roberts doesn’t try to repeat the judicial activism he imposed during the individual mandate decision, though, I suspect the Court will go the right way.

How many times do you need to be kicked before you realize your master doesn’t care for the rule of law?

BierManVA on March 19, 2014 at 3:32 PM

(I look forward to your dislike of Roberts!)

portlandon on March 19, 2014 at 3:29 PM

He can decide that it will rain gold and I’d still hate his innards, for pushing the mandate, illegally, onto the once free land. There is no mandate anywhere in the world.

He can go to Hades, pronto.

Schadenfreude on March 19, 2014 at 3:33 PM

And, portlandon, my good friend, “dislike” is far from what I harbor toward that toad.

Schadenfreude on March 19, 2014 at 3:34 PM

The HHS abortifacient/contraception/sterilization mandate

So if the Supreme Court forces HHS to remove this mandate from my health insurance coverage, will the cost of my monthly premiums go down?

wren on March 19, 2014 at 3:34 PM

I am thinking Roberts is packing up his duffle bag in prep for an ER visit due to a boner lasting longer than 4 hrs….

hillsoftx on March 19, 2014 at 3:34 PM

He can go to Hades, pronto.

Schadenfreude on March 19, 2014 at 3:33 PM

You’re too nice.

His ruling on ObamaCare was idiocy at the highest level.

Hades is too good for him.

portlandon on March 19, 2014 at 3:35 PM

Even former Representative Bart Stupak (D-MI) is hopping on board the anti-mandate bandwagon, declaring he was bamboozled by President Obama’s Executive Order allegedly preventing elective abortions under the Affordable Care Act.

Declaring yourself a gullible fool doesn’t sound like a great way to be re-elected.

There Goes the Neighborhood on March 19, 2014 at 3:35 PM

Bart Stupak is a lying sack of you-know-what.

MTF on March 19, 2014 at 3:35 PM

John Roberts’ administrative assistant: *beeeep*(intercomm) Chief Justice Roberts, the President, your wife and the NSA are all holding for you on line 1.

Meople on March 19, 2014 at 3:36 PM

Pray that the Supreme’s see the light.

D-fusit on March 19, 2014 at 3:37 PM

Shame on the SCOTUS for allowing this to go this far. I am not optimistic that they won’t blow it again.

22044 on March 19, 2014 at 3:38 PM

Bart Stupak is a lying sack of you-know-what.

MTF on March 19, 2014 at 3:35 PM

Smells like downwind from the feed lot so that kinda narrows it down

Roy Rogers on March 19, 2014 at 3:39 PM

Huzzah, huzzah. Here is one that I can side with the majority of H/A’s on.

MJBrutus on March 19, 2014 at 3:39 PM

Heh, it ain’t often I enjoy righty’s gnashing and yapping. This is one of those times.

cozmo on March 19, 2014 at 3:41 PM

Did Obozo send a condom care package to all the justices?

NotCoach on March 19, 2014 at 3:42 PM

Huzzah, huzzah. Here is one that I can side with the majority of H/A’s on.

MJBrutus on March 19, 2014 at 3:39 PM

You know what they say about stopped watches and blind squirrels.

NotCoach on March 19, 2014 at 3:43 PM

NotCoach on March 19, 2014 at 3:43 PM

They both say you’re nuts?

MJBrutus on March 19, 2014 at 4:00 PM

roberts will, I fully expect, find a way to rewrite hhs arguments to support it.
hope he proves me wrong.

dmacleo on March 19, 2014 at 4:01 PM

They both say you’re nuts?

MJBrutus on March 19, 2014 at 4:00 PM

It must now be half past the moment you were right.

NotCoach on March 19, 2014 at 4:03 PM

Hades is too good for him.

portlandon on March 19, 2014 at 3:35 PM

Indeed

obama “it’s not a tax” throughout. Roberts made it a tax.

Then the frucks left out the severability clause, for whatever reasons.

Roberts passed it, unconstitutional origins, and all.

I hope he never gets over it.

Schadenfreude on March 19, 2014 at 4:04 PM

Not really off topic, since leftists’ dreams are so Utopian.

Schadenfreude on March 19, 2014 at 4:06 PM

Just wondering..If this ruling goes to the side of upholding the government’s position, what impact, if any, will that decision have on the broader scope of conscience protections?

lineholder on March 19, 2014 at 4:06 PM

Everyday it is a little more over. You are surrounded. Who gives the order for fixed bayonets? A great being lost.

Bmore on March 19, 2014 at 4:07 PM

How odd the iPad elected to replace land with being. Haven’t had that one before.

Bmore on March 19, 2014 at 4:09 PM

But these Obamacare posts are about whistling past the graveyard, by next Novemeber Democrats will be openly running on the ACA. Mark my words.

libfreeordie on December 20, 2013 at 10:14 AM

Schadenfreude on March 19, 2014 at 4:10 PM

The Drudge headline sums it up.

Bmore on March 19, 2014 at 4:10 PM

How odd the iPad elected to replace land with being. Haven’t had that one before.

Bmore on March 19, 2014 at 4:09 PM

I know it’s only middle of the week…but you’re sipping :)

Schadenfreude on March 19, 2014 at 4:11 PM

NotCoach on March 19, 2014 at 4:03 PM

But my squirrel is eyeing you. He’s never wrong.

MJBrutus on March 19, 2014 at 4:11 PM

They still have the same pictures of Roberts they had last time…

Akzed on March 19, 2014 at 4:11 PM

Let us make the unlikely assumption that the ruling takes some account of the law and the Constitution [which under Roberts is doubtful]. Let us further say that it strikes down the abortion/contraception mandate. Given that Obama has a documented history of ignoring and/or rewriting laws according to what he wants at the moment; what basis is there to believe that the Executive Branch will obey such a court ruling? Or that anyone in the Legislative and Judicial Branches will do anything about it?

When the government ignores the law, citizens having faith in the law is folly.

Subotai Bahadur on March 19, 2014 at 4:11 PM

The Drudge headline sums it up.

Bmore on March 19, 2014 at 4:10 PM

Hablan a español, mi amigo.

Schadenfreude on March 19, 2014 at 4:13 PM

Schadenfreude on March 19, 2014 at 4:11 PM

Lolz! Nope. Not one drop other than coffee, water and milk. ; ) I see what happened now. The word land somehow just didn’t stay put. ; )

Bmore on March 19, 2014 at 4:14 PM

Just wondering..If this ruling goes to the side of upholding the government’s position, what impact, if any, will that decision have on the broader scope of conscience protections?

lineholder on March 19, 2014 at 4:06 PM

Look up Article 58 of the RSFSR Penal Code to find out.

Subotai Bahadur on March 19, 2014 at 4:15 PM

Schadenfreude on March 19, 2014 at 4:13 PM

I had hoped to live long and never see this fine land ruined in such a manner. Destroyed by its own government and its own half worthless citizens. For shame. Alas…….

Bmore on March 19, 2014 at 4:15 PM

However, we both agreed that a free will contract of employment has to be entered into before the minimum wage aspect of employment is implemented.

If you consider the coercion of minimum wage laws is on the employer, not the employee, we can see the lawyer’s analogy is valid. However, it doesn’t matter how many coercive actions have been sanctioned by past/present judges, congresses or presidents in the form of “laws”- none of them justify the HHS mandate.

beselfish on March 19, 2014 at 4:16 PM

Keep this in mind

Schadenfreude on March 19, 2014 at 4:16 PM

I had hoped to live long and never see this fine land ruined in such a manner. Destroyed by its own government and its own half worthless citizens. For shame. Alas…….

Bmore on March 19, 2014 at 4:15 PM

Only one consolation, that we go under, together, more or less.

Schadenfreude on March 19, 2014 at 4:18 PM

If you consider the coercion of minimum wage laws is on the employer, not the employee,…

beselfish on March 19, 2014 at 4:16 PM

oops, have to clarify here. If you consider the coercion inherent in the minimum wage law is on the employer regardless of when he actually hires someone, then the lawyer’s analogy is valid. The affect to an employer’s bottom line due to minimum wage law is there once the law is passed. When he actually pays someone that salary is of little affect.

beselfish on March 19, 2014 at 4:21 PM

Roberts will do the wrong thing again. He may be the one person on Earth with power that actually fears 0bama.

FireBlogger on March 19, 2014 at 4:34 PM

Aaaand who here still believes we can trust the Court?

Yeah, me neither.

Laura Castellano on March 19, 2014 at 4:38 PM

…wonder if Roberts will be ill…during the hearings?

KOOLAID2 on March 19, 2014 at 4:38 PM

Ha! You’re relying on anything that Roberts may say or do? Like he’s concerned with the law rather than precedent. He’s a traitor to the nation and should be booted off the bench and jack-roped straight to gray bar college.

HiJack on March 19, 2014 at 4:39 PM

Bmore on March 19, 2014 at 4:10 PM

Estamos screwed.

SweetSensationalist on March 19, 2014 at 4:40 PM

It’s not obama who’s to blame; it’s the stupid maj. of the nation of idiots. They brung him…twice.

Schadenfreude on March 19, 2014 at 4:44 PM

I refuse to allow myself any expectation from the SCOTUS. Not this time.

jake-the-goose on March 19, 2014 at 3:25 PM

I know what my expectation is, and it’s not optimistic.

Midas on March 19, 2014 at 4:45 PM

Roberts will do the wrong thing again. He may be the one person on Earth with power that actually fears 0bama.

FireBlogger on March 19, 2014 at 4:34 PM

Roberts is the equivalent of the liberal educated professor elite types, that just so happens to be on the right side of some issues. Yet clearly caves in order be the maverick of the court to find favor among his elite friends.

You can’t rule against all progressive legislation and expect to still get called to D.C. parties all the time.

LaughterJones on March 19, 2014 at 4:49 PM

I refuse to allow myself any expectation from the SCOTUS. Not this time.

jake-the-goose

You and I, along with several other commenters, appear to be wary of this court and what mischief Roberts will get up to. It has been clear to me for some time that he values his wife’s invitations to swanky DC soirees more than he values the Constitution. I’m very afraid that Religious Freedom in our country is about to be dealt a death blow from which it will never recover.

E9RET on March 19, 2014 at 4:49 PM

On the heels of the Democrat-controlled legislature in West Virginia sending a bill restricting abortion to the Governor, a Democrat…

Dispatch From The White, Male Republican ‘War on Women’

BATON ROUGE, Louisiana — A proposal to add new regulations for abortion providers in Louisiana has received the unanimous support of the House health care committee.

The bill by Rep. Katrina Jackson, a Democrat from Monroe, would require doctors who perform abortions to have admitting privileges at a nearby hospital. It’s similar to a controversial restriction recently passed in Texas.

Jackson says the proposal would enact “common-sense safety standards” to protect women’s health.

Abortion rights supporters say if lawmakers pass the new requirement, it would force the closure of three of Louisiana’s five abortion clinics — and leave none open south of Shreveport.

The House Health and Welfare Committee advanced the proposal Wednesday without objection. It heads next to the House floor for debate.

Er, wait…

Is the ‘White, Male Republican War on Women’ becoming an ‘African-American Female Democrat War on Women’?

Representative Katrina R. Jackson

Resist We Much on March 19, 2014 at 4:51 PM

As most people know, the mandate was initiated on January 20, 2012, and sparked an immediate backlash.

No, the mandate pre-dates the Obama Administration and is the result of an EEOC ruling.

It is certainly not a slam dunk for First Amendment rights. If it were the Supreme Court would not be hearing it.

It’s not about choice either. It’s about equality and medical treatment with regards to a medical condition, pregnancy.

lexhamfox on March 19, 2014 at 4:55 PM

For shame. Alas…….

Bmore on March 19, 2014 at 4:15 PM

Imagine if a white one would have said this.

Schadenfreude on March 19, 2014 at 4:57 PM

It’s about equality and medical treatment with regards to a medical condition, pregnancy.

lexhamfox on March 19, 2014 at 4:55 PM

That’s insane. Pregnancy is no more a medical condition than puberty is a medical condition.

Its a normal, healthy stage in a woman’s life cycle, not an illness to be cured. What a repugnant attitude.

Pless1foEngrish on March 19, 2014 at 5:09 PM

Even former Representative Bart Stupak (D-MI) is hopping on board the anti-mandate bandwagon, declaring he was bamboozled by President Obama’s Executive Order allegedly preventing elective abortions under the Affordable Care Act.

Stupak signed on to killing babies through federal funding with full awareness. He was not bamboozled he was double crossed. A Judas without even his silver.

Happy Nomad on March 19, 2014 at 5:10 PM

You and I, along with several other commenters, appear to be wary of this court and what mischief Roberts will get up to. It has been clear to me for some time that he values his wife’s invitations to swanky DC soirees more than he values the Constitution. I’m very afraid that Religious Freedom in our country is about to be dealt a death blow from which it will never recover.

E9RET on March 19, 2014 at 4:49 PM

The whole judiciary became a farce when they allowed the same lawyer to go in on a Tuesday and argue that Obamacare was a tax only to have the same lawyer go in the next day and make the counter argument.

Happy Nomad on March 19, 2014 at 5:13 PM

“It’s about more than just the contraception,” according to Morrissey. “It’s about more than just the religious freedom, even though that’s a really big deal. It’s about the fact that government is forcing us to participate in economic transactions against our will. And that is, I think, a huge problem, in terms of personal liberty – whether it’s personal liberty in terms of speech, in terms of religious expression, freedom of assembly.”

The court that believes the government can order you to buy insurance will potentially find that the government cannot order you to buy condoms?

However, we both agreed that a free will contract of employment has to be entered into before the minimum wage aspect of employment is implemented.

That’s got to be revisited. The idea is that someone decides to work, so they are bound by the laws of working — it’s like saying that when someone decides to eat food, they are bound by the laws of food eating. And then the package of food eating laws can be absolutely anything, because participation is voluntary.

Economic activity is not publicly accommodated. It’s private. We can get back to this after WW3.

Axe on March 19, 2014 at 5:16 PM

Representative Katrina R. Jackson

Resist We Much on March 19, 2014 at 4:51 PM

From Monroe, the home of Duck Commander – Phil Robertson. A very conservative region no matter the party.

jffree1 on March 19, 2014 at 5:16 PM

Er, wait…

Is the ‘White, Male Republican War on Women’ becoming an ‘African-American Female Democrat War on Women’?

Representative Katrina R. Jackson

Resist We Much on March 19, 2014 at 4:51 PM

This general area is sort of different. :)

Axe on March 19, 2014 at 5:18 PM

Common sense says that the Court should rule against the mandate but of course that means that its practically guaranteed that they will uphold it. This court decided long ago to always defer to the government. They have set the bar for proving harm so high that no case could possibly meet especially in cases of personal conscience. Any plantiff has an uphill battle to climb from the start.

They will rule based on the governments right to make the rules. This court does not concern itself with any deeper questions like should they be able to make rules like this. Anymore the court simply functions as a rubber stamp for whatever the government wants. They take cases in order to make the whims of the government permanent.

Texene on March 19, 2014 at 6:10 PM

Obama got reelected, which makes the law Constitutional. I have it on Good Authority! Good AUTHORITY! I say.

astonerii on March 19, 2014 at 6:18 PM

We won’t find out for some time whether the Court stands with the statists or the American people and the Constitution. As long as Roberts doesn’t try to repeat the judicial activism he imposed during the individual mandate decision, though, I suspect the Court will go the right way.

After the Obamacare “tax” debacle, I wouldn’t hold my breath on any freedoms anymore. Justice John Roberts will have to explain his vote to his Maker and I do not envy him for that.

Theophile on March 19, 2014 at 6:21 PM

Roberts doesnt consider what he did to be activism which is the problem. His thinking seems to be that it is the conservative thing to do to defer to the government and not “legislate” from the bench. This is more important to him than protecting the people from the government. He even said that if we dont like the rules that the government makes then we can change things through elections. This is his guiding philosophy (taken to idiotic lengths of course) Of course this completely neglects the fact that once a law becomes permanent it is incredibly hard to change it at the ballot box especially when you are trying to get people excited about religious conscience. This completely neglects another of the functions of the court which is precisely to protect the people from an over-reaching government. Its like he only sees the danger of the court over-ruling the government and doesnt even consider it his responsibility to step in on behalf of the people.

Texene on March 19, 2014 at 6:36 PM

The decision will be to allow an exemption. Sure, it violates rule of law by having the courts re-write legislation, but that is the best way to create legal ghetto for believers.

StubbleSpark on March 19, 2014 at 6:52 PM

The Roberts decision along with the one on eminent domain takings for private party use are an affront to the Constitution, the founders and every citizen. The SCOTUS is just another leg of the stool supporting the occupation of the citizenry by the Federal government. America is getting close to not being worth defending.

bluesdoc70 on March 19, 2014 at 7:34 PM

Next week, probably the most egregious regulatory measure under this administration gets its time in the Supreme Court: The HHS abortifacient/contraception/sterilization mandate.

[...]

Others like to claim there is no abortion drug coverage in the mandate, but American Thinker Deputy Editor and Live Action Communications Director Drew Belsky and I nailed that to the wall in a recent fact-check, pointing out that at least one form of “contraception” covered by the mandate — intrauterine devices — unquestionably causes an abortion.

The pro-lifers want to pretend that they simply oppose abortion, but the life begins at conception idea would also mean outlawing popular forms of birth control like the pill and the IUD, as Mr. Siggins makes clear here.

thuja on March 19, 2014 at 8:00 PM

As long as Roberts doesn’t try to repeat the judicial activism he imposed during the individual mandate decision, though, I suspect the Court will go the right way.

You must be operating under the assumption that the Obama Administration deleted whatever computer records/recordings that the NSA handed over to them to threaten Roberts with.

I wouldn’t hold my breath.

rvastar on March 19, 2014 at 8:05 PM

Hobby Lobby and the other company are for-profit companies not affiliated with a church. They can’t discriminate on the basis of religion regarding their employees. So they can’t promote employees that go to the church of the owners’ choice, they can’t require employees to attend a certain church (or any one at all), etc.

So how can Hobby Lobby (as opposed to their owners) be practicing religion?

I think the Supreme Court should rule against Hobby Lobby.

jim56 on March 19, 2014 at 9:26 PM

With a “tsunami” on the way, any bets that RBG retires from the court while the Dems still have a majority in the Senate?

Dexter_Alarius on March 20, 2014 at 10:28 AM