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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